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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> London Borough Of Merton v Haycroft & Anor [1996] UKEAT 686_95_2904 (29 April 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/686_95_2904.html
Cite as: [1996] UKEAT 686_95_2904
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)
MR R JACKSON
MR R H PHIPPS
(2) MERTON COLLEGE CORPORATION
JUDGMENT
Revised
APPEARANCES
For the Appellant MR P WALLINGTON
Counsel
Mr P Large
Head of Legal Services
London Borough of Merton
Civic Centre, London Road
Morden, Surrey
SM4 5DX
For the Respondents (1st) MR J DAVIES
Counsel
Messrs Lewis Silken
1 Butler Place
Buckingham Gate
LONDON SW1H 0PT
MR P STEWART
Counsel
Messrs Wilkinsons
79 Queens Drive
Wimbledon
LONDON SW19 8NJ
MR JUSTICE MUMMERY (PRESIDENT) The flood of unfair dismissal claims by part-time workers following the decision of the House of Lords in R v. Secretary of State for Employment ex parte Equal Opportunities Commission [1994] ICR 317 (The EOC Case) continues. This appeal concerns a part-time law lecturer at Merton College who, in his claim of unfair dismissal, canvasses questions about the effect of European Community Law on the time limits for bringing claims contained in S.67 of the Employment Protection (Consolidation) Act 1978 ("the 1978 Act") and advances arguments on the effect of Article 119 of the Treaty of Rome, the Equal Pay Directive (75/117) and the Equal Treatment Directive (76/207) on domestic law time limits. The case raises an additional point on the transfer provisions accompanying the reorganisation of higher education contained in the Further and Higher Education Act 1992 ("the 1992 Act"). (This case pre-dates the repeal, with effect from 6th February 1995, the minimum hours thresholds in Schedule 13 to the 1978 Act: in Employment Protection (Part-Time Employees) Regulations 1995).
The Appeal
This appeal is brought by the London Borough of Merton ("the Council") against the decision of the Chairman of the Industrial Tribunal sitting alone at London (South) on 11th and 12th January 1995. In the Extended Reasons notified to the parties on 22nd May 1995, the Chairman explained his decision on preliminary issues that -
(1) the Tribunal had jurisdiction to hear a complaint made by Mr Peter Haycroft, a part-time law lecturer, of unfair dismissal and his claim for a redundancy payment; and
(2) the correct respondent to those claims was the Council, not the Merton College Corporation ("the Corporation") to whom Merton College was transferred on 1st April 1993.
The Council served a Notice of Appeal dated 23rd June 1995, amended without opposition and with the leave of this Tribunal at the hearing of the appeal.
On the hearing of the appeal Mr Wallington appeared for the Council, Mr Stewart for the Corporation and Mr Davies for Mr Haycroft. We thank them for the assistance provided in their Skeleton Arguments and oral submissions.
The three main questions to be decided on this appeal are -
(1) Did the Chairman err in law in deciding that Mr Haycroft's claims were not out of time and that the Tribunal therefore had jurisdiction to entertain them?
(2) Did the Chairman err in law in concluding that the Council was the proper Respondent to those claims?
(3) Should this Tribunal to make a reference to the European Court of Justice under Article 177 of the Treaty of Rome of certain questions of interpretation of European Community Law canvassed on behalf of Mr Haycroft?
The Facts
At the hearing on 11th and 12th January 1995 no evidence was given. Certain assumptions and concessions were made for the purposes of deciding preliminary questions about jurisdiction and proper parties.
The Chairman's decision was made on the basis of the following assumptions and concessions -
(1) Mr Haycroft is a solicitor and part-time lecturer in law employed by the Council to work at Merton College for 12 hours a week from 11th September 1990 until 15th September 1992. ie, less than 5 years).
(2) After 15th September 1992 Mr Haycroft continued to be employed by the Council under a new contract of employment which required him to work fewer hours (6 hours a week). He accepted this position under protest.
(3) On 1st April 1993, while Mr Haycroft was still employed by the Council at the College, the Council was divested of responsibility for Merton College which passed to the Corporation under the 1992 Act.
(4) On 4th May 1993 Mr Haycroft presented an Originating Application to the Industrial Tribunal claiming
"Unfair dismissal and/or redundancy claim based on Article 119, Treaty of Rome and Equal Treatment Directive."
He claimed that the Council had unfairly dismissed him from his previous contract of employment on 15th September 1992 by terminating it unlawfully or by constructively dismissing him in making a unilateral reduction in his teaching hours. He contended that the dismissal was both procedurally and substantively unfair. He also claimed a statutory redundancy payment.
(5) Mr Haycroft's application anticipated that there might be preliminary objections to his claim on the basis that he was a part-time lecturer and that his claim was out of time. He expressly relied on the decision of the House of Lords in the EOC case and contended that, by virtue of Article 119 and the Directives, the Respondents to his application, as emanations of the State, were prevented from relying on a time limit point.
(6) It was conceded at the Industrial Tribunal that the Corporation was an emanation of the State and that a man (as well as a woman) is entitled to rely on the anti-discrimination provisions of European Community Law. On behalf of Mr Haycroft it was conceded that he could not rely solely on the United Kingdom legislation for his complaint and had to rely also on European Community Law. It was also conceded that, if the time limit in the Equal Pay Act 1970 applied, it could not be extended.
Although this appeal is only concerned with the preliminary points of jurisdiction and proper parties, it is important to note that, in their Notices of Appearance, the Council and the Corporation resist the claims on substantive grounds. The Council deny that Mr Haycroft's contract of employment was terminated on 15th September 1992 unlawfully, or by reason of redundancy, or otherwise. Mr Haycroft continued to work for the Council after that date. The Corporation contend that, if Mr Haycroft was dismissed, the reason for his dismissal was fair, as the reorganisation of the timetable was necessitated by changes in numbers of students enrolling.
On the proper parties point, both the Council and the Corporation contended that they were the wrong respondents. The basis of the Council's contention was, that under the 1992 Act, Merton College became a Further Education Corporation. Under the terms of the 1992 Act (S.26) anything done before incorporation by or in relation to Mr Haycroft in respect of his contract of employment was deemed to have been done by the Corporation. The Corporation, on the other hand, contended that, if Mr Haycroft was dismissed, his dismissal took place at a time when he was employed by the Council and before the Corporation took over control of Merton College pursuant to the provisions of the 1992 Act. In those circumstances the Council was the only proper respondent, as Mr Haycroft's employer at the time of the alleged dismissal.
The Decision of the Industrial Tribunal
A The time limit point
In the Extended Reasons the Chairman of the Industrial Tribunal first decided those issues relevant to the time limit point. He reached conclusions on the following issues -
(1) Must Mr Haycroft rely on Article 119 only?
The Chairman's conclusion on this issue was that -
"Mr Haycroft can rely on the Equal Pay and Equal Treatment Directives rather than Article 119 if he so wishes. The Directives form part of European Union Law and are not simply aids to interpretation."
(2) What time limit applies?
The Chairman heard rival submissions on the effect of the decision of the European Court of Justice in Emmott v. Minister for Social Welfare and Attorney General [1991] IRLR 387 in which it was decided (paragraph 23) that -
"Until such time as a Directive has been properly transposed, a defaulting member state may not rely on the individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the Directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time."
On this point, Mr Wallington, on behalf of the Council, accepted that -
"...If Mr Haycroft was allowed to rely on one or both Directives, time would not have started to run against him. Accordingly Mr Haycroft was not out of time when he presented his originating application to the Tribunal one year and eight months after his alleged dismissal."
The Chairman went on to state that, if he was wrong in deciding that Mr Haycroft was permitted to bring his claim under the Directives and that, instead, he could only bring his claims under Article 119, it was impossible in practice for him to enforce his rights under Article 119 because they had not been satisfactorily reflected in the United Kingdom legislation, particularly the 1978 Act, at any time before Mr Haycroft presented his originating application. This had the consequence that time had not started to run before Mr Haycroft presented his originating application. The Chairman applied the reasoning in the decision of this Tribunal in Rankin v. British Coal Corporation [1993] IRLR 69 and Cannon v. Barnsley Metropolitan Borough Council [1992] ICR 698.
B The Transfer point
The decision on the transfer point was decisive of the issue as to whether the Council or the Corporation wAS the correct respondent. After setting out the relevant parts of the provisions in sections 22, 26 and 61 of the 1992 Act and considering the rival submissions on the interpretation and application of them to the facts of the case, the Chairman concluded that -
(1) The potential liability to pay unfair dismissal compensation and/or redundancy payment subsisted before 1st April 1993.
(2) The Council had such a liability immediately before that date, even though Mr Haycroft and the Council were not aware of it until after the EOC decision was promulgated on 4th March 1994.
(3) Those liabilities were incurred for the purposes of Merton College.
(4) Section 61 of the 1992 Act prevented the transfer of the Council's liabilities in respect of unfair dismissal compensation and redundancy payments to the Corporation under S.23 of the 1992 Act. The reason for that conclusion was that, on the proper construction of S.61(1)(a) of the 1992 Act, those rights were regarded as rights "under a contract of employment", because they emanated from that contract.
The cumulative effect of those rulings was that the Council, not the Corporation, was the correct respondent. The 1992 Act did not apply so as to transfer the relevant liabilities from the Council to the Corporation.
On the hearing of this appeal it was agreed between the representatives of the parties and was acceptable to this Tribunal that we should first hear argument on the transfer point. The parties anticipated that the Appeal Tribunal might decide that question before ruling on the time limit question and, if that course were followed, only the party held to be the correct respondent need remain to argue the time limit point on the appeal. After we had heard argument on the transfer point, however, we decided that we should also like to have the benefit of full argument on the time limit point before reaching and announcing our decisions on both points.
The Transfer Point - the Legislative Provisions
It was common ground that the Acquired Rights Directive (77/187), in particular Articles 3(2) and (6), apply to the proposed transfer of staff from Local Education Authorities, such as the Council, to Further Education Corporations, such as the Corporation.
The principal section dealing with the transfer of staff from Local Education Authorities to Further Education Corporations is S.26 of the 1992 Act. The section applies to any person who, immediately before the operative date in relation to a Further Education Corporation established to conduct an institution which on the date the Corporation was established, was maintained by a Local Education Authority or was a Grant Maintained School - (S.26(1))
"(a) ...is employed by the transferor to work solely at the institution the corporation is established to conduct ..."
"(2) A contract of employment between a person to whom this section applies and the transferor shall have effect from the operative date as if originally made between that person and the corporation.
(3) Without prejudice to subsection (2) above
(a) all the transferor's rights, powers, duties and liabilities under or in connection with a contract to which that subsection applies shall by virtue of this section be transferred to the corporation on the operative date, and
(b) anything done before that date by or in relation to the transferor in respect of that contract or the employee shall be deemed from that date to have been done by or in relation to the corporation."
The operative date in this case was 1st April 1993.
Section 23 of the 1992 Act is concerned with the transfer of property to Further Education Corporations from institutions maintained by Local Education Authorities. The relevant parts of the section provide -
"(1) This section has effect in relation to a Further Education Corporation established to conduct an institution which, on the date the corporation was established, was maintained by a Local Education Authority.
(2) Subject to subsection (3) below and section 36 of this Act [neither of which is material to this case], on the operative date -
(a) all land or other property which, immediately before that date, was property of any local authority used or held for the purposes of the institution the corporation is established to conduct, and
(b) all rights and liabilities of any such authority subsisting immediately before that date which were acquired or incurred for those purposes shall be transferred to, and by virtue of this Act vest in, that corporation."
Sections 23 and 26 are in Part 1 of the 1992 Act which must be interpreted according to the provisions in S.61. Section 61(2) provides -
"References in this Part of this Act, except S.26, to the transfer of any person's rights or liabilities do not include -
(a) rights or liabilities under a contract of employment ..."
The Corporation's Submissions
On behalf of the Corporation, Mr Stewart supported the conclusions of the Chairman of the Tribunal on the interpretation and application of the relevant provisions in the 1992 Act.
A The Section 26 argument
Mr Stewart submitted that -
(1) It was clear from S.26(1) that the section only applied to a person who, immediately before the operative date, was employed by the Council at Merton College.
(2) Although Mr Haycroft satisfied that requirement, he was employed by the Council immediately before the operative date under a completely different contract from that in respect of which he makes his claim for unfair dismissal and redundancy payment.
(3) Subsections (2) and 3(a) of S.26, like subsection (1), only relate to contracts of employment in existence at the operative date.
(4) Section 26(3)(b) does not assist the Council because, on its proper interpretation, it only applies to a contract of employment which exists immediately before the operative date or to an employee employed under such a contract. Unless S.26(3)(b) is construed in that way, the transfer would apply not only to liabilities under previous contracts of employment but also to liabilities which do not arise out of a contract of employment at all. That construction was not consistent with the purpose of S.26, which was to ensure that rights and liabilities in respect of continuing contracts of employment were transferred to the Corporations. It was not the purpose of S.26 to allow transferors to divest themselves of all liability in respect of all past breaches of duty by pointing to the fact that the claimant was an employee of the transferor at the operative date.
B The Section 23 Argument
Mr Stewart accepted that, read on its own, S.23 of the 1992 Act was apt to cover the transfer of all liabilities incurred for the purposes of the institution transferred. He accepted that any liability originally owed by the Council in respect of the termination of Mr Haycroft's first contract of employment was incurred "for the purposes" of the College within the meaning of S.23(2)(b).
Mr Stewart submitted, however, that S.61(2) made all the difference. That had the effect of excluding from a transfer of rights or liabilities under S.23 "rights or liabilities under a contract of employment". Claims to unfair dismissal and redundancy payments are, he submitted, rights or liabilities under a contract of employment. Without a contract of employment, those statutory rights would have nothing to attach themselves to and would not exist. They only become "activated" once there is a contract of employment, that is, under a contract of employment. In other words, the Tribunal were right in concluding that the common sense construction was that the relevant rights were rights "under a contract of employment", as they emanate from that contract.
Conclusion on the Transfer Point
We are satisfied by the arguments of Mr Wallington, on behalf of the Council, that the Industrial Tribunal erred in law in the construction of the relevant sections in the 1992 Act, that the appeal on this point should be allowed, that the Corporation is the correct Respondent, as transferee of Merton College, and that the Council should be dismissed from the proceedings.
Our reasons for this conclusion may be briefly stated as follows:-
A The Section 26 argument
It is evident from a comparison of the relevant provisions in S.26 with the Articles in the Acquired Rights Directive (77/187) and the Transfer of Undertakings (Protection of Employment) Regulations 1981 that the purpose in enacting S.26 was to apply the Directive to the transfer of colleges to new Further Education Corporations. At the time when the 1992 Act was passed the 1981 Regulations did not apply to the transfer of an undertaking "not in the nature of a commercial venture": Regulation 2 (not repealed until August 1993). The provisions were therefore necessary to effect the transfer.
(2) It is helpful to compare the wording of S.26(3)(b) of the 1992 Act with the similar wording of Regulation 5(2)(b) of the 1981 Regulations which has been recently interpreted by this Tribunal in DJM International Ltd v. Nicholas [1996] ICR 214 (ie after the decision of the Chairman in this case). It was held that Regulation 5(2)(b) of the 1981 Regulations applied not only to anything done before the transfer in respect of the contract of employment current at that time, but also to anything done before the transfer in respect of "a person employed in that undertaking". The protection of Regulation 5(2)(b) of the 1981 Regulations was not, therefore, limited to those obligations which arose out of a particular contract in existence at the date of the transfer.
We agree with Mr Wallington that the wording of Regulation 5(2)(b) of the 1981 Regulations is not materially different from S.26(3)(b) of the 1992 Act and that we should therefore consistently apply the reasoning of this Tribunal in DJM International Ltd v. Nicholas (which was not available to the Chairman at the time when he made his decision) to this case. That provision covers the liability of the Council for the alleged dismissal of Mr Haycroft on 15th September 1992.
B The Section 23 argument
We have also reached the conclusion that Mr Wallington is correct in his alternative argument under this section, though we base our decision on this point primarily on S.26, since that is clearly the section intended to deal with transfers of staff from a Local Education Authority to a Further Education Corporation, whereas S.23 is intended to deal primarily with the transfer of property. Nevertheless, the wording of S.23(2)(b) is, subject to the provisions of S.61(2), sufficiently wide to cover the liability of a Local Education Authority for unfair dismissal. Such a liability could be "subsisting" immediately before that operative date, even though not established by a decision of a tribunal until after that date. Further, that liability would be incurred "for the purposes of" the institution the Corporation was established to conduct ie, Merton College, even though a breach of statutory duty or contract may have been committed in the alleged dismissal of Mr Haycroft.
The critical point on the S.23 argument is whether the alleged liability to Mr Haycroft is a liability "under a contract of employment". If it is, the effect of S.61(2) is to exclude the transfer of that liability. In our judgment, the Chairman erred in law in holding that redundancy payments and unfair dismissal compensation were liabilities "under a contract of employment" within the meaning of S.61(2)(a). The wording of this provision is narrower than the wording of S.26(3)(a) which refers to "liabilities under or in connection with" a contract. A liability to make a redundancy payment or to pay compensation for unfair dismissal is, in our view, a liability "in connection with a contract", because it is a liability to an employee who has a contract of employment with the person who has allegedly incurred the liability to him. It does not follow, however, that those liabilities are "under a contract of employment". In our judgment, they are not. The liabilities, though incurred in connection with a contract, are liabilities under a statute ie, the Employment Protection (Consolidation) Act 1978 which conferred the rights and prescribed the conditions which have to be satisfied in order to establish statutory liability. Employment under a contract and the termination of that contract are only some of the conditions which have to be satisfied for the liability to be incurred.
We agree with Mr Wallington that, in determining this question of construction, no assistance can be derived from the fact that, under European Community Law, "pay" includes not only wages or salary paid under a contract, but also payments made by an employer by virtue of legislative provisions: see Gillespie v. Northern Health and Social Services Board [1996] IRLR 14 at p.224 paragraph 13. The concept of "pay" in, for example, Article 119, is much wider than payments "under a contract".
For all these reasons, our conclusion is that the Chairman erred in law in holding that the Council is the correct Respondent to Mr Haycroft's claims. The Corporation is the correct Respondent, because any liabilities incurred by the Council to Mr Haycroft in respect of his alleged dismissal on 15th September 1992 have been transferred to the Corporation by virtue of statutory transfer in Sections 26 and/or 23 of the 1992 Act.
Time Point - General
Since the Chairman of the Tribunal heard argument on the preliminary question of jurisdiction in January 1995 and sent his Extended Reasons to the parties in May 1995, the legal landscape on time limits for redundancy payments and unfair dismissal claims by part-time workers invoking European Community Law has been transformed. On 6th July 1995 this Tribunal handed down judgment in the case of Biggs v. Somerset County Council [1995] ICR 811. On 26th January 1996 the Court of Appeal dismissed Mrs Biggs's appeal against that decision and also an appeal against another decision of this Tribunal in Barber v. Staffordshire County Council: see the Reports of those cases in [1996] IRLR 203 and 109. The effect of those decisions is, briefly, that the time limits laid down in the 1978 Act (S.67) apply to a claim by a part-time worker who invokes Community Law in the form of Article 119 of the Treaty of Rome and the Equal Pay Directive ie (3 months from effective date of termination). There was no discretion to extend the time in respect of claims for unfair dismissal, because the applicants were unable to satisfy the jurisdictional requirement that it was not reasonably practicable for them to institute their claims within the 3 months time limit. The fact that it was not until 3rd March 1994 that the House of Lords declared in the EOC case that the qualifying threshold requirements regarding hours per week were contrary to Community Law could not be relied on by the applicants in support of their contention that it was not reasonably practicable for them to present a claim within the time limit before that date.
If the reasoning in those decisions is applied to the facts of this case the result is that Mr Haycroft presented his claim for the redundancy payment and for unfair dismissal out of time and there is no basis for granting him an extension of time for either claim.
Submissions of the Council and the Corporation
On the time point Mr Stewart, on behalf of the Corporation, adopted the submissions made by Mr Wallington on behalf of the Council. The essence of those submissions was that, even though there is at present before the House of Lords a petition for leave to appeal against the Court of Appeal's decision in Biggs (supra) this Tribunal was bound to apply the reasoning in the Court of Appeal to the claims of Mr Haycroft.
Mr Wallington dealt with the claims for redundancy pay and unfair dismissal separately.
A Redundancy Payment Claim
This claim is made under S.101 of the 1978 Act. The time limits contained in that section had expired before Mr Haycroft presented his application to the Industrial Tribunal. The time limit under S.101 is six months from the relevant date ie, the date of the alleged dismissal on 15th September 1992. That six month time limit is extendable under S.101(2) on just and equitable grounds for a maximum of a further six months, but there is no provision for further extension of time. As Mr Haycroft's redundancy payment claim was first presented more than a year after the relevant date it is out of time, it is beyond the discretion to extend time and the Tribunal therefore has no jurisdiction to entertain it.
On the reasonaing of the Court of Appeal in Biggs (supra) the Chairman of the Tribunal erred in law in holding that the claim for a redundancy pay was a free-standing claim under European Community Law and that the combined effect of Article 119, the Equal Pay Directive, the Equal Treatment Directive and the decision of the European Court of Justice in Emmott (supra) was that Mr Haycroft's claim was not out of time. Domestic time limits apply. They are not incompatible with European Community Law and there is no ground for extending the time.
Mr Wallington added (and we agree) that, although the Court of Appeal in Biggs did not deal with the case of an applicant relying on the Equal Treatment Directive (Mrs Biggs claimed unfair dismissal and relied on Article 119 and the Equal Pay Directive), the reasoning of the decision applied in a case such as this, where Mr Haycroft also invokes the Equal Treatment Directive. The position under European Community Law is that a statutory redundancy payment is "pay" within Article 119 (Barber v. Guardian Royal Exchange Assurance [1990] ICR 616 at 668D - 669B, paragraphs 13 - 20. "Pay" within Article 119 is excluded from the scope of the Equal Treatment Directive: see Gillespie v. Northern Health and Social Services Board [1996] IRLR 214 at 224, paragraph 24. Mr Haycroft is not therefore entitled to rely on the Equal Treatment Directive.
For all those reasons Mr Wallington submitted that the claim for the redundancy payment should be dismissed.
B. Unfair Dismissal
Mr Wallington submitted that the same time considerations applied to Mr Haycroft's claim for unfair dismissal, subject to two further points, namely, the discretion to extent time under S.67(2) and the question whether compensation for unfair dismissal is "pay" within Article 119.
(1) The point on extension of time under S.67(2) has been determined against Mr Haycroft by the reasoning of the Court of Appeal in Biggs (supra). The Court of Appeal held that the fact that it was not until 3rd March 1994 that the House of Lords gave their ruling in the EOC case declaring that the hours thresholds in Schedule 13 to the 1978 Act were incompatible with the European Community Law, could not be taken into account as arguing, under S.67(2) of the 1978 Act, that it was not "reasonably practicable" to present a claim before that date. That decision is binding on this Tribunal. There is, therefore, no jurisdiction to consider the claim or to exercise a discretion extending the time.
(2) The "Pay" Point
Mr Wallington conceded that, if unfair dismissal compensation is not "pay", Mr Haycroft is entitled to rely on the Equal Treatment Directive as against the Council, if it is the proper respondent. Such a claim would not be precluded by the decision of the European Court of Justice in Gillespie. Unfair dismissal in other respects falls within Article 5(1) of the Equal Treatment Directive. Mr Wallington also conceded that, on that basis, although Mr Haycroft's claim would still be made under S.67(1) of the 1978 Act, the principle in Emmott would require the Tribunal to disregard the time limit until the requirements of Article 5(1) had been properly transposed into domestic law by the 1995 Regulations. The decision of the Court of Appeal in Biggs did not affect this argument, since that case was concerned with a dismissal made before the Equal Treatment Directive came into effect. Mr Wallington went on to submit that unfair dismissal compensation is "pay" within Article 119 and that that point is sufficiently clear to make it unnecessary and inappropriate to refer a question to the European Court of Justice under Article 177, as requested by Mr Haycroft. Mr Wallington cited authority in support of this proposition namely, the Court of Appeal in the Equal Opportunities case [1993] ICR 252 at 264A and 287D (the point did not arise for decision in the House of Lords, see [1994] ICR at 332A - B; the decision of this Tribunal in Mediguard Services v. Thame [1994] ICR 751 at 758D - 760H; and the assumption made by the Court of Appeal in Biggs (supra), as well as by this Tribunal, that unfair dismissal compensation was "pay". Mr Wallington accepted that the point was not dealt with in the last decision, because it had been conceded for the purposes of resolving the other issues relating to time. The authorities were most recently reviewed by the Court of Appeal in R v. Secretary of State for Employment Ex Parte Seymour Smith [1994] ICR 885 at 936B - 941A. The conclusion of the Court of Appeal was that there was a very strong argument that compensation is "pay", but they did not go so far as to say that it was "acte claire". A reference was not made to the European Court of Justice on that point, because the Court was able to decide the case on a different basis. On the present state of the English decisions, it was not necessary to make a reference in order to decide this appeal.
If this Tribunal did not accept Mr Wallington's submission on unfair dismissal compensation as "pay" there were, he submitted, various courses of action open to the Appeal Tribunal. The first was to make a reference to the European Court of Justice. He opposed that, pointing out that no court or tribunal had thought it necessary to do that to date. The second course of action was to defer a decision on this part of the case until the House of Lords had promulgated a decision in the Seymour Smith case, listed for hearing on 10th July 1996. This Tribunal could then re-list the appeal for further submissions once the decision of the House of Lords had been given. If this course is adopted, this Tribunal should still proceed now to give a decision on the issue of who is the correct respondent, so that one of the parties can be released from further participation in the proceedings (subject to appeal).
The Submissions of Mr Haycroft
On behalf of Mr Haycroft, Mr Davies made the following submissions.
(1) Mr Haycroft relies directly on Article 119, the Equal Pay Directive and the Equal Treatment Directive and the principle in Emmott that emanations of the State may not rely on a failure of that member state to properly implement European Community legislation, in order to defeat a claim on the basis that it is out of time.
(2) Time limits only commence, in a claim against an emanation of the State based on a right conferred by European Community Law, when that member state has complied with its obligations to incorporate or transpose that right into its domestic law. The Industrial Tribunal correctly held that that principle applied to claims under Treaty provisions with direct effect, such as Article 119.
(3) The different approach taken by the Court of Appeal in Biggs (supra) was based on semantic considerations, not on substance. Claims can be brought for unfair dismissal and redundancy directly under Article 119. The Industrial Tribunal has jurisdiction to determine such claims. The Court of Appeal were wrong in deciding that Industrial Tribunals only have jurisdiction to hear claims specifically set out in relevant domestic legislation. European Community Law itself confers jurisdiction on Tribunals to hear and determine European Community Law claims.
(4) The Court of Appeal were legally incorrect in treating unfair dismissal compensation as "pay" for the purposes of Article 119 and the Directives. That point had been conceded for the purposes of the appeal in Biggs, but it was not "acte claire" in European Community Law, as indicated by the Court of Appeal in Seymour Smith (supra) at p.940E. Mr Davies submitted that this is a question of interpretation which requires resolution by the European Court of Justice. The Court of Appeal were wrong in Biggs, because their decision conflicts with European Community Law. Biggs is not therefore binding on this Tribunal or there should at least be a reference to the European Court of Justice by this Tribunal to have the point determined once and for all. The point was crucial to Mr Haycroft's case for, if unfair dismissal compensation is not "pay", Mr Haycroft is entitled to rely on the Equal Treatment Directive and on the principle in Emmott and such a claim would not be out of time. The claim under the Equal Treatment Directive would only be ruled out if the European Court of Justice decided that unfair dismissal compensation was "pay": see Gillespie (supra).
(5) Alternatively, Mr Haycroft had a claim under the Equal Pay Directive. The Court of Appeal in Biggs were wrong in holding that the Equal Pay Directive did not confer any new or separate right, but merely implemented the principles of equal pay in Article 119. Article 3 of the Directive specifically imposes on member states the obligation to abolish discrimination contrary to the principles of equal pay. That is not a repetition of Article 119, which imposes the obligation to ensure and maintain the principle of equal pay for equal work.
(6) If, as Mr Davies submitted, Mr Haycroft's claim can be based on either the Equal Pay Directive or the Equal Treatment Directive, combined with Article 119, domestic courts of the United Kingdom, such as an Industrial Tribunal, are bound by Emmott to hold that Mr Haycroft's claim is in time or, if not, his case raises a point which should be referred as a question to the European Court of Justice. The reasoning of the Court of Appeal in Biggs treating the claim as Article 119 as not affected by Emmott is illogical. Individuals can rely on a Directive as against a member state. The principle in Emmott only applies as against States or emanations of the State. An individual can rely on a Directive as against the State as long as it remains unimplemented. It had not been transposed into UK law at the time of Mr Haycroft's dismissal. The Directive has the force of law analogous to Article 119.
(7) The distinction between Directives and the provisions of the Treaty of Rome having direct effect is not "acte claire", as assumed or conceded in the Court of Appeal in Biggs. Mr Davies pressed again his principal point that Mr Haycroft is entitled to rely on Emmott in respect of a claim based on Article 119 and to contend that he is not out of time for bringing a case for unfair dismissal or redundancy payments. He emphasised that, at the very least, it could not be said with "complete confidence" that his arguments were wrong and there should therefore be a reference to the European Court: Customs and Excise Commissioners v. Samex [1983] All ER 1042.
(8) Finally, Mr Davies submitted that the decision in the Court of Appeal in Biggs that it was reasonably practicable for Mrs Biggs to bring her claim within three months of her dismissal was surprising and that the matter on extension of time should be adjourned pending the petition for leave to appeal to the House of Lords in Biggs.
(9) Mr Davies reinforced his submissions by reference to the most recent opinion of the Advocate General in the European Court of Justice in Denkavit International BV v. Kamer (7th March 1996, Case C-2/94) in particular, passages in the Opinion at paragraph 76 - 79 on the scope of the Emmott principle in relation to time limits. (No decision of the European Court of Justice has yet been given in that case). The Advocate General was not persuaded of the need to limit the application of Emmott to cases of grave or manifest infringements of Community Law and saw no ground for distinguishing between infringements of Directives and of other Community Law provisions.
Conclusions
We are unable to accept Mr Davies's submissions. In our view, Mr Wallington's submissions are correct. They are supported by the Court of Appeal decision in Biggs and Barber (supra). The present state of the authorities requires and/or persuades us to conclude that Mr Haycroft's claim is out of time and that he is not assisted by reliance on the Equal Treatment Directive and the Emmott principle. We do, however, agree with Mr Davies that the law in this area shifts and moves. There may well be further important developments in the near future affecting this case eg, a decision of the House of Lords in Seymour Smith and, if leave to appeal is granted, a decision of the House of Lords in Biggs. The course we propose to take, subject to further submissions for the parties, is to allow the appeal, holding that the Corporation is the correct respondent and that there is no jurisdiction to hear Mr Haycroft's claim and grant Mr Haycroft leave to the Court of Appeal so that, in the light of later legal developments, Mr Haycroft may be able to renew his application to the Court of Appeal for a reference to the European Court of Justice or for some other ruling favourable to him on his appeal.