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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Biggs v Somerset County Council [1995] UKEAT 995_94_2302 (23 February 1995)
URL: http://www.bailii.org/uk/cases/UKEAT/1995/995_94_2302.html
Cite as: [1995] ICR 811, [1995] IRLR 452, [1996] 2 All ER 734, [1995] UKEAT 995_94_2302
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At the Tribunal
Judgment delivered 6 July 1995
THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)
MISS J W COLLERSON
MR D G DAVIES
JUDGMENT
Revised
APPEARANCES
For the Appellant CAROLINE BATES
Barrister/Union Official
Graham Clayton
Hamilton House
Mabledon Place
LONDON WC1H 9BD
For the Respondents DAVID PANNICK QC
(of Counsel)
Andrew North
Deputy County Secretary and Solicitor
Somerset County Council
County Hall
Taunton TA1 4DY
MR JUSTICE MUMMERY (PRESIDENT) The Issue Ms M Biggs, who was dismissed by the Somerset County Council on 31st August 1976 from her position as a part-time Science Teacher at Whitstone School, Shepton Mallet, made a complaint of unfair dismissal to the Industrial Tribunal on 1st June 1994, almost 18 years after she was dismissed, but less than three months after the House of Lords delivered their landmark ruling in favour of part-time workers in R v. Secretary of State for Employment Ex Parte Equal Opportunities Commission (The EOC case) [1995] AC 1 (Court of Appeal - [1993] 1 WLR 872).
The question is: Is her application out of time? Yes, said Mr P S L Housego, sitting alone as Chairman of the Industrial Tribunal held at Exeter on 9th September 1994. In Full Reasons notified to the parties on 22nd September 1994 on a preliminary issue, he refused to extend the time and dismissed the application on the ground that the Tribunal did not have jurisdiction to hear it. He decided that time started to run on the date of dismissal and applied the domestic law time limit of 3 months. The crucial issue is: from what date did time start to run?
Other Cases
The result of this appeal against that decision affects the claims of many thousands of part-time workers who, since the EOC decision was promulgated on 3rd March 1994, wish to bring unfair dismissal claims for the first time in cases where the dismissal occurred before, often years before, 3rd March 1994.
The reasoning in this judgment may also be relevant to the cases of thousands of other part-time workers i.e.
(a) Those who did bring unfair dismissal proceedings in the Industrial Tribunal before the promulgation of the EOC decision, but failed because the Industrial Tribunal held that it had no jurisdiction to entertain the claim. Those unsuccessful applicants may now seek
(i) to appeal against the Industrial Tribunal decision out of time (the time limit for appealing is 6 weeks from the date on which extended reasons for the decision were sent to the appellant); (See Setiya v. East Yorkshire Health Authority where an extension of time was refused) (EAT 30th March 1995) and/or
(ii) to bring new proceedings in the Industrial Tribunal in respect of the same dismissal, but based on the direct effect of Article 119 of the Treaty of Rome or, in the case of public sector employment, on the Equal Treatment Directive 76/207. (See Methilhill Bowling Club v. Hunter [1995] IRLR 232 where it was held that a fresh complaint could be brought and was not precluded by res judicata)
(b) Those who wish to bring proceedings in the Industrial Tribunal against the Secretary of State for Employment and/or Her Majesty's Attorney General for damages for failure to implement fully into the domestic law of the United Kingdom the provisions of the Equal Treatment Directive. (see Secretary of State for Employment v. Mann - EAT/930/94).
Although those points do not arise directly for decision on this appeal, we have become aware since the hearing of this appeal of the potential impact of the reasoning of this decision on the solution of those questions which depend, in large part, on an analysis of the nature and effect of directly enforceable Community rights and of their impact on the rights, remedies and procedures available under domestic Law and on the jurisdiction of the competent court or tribunal to determine those matters. The effect of the EOC case, greeted by one commentator as a "stunning decision", is central to the arguments on each side. It may not be unfair to say that, like other landmark decisions, it left open as many questions for future decision as it answered in the immediate case. It is the starting point of argument in this appeal.
The EOC Case
The following aspects of the EOC decision should be noted:
(1) The EOC case was procedurally constituted as a judicial review application initiated by the Equal Opportunities Commission. It was not a claim for unfair dismissal or sex discrimination brought on a particular set of facts by an individual in an Industrial Tribunal.
(2) It was concerned with claims for redundancy payments (not claims for unfair dismissal) considered against a background of statutory requirements contained in the Employment Protection (Consolidation) Act 1978 for qualifying thresholds of weekly hours. Under that legislation full employment rights were enjoyed only by those who worked for a minimum of 16 hours per week for not less than 2 years or who worked between 8 and 16 hours per week for not less than 5 years. No employment rights were enjoyed by those who worked for less than 16 hours per week and who could not satisfy the requirement of 5 years continuous service, or by those who worked for less than 8 hours per week. Ms Biggs was dismissed so many years ago that the threshold hourly requirements applicable to her were those contained in earlier legislation (the Trade Union and Labour Relations Act 1974), as preserved in the 1978 Act.
(3) The House of Lords held that the qualifying threshold requirements in the 1978 Act had a disproportionate adverse effect on women, were indirectly discriminatory, were not objectively justified and were therefore incompatible with Community rights to equal pay for men and women contained in Article 119 of the Treaty, in the Equal Treatment Directive and the Equal Pay Directive. Various declarations to that effect were granted. No express indication was given by the House of Lords of any temporal limitation on the impact of the decision (cf. the decision of the European Court of Justice in Defrenne v. Sabena (No.2) [1976] ECR 455).
(4) More particularly, no question of time limits for bringing claims based on Community Law arose for decision. Judicial review was of the legislative provisions which had potentially continuing effect. It was not a decision on the facts of the case of any particular redundant or dismissed employee. Indeed, the House of Lords held that an individual claimant (Mrs Day), who had been joined, in the proceedings against the Secretary of State, had not been properly joined as she had a private law claim against her employers (The Hertfordshire Area Health Authority, an emanation of the State) under Article 119 and under the two EC Directives. At p.25E Lord Keith said -
"I conclude that the Divisional Court was not the appropriate forum to adjudicate upon what so far as Mrs Day is concerned is her private law claim."
The House of Lords therefore dismissed her appeal as the Industrial Tribunal was the appropriate forum for the determination of her claim to a redundancy payment and was competent to deal with the claims under Article 119 and the Directive, including the alleged incompatibility of domestic law and the question of objective justification.
The House of Lords did not decide (and was not asked to decide) what effect, if any, its decision had on time limits for the bringing of claims by part-time workers either for redundancy payment or unfair dismissal.
Subsequent developments
Since the promulgation of the EOC case on 3rd March 1994 there have been a number of developments relevant to the arguments on this appeal.
(1) Legislation
On 6th February 1995 the Employment Protection (Part-Time Employees) Regulations (1995 No.31) came into force. The Regulations remove the provisions of the 1978 Act and the Trade Union and Labour Relations (Consolidation) Act 1992 which exclude part-time employees from rights under those Acts, thus ensuring legislative compliance with Article 119, the Equal Pay Directive (75/117) and the Equal Treatment Directive (76/107). It is worth noting that those Regulations were made under S.2(2) of the European Communities Act 1972, not under the employment or sex discrimination legislation.
(2) Judicial
In Mediguard Services Ltd v. Thame [1994] ICR 751 the Employment Appeal Tribunal decided an appeal in proceedings for unfair dismissal brought against a private, non-State employer. The question arose whether compensation for unfair dismissal was "pay" within the meaning of Article 119. On the appeal it was common ground that the Applicant
"...can, however, rely directly on Article 119, assuming she can establish that compensation for unfair dismissal is "pay". If such compensation is pay, then the qualifying conditions [in the 1978 Act] would not prevent her claim since they are, ex hypothesi, unlawful." (p.754)
The Appeal Tribunal held that "pay" in Article 119 includes compensation for unfair dismissal, as it is not essentially different from redundancy pay considered in the EOC case. The Industrial Tribunal therefore had jurisdiction to entertain a claim for unfair dismissal which relied on the direct effect of Article 119 (though not on the Directives, as the employer was not an emanation of the State). (See also Warren v. Wylie [1994] IRLR 316; Clifford v. Devon C.C. [1994] IRLR 628.)
(3) Industrial Tribunal claims
The Industrial Tribunals have been inundated with part-time workers' claims of various kinds. Since hearing argument on this appeal this Tribunal has become aware of pending appeals from Industrial Tribunal decisions in which the following questions arise for decision.
(a) Time limits for bringing claims Originating applications, like that presented by Ms Biggs, have been presented to the Tribunal since the EOC case claiming unfair dismissal many years ago. The question is whether the three months time limit from the date of dismissal contained in S.67(2) of the 1978 Act (or in the earlier 1974 Act) applies and, if so, whether discretion should be exercised to extend the limit; and, if not, whether there is any other applicable time limit; and, if so, what is that limit. The question has also arisen whether there is any different time limit when the claim by the part-time worker is brought against an emanation of the State in reliance on a Directive rather than against an employer (whether public or private) in reliance on Article 119.
(b) Time limits for appealing In some cases part-time workers brought proceedings for unfair dismissal before the EOC case was decided, but the claims were rejected for want of jurisdiction because the part-time worker was unable to satisfy the qualifying requirements of weekly hours of work in the relevant legislation. There has been no appeal in those cases. The first question is whether the Appeal Tribunal should exercise its discretion to extend the time for appealing.
(c) Estoppel In cases of the kind described in (b) above another question may arise: Is the applicant precluded by rules against re-litigation (estoppel per rem judicatam and issue estoppel) from presenting a new originating application in respect of the same dismissal as was the subject of the earlier proceedings, contending that the new proceedings are based on a new cause of action namely, infringement of "free-standing" enforceable Community rights in reliance on Article 119 and the Directives.
(4) Pension Claims
It is estimated that over 50,000 applications have been presented to Industrial Tribunals by part-time workers making claims of unlawful exclusion from the right to join occupational pension schemes. The exclusion was held by the European Court of Justice to be contrary to Article 119, as it was indirectly discriminatory and as "pay" in Article 119 includes pension scheme benefits: Vroege v. NCIV Institute [1994] IRLR 651; Fisscher v. Voorhuis Hengelo BV [1994] IRLR 662. Those claims give rise to time limit problems, because temporal restrictions on their effect were not, unlike Barber, imported into the right to join an occupational pension scheme. Some claims have now been brought by part-time workers who left employment many years ago. The position on time limits was stated in Fisscher in paragraph 39 on p.666 in these terms:
"The Court has consistently held that, in the absence of Community rules on the matter, the national rules relating to time limits for bringing actions are also applicable to actions based on Community law, provided that they are no less favourable for such actions than for similar actions of a domestic nature and that they do not render the exercise of rights conferred by Community law impossible in practice."
(5) "Francovich" claims in the Industrial Tribunal (Francovich v. Italian Republic [1991] ECR 5357
A further and different question is whether the Industrial Tribunal has jurisdiction to entertain claims for damages for alleged failure of the United Kingdom Government qua Member State to implement the Directives fully into UK domestic law. Claims have been brought against the Secretary of State for Employment in Industrial Tribunals for costs, expenses, compensation and indemnity for the alleged failure of the State to implement Directives.
On prolonged consideration of the arguments on the relevant time limits it has become apparent to us that the analysis of the nature and effect of the Community rights invoked by Ms Biggs as a part-time worker and of the jurisdiction of the Industrial Tribunal to determine her rights may be relevant to the determination of those other cases.
Domestic Legislation on Time Limits
The current legislation concerning claims for unfair dismissal and the time limits for bringing those claims is contained in the provisions of the 1978 Act. It is provided by S.54(1) that
"In every employment to which this section applies every employee shall have the right not to be unfairly dismissed by his employer."
In the group of sections concerned with remedies for unfair dismissal it is provided in S.67 that
"(1) A complaint may be presented to an Industrial Tribunal against an employer by any person (in this Part referred to as the complainant) that he was unfairly dismissed by the employer.
(2) Subject to subsection (4) an Industrial Tribunal shall not consider a complaint under this section unless it is presented to the Tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."
It is common ground on this appeal that the provisions relevant to Ms Biggs' claim are those in the earlier legislation, the Trade Union and Labour Relations Act 1974 which contained the right not to be unfairly dismissed in paragraph 4 of Schedule 1. That right applied to employees who had been continuously employed for a period of 26 weeks (paragraph 10 of Schedule 1), but the right not to be unfairly dismissed was inapplicable to an employee who worked for less than 21 hours per week (paragraph 9(1) of Schedule 1). Ms Biggs position was that, at the time of her dismissal, she was employed to work for 14 hours per week and had only one year and five months of continuous service.
It is also common ground that the relevant time limit contained in paragraph 21(4) of Schedule 1 to the 1974 Act continues to apply to Ms Biggs' claim by virtue of paragraph 9 of Schedule 15 to the 1978 Act. The provision is in equivalent terms to S.67(2) and need not be repeated. Finally, it is agreed that any European Community claim brought by Ms Biggs can only be based on Article 119. She cannot rely on the Equal Treatment Directive, because the time for implementation did not expire until 9th August 1978 ie, after the date of her dismissal.
Time limits - general
There is nothing remarkable in the fact that the 1974 Trade Union and Labour Relations Act contained and the 1978 Act contains time limits for presenting a complaint of unfair dismissal. In most, if not all, legal systems lapse of time after the occasion for grievance may result in the application of a procedural rule denying a remedy for the infringement of a right. There are sound policy and legal reasons for imposing time limits: the promotion of social, economic and political stability; the attainment of legal certainty and finality in disputes; the recognition of evidential, procedural and other practical difficulties in achieving a fair and just solution of a dispute long after the event. Further, expectations that no legal action will be taken may be legitimately and reasonably formed and acted upon in good faith by potential respondents who change their position. A claim well founded in fact and law may thus perish with the passing of time. Considerations of this kind were taken into account by the Chairman of the Tribunal from whom this appeal is brought. In paragraph 6 of the Decision the Chairman of the Industrial Tribunal said -
"It seems to me that it is impossible to suppose that it is now just to permit a claim for unfair dismissal to be presented 18 years after the events took place. Memories will have faded, probably completely. Those responsible for the employment may have retired or died, or changed post. Records may have been destroyed. Businesses may have changed ownership - possibly more than once. The very identity of the applicant may be unknown to the respondent."
He continued in paragraphs 7 and 8 -
"7 The amount in issue in this claim will necessarily be limited - as with all claims of such age. This is not only by reason of the limits on the Tribunal's powers. In such an old claim the salary will necessarily be very small. There have been 18 years of inflation since Mrs Biggs was last paid by the Somerset County Council.
8 Further this claim (and any other claim like it) will necessarily relate to a part time employee; whose salary will consequently be only a part of a full time employee's salary."
Decision of the Industrial Tribunal
Against that background the Chairman reviewed all the facts of the case, set out the chronological background to the claim and summarised the relevant case law, statutory provisions and Community Law and the rival submissions of the parties. He concluded as follows -
(1) The time limit provisions of UK domestic law in S.67(2) applied and were not overridden by Community Law.
(2) It was not in dispute that Ms Biggs failed to present the claim within 3 months of the termination of her employment.
(3) It was not practicable for her to present her claim in time as she was prevented from doing so by the statutory provisions then in force relating to qualifying requirements.
(4) Applying the domestic time limit provisions the Chairman considered that (paragraph 30)
"...there is no further period that is reasonable within S.67(2) in the circumstances of this case and [that] accordingly the Tribunal does not have jurisdiction to hear it ."
The appeal against that decision is on two main grounds: first, that the Chairman erred in law in applying UK domestic law time limits to a claim under Article 119 of the Treaty and, secondly, if domestic law time limits did apply, it was perverse of the Chairman and therefore an error of law to refuse to extend the time limit, so as to enable Ms Biggs to bring her claim for unfair dismissal.
General Principles
As appears from the Full Reasons to the Tribunal's decision and from the skeleton arguments submitted by each side, detailed arguments on the question of time limits for Community claims have been considered in several Community and domestic cases. Before turning to the relevant principles of Community Law and the rival submissions of the parties, it may be helpful to express some preliminary thoughts on general principle.
(1) One would expect, as a matter of general principle, that the domestic law time limits contained in S.67(2) of the 1978 Act (and similar provisions in the preceding legislation) would apply to a claim for unfair dismissal, whether such a claim is brought by a full time worker or a part-time worker.
(2) Domestic law time limits apply to claims for unfair dismissal by full time workers, whether they were dismissed before or after the EOC decision. That decision and the Community considerations have no impact on such claims. There is, therefore, no question of a full time teacher dismissed in August 1976 being allowed to bring a claim for unfair dismissal for the first time in 1994.
(3) The domestic law time limits also apply to part-time workers dismissed after the 1995 Employment Protection (Part-Time) Employees Regulations came into force on 6th February 1995. The Regulations amend the 1978 Act so that part-time workers can bring claims for unfair dismissal under that Act, as amended. Claims under that Act are subject to the statutory provisions as to procedure, time limits and remedies. The Regulations do not contain any provisions altering the time limits applicable to part-time workers. In view of the amendments, there is no longer any need for part-time workers to invoke Community Law as a basis for their claims.
(4) Why should a part-time worker dismissed before the 1995 Regulations came into force or before the EOC decision was promulgated be subject to different time limits than a full time worker or than a part-time worker dismissed after those events took place? In principle, one would not expect Community law to make a difference. As stated in such cases as Barber v. Guardian Royal Exchange Assurance Group [1990] ICR 616. Community law recognises the importance of the principle of legal certainty in such areas as the retrospective scope of judicial decisions on the direct effect of Article 119. There is a potential source of injustice in the retrospective impact of judicial decisions on transactions completed in good faith and on events occurring before the promulgation of the decision.
In the light of these general principles the Tribunal is entitled to ask: On what basis can it be argued that Ms Biggs's claim is not time barred? Community Law is clearly the starting point.
General Propositions of Community Law
Although a considerable number of cases on Community Law were cited to the Chairman of the Industrial Tribunal and to us, it is not necessary to review them on a case-by-case basis. Certain uncontroversial principles may be extracted from the authorities. We think it more helpful to state the general principles than to examine in detail the cases in which they were enunciated and applied.
(1) The twin principles of the primacy of Community Law and of its direct effect in appropriate circumstances are undisputed.
(2) Article 119 has direct effect. In proceedings before the courts of Member States, including Industrial Tribunals, an individual may directly rely on rights conferred by Article 119. It is not necessary for those rights to have been implemented into the domestic law of the Member State. The primacy of a directly effective right means that, in cases of conflict, the incompatible provision of domestic law is automatically displaced without formal measure. See Defrenne v. Sabena (No.2) 43/75 [1976] ECR 455. The ruling in that case expressly only had limited retrospective effect. It was recognised by the European Court of Justice that the claims for back pay were affected by national statutes of limitation and it was expressly held that only those who had started proceedings for back pay before the date of the judgment of the European Court of Justice (3rd April 1976) could rely on the direct effect of Article 119 in order to claim for periods prior to that date.
(3) The doctrine of direct effect of Community law provisions inevitably gives rise to practical questions as to how those rights are enforced in practice. In what courts? Under what procedure? Subject to what time limits? The European Court of Justice addressed these questions in Rewe v. Zentral Finanz eg Landwirtschaftskammer 33/76 [1976] ECR 1989. The Court made the following important ruling about the role of the national courts in the protection of directly effective rights. (p.1998)
"Applying the principle of cooperation laid down in Article 5 of the Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community Law.
Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system in each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of rights which citizens have from the directive effect of Community Law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature. ...
The right conferred by Community Law must be exercised before the national courts in accordance with the conditions laid down by national rules.
The position would be different only if the conditions and time limits made it impossible in practice to exercise the rights which the national courts are obliged to protect.
This is not the case where reasonable periods of limitation of actions are fixed.
The laying down of such time limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the taxpayer and the administration concerned."
See also the illuminating Opinion of Advocate General Warner at p.2002 - 2004.
Those principles have been applied in later cases: for example, Amministrazione delle Finanze dello Stato v. Spa San Giorgio 199/82 [1983] ECR 3595, paragraph 12 at p.3612; Steenhorst-Neerings v. Bestuer [1994] IRLR 244. In the recent case of Fisscher v. Voorhuis Hengelo BV 128/93 [1994] IRLR 662, the European Court of Justice ruled on a number of preliminary questions, including time limits. At paragraph 38 the Court addressed the fifth question asked by the national court.
"By the fifth question the national court asks in substance whether the national rules relating to time limits for bringing actions under national law may be relied on as against workers who assert their right to join an occupational pension scheme.
39 The Court has consistently held that, in the absence of Community rules on the matter, the national rules relating to time limits for bringing actions are also applicable to actions based on Community law, provided that they are no less favourable for such actions than for similar actions of a domestic nature and that they do not render the exercise of rights conferred by Community law impossible in practice."
(4) A similar approach has been adopted by the European Court of Justice in relation to rights conferred by the direct effect of Directives. As was said by the European Court of Justice in the recent case of Johnson v. The Chief Adjudication Officer (No.2) 410/92 [1995] IRLR 157 at paragraph 21 rights conferred by the direct effect of a Directive
"... must be exercised under the conditions determined by national law, provided that, as the Court has consistently held, those conditions are no less favourable than those relating to similar domestic actions and that they are not framed so as to render virtually impossible the exercise of rights conferred by Community law."
(5) There is a potential additional factor relevant to cases against the State (or a State entity) based on a Directive. It was held by the European Court of Justice in Emmott v. Minister for Social Welfare and Attorney General (208/19) [1991] IRLR 387 that, so long as a Directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights and rely on them before national courts. Consequently, until the Directive has been properly transposed, a defaulting Member State is precluded from relying on an individual's delay in initiating proceedings against it to protect rights directly conferred upon him by the provisions of the Directive. A period laid down by national law within which the proceedings must be initiated cannot begin to run before the state of uncertainty has been brought to an end by proper transposition of the Directive into the domestic law system. See Emmott paragraph 21 and 23 and Johnson v. Chief Adjudication Officer (supra) at paragraph 25. The latter case draws a distinction between, on the one hand, a time bar, as in Emmott, which has the result of depriving an applicant of any opportunity of relying on the rights conferred on the Directive and, on the other hand, a national rule which does not affect the right of an individual to rely on the Directive against a defaulting Member State, and merely limits the retroactive effect of claims against a State eg, for State benefits. The latter kind of rule does not make it virtually impossible to exercise rights based on the Directive and is not, therefore, incompatible with Community law.
Submissions of Ms Biggs
Miss Bates, on behalf of Ms Biggs, made ample reference to Community law in her detailed submissions which may be summarised as follows:-
(1) The relevant provisions of the unamended UK domestic law relating to claims for unfair dismissal by part-time workers were discriminatory and contrary to Article 119.
(2) Ms Biggs's case is not brought under UK domestic law. It is brought in reliance upon or under Article 119.
(3) Article 119 contains no provisions as to time limits for making claims under it. There are no provisions of Community Law harmonising time limits applying to claims under Article 119. (There are no provisions of domestic law expressly governing Community Law claims.)
(4) Although it is accepted that it is for the Member State to determine the procedural conditions applying to claims under Article 119, including time limits, those conditions (a) must not be less favourable than those relating to "similar claims of a domestic nature" and (b) must not be so unreasonable as to render claims excessively difficult or virtually impossible.
(5) Although it is accepted that unfair dismissal claims of a domestic nature are subject to the time limits as contained in S.67(2) of the 1978 Act, it is asserted that the claim made by Ms Biggs is not of a "similar nature" to domestic claims, whether for unfair dismissal or, for that matter, for redress under the Sex Discrimination Act 1975 or the Equal Pay Act 1970. There are no domestic claims of a similar nature to the claim of Ms Biggs with which comparison can be made and from which procedures, including time limits, can be imported.
(6) The claim under Article 119 is a "free-standing" claim made in relation to the right of equal pay for equal work. Ms Biggs was unable to seek a remedy for the infringement of her free-standing rights because of statutory exclusion from the right to claim unfair dismissal before an Industrial Tribunal. That exclusion was discriminatory. As a victim of sex discrimination she is entitled to be fully compensated.
(7) The application of UK domestic time limits to her claim under Article 119 would render her claim virtually impossible, since there was no time at which Ms Biggs could reasonably have been expected to present her claim so as to comply with the 3 months time limit. In order to comply with the time limit Ms Biggs would have had to present, by 31st November 1976, a claim under Article 119 on the basis that the provisions of UK domestic law were contrary to Article 119. The application of the three months time limit was not reasonable. An applicable time limit could only begin to run at the time when the existence of the claim under Article 119 was clarified. That did not happen until 3rd March 1994 at the earliest, when the decision in EOC case was promulgated. Alternatively, it did not happen until the amending legislation on part-time workers came into force on 6th February 1995.
(8) Although it is accepted that the Directive 76/207 cannot be relied upon by Ms Biggs in this case, since it was not made until 9th August 1978, almost two years after Ms Biggs's dismissal, it is argued by analogy that claims under the Directive are of a similar nature to the claim brought by Ms Biggs under Article 119. In respect of a claim under the Directive no time limit could be applied until the United Kingdom Government had fully transposed the Directive into UK domestic law in relation to compensation for unfair dismissal of part-time workers. That was not done until 6th February 1995. Time had not, therefore, begun to run against Ms Biggs at the time when she presented her originating application.
(9) Alternatively, if the UK domestic time limits do apply to Ms Biggs's claim and time started to run from the date of her dismissal in August 1976, the Tribunal erred in law in refusing to exercise the statutory discretion to extend time for the presentation of the claim to the date upon which the claim was presented. The refusal to exercise the discretion was perverse because it was not reasonably practicable for Ms Biggs to present a claim within the three months time limit and she could not reasonably have been expected to be aware of her claim until the declarations were made by the House of Lords in the EOC case on 3rd March 1994.
In support of the above arguments Miss Bates relied on the decisions of the European Court of Justice referred to above. She also referred to two decisions of the Employment Appeal Tribunal on which comments will be made later - Secretary of State for Scotland v. Wright [1991] IRLR 187 and Rankin v. British Coal Corporation [1993] IRLR 69.
Submissions of the Council
Mr David Pannick QC submitted, on behalf of the Council, that the Chairman of the Industrial Tribunal was correct to conclude that the application should be dismissed as being out of time and that there should be no extension of time. In outline his submissions were as follows:-
(1) Ms Biggs accepted that she had no claim under the relevant UK domestic law read on its own. She did not satisfy the relevant statutory provisions contained in the Trade Union and Labour Relations Act 1974, as continued in force in the 1978 Act.
(2) Ms Biggs accepted that she could not rely on the Directive 76/207, as that did not come into force until after the date of her dismissal.
(3) Her claim was that the denial of compensation for unfair dismissal was contrary to her right to equal pay under Article 119. It was not a breach of that Article to deny Ms Biggs compensation for a dismissal which occurred in 1976.
(4) The claim was brought in the Industrial Tribunal for unfair dismissal. The Industrial Tribunal had no jurisdiction to act outside the statutory limits which defined its jurisdiction. It had no jurisdiction to entertain a claim brought by someone who did not satisfy the statutory criteria, including the provisions as to time limits. Ms Biggs' complaint was not submitted within the three month time limit applicable to unfair dismissal claims within the jurisdiction of the Industrial Tribunal.
(5) In so far as Ms Biggs claimed that she was the victim of a breach of the right to equal pay without sex discrimination her claim was defeated by the general time limits in S.2(4) and (5), Equal Pay Act 1970.
(6) The Industrial Tribunal, in the exercise of its statutory jurisdiction, applied Community Law to claims within its jurisdiction and disapplied UK domestic law incompatible with Community Law. Community Law did not, however, preclude the application of the time limits in UK domestic law to claims which involved Community rights.
The UK domestic time limits for claims for unfair dismissal and equal pay were of general application. The conditions for the enforcement of directly effective rights under Article 119 were not less favourable than those relating to similar actions of a domestic nature ie, claims for unfair dismissal under the 1978 Act or equal pay under the 1970 Act. The time limits in UK domestic law did not make it impossible in practice to exercise the Article 119 rights. Those rights had direct effect and could have been enforced by a part-time worker, such as Ms Biggs, at any time after the decision in Defrenne on 8th April 1976.
(7) Cases decided on Directives, such as Emmott (supra), were not applicable because, as distinct from directly effective provisions, such as Article 119, Directives were only enforceable against a Member State which could not invoke the protection of a time limit for initiating a claim so long as it was in default in its obligation to implement the provisions of the Directive fully into the domestic law.
(8) The EAT decision in Rankin v. British Coal Corporation (supra) was wrong to the extent that it held that a "free-standing claim" under Article 119 is not subject to UK domestic law time limits for claims under the 1978 Act and that the period for bringing such claims does not begin to run until the date upon which it could reasonably be said to be clear to the person affected that such a claim could properly be made.
(9) On the application of UK domestic law time limits the Chairman of the Tribunal was entitled to hold that, even if it was not reasonably practicable for the complaint to be presented within the three month time limit, there was in fact no further period of time which was reasonable within the statutory provisions. That was a conclusion which the Tribunal was entitled to reach on the facts before it. Accordingly, the Tribunal Chairman correctly decided that the Tribunal had no jurisdiction to entertain Ms Biggs's claim.
Conclusion
We are grateful for the excellent arguments of Miss Bates and Mr Pannick QC. At this level of decision we do not think it necessary to do more than state briefly our main conclusions, in order to guide the parties, their advisers and the Tribunals in dealing with further cases on time limits in relation to claims by part-time workers. Our conclusions are as follows:-
(1) Ms Biggs's claim against the Council, as her former employer, is a private law claim for compensation for unfair dismissal. This is not a claim against the Council, as an emanation of the State, for compensation for breach of an obligation to create substantive rights by implementing the provisions of Community Law into UK domestic law or for loss suffered as a result of the State's enactment of, or failure to remove, discriminatory legislation in breach of Community obligations .
(2) Prima facie, a claim for unfair dismissal is brought under UK domestic law. There is no Community right not to be unfairly dismissed. The right of an employee not to be unfairly dismissed by his employer is conferred by domestic legislation ie, Part V of the 1978 Act and its predecessors. The legislation lays down the conditions, including time limits for the making of claims, relevant to the enforcement of the right.
(3) The domestic legislation also designates the courts to which complaints of unfair dismissal may be presented ie, an Industrial Tribunal under S.67(1) of the 1978 Act, and places limits on the jurisdiction of that Tribunal. The Industrial Tribunal has no general (or inherent) jurisdiction, separate and apart from that conferred by domestic statutes, such as the 1978 Act. Community Law does not confer any jurisdiction. In the absence of any express statutory provision an Industrial Tribunal has no jurisdiction to hear a public law claim eg, against the State, qua State, or claims against persons other than employers. It has no jurisdiction to entertain claims for unfair dismissal presented outside the time limit of three months, unless that period is extended in appropriate cases to such period as the Tribunal considers reasonable. Thus, if the claim is not made under the 1978 Act and is not made within the time limit in that Act, as extended, it cannot be decided by the Industrial Tribunal.
(4) An Industrial Tribunal may, within the scope of its statutory jurisdiction, administer, apply and enforce not only UK domestic law but also Community Law. It is bound to do so in accordance with the provisions of the European Communities Act 1972 in which S.2(1) provides
"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and also such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law and be enforced, allowed and followed accordingly; and the expression "enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies."
Thus, in the exercise of its statutory jurisdiction, the Industrial Tribunal is bound to apply and enforce relevant Community Law, and disapply an offending provision of UK domestic legislation to the extent that it is incompatible with Community Law, in order to give effect to its obligation to safeguard enforceable Community rights.
(5) In 1976 the Industrial Tribunal had jurisdiction, at the suit of those with directly effective rights, to disapply the qualifying threshold conditions for weekly hours in the 1978 Act and previous legislation incompatible with Community Law. (It is now unnecessary for the Industrial Tribunal to be asked to disapply such provisions, because the amending Regulations have achieved the conformity required by Community Law). The Industrial Tribunal has jurisdiction to disapply other provisions in UK domestic law, such as those relating to procedure, compensation, time limits and so on if they offend against, and are incompatible with, Community Law.
(6) Prima facie, the time limits contained in UK domestic law apply to unfair dismissal claims, even where those claims invoke directly enforceable Community rights such as those conferred by Article 119. In accordance with general principles of Community Law, Community rights enforced in the national courts are subject to the procedural conditions and time limits laid down by national rules.
(7) The time limits contained in the employment legislation, such as the 1978 Act, are not incompatible with Community Law. The Industrial Tribunal Chairman was right not to disapply them. There are no relevant time limits in domestic law or Community law expressly stated to apply to Article 119. That does not mean that there are no time limits. In accordance with the principles of Community Law, the time limits are those applicable to "similar actions of a domestic nature". The claim made by Ms Biggs is a claim for compensation for unfair dismissal. Her dismissal from her part-time job is the detriment suffered by her. The domestic law time limits apply, unless it can be shown that they are less favourable than those relating to similar actions of a domestic nature or are such as to make it impossible in practice to exercise the rights under Article 119. That has not been shown in this case. The time limits are of general application. They do not discriminate between claims for unfair dismissal under the domestic law and claims which invoke Community Law. It was not in practice impossible to invoke the rights under Article 119. It was possible, by virtue of the decision in Defrenne on 8th April 1976, for Ms Biggs to present her complaint of unfair dismissal to the Industrial Tribunal within three months of her being dismissed and to argue then that the qualifying conditions in UK domestic law in force at that time were ineffective barriers to her claim by reason of their incompatibility with Article 119. It was recognised in the EOC case that the claim in that case made by the individual, Mrs Day, would fall within the jurisdiction of the Industrial Tribunal which would have power to disapply the qualifying conditions which offended against Article 119 so that effect could have been given to her claim. Ms Biggs relies on the declaration in the EOC case as having retrospective effect, enabling her to complain of a dismissal before 3rd March 1994. It is implicit in that retrospectivity that she could have brought her case when she was dismissed or within 3 months. She did not.
The authorities
We add comments on the cases relied on by Miss Bates to persuade us that the Industrial Tribunal had reached a decision which erred in law.
(1) Emmott v. Minister of Social Welfare (supra)
We agree with Mr Pannick QC that the decision in Emmott is not applicable to this case. The claim in that case was against the State for invalidity benefits and was based on the Social Security Directive which had not been fully transposed into domestic law. It was not a case based on Article 119 or on any other directly effective provision. Emmott was decided on the principle that a respondent State is not able, in contending that a claim is time barred, to rely on its own failure to implement properly the requirements of Community Law. It was held that, in such a case, time does not start to run in favour of the State and against the claim of the applicant so long as the respondent State is in default. As already observed, Ms Biggs could not rely on a Directive in this case, as it was not in force at the time of her dismissal. It may be doubted whether Ms Biggs would be assisted, in any event, in relying on a Directive, even if she had been dismissed after it came into force. It is accepted by the Council that she has a directly enforceable right under Article 119, complete and effective without any further implementation by the State. It would therefore not seem necessary or appropriate for her to rely on a Directive. We express no concluded view on that point, since it has not arisen for argument or decision on this appeal.
(2) Secretary of State for Scotland v. Wright [1991] IRLR 187
The decision in that case was made at a preliminary hearing to determine whether the Industrial Tribunal had jurisdiction to entertain complaints by part-time employees that the employers had infringed Article 119 and the Equal Treatment Directive by discriminating against them by exclusion from the right to payment under a redundancy scheme. The Employment Appeal Tribunal held that the Industrial Tribunal had jurisdiction. It was argued by the respondents to the application that the Industrial Tribunal had no jurisdiction to entertain the application, because it fell outside the jurisdiction conferred on the Tribunal by statute and the claims brought under Article 119, rather than under the Equal Pay Act 1970 and the Sex Discrimination Act 1975, are outside the statutory jurisdiction. The Employment Appeal Tribunal rejected that contention and decided that the Tribunal had jurisdiction to deal with originating applications claiming entitlement to redundancy payments based on alleged infringements of Article 119 of the Treaty and of the Directive 76/207. In our view, the decision that the Tribunal had jurisdiction is correct in the sense that Industrial Tribunals have jurisdiction to apply and enforce Community Law to claims within their jurisdiction as defined by statute. In our view, an Industrial Tribunal only has jurisdiction to apply and enforce Community Law in the context of a claim brought under one of the statutes, such as the 1978 Act, the 1970 Act or the Sex Discrimination Act 1975, which confer jurisdiction on an Industrial Tribunal. An Industrial Tribunal does not have any inherent or general jurisdiction to hear cases under Community law (or any other law). Its jurisdiction is entirely derived from specific domestic statutes. It does not derive its jurisdiction from the European Communities Act 1972, as such, though it is bound to apply relevant Community Law to cases arising within its jurisdiction. With respect, we are of the view that an Industrial Tribunal has no jurisdiction to entertain claims for infringement of "free-standing" rights outside the scope of the specific statutes which confer and define jurisdiction. The decision in this case proceeded on an agreement between the parties, referred to in paragraph 13, that
"... neither respondent had a remedy either under the Equal Pay Act 1970 or the Sex Discrimination Act 1975. The only rights the respondents might have, accordingly, are under Community Law which has not been implemented by the Government of the United Kingdom."
In paragraph 27 the Tribunal stated the issue for its decision in this way.
"...The issue that has been raised in the complaints was whether the Industrial Tribunal has jurisdiction to hear the claim brought directly under Article 119 of the Treaty. It was not in dispute that under the domestic legislation namely, the Sex Discrimination Act 1975, the applicants (now respondents) had no remedy. The case proceeded on that basis. It is clear also that the Article and Directive were both applicable."
After reviewing the relevant decisions and summarising the conflicting contentions the Tribunal concluded in paragraphs 34 and 35 of its decision that where domestic law, such as the Equal Pay Act and the Sex Discrimination Act, provides no remedy under Article 119 and the Directive the Industrial Tribunal has to apply their provisions to the case before them. They said (paragraph 34):
"There is no doubt that Industrial Tribunals have jurisdiction in such cases. The Industrial Tribunals were the chosen means of implementation in those cases. It would be odd, in the view of this Tribunal, if, where the domestic legislation provided no remedy although founded on in the originating application, but had jurisdiction to apply the provisions of Article 119 and the Directive, nevertheless the Industrial Tribunal had no jurisdiction to supply a remedy because the originating application did not found on the domestic legislation but applied directly for a remedy under Article 119 and the Directive."
This analysis followed from the agreement between the parties to that neither applicant had any remedy under domestic law, but only had rights under Community Law which had not been implemented. In our view, that agreement between the parties on which the EAT rested its decision does not in fact correctly reflect the legal position. As we understand the interaction between Community Law, domestic law and the jurisdiction of Industrial Tribunals the position is in summary as follows:
(a) The Industrial Tribunal has no inherent jurisdiction. Its statutory jurisdiction is confined to complaints that may be made to it under specific statutes, such as the Employment Protection (Consolidation) Act 1978, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Equal Pay Act 1970 and any other relevant statute. We are not able to identify the legal source of any jurisdiction in the Tribunal to hear and determine disputes about Community law generally.
(b) In the exercise of its jurisdiction the Tribunal may apply Community Law. The application of Community law may have the effect of displacing provisions in domestic law statutes which preclude a remedy claimed by the applicant. In the present case the remedy claimed by Ms Biggs is unfair dismissal. That is a right conferred on an employee by the 1978 Act and earlier legislation. If a particular applicant finds that the Act contains a barrier which prevents the claim from succeeding but that barrier is incompatible with Community Law, it is displaced in consequence of superior and directly effective Community rights.
(c) In applying Community Law the Tribunal is not assuming or exercising jurisdiction in relation to a "free-standing" Community right separate from rights under domestic law. In our view, some confusion is inherent in or caused by the mesmeric metaphor, "free-standing". "Free-standing" means not supported by a structural framework, not attached or connected to another structure. This is not a correct description of the claim asserted by Ms Biggs. She is not complaining of an infringement of a "free-standing" right in the sense of an independent right of action created by Community Law, unsupported by any legal framework or not attached or connected to any other legal structure. Her claim is within the structural framework of the Employment Protection legislation, subject to the disapplication of the threshold qualifying provisions in accordance with the EOC case. So far as her right is subject to domestic law time limits, she can only have those removed by the application of Community Law if, as explained above, time limits are themselves incompatible with Community Law. For the reasons we have stated they are not.
(3) Rankin v. British Coal Corporation [1993] IRLR 69 (recently followed in Methilhill Bowling Club v. Hunter (supra)) Mr Pannick QC submitted that this case was wrongly decided. The decision of the EAT was based on certain propositions which were not disputed but which, in our view, require close examination. It was stated in paragraph 4 of the decision that
"...it is also not now in dispute that a claim such as that made by the present appellant is a free-standing claim, and that Article 119 does not operate by amending or modifying the relevant domestic legislation, but confers an independent right upon persons who are entitled to rely upon it."
After further reference in paragraph 7 to other authorities for the view that the right under Article 119 was a "free-standing" right, it was observed at paragraph 8
"...it is further not in dispute, in the present case, that, as was held in Secretary of State for Scotland v. Hanna [1991] IRLR 187 the proper forum in which free-standing claims under Article 119 may be brought is the Industrial Tribunal notwithstanding the fact that the Industrial Tribunal has no express statutory authority to deal with such claims."
It was on that basis that the EAT considered the question of time limits, their starting point and their length. It concluded that the time limits in the domestic legislation only applied to claims under that legislation and no time limit was directly applicable under UK law to a free-standing claim under Article 119 nor was there any general time limit applying to all proceedings brought before Industrial Tribunals. Recognising, however, the demand of legal certainty which is part of Community Law and therefore part of the law administered by the domestic courts, the Appeal Tribunal accepted the need to place some time limit on Article 119 claims. That was achieved by balancing the principle of legal certainty and the requirement of national courts and tribunals to protect Community rights. The time limit ultimately selected was by reference to the time when the period for bringing claims should begin. The period set in that case was a reasonable period of time after the coming into force of amending legislation. The time limit for an equal pay claim was used as an analogy.
We decline to adopt that approach in this case. Our preferred approach is that Ms Biggs's claim for unfair dismissal is brought under the UK domestic legislation, with certain provisions disapplied as incompatible with Community Law. The time limits in that legislation apply, unless they are incompatible with Community Law. For reasons already explained, the qualifying conditions were incompatible with Community Law, but the time limits are not. The point at which we question the approach in Rankin is the statement of what was not disputed between the parties at the outset of the argument as to the nature of the claims relied upon. The imprecision in the expression "free-standing claims" has, in our view, created a misunderstanding. The claims are "free-standing" in the sense that they derive, ultimately, from a legal order recognised as superior in force to UK domestic law. It does not follow, however, that the two legal orders are independent or that Community rights are independent rights. Indeed, in most cases the reverse is the truth. Community Law and national law are complementary. National law, not Community Law, confers the right not to be unfairly dismissed, setting the conditions on which the right may be enforced, the remedies available and the appropriate procedures. Community Law may operate to displace national law requirements, but, unless national law is displaced, it is the duty of the Tribunal to give effect to all the provisions of the statute from which it derives jurisdiction. If the statute forbids it entertaining claims not brought within certain time limits, it should not entertain them. The assertion and establishment of a "free-standing right" under Community Law can only affect that duty of the Industrial Tribunal if the provision of UK domestic law to which it is prima facie bound to give effect is found, on examination, to be incompatible with a paramount rule of Community Law. That has not been established in this case.
It is imperative that, as soon as possible, a higher court should consider the question of time limits. Industrial Tribunals urgently require authoritative guidance on the numerous cases now before them. We appreciate that it is unhelpful to them to face differing approaches in different cases before this Tribunal. Until the matter has been determined otherwise by a higher court we suggest that, in cases of unfair dismissal, Industrial Tribunals either follow the approach in this judgment or adjourn such cases until a higher court has ruled on this question.