United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant
For the Respondents


 


RESERVED JUDGMENT
MRS M STANTON -V- OLDHAM METROPOLITAN BOROUGH COUNCIL

MR JUSTICE MORISON (PRESIDENT): Mrs Stanton was employed as a teacher from 23 August 1990 until her dismissal on 31 August 1992.

At the time of her dismissal she was unable to present a claim for unfair dismissal or for a redundancy payment as she did not have the requisite period of continuous employment. At the date of her dismissal, Mrs Stanton had been employed for 2 years and four months, but during all but nine months of her service she had been working part-time with fewer than the requisite number of hours, and by virtue of the provisions of Schedule 13 to the 1978 Act, such period did not count in the computation of her continuous service.

She presented her complaint to an Industrial Tribunal on 10 February 1995. The previous year, on 3 March 1994, the House of Lords held, in R v Secretary of State for Employment ex parte EOC [1994] ICR 317 that the provisions of Schedule 13 which applied less favourable rules as to continuity of employment than applied to full time workers in relation to claims for redundancy payments, were inconsistent with Article 119 and the Equal Treatment Directive. The House held that redundancy payments were pay for the purposes of Article 119. In relation to claims for unfair dismissal, the rules were held to be incompatible with the Directive, but the House declined to say that compensation for unfair dismissal was pay, and, therefore, did not say that the rules were incompatible with Article 119 in that respect.

As from 6 February 1995, by virtue of the provisions of the Employment Protection (Part-time employees) Regulations the discriminatory provisions were amended.

Mrs Stanton's complaint of unfair dismissal was presented more than three months after the effective date of termination of her employment and she cannot succeed unless she can show that it was not reasonably practicable for her to have presented her claim within time. She also claimed a redundancy payment more than 6 months after her dismissal.

Very sensibly, the Industrial Tribunal adjourned consideration of Mrs Stanton's complaint until after the Court of Appeal had given judgment in the case of Biggs v Somerset County Council, now reported at [1996] ICR 364. In that case, the Court was concerned with a complaint of unfair dismissal presented by a part-time teacher nearly 18 years after her dismissal. The Court of Appeal held that Mrs Biggs could have brought her complaint within time even though she did not understand she had a viable complaint under United Kingdom Law. Leave to appeal to the House of Lords was refused, and a petition for leave was rejected. On that basis, Mrs Stanton's complaint would appear to be, effectively, time-barred.

The basis for the decision in Biggs may be summarised thus:

1. Under domestic law it would have been "reasonably practicable" for the applicant to have presented her complaint within time.
2. What is called the Emmott principle did not apply to Mrs Biggs' complaint as she had a right to make her claim based upon Article 119, and the Industrial Tribunal would disapply any discriminatory time provision which deprived her of that right. The Emmott principle provides that until a national government has properly given effect to a Directive by introducing into its domestic law measures which fully give effect to its purpose, neither it nor any emanation of it may rely upon any time limit provision so as to defeat a complaint brought under it. The Court of Appeal held that the Emmott principle had no application to Mrs Biggs' complaint because her rights under the Equal Pay Directive overlapped entirely with her rights under Article 119 of the Treaty and that, therefore, she had a competent cause of action from the date of her allegedly unfair dismissal.
3. The Court rejected the submission that the statutory time limit provisions made Mrs Biggs' right to make a claim "excessively difficult or practically impossible" so as to entitle the Court to disapply domestic procedural law, following the case of Rewe [1976] ECR 1987.

However, despite this decision, Mrs Stanton's representatives asked that her case be further stayed pending an appeal in the case of Preston v Wolverhampton Health Care reported at [1997] ICR 233. In Preston, leave to appeal to the House of Lords has been granted.

There, public sector employees, including teachers, are arguing, effectively, that the decision in Biggs should not be followed in relation to the Emmott principle. Further, Mrs Stanton would wish to rely upon the Equal Treatment Directive which was not an argument available to Mrs Biggs as she was dismissed before its implementation date had arrived. Of course, if compensation for unfair dismissal is 'pay' within the meaning of Article 119, then this point may have to be re-considered.

The Chairman of the Industrial Tribunal was not prepared to stay any further Mrs Stanton's complaint on the grounds that the interests of justice would not be served by a further stay pending the Preston decision.

In this appeal, in a thorough and convincing submission, Mr Cavanagh submitted, on the appellant's behalf, that Mrs Stanton's complaint is not hopeless because the House of Lords could reach a conclusion which would entitle her at least to pursue her complaint. In these circumstances he submits that it would be wrong to dismiss her complaint at this stage. He would also wish to argue that the time limit for bringing such a complaint as the present one is that imposed by the Equal Pay Act, but that that limit is less favourable than the other limits imposed by domestic law and she should be entitled to rely, by analogy, on the time limits set out in the Race Relations Act, which confers upon the Tribunal a wide discretion to extend time where it is just and equitable to do so.

He further submitted that the Chairman was wrong to have taken into account the question of delay and inferred prejudice. The power to strike out must be exercised having regard to the contents of the IT1 and not by reference to factual matters which might be in dispute. When the Court is considering striking out a complaint because of inordinate and inexcusable delay, it should balance the relative injustices to the parties if the case was allowed to proceed or not, as the case might be.

The Respondents to the appeal, Oldham Metropolitan Borough Council, argued, in their written skeleton prepared by Mr Burns of counsel, before he had had an opportunity to see how Mr Cavanagh was putting the point, that the matter was closed as a result of the Court of Appeal's decision in Preston. He contended that Mrs Stanton could have brought her complaint either under Article 119 for a redundancy payment and, if compensation is pay, also for compensation for unfair dismissal. She could also bring a claim under the Equal Treatment Directive, as in Biggs, where the complainant relied both upon the Treaty and a Directive [the Equal Pay Directive]. The Directive confers upon her no new right and no better right to compensation than she would obtain under the Treaty. As she potentially had a claim for compensation under the Treaty it was practicable for her to have brought it within time. Furthermore, the direct effect of the Directive and the Emmott principle do not 'come into play'. It would be wrong for Tribunals to take account of the possibility that Preston may be overturned in the House of Lords: the law must be applied as it stands.

We have to say that we regard the present position as unsatisfactory. The power to strike out on the grounds that the complaint does not disclose a reasonably arguable claim must be exercised judicially. It might be inconvenient administratively for cases to be stayed, but the power must be exercised judicially, without regard to administrative convenience. That said, we have considerable sympathy with tribunals and litigants because the law is uncertain. The present state of play is that Preston is to be decided by the House of Lords. That being so, we regard it as feasible [although, we would add, very unlikely] that as a result of their deliberations Mrs Stanton's claim may be viable.

We accept that the Biggs decision does not represent domestic law's last word on the question whether the statutory time limits made it practically impossible or excessively difficult for applicants such as Mrs Stanton to present her complaint within three months of her dismissal. The Court of Appeal has clearly given its view, which, for what it is worth, we share. But as leave has been given on the issue, we do not think the point can properly be regarded as closed against Mrs Stanton. Similarly, we think it arguable that the Emmott principle applies where there is a concurrent claim under the Treaty and under the Equal Treatment Directive. Again we regard it as unlikely that this point will be decided in her favour in the House of Lords.

That being so, we consider that the Industrial Tribunal erred in the decision to strike this case out, although we fully understand why the decision was made. It is difficult for parties who do not know how the law is going to be resolved. Mrs Stanton's claim is stale. If it is dismissed now she will have lost the right to argue her case and the opportunity to recover a statutory payment and compensation. The problems caused by the issues in Seymour-Smith and Preston are formidable. Parties will have arranged their affairs on the basis that their rights were set out in domestic legislation. Many people may have lost their rights as a result of the law not being in conformity with our European Treaty obligations and as a result of part of them being unlawfully discriminatory on grounds of sex. We have considerable sympathy with the position in which the Respondents now find themselves. When Mrs Stanton left their employment they had every right to believe that she had no viable claim against them. As they see it, she is seeking to take advantage of a 'change' in the law. On the other hand, if Mrs Stanton has a valid complaint she should not be prejudiced. She made it at the first available moment after the domestic law was amended in 1995. She was not to know that what Parliament had done would be regarded as ineffective so as to deprive her of her rights to make a complaint.

Her claim is stale and one wonders how it can ever be fairly tried. We have been greatly troubled by the consequences of allowing this appeal, but we have been persuaded that she should not be shut out at this stage.

The appeal will be allowed and we direct that this case be stayed until after the House of Lords has given its decision in the cases of Preston, or further order.