United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1019_94_2105

Appeal No. EAT/1019/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 May 1996

HIS HONOUR JUDGE PETER CLARK

MR T C THOMAS CBE

MRS P TURNER OBE

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J R HANSFORD LTD          APPELLANTS

MRS J YATES          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR R MENZIES

Free Representation Unit

Room 140, 1st Floor

49-51 Bedford Row

London WC1R 4LR

For the Respondent NO APPEARANCE BY OR ON BEHALF OF           RESPONDENT


 


JUDGE CLARK: This is an appeal by the employer J R Hansford Ltd., against a decision of the Southampton Industrial Tribunal (Chairman Mr I A Edwards, sitting alone on 6 September 1994) that the employee, Mrs Yates, was entitled to compensation equivalent to a redundancy payment by virtue of Article 119 of the Treaty of Rome and Council Directive 75/117 (The Equal Pay Directive). She was awarded the sum of £236.25, being the equivalent of a redundancy entitlement calculated in accordance with Schedule 4 of the Employment Protection Consolidation Act 1978 (the 1978 Act). Extended Reasons for that decision are dated 9 September 1994.

The facts are not in dispute. Mrs Yates was employed as a part-time office clerk, working 15 hours per week, from 3 November 1986 until her dismissal by reason of redundancy on 7 April 1990.

At the time of her dismissal neither party believed that she was qualified to receive a redundancy payment, since she had not completed five years continuous service and her employment was for less than 16 hours per week (see Schedule 13 to the 1978 Act).

Accordingly she did not receive a redundancy payment on dismissal, nor did she present a complaint to an Industrial Tribunal claiming a redundancy payment within the time limits provided for under the 1978 Act. The primary limitation period for claiming a redundancy payment is six months (Section 101(1)). Time may be extended up to a further six months, provided the conditions set out in Section 102(2) of the Act have been met.

On 3 March 1994 the House of Lords in the case of R v Secretary of State for Employment ex parte Equal Opportunities Commission [1994] IRLR 176 declared:

"1. That the provisions of the Employment Protection (Consolidation) Act 1978, whereby employees who work for fewer than 16 hours per week are subject to different conditions in respect to qualification for redundancy pay from those which apply to employees who work for 16 hours per week or more, are incompatible with Article 119 of the Treaty of Rome and Council Directive 75/117/EEC of 10 February 1975."

Based on that decision, and with the assistance of her local Citizens Advice Bureau, which has submitted written representation in this appeal, Mrs Yates presented an Originating Application to the Industrial Tribunal on 26 May 1994, claiming a redundancy payment against the Respondent.

The Industrial Tribunal Chairman, in his reasons, found that Mrs Yates was not entitled to a redundancy payment under the 1978 Act, but to compensation equivalent thereto under Article 119 and the Equal Pay Directive. His reasons for so finding were said to be those set out in a decision of the Leeds Industrial Tribunal, (Chairman: Mr John Prophet) dated 2 September 1994 in the case of Dr Kamal v Wakefield Health Authority, a copy of which was annexed to the Extended Reasons in this case.

Against the present decision the Appellant appealed within time by a Notice of Appeal dated 18 October 1994. Application has since been made to amend the grounds of appeal, and we grant that application.

The matter came before this Appeal Tribunal (Mr Justice Mummery presiding) on 3 March 1995 for a Preliminary Hearing. That hearing was adjourned pending the outcome of the appeal then before the E.A.T. in Biggs v Somerset C.C. E.A.T. 995/94. Since that date Biggs has been heard and determined by the E.A.T. [1995] IRLR 452 and a further appeal in that case has been adjudicated upon by the Court of Appeal [1996] IRLR 203.

The upshot of the appeals in Biggs and the redundancy payment case of Barber v Staffordshire County Council [1996] IRLR 209 is that this appeal succeeds and the decision of the Southampton Industrial Tribunal is set aside for the following reasons:

(1) The House of Lords decision in the EOC case was declaratory of what the law has always been since the primacy of community law was established by Section 2 of the European Communities Act 1972. There was nothing to prevent Mrs Yates bringing a claim for a redundancy payment immediately after her dismissal and asking the Industrial Tribunal to dis-apply the part-time qualification contained in the 1978 Act on the ground that it was inconsistent with Article 119. See Biggs per Lord Justice Neill [1996] IRLR 207 paragraph 23.

(2) Article 119 does not provide a free-standing right to compensation following a dismissal for redundancy. See Barber per Lord Justice Neill [1996] IRLR 212 paragraph 22.

(3) Similarly, it is not open to a former employee to rely directly upon the Equal Pay Directive. See Biggs at paragraph 43. In any event, Mrs Yates could not rely upon the Equal Pay Directive against this Appellant, which is not an emanation of the state.

(4) The domestic time limits imposed on applicants for redundancy payments under the 1978 Act, are not discriminatory, and should be applied in the same way that time limits for unfair dismissal claims are to be applied. See Biggs paragraph 34.