BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Preston & Ors v Wolverhampton Healthcare Trust & Anor [1997] EWCA Civ 1013 (13th February, 1997)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/1013.html
Cite as: [1997] EWCA Civ 1013

[New search] [Printable RTF version] [Help]


PRESTON and OTHERS v. WOLVERHAMPTON HEALTHCARE TRUST SECRETARY OF STATE FOR HEALTH [1997] EWCA Civ 1013 (13th February, 1997)

IN THE SUPREME COURT OF JUDICATURE EATRF 96/0929/B
IN THE COURT OF APPEAL (CIVIL DIVISION) EATRF 96/0930/B
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand
London WC2

Thursday, 13th February, 1997

B e f o r e:
LORD JUSTICE WAITE
MR JUSTICE SINGER

- - - - - -

PRESTON & OTHERS Appellant
- v -
WOLVERHAMPTON HEALTHCARE TRUST
THE SECRETARY OF STATE FOR HEALTH
Respondent
- - - - - -

FLETCHER & OTHERS Appellant
- v -
MIDLAND BANK PLC
Respondent

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
- - - - - -
MR J CAVANAGH (Instructed by UNISON WC1H 9AJ) appeared on behalf of the Appellant in the case of Preston v Wolverhampton Healthcare and others.
MR CAWS QC / MR T KERR / MR C LEWIS / MR P ELIAS QC / MR J COPPEL / MISS TETHER / MR PAULS / MR R HILL (Instructed by The Lewington Partnership B16 9NN) appeared on behalf of the Respondent
MISS J NCNEILL (Instructed by Lawford & Co TW9 1UF) appeared on behalf of the appeallant in the case of Fletcher v Midland Bank
MR PATRICK ELIAS QC and MR J COPPEL (Instructed by Eversheds EC4V 4JL) appeared on behalf of the respondents.
MR NICHOLAS PAINE appeared on behalf of the Secretary of State.
- - - - - -
J U D G M E N T
(As Approved)
- - - - - -
Crown Copyright

I
Introduction


LORD JUSTICE SCHIEMANN: These appeals are against the decision of the Employment Appeal Tribunal presided over by Mummery J. Various test cases were heard together and the Tribunal was concerned mainly with various preliminary issues. The employees lost on those preliminary issues and it is they who appeal. There is a crossappeal in relation to one issue.

The present appeals arise out of a mismatch between Community Law (by which I mean that part of our law which springs from our membership of the European Union) and Domestic Law (by which I mean that part of our law which does not spring from our membership of the European Union) during the period prior to 31.5.1995 [1]. During that period Community Law made unlawful but Domestic Law permitted indirect sex discrimination in relation to the grant of access to an occupational pension scheme. The problems in the present case mainly concern the position of women who it is assumed were discriminated against and who it is assumed were unaware of their rights under Community Law. By the time that they became aware that they had such rights they were potentially disadvantaged by the application of Section 2 (4) and (5) of the Equal Pay Act 1970 (“the EPA”) which impose time limitations on the exercise of such rights.

Much of the argument in these appeals has centred around the interrelation of Community Law and Domestic Law. Crucial to the solution of the difficulties which this interrelation poses is to bear firmly in mind that, just as Domestic Law is part of English Law, so Community Law is part of English law. Parliament has so enacted in section 2(1) of the European Communities Act. 1972.
"All such rights ..... from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly ..."

Where our courts feel difficulty in ascertaining what Community Law is on a particular point they are able, under Article 177 of the Treaty of Rome (“the Treaty”), to obtain binding preliminary rulings from the European Court of Justice (“the ECJ”) but this must not blind us to the fact that Community Law is part of English Law just as an Act of Parliament or a Statutory Instrument or the Common Law are parts of English Law.

The other point which has to be borne firmly in mind is that where there is a conflict between Community Law and Domestic Law, Community Law prevails. The position is similar to a conflict between a Statutory Instrument and a Statute : where there is a conflict, the Statute prevails. The rule as to what prevails in the event of conflict between Domestic Law and Community Law is a rule of Community Law which, by virtue of the European Communities Act, has become a rule of English Law.

The legal technique which is used for resolving such a conflict between Domestic and Community Law is for the Court to disapply that part of Domestic Law which conflicts with Community Law.

The legal points for decision on these appeals arise in claims for unlawful exclusion of part-time and retired part-time workers from contributory and non-contributory pension schemes. The principal features of the claims are as follows:-
(1) The Applicants in the 22 originating applications submitted as test cases are, or were at some time, part-time workers employed either by public or private sector employers and had been excluded from occupational pension schemes with a qualifying condition of membership based on a minimum number of hours worked each week.

(2) The Applicants claim access to membership and recovery of contributions from employers in respect of various occupational pension schemes, some contributory, some non-contributory. They assert that on its face the EPA at the relevant times limited their claims and that in consequence no claims were made.

(3) The claims were prompted by the decision of the European Court of Justice given on 28.9.94 in the cases of Vroege and Fisscher[2]. The effect of those decisions was to declare that:-

(a) the right to join an occupational pension scheme falls within Article 119 of the Treaty and is therefore covered by the prohibition against discrimination by different treatment in the matter of pay for men and women without objective justification,

(b) the limitation on the effect in time laid down by the European Court on 17.5.90 in the case of Barber v Guardian Royal Exchange Assurance Group Ltd at paragraph 40 et seq does not apply to the right to join an occupational pension scheme. The Court did not lay down any analagous limitation in respect of such a right.

(4) The claims are made in reliance on the EPA, Article 119 of the Treaty and the Equal Pay Directive 75/117/EC (“the EPD”). The essence of the claims is that the denial of access to part-time workers, of whom a considerably higher proportion are women rather than men, discriminates indirectly against women in the matter of pay and is therefore contrary to the EPA and to Community Law and is unlawful. The majority of the Applicants, except in the firefighting sector, are women.

(5) The preliminary points are primarily concerned with time limits and the extent to which the private and public sector employers who are Respondents to the claims, may rely on:-

(a) National rules relating to time limits for bringing actions, and

(b) Temporal limitations in National law on the retrospective recovery of compensation.

II

The Relevant Primary Law

Article 119 of the Treaty provides:-

"Each Member State shall ............. ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.

The EPD provides so far as presently relevant:-

"Article 1. The principle of equal pay for men and women outlined in Article 119 of the Treaty, hereinafter called "principle of equal pay", means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration. .........

Article 2. Member States shall introduce into their National legal systems such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principle of equal pay to pursue their claims by judicial process after possible recourse to other competent authorities.

Article 3. Member States shall abolish all discrimination between men and women arising from laws, regulations, or administrative provisions which is contrary to the principle of equal pay.

Article 4. Member States shall take the necessary measures to ensure that provisions appearing in collective agreements, wage scales, wage agreements or individual contracts of employment which are contrary to the principle of equal pay shall be, or may be declared, null and void or may be amended.

.......................

Article 6. Member States shall, in accordance with their National circumstances and legal systems, take the measures necessary to ensure that the principle of equal pay is applied. They shall see that effective means are available to take care that this principle is observed.

Article 7. Member States shall take care that the provisions adopted pursuant to this Directive, together with the relevant provisions already in force, are brought to the attention of employees by all appropriate means, for example at their place of employment.

Article 8. 1. Member States shall put into force the laws, regulations and administrative provisions necessary in order to comply with this Directive within one year of its notification .......


It has been established by the ECJ that right of access to pension schemes is to be regarded as part of pay for the purposes of Article 119 and the Directive.

The rules of Domestic Law which it is sought to disapply as being in conflict with Community Law are contained in two subsections of section 2 of the EPA as modified.

Section 2(4) provides:-

"No claim in respect of the operation of an equality clause [3] relating to a woman's employment shall be referred to an industrial tribunal ...... if she has not been employed in the employment within the six months preceding the date of reference."

Section 2(5) provides:-

"A woman shall not be entitled, in proceedings brought in respect of a failure to comply with an equality clause ...... to be awarded any payment by way of arrears of remuneration or damages in respect of a time earlier than two years before the date on which proceedings were instituted".

In the context of pensions, the operation of s.2(5) is modified by Regulation 12 of the Occupational Pensions Schemes (Equal Access to Membership) Regulations 1976 ("the 1976 Regulations"). This entitles a court or tribunal which finds that there has been a breach of the equality clause in a contract of employment to make a declaration that the employee has a right of admission to membership of the scheme. However it is provided that no order may be made declaring the right of an employee to admission to membership of a scheme in respect of a period earlier than two years before the institution of proceedings.

III

The applicants submit that Community Law gives them rights springing first from the Treaty ("Treaty Rights") and secondly from the EPD ("Directive Rights"). The Respondents accept that the appellants have Treaty Rights; they do not accept that the Appellants have Directive Rights. It is therefore convenient to look first at whether there is any conflict between Treaty Rights and Domestic Law.

The following is common ground. Article 119 of the EC Treaty has horizontal direct effect, i.e., it may be relied upon by claimants in domestic courts and tribunals both against the State and against private individuals. [4] Exclusion of part time workers or any other group of workers from access to a pension scheme is contrary to Article 119 if it amounts to indirect sex discrimination, ie if a considerably greater proportion of part time workers are women than men and the exclusion cannot be explained on the basis of objectively justified factors unrelated to discrimination on grounds of sex. [5] That principle has most recently been affirmed in case C-435/93 Dietz .

It is common ground that at all material times a citizen was entitled to enforce his Treaty Rights in our courts. But what if he is met by a national limitation period or some other procedural rule which inhibits the full breadth of a possible claim? That is the main problem posed by these cases.

It is not a new problem. There is a long line of ECJ authority concerned with it. A relatively recent example is Fisscher where the ECJ said
39 The court has consistently held that, in the absence of Community rules on the matter, the national rules relating to time limits for bringing actions are also applicable to actions based on Community law, provided that they are no less favourable for such actions than for similar rights of a domestic nature and that they do not render the exercise of rights conferred by Community law impossible in practice: see in particular Rewe [1976] ECR 1989 paragraphs 5 and 6.

These have become known as the Rewe provisos. The rationale behind this doctrine is that
1. The principle of legal certainty requires that there be rules which lay down limitation periods etc.;
2. Where there is no applicable Community legislation setting out such periods , the only place one can look is national legislation;
3. However, the principle of the supremacy of Community Law requires that national legislation be disapplied if either it is so framed as to give rights arising under Community Law inferior treatment to that given to equivalent rights arising under Domestic Law or it is so framed as to render rights given by Community Law almost impossible to enforce.

The phrase “impossible in practice” used in Rewe clearly has in it a certain margin of appreciation. Nevertheless the case law of the ECJ indicates that it is to be construed strictly and, in my judgment, points against accepting the submission that where the common understanding is that there are no applicable rights under Community Law this renders the exercise of rights conferred by Community Law impossible in practice. That is not the situation at which the doctrine behind the decision in Rewe is aimed. Indeed the decision in Rewe itself would probably have been different had the ECJ considered that general ignorance of the applicable rights under the Treaty rendered the exercise of those rights impossible in practice. [6] The issue in that case was whether a time limit under German Domestic Law had to be set aside as incompatible with Community Law. The time limit on its face prevented a claim for a refund of charges which had been imposed contrary to Community Law. The time limit had expired before it was established that the imposition of the charges was indeed unlawful under Community Law. Nonetheless the state was held by the ECJ to be entitled to rely on the time limit imposed under Domestic Law as a defence to an action for repayment.

IV

Compatibility of s.2(4) with Article 119 rights:Inferior treatment?

The Appellants submit that the present case falls within the first of the Rewe provisos and submit that the conditions for the exercise of Community Law rights are less favourable than those which apply to purely domestic rights in similar domestic actions and therefore s.2(4) ought to be disapplied. The obvious difficulty that this contention faces is that the same limitation period faces all claims under the EPA and that the EPA is the mechanism by which a claim in respect of infringement of Article 119 rights comes before the English courts.

The appellants seek to overcome this by submitting that the EPA is exclusively concerned with enacting Community Law rights into Domestic Law and therefore can not be used as a comparator. I reject the premise. The EPA was enacted before the UK joined the Community although it was admittedly not brought into force until after our joinder. Moreover, there are periods when it was in force but there were rights to which it applied which rights beyond argument did not at the relevant time have a Community source.

But even if the EPA had been enacted purely in order to implement in Domestic Law the provisions of Article 119 of the Treaty, it does not follow from the Rewe decision that this court is obliged to cast around the whole of Domestic Law in order to discover some other legislation, such as the Race Relations Act 1976 (“the RRA”) upon which the Appellants rely, which is concerned with some other sort of equality in order to see whether the limitation periods in that Statute are in certain circumstances more generous than those in the EPA. Our Domestic Law, as no doubt the domestic law of other Member States, has innumerable different time limits in relation to innumerable different situations. Some of those time limits incorporate a certain degree of flexibility [7], others don’t. It is not, and could not be, suggested that this in itself is contrary to Community Law. What is objectionable is discrimination in the treatment of similar claims as between claims based on domestic law and claims based on Community Law. That does not exists in the present cases.

Moreover, even if it were appropriate to have regard to the RRA, the time limit under that Act [8] is not clearly less favourable than the time limit under the EPA. It is shorter but with provision for a discretionary extension.

I reject the submission that it is appropriate in this context to look at the RRA at all. The obvious starting point must be the EPA. On the face of it all claims are treated equally under that act and there is no element of inferior treatment. At first blush, that is the end of the point. Further consideration makes it no more attractive.

I regard this point as acte clair.


Compatability of s2(4) with Article 119 rights: Impossible in practice?

The Appellants submit that they can rely on the second of the Rewe provisos. They submit that in the circumstances of these cases it has been impossible for them in practice to enforce their Community Law rights until shortly before the present applications were made and that therefore the time limit in s.2(4) ought to be disapplied. The respondents submit that there has been no such impossibility in practice.

All the legal systems of Member States recognise the need for limitation periods. Various Community Law legislative acts do lay down limitation periods for various purposes but none of them are presently applicable. In those circumstances it is settled Community Law that limitation periods may be imposed by Member States until such time, if any, as harmonisation of the differing current positions takes place. The mere fact that there is a limitation period does not render the Community Law right impossible to enforce. Nor, as such, is a six month period impossibly short. All that is common ground.

The Appellants’ argument in this regard is essentially that there was not until relatively recently widespread appreciation of the fact that Community Law gives a right not to be discriminated against in respect of pension schemes such as those presently in issue. That as a broad proposition I am content to accept for present purposes. They submit that as a result it was impossible in practice to start proceedings within the six month period. This I reject : the conclusion does not follow from the premise. It is a common feature of law that there are points of uncertainty and that from time to time a case demonstrates that the Courts have given effect to a claim which it was generally felt before that time would, as a matter of law, not succeed. Whether one calls this process judicial law “making” or judicial law “declaring” is perhaps a matter of personal preference. It is of no present importance. Such “law making” is the ineluctable result of the fact that from time to time novel claims are made and judges must reach a decision on the cases that come before them. That such judicial activity goes on is true of Domestic Law and of Community Law. The very fact that the innovative litigant has persuaded the innovative court to find in his favour shows that doing so is not impossible in practice.

The Appellants point to the undoubted fact that in the interests of legal certainty and in order to avoid chaos the ECJ at times limits the retrospective effect of its judgments [9]. However, contrary to the Appellants’ contentions, it does not follow from this that it is appropriate to disapply periods of limitation during times of uncertainty as to the law. On the contrary, the major function of limitation periods is the protection of legal certainty. To disapply them takes away from legal certainty. It should only be done when in truth they are so short as to make it practically impossible to enforce one’s rights. That is not this case. It is beyond argument that the Applicants were always in a position in which they were possessed of the relevant rights and could have asserted them. As a matter of English Law the courts would have to give precedence to any directly effective Community right and disregard any provision of Domestic Law purporting to exclude or limit that Community right: See Biggs V Somerset County Council [1996] ICR 364 at page 374 to 376. The period of 6 months is well in excess of periods which have been held to be compatible with Community Law.

I reject the applicants’ contentions that it was impossible in practice to start proceedings within 6 months of the act of discrimination. I regard the matter as acte clair.


VI

Compatibility of s.2(5) with Art 119 Rights

In this context the appellants repeat arguments based on impossibility and inferior treatment which they deployed in their attacks on s.2(4). I reject them both for the reasons which have been set out in the preceding two sections of this judgment.
The Appellants however put forward two further submissions in support of their claim that s.2(5) should be diapplied - the Marshall [10] submission and the Fisscher submission. I look at them in that order.

The Marshall Submission
In Marshall, the Domestic Law provision which it was sought to disapply was s.65(2) of the Sex Discrimination Act 1975 as amended. This set a cash figure limit on any compensation which could be awarded for acts of sex discrimination. The ECJ held that such a limit was incompatible with the Equal Treatment Directive.

The appellants submit that the limitation in s.2(5), as modified by the 1976 Regulations constitutes a similar limit. I disagree. S.2(5) need not limit any person’s claim provided that person institutes proceedings in time. Such a limitation is wholly compatible with Community Law - see the decisions in Steenhorst-Neerings and Johnson. That disposes of the point.

The Fisscher Submission
In the course of its judgment in Fisscher the ECJ said at paragraph 27
“... the direct effect of Article 119 can be relied on in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme and this may be done as from 8 April 1976, the date of the judgment in Defrenne ... in which the court held for the first time that Article 119 has direct effect.”

The applicants submit that the two year limitation in s2(5) as modified by the 1976 Regulations contravenes this statement of the law and that it should therefore be disapplied.

The sentence in the ECJ’s judgment upon which the applicants rely appears in its answer to the second question posed by the national court, namely, whether the limitation of the effects in time of Barber also applies to the right to join an occupational pension scheme. That question it answered in the negative. However, that is a separate matter from the availability of Domestic Law time limits, as to which, in answer to the fifth question posed by the national court, the ECJ held, as appears from the citation earlier in this judgment, that Domestic Law was supreme, subject only to the Rewe provisos.

It follows that I reject the submission based on Fisscher.

Conclusions on s.2(5)
The applicants make the fair point that anyone now trying to enter a pension scheme to which, on its face, they were denied entry years ago, will not be credited with all their years service. This however is the consequence of the fact that they did not invoke their rights under Article 119 soon enough. They are thus in a situationn which is typical of anyone faced with a limitation period who has let time slip by for perfectly understandable reasons.


VI

We record that the appellants submitted, as a separate point, that Regulation 11 of the 1976 Regulations should be disapplied as being contrary to Community Law.
The Regulation reads
The EPA shall be so modified that there shall be no power for a court or tribunal to award damages in respect of any failure to comply with the equal access requirements.
The Appellants submitted that
a remedy only of a declaration is not an adequate remedy. As every entitlement to pension involves an eventual claim for pension benefits, the provision of a remedy only of a declaration is not an adequate remedy.

I reject this submission. The essence of the discrimination of which complaint is made is that access to the scheme was denied. That can be put right by obtaining a declaration of right and using the mechanism of Regulation 12. This will, provided that action is taken in good time, give to the applicant all that she would have had if there had been no discrimination.

If, as I hold, the appellants’ other arguments fail, there is here no separate argument which can succeed.

VII

The Emmott point

Although for reasons of exposition I have left this point until now, it constitutes the appellants first ground of appeal which reads as follows:-
"The Employment Appeal Tribunal was wrong in Law in holding that there should be no reference to the European Court of Justice for a preliminary ruling upon a question or questions which ask whether the principle laid down by the ECJ in Emmott v Minister for Social Welfare [1991] ECR 1-4269 has the effect that time did not begin to run in the proceedings herein for the purposes of the time limit in Section 2(4) of the EPA until 31.5.95 (the date upon which the United Kingdom law first provided a remedy for a person who suffered indirect discrimination in respect of the grant of access to a pension scheme)."

Underlying this ground of appeal is a premise which I reject. That premise is that UK law did not provide a remedy for a person who suffered indirect discrimination in respect of the grant of access to a pension scheme. It is clear that English law since the coming into force of the European Communities Act 1972 did provide a remedy by virtue of the fact that Community Law is part of English law and Community Law provided a remedy. The Appellants alleged problem is that they did not appreciate that they had a remedy.


Emmott was a case which arose because the Irish government had not correctly transposed the Equal Treatment Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security. The facts were unusual. The relevant Irish legislation discriminated at all material times unfairly against married women. This was established by a judgment of the ECJ in another case delivered on 24.3.1987 [11]. Thereupon Mrs Emmott entered into correspondence with the Minister for Social Welfare with a view to obtaining as from 23.12.84 the same amount of benefits as that paid to a married man in a situation identical to hers. By letter of 26.6.87 the Minister replied that since the Directive was still the subject of litigation before the High Court no decision could be taken in relation to her claim which would be examined as soon as that court had given judgment. Mrs Emmott brought proceedings for Judicial Review in the course of which the national authorities concerned pleaded her delay in initiating proceedings as a bar to her claim. They relied upon a time bar in relation to proceedings for Judicial Review. The Irish Court on a reference under Article 177 of the Treaty asked whether it was contrary to the general principles of Community Law for the relevant authorities of a Member State to rely upon national procedural rules in particular rules relating to time limits in bringing claims in defence of a claim such as that of Mrs Emmot so as to restrict or refuse such compensation. The ECJ said this:-

"As the Court has consistently held .................. in the absence of Community rules on the subject, it is for the domestic legal system of each Member State to determine the procedural conditions governing actions at law intending to ensure the protection of rights which individuals derive from the direct effects of Community Law, provided that such conditions are not less favourable than those relating to similar actions of a domestic nature nor framed so as to render virtually impossible the exercise of rights conferred by Community Law.

Whilst the laying down of reasonable time limits which, if unobserved, bar proceedings, in principle satisfies the two conditions mentioned above, account must nevertheless be taken of the particular nature of Directives.

According to the third paragraph of Article 189 of the EEC Treaty, a Directive is to be binding, as to the result to be achieved, upon each Member State to which it is addressed, but is to leave the National authorities the choice of form and method. Although that provision leaves Member States free to choose the ways and means of ensuring that a Directive is implemented, that freedom does not affect the obligation imposed on all the Member States to which a Directive is addressed, to adopt, within the framework of their National legal systems, all the measures necessary to ensure that the Directive is fully effective, in accordance with the objective which it pursues (See judgment in Case 14/83 Colson [1984] ECR 1891).

In this regard it must be borne in mind that the Member States are required to ensure the full application of Directives in a sufficiently clear and precise manner so that, where Directives are intended to create rights for individuals, they can ascertain the full extent of those rights and where necessary rely on them before the National court ..........................

So long as a Directive has not been properly transposed into National Law, individuals are unable to ascertain the full extent of their rights. ...........

Only the proper transposition of a Directive will bring that state of uncertainty to an end and it is only upon that transposition that the legal certainty which must exist if individuals are to be required to assert their rights is created.

It follows that, until such time as a Directive has been properly transposed, a defaulting Member State may not rely on an 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. (My emphasis. It is to this that I refer hereafter as “the Emmott principle”).


Emmott while it has not been overruled by the ECJ, has been consistently confined to its facts. The position has recently and authoritatively, and in my respectful opinion correctly, been considered by Advocate General Jacobs in the opinion which he delivered in Denkavit, Case C-2/94 [1996] 3 CMLR 504 at 524 where he said this:-

"The Court has had occasion to consider the Emmott judgment in Steenhorst-Neerings [12] and Johnson [13], which concerned limits on claims for arrears on benefits. The Court held that Community Law did not preclude reliance on such limits even where the relevant directive had not been properly implemented in National law. The Court distinguished Emmot, observing that the result in that case could be explained by "the particular circumstances of the case". The circumstances pointed to by the Court were as follows: Mrs Emmott has sought payment of the benefits in question on the basis of the Court's judgment in McDermott and Cotter : The administrative authorities had declined to adjudicate on her claim until the litigation concerning the Directive pending before the National courts had been concluded; and the authorities sought to rely on the time limit notwithstanding the failure correctly to implement the Directive. In Steenhorst-Neerings and Johnson the Court distinguished the rules in issue in those cases on the ground that neither rule constituted a bar to proceedings; they merely limited the period prior to the bringing of the claim in respect of which arrears of benefit were payable.

From the judgments in Steenhorst-Neerings and Johnson it may be inferred that the mere fact that a Directive has not been properly implemented does not, in the absence of other circumstances preclude a Member State from relying upon a limitation period; if the Court's reasoning in Emmott is read without qualification it would apply equally to limits on claims for arrears of benefits. It seems to me that the judgment in Emmott, notwithstanding its more general language, must be read as establishing the principle that a Member State may not rely on a limitation period where a Member State is in default both in failing to implement a Directive and in obstructing the exercise of a judicial remedy in reliance upon it, or perhaps where the delay in exercising the remedy - and hence the failure to meet the time limit - is in some other way due to the conduct of the National authority. A further factor in Emmott was that the Applicant was in the particularly unprotected position of an individual dependent on social welfare.

Seen in those terms the Emmott judgment may be regarded as an application of the well established principle that the exercise of community rights must not be rendered "excessively difficult" ........... That view is consistent with the Court's remark in Johnson that the time bar in Emmott "had the result of depriving the Applicant of any opportunity whatever to rely on her right to equal treatment under the Directive", whereas the application of the rules in Steenhorst Neerings and Johnson did not "make it impossible to exercise rights based on the Directive". It is also consistent with the Court's approach in Peterbroeck[14] where the Court, although regarding a sixty day period for raising submissions as unobjectionable per se, concluded that the rule made reliance upon Community Law excessively difficult given the special features of the procedure.

The Emmott judgment may nevertheless be seen as a new application of that principle insofar as it demonstrates that a National court may be obliged to set aside a limitation period which is in principle unobjectionable where the special circumstances of the particular case so demand. It seems to me, in the interests of legal certainty, the obligation to set aside time limits should be confined to wholly exceptional circumstances such as those in Emmott."

The Court did not find it necessary in the event in Denkavit to address the question with which this part of the Advocate General's opinion dealt. I respectfully agree with his analysis of the case law and see no advantage in lengthening this judgment by setting out the facts and judgments in Steenhorst-Neerings and Johnson upon which it is based.

Thus, narrowly read, the Emmott principle does not help the Applicants who cannot rely on circumstances remotely resembling those of Mrs Emmott.
Quite apart from this the Respondents submit that the Emmott principle only applies where rights are given for the first time by a Directive [15] whereas the present situation is one where the Directive gave the Applicants no new substantive rights: they all had rights under Article 119 before the Directive was enacted. There has not, they point out, been any case where the Emmott principle has been applied to a Directive which does not add to the substantive rights which have already been given to an applicant under Community Law. The Appellants reply to that contention that while they acknowledge that the EPD in no way alters the content or scope of the principle of equal pay outlined in Article 119 [16] and while they accept that Article 119 applies directly in UK courts and tribunals without the need for more detailed implementing measures on the part of the Community or the Member States, they submit that the point of the EPD is that it gives individuals a right to be able to discover their right to equal pay by looking at domestic legislation.

While it is established law that a Directive can confer rights to individuals which they can enforce vertically against emanations of the State it is also uncontroversial that not every Directive has this effect. In my judgment it is clear that this one does not. I respectfully agree with Neill LJ in Biggs when he said at page 377G:-

"Can it be argued that a separate claim may be made under the EPD which is not subject to any time limit until the UK Law has been brought into conformity with Community Law? I am satisfied that such an argument must be rejected. The principle that men and women should receive equal pay was set out in Article 119 of the EEC Treaty. The EPD was adopted in order to implement the principle in Article 119. In these circumstances it does not seem to me that the EPD conferred any new or separate rights. It follows that in the circumstances of this case I can see no room for the application of the Emmott principle to the EPD." [17]

The doctrine of direct vertical effect has been developed in order to prevent the state from taking advantage of its own failure to enact a directive into its national law. Where the national law does provide a remedy the doctrine of direct vertical effect does not come into play. Nor does the Emmott doctrine.

The Applicants suggest that if the EPD does not give any rights to individuals it serves no purpose. We are unable to accept this submission. There are plenty of Directives which give no rights to individuals. The individual may well be better off now that we have brought our domestic legislation into a clearer form so that the scope of the rights given by Article 119 is more readily ascertainable. But it does not follow from this that an individual is given a right to have this done. Nor, I observe in passing, is it established in the present case that if it had been done the individuals concerned would in fact have started their actions in time.

VII
Should a reference be made of the EMMOTT point?

One would only do this pursuant to Article 177 if it is necessary to do so in order to give judgment. It is common ground that in relation to most of the test cases which were being considered by the EAT, on the assumption that the submissions discussed in the earlier parts of this judgment are decided against the appellants, it is not necessary to refer the Emmott point. There are a number of reasons for this.
1. Some of the respondents are private sector employers and therefore the doctrine of direct vertical effect has no application to them.
2. The Emmott point has no effect on the limitation on retrospective access to schemes laid down in s. 2(5). That is common ground and follows from Steenhorst-Neerings which was confirmed in Johnson, in which the Court of Appeal referred to the ECJ a question directed specifically at the effect of Emmott. At paragraphs 30-35 the ECJ considered Emmott and Steenhorst-Neerings. It ruled that:
Community law does not preclude the application, to a claim based upon the direct effect of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of equal treatment for men and women in matters of social security, of a rule of national law which merely limits the period prior to the bringing of the claim in respect of which arrears of benefit are payable, even where the Directive has not been properly transposed within the period in the Member State concerned.
In some of the test cases, the appellants are thus caught by s.2(5) and so a diapplication of s.2(4), to which alone Emmott has relevance, will not advantage them.
3. The principle of equal pay has been complied with in the NHS Pension Scheme and local government schemes since, respectively, April 1991 and August 1993 (backdated access to the local government schemes was made available with effect from 1 January 1993). None of the present applications were brought until late in 1994. Accordingly, even if Emmott was of any application here, its application in relation to those schemes would have ceased on those dates.

However, it is common ground that there are some amongst the appellants who are in a position to take advantage of the Emmott point. In consequence, I accept that it is necessary in their cases to give a ruling thereon in order to give judgment. The question therefore arises whether we should ask the ECJ to give a ruling thereon. We should not do so if the matter is acte clair. I tend to the view that the matter is acte clair but in any event would not regard it right in our discretion to refer the matter the the ECJ. That is because these cases may go to the House of Lords and the appellants may wish some or all of the other matters to be referred to the ECJ. It would be undesirable for this court to refer one matter to the ECJ whilst the possibility existed that the House of Lords wished other matters to be referred. The delays involved in two separate references, one by this court and then another one by the House of Lords should it not share this court’s view that the other matters are acte clair, are not to be contemplated .

VIII
Section 2(4) of the EPA and the Cross Appeal

As to these matters I agree with the judgment of Otton LJ.


IX
Conclusion


I would dismiss the appeals and the cross appeal.


LORD JUSTICE OTTON: I have read the judgement of Schiemann LJ in draft and agree with the reasoning and conclusions in all of the issues addressed.
Section 2(4) EPA 1970 - The Domestic Issue
The issue raised is whether, as a matter of domestic law, time starts to run under section 2(4) from the end of the contract of employment under which equality is claimed, or from the end of an employment relationship, more broadly defined, which may be pursuant to a number of different contracts of employment. In other words, the question to be answered is the meaning to be given to the requirement in section 2(4) that a complainant must have been "employed in the employment" to which the claim relates within six months of the presentation of her complaint, in circumstances where an employee has breaks in service.

Section 2(4) provides :

"No claim in respect of the operation of an equality clause relating to a woman's employment shall be referred to an industrial tribunal --- if she has not been employed in the employment within the six months preceding the date of the reference."


This issue is one of domestic law only. It affects workers in the public sector more than private sector workers and in particular part time teachers teaching at the same school or college for a number of years under a succession of fixed term contracts for each term, with breaks between contracts during the school holidays and college vacations. It also affects similar staff employed for the academic year only, with a break between the end of one academic year and the beginning of the next.

The Industrial Tribunal decided that :

1. Claims are only in time if commenced within six months of the end of the contract of employment containing the equality clause allegedly breached.

2. Periods of employment covered by previous contracts do not give rise to a cause of action, unless proceedings have been instituted within six months of their termination.

3. This reasoning applies to all such contracts, including term and academic year contracts.


The EAT upheld this decision and the reasoning. At page 37B:

"In our judgment, the time limited under S.2(4) runs from the end of each contract under which a part-time employee is employed and not from the end of any employment with the employer comprehending a succession of different contracts of employment with the same employer."


The Notice of Appeal asserts that the EAT was wrong in law in adopting this construction and they ought to have held that :

a. The entirety of a claim is in time if the claim is made within six months of the end of the period of regular employment in which there are regular breaks in the contract of employment.

b. The entirety of a claim is in time if the claim is made within six months of the end of a period during which the applicant has been employed in irregular employment in the same capacity (eg supply teachers) whether or not there is an "umbrella contract".

c. There is no basis for placing a gloss on S.2(4) so as to require that the claim is made within 6 months of the ending of the same contract as that in respect of which the claim is made.

Miss Jane McNeill in an able argument (adopted by Mr John Cavanagh) identifies 4 types of contract where breaks of service occur:

1. Regular employment with regular breaks in the contract of employment (teachers with termly or academic year contracts).

2. Irregular employment in the same capacity where there is an "umbrella" contract.

3. Irregular employment in the same capacity where there is no umbrella contract (supply teachers or home tutors).

4. A complete break in employment followed by re-employment some years later.


As regards category 2, the EAT acknowledge that where there is an umbrella contract there is a continuing contractual relationship. No point thus arises.

Miss McNeill contends that S.2(4) does not in terms refer to the same contract of employment. It makes no sense for the time limit not to cover the whole period of a person's employment if the breaks in service flow from the nature of the work and are a direct consequence of it. A teacher may work year after year without a contract covering her for the school holidays, or, at least, the summer holidays. Nevertheless, she will be doing a full year's teaching work. The only difference between such a teacher and a full-time teacher will be the way in which the employer decides to order its affairs. The EAT's approach does not follow from the language of the EPA as a whole. There is no definition of "employment" for the purposes of S.2. "Employment" is defined for the purposes of S.1(6)(a) to mean employed under " A contract of service " or apprenticeship or for services. It cannot mean employed under a particular contract of service by virtue of the phrase "a man in the same employment" in sections 1(2)(a)(b) and (c). Two different people cannot be employed under the same contract of employment. S.1(8) extends the meaning of "employment" to engagements otherwise than under a contract.

Ms Genevra Caws QC and Mr Patrick Elias QC contend that the word "employment" in the phrase "in the employment" must refer back to and have the same meaning as "a woman's employment". The earlier phrase requires reference back to S.1 of necessity since S.2(4) is dealing with a time limit on bringing a claim to enforce a right which is conferred by S.1. The right so conferred is to the importation of an equality clause into a specific contract of employment. This is a construction that follows as a result of the "equality clause" mechanism employed by and within the Act and the necessary inter-relationship between sections 1 and 2. This construction does not involve reading the word "same" into section 2.4 so that it reads "the same contract of employment".

I am unable to accept the argument advanced on behalf of the appellants. It is common ground that an umbrella contract constitutes a single contract of employment, so that time runs from the ending of it, not from the beginning of a break in service under it. Conversely the appellants accept (as to category 4) that where there is a "complete" break in employment, subsequent re-engagement by the same employer does not make time run afresh in relation to the earlier employment. The appellants contend, in reality, that the mere repetition of episodes of service, whether or not on a regular pattern, means that the employee is "employed in" a single "employment" stretching over all the periods of employment.

When S.2(4) is construed in the light of S.1 and S.2(1) the time limit which it imposes runs from the end of the contract of employment alleged to contain the equality clause in respect of which the claim is made. This construction does not involve placing a gloss by way of the addition of the word "same" on the section. I accept Mr Elias's submission :

"Rather it entails giving S.2(4) a meaning consonant with the statutory scheme of which it forms a part."


Moreover the construction contended for by the respondents is consistent with the provisions of the SDA 1975 where :

1. S.82 defines "employment" as employment under a contract of service.

2. S.76(6)(a) requires that a claim challenging the inclusion of an unlawful term in a contract be presented within three months of the termination of that contract.


Both the EPA and the SDA are parts of a single comprehensive code and thus must be construed as a single and harmonious whole (see Shields v E Coombes (Holdings) Limited 1978 ICR 1159).

It follows that I am not persuaded that the legislature inadvertently overlooked the need to include provisions bridging breaks in service which relate to the nature of the work. Even if that were so, it would be impossible to state with certainty what additional words Parliament would have included if the omission had been drawn to its attention, accordingly it would be wrong for the Court to add its own (see Wentworth Securities Limited v Jones 1980 AC 74).

Accordingly I cannot fault the approach, reasoning or conclusion of the EAT on this issue.

The Cross Appeal - Claims by male part-time workers

The Industrial Tribunal held that a male part-time worker could bring a claim for equal access to an occupational pension scheme even though no woman applicants claim had by then succeeded, and that his access should be back-dated to the same point in time as that to which a female part-time worker was given retrospective access to the scheme. Thus claims by male applicants which were not struck out as being out of time should remain stayed until a female applicant succeeded in gaining admission to the relevant scheme. The EAT upheld that part of the decision.

By a Respondent's Notice the Secretary of State contends that the EAT erred in law in failing to find that a male employee is not entitled to claim a right of admission to an occupational pension scheme on the grounds that a term of the scheme excluding a group of employees to which he belongs is indirectly discriminatory against a group predominantly composed of women. Further, the EAT erred in holding that where a female employee is granted a declaration that she is entitled to be admitted to such a scheme with effect from a date earlier than that on which she is in fact admitted to the scheme, a male employee is entitled to a corresponding declaration in his favour with effect from that same date. In truth, the declaration granted to the female employee is a remedy for past discrimination against women and its grant does not create a right to a corresponding declaration in favour of a man since there was no discrimination against men. A male employee could only bring proceedings in the event that the terms of such a scheme were or became discriminatory against men which is not the case here.

Mr Nicholas Paines submitted that the reasoning of the IT and the EAT is fallacious. It does not take into account the fact that a male part-time worker cannot claim admission to the scheme on the basis that the exclusionary term constitutes discrimination against women. The flaw in the reasoning is that it fails to appreciate that it is discrimination in the terms of a scheme that gives rise to the right to a remedy in the form of equality with a full-time employee, and that that right is only enjoyed by a member of the sex discriminated against. The granting of the remedy to that sex cannot logically entail the granting of the remedy to the other sex also. The correct course is to strike out claims by men. This would enable a man to bring a fresh complaint for the future in the (perhaps unlikely) event that the terms of the scheme were to provide that only female part-time workers would be admitted.

As indicated at the beginning of the judgment by Schiemann LJ, prior to 31 May 1995 domestic legislation excluded those who worked less than a given number of hours per week from entitlement to join certain occupational pension schemes. In consequence many schemes excluded part time workers. This involved indirect discrimination against women in breach of their rights under Article 119 of the Treaty. Manifestly their was no discrimination against men.

The women have always been able to bring proceedings relying on their Treaty rights and asking the court to disapply those provisions which prevented them from joining the pension schemes. Some of the women have done so prior to 31 May 1995. Although those proceedings have not yet been concluded it may be that as a result some women will be admitted to the schemes.

The cross appeal is concerned with the position of men. Prior to 31 May 1995 the men were not discriminated against by the schemes either directly or indirectly. That much is common ground. By contrast, women were discriminated against and are entitled, subject to the provisions of s.2(4) and (5) of the EPA, to the increased benefits resulting from their service prior to 31 May 1995. It is pointed out that male part timers, depending on the terms of various pension schemes, may eventually be put in a position where they are less well off than female part timers.

The IT, whose decision has been upheld by the EAT on appeal, was only concerned directly with the position of one man, Mr Mannion, who was chosen as a test case. The IT struck out his claim, the EAT dismissed Mr Mannion's appeal, and of course the Secretary of State has no cross appeal in relation to that striking out, although the points made in his cross appeal could have been put into a notice of additional grounds. However in the course of its judgment, the IT indicated that in principle it was not prepared at this stage to strike out the claim of all part time male employees just because they were male. The EAT was not prepared to say that the IT was wrong in its approach. Mr Paines accepted that if, as in the event is the case, Mr Mannion's appeal to this court failed on the same grounds as the women's appeal, then there is no need for this court to consider in relation to Mr Mannion the validity of the points made int he Secretary of State's cross appeal. He accepted that anything which we might say would be no more than obiter dicta.

The EAT's reasoning is set out at pages 45-47 of its decision. Essentially it took the view that a set of facts might, if some of the present women applicants were successful, arise in which it would be seen that men did not receive equal pay¹ for equal work. That would be a real injustice to the men. Those remarks manifestly have some force. I think it would be wrong for this court at this stage, in the absence of a specific case to the facts of which its attention has been drawn, to state that all cases of a particular kind should be struck out. I would dismiss the cross appeal.

Waite LJ
I agree with both judgments




















[1] The date of the coming into force of the Occupational Pension Schemes (Equal Access to Membership) Amendment Regulations 1995.
[2] Case C-57/93 [1994] ECR1-4541
[3] This term is defined in section 1
[    ]4Defrenne v Sabena (Number 2)[1976]ECR 455
[    ]5Vroege, Fisscher
[6] The facts in Rewe were as follows:-
(1) In October and November, 1968 and January 1969 charges (the early charges) were levied by way of notice of assessment which became final unless contested within one month.
(2) In March 1970 Rewe, having effected further imports on which charges were levied, subsequently instituted before the ECJ proceedings contending that these further charges were contrary to Article 13 of the EC Treaty
(3) In February 1973 Rewe lodged a protest assessment claiming that the early charges were contrary to Article 13 of the EC Treaty.
(4) In March of 1973 the regional authorities rejected the protests as out of time and Rewe then instituted proceedings challenging this decision.
(5) On 11 October 1973 the ECJ ruled that the further charges in respect of the 1970 importations contravened Article 13.

[7] I accept that in the employment field no other claim has a completely rigid time limit which can not be disapplied by the court.
[8] s.68 provides for a general time limit of 3 months which can be extended in the discretion of the court or tribunal.
[9] e.g., Defrenne v Sabena (No.2)
[10] Marshall v Southampton and South West Hampshire Health Authority (no.2) [1993] ICR 893
[11] McDermott v Minister for Social Welfare (Case 286/85) [1987] ECR 1453
[12] Case C-338/91 [1993] 1ECR 5475
[13] Case C-410/92) [1994] 1ECR 5483
[14] Case C-312/93) [1996] 1 CMLR 793
[15] As they were in that case by the Equal Treatment Directive
[16] Jenkins v Kingsgate (Clothing Productions) Ltd [1981] ICR 592 at paragraphs 21-22
[17] We note that leave to appeal in Biggs was refused both by that court and the House of Lords. It seems no one thought a reference under Article 177 was necessary. We accept that there is no reason to suppose that the Court was asked to refer. However we have no doubt that it gave the matter some thought.


© 1997 Crown Copyright


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/1013.html