United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 638_95_2102

Appeal No. EAT/638/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21st February 1996

HIS HONOUR JUDGE P CLARK

MISS J W COLLERSON

MRS E HART

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MRS M ADAMS & OTHERS          APPELLANTS

SUFFOLK COUNTY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants PETER O'BRIEN

(Representative)

For the Respondents ALEXANDER CRANBROOK

(of Counsel)

Mr K W Stevens

Suffolk County Council

St Helen Court

Ipswich

Suffolk

IP4 2JS


 


JUDGE CLARK: This is an appeal by six female employees at one time employed as Home Care Managers by Suffolk County Council, who complained to the Industrial Tribunal on 22nd November 1994 that they had been paid less than a male employee, Mr Bridges, for work of equal value.

The Council contended that the complaints had not been presented within time under Section 2(4) of the Equal Pay Act 1970.

That limitation point came before the Bury St Edmunds Industrial Tribunal on 30th March 1994. It was, and is, common ground that the complaints were not presented within the six month time limit provided for in Section 2(4). The tribunal upheld the respondent's argument and dismissed the complaints as time-barred.

Against that decision this appeal is now brought.

Mr O'Brien on behalf of the appellants, submits that Section 2(5) of the 1970 Act, which limits any award for breach of the equality clause to two years arrears of pay, offends Article 119 of the EEC Treaty and/or the Equal Pay Directive of 10th February 1975 (75/117/EEC). He relies on the decision of the European Court of Justice in Emmott v Minister for Social Welfare [1990] ICR 8 for the proposition that the state, or as in this case, an emanation of the state, cannot rely upon national procedural time limits for bringing proceedings where the member state has not properly transposed the relevant directive into its domestic legal system. Therefore, he says we should permit these claims to proceed on their merits regardless of the time limit under the 1970 Act. Alternatively, he submits, if the position is unclear, we should refer various questions which has formulated to the European Court.

Since the Industrial Tribunal's decision in this case, and indeed since a preliminary hearing was held in this appeal on 18th October 1995 (Mummery J presiding), the decision of the Employment Appeal Tribunal in Biggs v Somerset County Council [1995] ICR 811 has been affirmed by the Court of Appeal. We have considered a transcript of the draft judgment of the Court of Appeal handed down on 26th January 1996.

Mrs Biggs was dismissed from her post as a part-time teacher by Somerset County Council on 31st August 1976. At that time domestic legislation precluded her from bringing a claim of unfair dismissal. On 3rd March 1994, the House of Lords made declarations in R v Secretary for Employment, Ex Parte EOC [1995] 1 AC 1 to the effect that the United Kingdom legislative restrictions on part-time employees bringing claims for redundancy payments and unfair dismissal were unlawfully discriminatory, being incompatible with Art 119 and EEC Directives 75/117/EEC (the Equal Pay Directive) and 76/207/EEC, respectively. She then issued a complaint of unfair dismissal in 1st June 1994. The preliminary issue was whether or not her claim was time-barred.

In the course of his judgment at pages 26-29 of the transcript Neill LJ dealt with what we shall call "the Emmott point". His lordship held that the Emmott principle had no application to a claim under Article 119 and further, that since the Equal Pay Directive was adopted in order to implement the principle in Article 119 that directive conferred no new or separate right. Accordingly, the Emmott point failed.

We are bound by, and follow that reasoning of Neill LJ in this case; the Emmott point forming part of the ratio in Biggs, and we would add this. If Mr O'Brien is right in his submission that the two year limitation on recovery contained in Section 2(5) of the 1970 Act is incompatible with Article 119 and/or the Equal Pay Directive, and it is unnecessary for us to decide the point in this appeal, then:

(1) It was open to these appellants to bring complaints under the 1970 Act within time and contend that the two year limitation in Section 2(5) of the 1970 Act be disapplied, as being inconsistent with European Law. See Biggs.

(2) In any event, this is not a case in which the appellants were wholly unable to pursue a remedy, albeit it one on the appellant's argument which was improperly limited as to the quantum of compensation or damages. See Marshall No 2 [1993] ICR 893. Here we prefer to follow the reasoning of the European Court of Justice in Steenhorst-Neerings [1994] IRLR 244, distinguishing Emmott, in the same way as did the European Court of Justice in Johnson v Chief Adjudication Officer [1995] IRLR 157.

In these circumstances we see no grounds for interfering with the decision of the Industrial Tribunal, nor do we see any necessity to refer this case to Europe. The appeal must be dismissed.