United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	BEN COOPER (Of Counsel) Bar Pro Bono Unit 289-293 High Holborn London WC1V 7HZ
For the Respondent	KAREN MOSS (Of Counsel) Instructed by: Messrs Curwens Solicitors Crossfield House Gladbeck Way Enfield Middlesex EN2 7HT


 


SUMMARY

UNFAIR DISMISSAL

Exclusions including worker/jurisdiction

Where a Member State has complied with Article 18 of the Equal Treatment Directive, the fundamental rights and general principles of community law do not require it to ignore its domestic provisions which may be discrimatory during the period permitted by the Directive for transposition of its terms into domestic law.


 


THE HONOURABLE MR JUSTICE WILKIE

1. This is an appeal by Mr Lloyd-Briden against the judgment of the Employment Tribunal (Chairman sitting alone) dated 19 June 2006 striking out the appellant's complaint of unfair dismissal under rules 18(7)(b) and 19 of the Employment Tribunal's Rules of Procedure 2004 on the ground that it had no reasonable prospect of success.
2. The underlying facts are not in dispute and can be shortly stated. The appellant was employed by the respondent as a cleaner between 30 September 1996 and 6 January 2006. He was born on 15 April 1923 and was 73 years of age when he commenced his employment and 82 years of age when he was dismissed. He sought to claim unfair dismissal in respect of his dismissal. The respondent contended that the employment tribunal had no jurisdiction in respect of his claim for unfair dismissal by reason of the fact that, by section 109(1)(b) of the Employment Rights Act 1996, the right not to be unfairly dismissed under section 94 of that Act did not apply in the case of the appellant as he was more than 65 years of age. The ET chairman, notwithstanding various letters from the claimant seeking to persuade him to the contrary, concluded that there was no arguable case that his complaint was within the jurisdiction of the tribunal and accordingly struck out his claim as having no reasonable prospect of success.
3. On the face of it section 109 of the 1996 Act is clear and the conclusion of the ET correct. The appellant sought to counter this by arguing before the ET, and seeks to argue before this Tribunal, that section 109 of the 1996 Act should be disregarded as being unlawfully discriminatory on the grounds of age.
4. On its face section 109 does discriminate on grounds of age. Indeed, with effect from 1 October 2006, section 109 was repealed pursuant to the Employment Equality (Age) Regulations 2006. Those regulations purport to implement, in the United Kingdom, the provisions relating to age discrimination in EU directive 2000/78 (the Equal Treatment Directive). Article 1 of that Directive sets out its purpose as being to lay down a general framework for combating discrimination on the grounds, amongst other things, of age as regards employment and occupation with a view to putting into effect in the Member States the principle of equal treatment. Article 18 of the Directive provides the mechanisms agreed by the Member States for its transposition into the domestic law of the Member States. It provides that they:

"Shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 2 December 2003 at the latest...

In order to take account of particular conditions, Member States may, if necessary, have an additional period of 3 years from 2 December 2003, that is to say a total of 6 years, to implement the provisions of this directive on age…discrimination. In that event they shall inform the Commission forthwith. Any Member State which chooses to use this additional period shall report annually to the Commission on the steps it is taking to tackle age… discrimination and on the progress it is making towards implementation. The Commission shall report annually to the Council."

By virtue of these provisions, the United Kingdom was not obliged to implement the Directive until a date after the appellant was dismissed, made his claim to the ET and had it dismissed. It therefore follows that, on the face of it, neither the repeal of section 109, nor the provisions of the Directive assist him in establishing that the ET had jurisdiction to determine his complaint of unfair dismissal.

5. The appellant accepts these arguments. He argues that, nonetheless, the ET was wrong in law in relying on section 109 and thereby refusing to accept jurisdiction to entertain his claim of unfair dismissal. In so doing he seeks to rely on what he says is an established, directly applicable, general principle of equal treatment or non discrimination under EU law which operates regardless of the fact that the relevant provisions of the Directive were not at the time required to be transposed into UK domestic law and had not been. He says that, by virtue of this directly applicable general principle, the ET was obliged to remove the age discrimination which, on the face of it, is evidenced by the provisions of section 109 by disregarding that section. Had it done so it would have concluded that it had jurisdiction to entertain his complaint of unfair dismissal. By failing to do so it erred in law.
6. The appellant bases what appears to be a bold proposition upon a decision of the European Court of Justice in Mangold v Helm [2006] IRLR 43. The argument before me has focussed on this case and, in particular, on the questions whether it is correctly decided, whether it is binding on this Tribunal, and, if so, whether it establishes a directly applicable principle of non discrimination on grounds of age which would require section 109 to be disapplied in this case.
7. The facts of Mangold were, briefly, as follows. The complainant was employed by a lawyer under a fixed term contract taking effect on 1 July 2003. He was aged 56 at the time. He brought proceedings against his employer claiming that his fixed term contract was incompatible with German law relating to fixed term contracts and age discrimination. Prior to the enactment of the Equal Treatment Directive in 2000, German domestic law had prohibited certain fixed term contracts but subject to an exception where the employee was aged 60 when the fixed term contract began. On a date after the enactment of the Equal Treatment Directive, but before the last date upon which member states were obliged to implement it, there was an amendment to German domestic law. That amendment provided that the provisions prohibiting certain fixed term contracts did not apply where the employee had reached the age of 52 when the fixed term employment contract began. Thus, if this statutory provision were applied to the case of Mr Mangold he did not have a claim but if it were ignored he did. Questions arose whether this provision of German law was compatible with community law, and if not whether the domestic court was required to disregard it.
8. The ECJ concluded that the provision of German law disapplying the prohibition on fixed term contracts for those who were at least 52 was discriminatory on grounds of age and could not be objectively justified under the terms of article 6(1) of the Directive. If the time for transposition of the Directive into German domestic law had elapsed, it would have constituted a breach of the Directive and should have been treated as being of no effect .
9. The ECJ then went on to consider the position in the light of the fact that the time for transposition of the Directive into German domestic law had not yet expired when the discriminatory amendment of the German law occurred. It concluded that its finding that the German domestic law provision was unlawfully discriminatory was unaffected by the fact that, at the time of its enactment, there was no obligation for the Directive to have been transposed into domestic law. It so concluded for two reasons.
10. First (paras 67-73). The German government was in breach of article 18 of the directive by taking measures liable seriously to compromise the attainment of the result prescribed by the directive.
11. Second, and particularly relied on by the appellant, (paras 74-78):

"74…and above all, Directive 2000/78 does not itself lay down the principles of equal treatment in the field of employment and occupation. Indeed, in accordance with article 1 thereof, the sole purpose of the Directive is "to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation", the source of the actual principle underlying the prohibition of these forms of discrimination being found, as is clear from the third and fourth recitals in the preamble to the Directive, in various international instruments and in the constitutional traditions common to the member states.

75. The principle of non discrimination on grounds of age must thus be regarded as a general principle of community law…

76. Consequently, observance of the general principle of equal treatment, in particular in respect of age, cannot as such be conditional upon the expiry of the period allowed the member states for the transposition of a Directive intended to lay down a general framework for combating discrimination on the grounds of age,…

77. In those circumstances it is the responsibility of the national court hearing a dispute involving the principle of non discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of community law and to ensure that those rules are fully effective, setting aside any provision of national law which may conflict with that law."

12. The appellant argues that the principles identified in Mangold apply directly in this case. He says that section 109, at least on the face of it, is discriminatory on the grounds of age. Accordingly, it breaches the general principle of equal treatment in respect of age. It therefore follows that, even though at the relevant time the period allowed members states for the transposition of the directive into domestic law had not yet expired, the E. T. was obliged to disregard it thereby removing the obstacle to its jurisdiction to determine the appellant's complaint of unfair dismissal.
13. The respondent's contention is that this cannot be correct. If it were it would mean that the carefully constructed and agreed mechanisms within the equal treatment directive, which provide member states with an element of leeway in timing their implementation of its provisions, would be redundant. During that period a complainant could rely on the general principle of equal treatment in order to require the domestic court to disregard any provision which, during the transposition period, appeared to operate in a discriminatory way on grounds of age and could not objectively be justified.
14. The respondent states that since Mangold there have been two occasions on which the ECJ has had to consider Mangold in different contexts and has pointedly declined to adopt the same approach. Those occasions were in the cases of Chacon Navas v Eurest Colectividades SA [2007] ICR 1 and Adeneler v Ellinikos Organismos Galactos [2006] IRLR 716.
15. In the first of these cases the ECJ rejected a contention that sickness could be regarded as a ground of discrimination which was actionable in community law in addition to those which Directive 2000/78 had specifically prohibited. In so doing it said as follows:

" 56. It is true that fundamental rights which form an integral part of the general principles of community law include the general principle of non discrimination. That principle is therefore binding on member states where the national situation at issue in the main proceedings falls within the scope of community law…However, it does not follow from that that the scope of Directive 2000/78 should be extended by analogy beyond the discrimination based on the grounds listed exhaustively in article 8 thereof. "

16. In the second of these cases the issue in point was whether a national court must, as far as possible, interpret its domestic law in conformity with a Directive which was transposed belatedly into national law from:

i) the time when the directive entered into force; or

ii) the time when the time limit for transposing it into national law passed without transposition being effected; or

iii) the time when the national measure implementing it entered into force.

The ECJ concluded that the appropriate time was the second of those three, in particular it said as follows:

"114. Also, before the period for transposition of a directive has expired, member states cannot be reproached for not having yet adopted measures implementing it in national law…

115. Accordingly, where a directive is transposed belatedly the general obligation owed by national courts to interpret domestic law in conformity with the directive exists only once the period for its transposition has expired…"

The ECJ went on to say:

"121. In accordance with the court's settled case law…during the period prescribed for the transposition of a directive, the member states to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by it…in this connection it is immaterial whether or not the provision of national law at issue which has been adopted after the directive in question entered into force is concerned with the transposition of the directive (Mangold paragraph 68)."

17. The respondent also draws attention to the, yet to be decided, case of Palacios de Villa v Cortefiel Servicios SA. In that case the Advocate General has provided an opinion in which he addresses, at length, the question whether the prohibition of discrimination on grounds of age is a general principle of community law and the implications of Mangold. He does so at paragraphs 79 to 99 of his opinion. In particular he focussed on the conclusion in Mangold that "the principle of non discrimination on grounds of age must be regarded as a general principle of community law." He concluded in paragraph 97 that:

"I do not regard as particularly compelling the conclusion drawn in Mangold as to the existence of a general principle of non discrimination on grounds of age."

18. The appellant points out that the case of Mangold is not the first case in which fundamental rights, including the general principle of equality and non discrimination, have been identified as so basic to the community legal order that they were binding on member states when they implemented community rules and may be used as an aid to interpretation of directives. He relies on the case of Rodriguez Caballero v Fondo de Garantia Salaria [2003] IRLR 115. (See paras 30-33 and 40).
19. In my judgment the authorities cited to me establish the following propositions:

i) that there are fundamental rights forming an integral part of the general principles of community law which include the general principle of non discrimination and which are binding on member states when the issue to be determined by the national court falls within the scope of community law;

ii) that in the absence of any direct ECJ authority disapproving the decision in Mangold, and not withstanding the trenchant criticisms made by the advocate general in the Palacios case, I am obliged to accept as binding on me the proposition that the principle of non discrimination on grounds of age is to be regarded as a general principle of community law such that, in certain circumstances, a national court may be required to set aside any provision of national law which conflicts with that general principle;

iii) that the cases decided subsequent to Mangold by the ECJ have declined to use those general principles to extend the ambit of community law beyond the relevant Directive (Chacon Navas), or to undermine the freedom of member states lawfully to utilise the periods granted by the Directives for implementation of their provisions into domestic legislation (Adeneler);

iv) that in Mangold the domestic provision, which the ECJ concluded ought to be disregarded by the domestic court, had been enacted in breach of the arrangements agreed by member states and given effect to in article 18 of the Directive permitting transposition to be delayed by either three or six years.

20. In my judgment, the combined effect of these decisions of the ECJ is that where, as here, the UK government has complied with the provisions of article 18, there is no place for the direct operation in domestic UK law of the general principles so as to extend the provisions against discrimination, which are found in the Directive, so that they apply earlier than the timely transposition of the Directive into UK domestic law.
21. It therefore follows that, in my judgment, the case of Mangold, insofar as it is correctly decided, must be limited in its effect to cases where the application of the underlying general principles are required because the provisions of the Directive giving effect to them have been broken by the member state in question. Where, as here, that is not the case, the provisions of the Directive, both substantive and procedural, determine the extent to which EU law intervenes to affect the outcome of domestic employment litigation.
22. It follows that there is nothing in Mangold which required the ET to disregard 109 of the 1996 Act. Accordingly, its decision to apply it contains no error of law and this appeal must be dismissed.
23. Neither party, as its primary contention, sought a reference to the ECJ. In my judgment, having reviewed the authorities, the position is clear. Mangold is limited so as to require a domestic court only to disregard domestic legislation which has been enacted in breach of the Member State's obligations under Article 18 of the Directive. It does not apply to this case and no reference to the ECJ is required to clarify the matter. I therefore decline to refer any question in relation to this case for decision by the ECJ.