Appeal No. EAT/5/96

EAT/6/96

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

At the Tribunal

On 24th June 1996

 

Before

 

THE HONOURABLE MR JUSTICE MUMMERY (P)

 

MRS M E SUNDERLAND JP

 

MR G H WRIGHT MBE

 

 

 

 

EAT/5/96

MS D FLETCHER & OTHERS APPELLANTS

 

EAT/6/96

MRS S A E PRESTON & OTHERS APPELLANTS

 

 

EAT/5/96

MIDLAND BANK PLC RESPONDENTS

 

EAT/6/96

(1) WOLVERHAMPTON HEALTHCARE NHS TRUST RESPONDENTS

(2) SECRETARY OF STATE FOR HEALTH & OTHERS

 

 

 

Transcript of Proceedings

 

JUDGMENT

 

ADDENDUM TO THE JUDGMENT

HANDED DOWN ON 24TH JUNE 1996

Revised

 

APPEARANCES

 

For the Appellants (EAT/5/96) MISS JANE McNEILL

(of Counsel)

Mr Foley

Messrs Lawford & Co

102 - 104 Sheen Road

Richmond

Surrey TW9 1UF

 

For the Appellants (EAT/6/96) MR JOHN CAVANAGH

(of Counsel)

Mr P Lott

ATL

7 Northumberland Street

London WC1 9BD

 

Ms A Brown

Messrs Graham Clayton

Solicitors

Hamilton House

Mabledon Place

London WC1 9BD

 

Mr R Arthur

UNISON

1 Mabledon Place

London WC1 9AJ

 

Messrs Reynolds Porter

Chamberlain

Solicitors

278-282 High Holborn

London WC1V 7HA

 

Messrs Michael Scott & Co

Solicitors

27 Britannia Street

London WC1X

 

For the Respondents (EAT/5/96 and EAT/6/96) MISS MELANIE TETHER

MR JASON COPPELL

(Both of Counsel)

Messrs Booth & Co

Solicitors

Sovereign House

PO Box 8

South Parade

Leeds LS1 1HW

 

 

 

Messrs Eversheds

Solicitors

Senator House

Queen Victoria Street

London EC4V 4JL

 

Messrs Norton Rose

Solicitors

Kempson House

Camomile Street

London EC3A 7AN

For the Respondents (EAT/6/96) MS C BOOTH Q.C.

Manchester City Council

Chief Executives Dept

PO Box 532, Town Hall

Albert Square

Manchester M60 2LA

 

M Halsall

Metropolitan Borough of Stockport

Legal Services Department

Stockport

SK1 2XE

 

Stuart Evans

Wolverhampton

Metropolitan Borough Council

Department of Law

Civic Centre

St Peter's Square

Wolverhampton

WV1 1RG

 

Birimingham City Council Legal Services

Ingleby House

11-14 Cannon Street

Birmingham B2 5EN

 

 

For the Respondents (EAT/6/96) Lancashire County Council

PO Box 78

County Hall

Preston PR1 8XF

 

Humberside County Council

County Solicitors Department

County Hall

Beverley

North Humbershire HU17 9BA

 

MR NICHOLAS PAINES

MR RAYMOND HILL

(Both of Counsel)

Mr P Whitehurst

The Treasury Solicitors

Queen Anne's Chambers

28 Broadway

London SW1H 9JS

 

Miss V Burke

Office of the Solicitor

Department of Health

New Court

28 Carey Street

London WC2A 2LS

 

NO APPEARANCE OR

REPRESENTATION BY OR

ON BEHALF OF THE

Wolverhampton Healthcare

NHS Trust

 

 

MR JUSTICE MUMMERY (PRESIDENT): This is an addendum to the judgment of the Appeal Tribunal handed down on 24th June 1996. On page 51C of that judgment we stated that we had:

 

"... formed the provisional view that the appropriate course is to stay a final decision in this case on S.2(5) of the 1970 Act until the result of the reference in Levez case in known."

 

After judgment was handed down we heard submissions on this point from Counsel for the respondents and the appellants. We concluded at the end of argument that we should not act on the provisional view, which no party favoured, but should instead dismiss the appellants' appeals on all points, including the point on Section 2(5) of the 1970 Act and also the Secretary of State's cross-appeal.

 

These are our reasons for taking that direction. At the end of the argument we were faced with a choice of three courses of action.

 

(a) Adjournment of the hearing. This was favoured by all respondents, but opposed by the appellants.

 

(b) Stay of the proceedings pending the result of the reference in Levez. This was opposed by the respondents and the appellants.

 

(c) A reference to the European Court of Justice under Article 117 on the Section 2(5) point and stay the proceedings in the meantime. This was supported by the appellants, but opposed by all the respondents.

 

(d) Dismissal of the appellants' appeals.

 

THE RESPONDENTS' SUBMISSIONS

Miss C Booth QC, on behalf of the local government respondents, requested an adjournment of the hearing. She said that copies of the judgment, which runs to 51 pages in this case, and of the Levez judgment, had only been made available to Counsel on 21st June 1996 and there had not been sufficient time to enable instructions to be obtained all the local authorities concerned. They would want to consider the terms of the two judgments and take advice as to their position. In particular, they might wish to consider making an appeal against the decision in Levez to make reference to the European Court of Justice. The respondents in that case would probably not appeal the decision to refer, as they had taken no active part in the hearing of the appeal in the Appeal Tribunal. The amicus could not appeal (this was confirmed by Mr Stephen Richards who had been appointed to act as an amicus). This was case where the respondents might wish to invoke Order 59 Rule 3 of the Rules of the Supreme Court. Miss Booth referred in particular to the notes at 59/3/2. She opposed the proposal we made in the judgment that the proceedings on the Section 2(5) point should be stayed pending the reference in Levez.

 

Mr Paines, for the Secretary of State, supported the application for an adjournment and opposed the proposal of a stay as inappropriate. He submitted it was not open to this appeal tribunal to make a reference to the European Court of Justice in these cases. We had given reasons for the expression of a unanimous view that there was no real doubt about the compatibility of the limitation in Section 2(5) of 1970 Act with Community Law. Indeed, on behalf of his clients, he might wish to take steps to prevent the reference in Levez from proceeding and might seek to be joined in those proceedings for that very purpose.

 

Miss Melanie Tether for the higher education respondents also supported the application for an adjournment in order to obtain instructions and opposed a stay of the proceedings. She submitted that it was not appropriate for us to make a reference in view of the terms of the judgment in these cases. Any arguments that the appellants might wish to advance in support of a reference should be made to the Court of Appeal.

 

Mr Coppell for the banking sector employers made the same submissions as Miss Tether.

 

THE APPELLANTS' SUBMISSIONS

Miss McNeill for the private sector employees opposed the respondents' application for an adjournment and also opposed the stay. The position of her clients was that they wished to be involved in the reference to the European Court of Justice in Levez. They had no right to intervene in the Levez proceedings before the European Court of Justice. There was no bar to the Appeal Tribunal making a reference in these cases. She reminded us that there was a matter of principle involved, that these were test cases and submitted that it was expedient to make a reference in circumstances where there were now conflicting authorities at this level of decision. A separate reference was needed in these cases, because the question raised in Levez might not produce an answer which covered all the aspects of these cases. She also asked for leave to appeal.

 

Mr Cavanagh, for the other appellants, took the same line. He wanted a reference to the European Court of Justice of the Section 2(5) point. It was unsatisfactory for the reference to proceed on the Levez case alone. The decision in Levez was on very different facts. The case may not go all the way. The case might even be withdrawn. Mrs Levez's claim was to a small sum of money. There was no active respondent. By way of contrast between a ¹/₄ and a ¹/₂ of the test cases raised in these appeals were affected by the point. It was important that the appellants should have the opportunity to make representations on the Section 2(5) point to the European Court of Justice. That could not be done in the Levez case. The pragmatic course for this tribunal to follow was to make a reference of that question. That reference should be made now. It should not be left as a matter for consideration of the Court of Appeal on an appeal from this decision.

 

Having considered all these conflicting submissions, we reached the following conclusions.

 

(1) There should be no adjournment. It was difficult to see how we should be any better informed at an adjournment about the most appropriate course to follow in the light of our judgment.

 

(2) There should be no stay of proceedings pending the decision on the reference in Levez. This was not a course favoured by any of the parties and on reconsideration we concluded that our provisional view should not be adopted.

 

(3) We should not make a reference to the European Court of Justice. The members of this tribunal had reached a unanimous decision after hearing all the arguments from all the parties and formed the view that there was no real doubt about the compatibility of Section 2(5) with the relevant provisions of Community Law.

 

(5) We dismiss the appeals and also the Secretary of State's cross-appeal.

 

(6) We grant leave to appeal to the Court of Appeal.

 

As for the question in Levez, we record in this judgment that we have directed that the appropriate form of question should be discussed and, if possible, agreed between Miss Rose, on behalf of Mrs Levez, and Mr Richards, as amicus. We do not give any direction that any of the parties to these proceedings should be involved in any way in the formulation of the question.

 

In the unusual circumstances which have arisen, it must be for the Court of Appeal to decide whether we have adopted the correct course, and, if not, what should be done.