Gibson v East Riding of Yorkshire Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Brooke,Lord Justice Pill |
| Judgment Date | 21 June 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0621-11 |
| Docket Number | Case No: EATRF 1999/0346/A1 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 June 2000 |
[2000] EWCA Civ J0621-11
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Pill
Lord Justice Brooke and
Lord Justice Mummery
Case No: EATRF 1999/0346/A1
Mr John Bowers QC & Mr Jeremy Lewis (instructed by Head of Legal Services, East Riding of Yorkshire Council for the Appellant)
Mr Jeremy McMullen QC & Miss Jennifer Eady (instructed by Adam Creme, Director of Legal Services, Unison for the Respondent)
Introduction
The only question on this appeal is whether the Employment Tribunal sitting at Hull erred in law when it held, on dismissing the complaint by Mrs Lorraine Gibson against the East Riding of Yorkshire Council (the Council), that Article 7 of the Working Time Directive (93/104/EC) (the Directive) relating to minimum annual leave does not have direct effect. The Employment Appeal Tribunal took a different view when it allowed Mrs Gibson's appeal on 29 January 1999 and held that she was entitled to four weeks paid leave under her contract.
Despite this difference of judicial opinion neither side has contended on this appeal by the Council that it is necessary to seek a ruling from the European Court of Justice on the interpretation of Article 7 of the Directive in order to determine Mrs Gibson's complaint.
The Facts.
Mrs Gibson is employed as a part time swimming instructor at Haltemprice Leisure Centre, Anlaby, Hull. She works 11.5 hours a week under that contract. She works under a separate contract for 14 hours a week during term time as a school swimming instructor. She is paid an hourly rate. Neither contract entitles her to annual leave. Clause 12 of the school instructor contract expressly states "There is no annual leave entitlement attached to this post." She has never been paid any holiday pay.
From 31 July 1986 until 1 April 1996 her employer was the Beverley Borough Council. As a result of local government re-organisation with effect from 1 April 1996 the Council became and remains her employer.
The Proceedings
On 14 July 1997 Mrs Gibson presented a complaint to the tribunal that the Council had failed to supply her with a proper statement of the terms and conditions of her employment under section 11 of the Employment Rights Act 1996. She also sought redress for unauthorised deductions from her wages under section 13 of the 1996 Act on the basis that she had not received payments for annual leave.
The only remaining issue on the section 11 claim is entitlement to annual leave. Its resolution depends solely on whether Article 7 is directly effective against the Council. The claim cannot be based on contract. Neither contract provides for annual leave. There was no legislation in force in the United Kingdom at the material time entitling Mrs Gibson or other workers to annual leave or holidays. There was no evidence before the Employment Tribunal of national practice or custom, nor any finding of fact by that tribunal as to the conditions for entitlement to and the granting of annual leave or holidays.
The Working Time Regulations 1998 (SI 1998 No 1833) (the Regulations), which are the implementing measures relating to the organisation of working time in the United Kingdom, now prescribe the conditions under which entitlement to paid annual leave arises. The Regulations were made on 30 July 1998. They came into force on 1 October 1998. Mrs Gibson contends that Article 7 of the Directive, which should have been implemented by member states by 23 November 1996, can be relied on by her in the Employment Tribunal as directly effective against the Council in respect of the period 23 November 1996 to 1 October 1998.
It is agreed that the Council is an emanation of the state; that Mrs Gibson is a "worker" within the meaning of the Directive; and that, if Article 7 has direct effect, it would follow that (a) the Council would not be entitled to plead, as against Mrs Gibson, the failure of the state to perform its own obligation to adopt implementing measures within the prescribed period and (b) the Article would be enforceable in proceedings against the Council by Mrs Gibson in the Employment Tribunal.
Article 7 provides that
" (1) Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
(2) The minimum period of paid annual leave may not be replaced by allowance in lieu, except where the employment relationship is terminated."
The contention that that provision has direct effect was rejected by the Employment Tribunal in its extended reasons sent to the parties on 23 July 1998. But it was accepted by the Employment Appeal Tribunal which allowed Mrs Gibson's appeal on 29 January 1999. It held that she was entitled to four weeks annual paid leave. The judgment of the Appeal Tribunal given by Morison J is reported at [1999] ICR 622.
The Legal Principles
There is no dispute about the relevant principles for determining whether an article in a directive is directly effective in the courts and tribunals of member states. Morison J set them out in a valuable exposition on pages 627C-628 G. It is unnecessary to repeat the entire passage, as the arguments on this appeal have focused only on the following principles:-
(1) A provision of a directive may have direct effect in member states if it is unconditional and sufficiently precise. This is a matter of interpretation of the relevant provision in the context of the whole directive, having regard, in particular, to its purpose. It is necessary to examine the nature, general scheme and wording of the provision in question .
(2) A provision of a directive is sufficiently precise, even if it would require the Court of Justice to answer a difficult question on its interpretation.
(3) In the employment field a provision in a directive is sufficiently precise if it identifies (a) the beneficiaries of the right; (b) the persons under a duty to give effect to the right; and (c) the nature and extent, or content, of the right.
(4) The fact that the directive permits precise derogations from its terms by member states does not of itself render the directive conditional. A provision is unconditional if there is no need for further action by Community institutions or by member states in order to define its content.
(5) The fact that some articles of a directive may lack sufficient precision and be incapable of having direct effect does not prevent others which are sufficiently precise from having direct effect standing on their own.
Application of the Principles.
The difficulties in the application of the legal principles to this case were recognised by the Appeal Tribunal which, on reversing the decision of the Employment Tribunal, stated at page 628G that
" There is much to be said in favour of the conclusion reached by the industrial tribunal."
The Appeal Tribunal stated no less than five arguments against the direct effect of the Directive ( p.628 G-629C)-
"In the first place, Directive 93/104 permits national governments to give effect to its terms through the collective bargaining process, as an alternative to the normal legislative process. Second, extensive derogations are permitted under article 17, and an undefined discretion to provide "appropriate protection" in lieu, in cases to which article 17 (2) applies. Third, derogations are permitted "by means of collective agreements." Fourth, the English text of the Directive suggests that article 2 (1) which defines working time was not drafted with the precision to be expected of a Directive which is capable of conferring rights on certain categories of workers. The lack of clarity has prompted a reference from a Spanish tribunal to the Court of Justice seeking the court's guidance as to the proper interpretation of that definition. Fifth, articles 10,16,18 (3) and (4) permit ("may") member states "to make the work of certain categories of night workers subject to certain guarantees," to lay down reference periods, to lay down rules to be applied in the collective bargaining process, and give them an option to extend the reference periods. This shows, it may be argued, that the Directive cannot be seeking to harmonise the laws of member states by introducing minimum standards."
Nevertheless the Appeal Tribunal concluded that "on balance,….article 7 has direct effect so that during the period from 23 November 1996 to 1 October 1998 an employee of an emanation of the state may take advantage of its protection" (p.629C) and that
" the structure of the Directive is consistent with it having direct effect. It is designed to require member states to confer minimum rights upon workers in a way which can be said to be unconditional"
(p.629H.)
The essence of the reasoning of the Appeal Tribunal is in the following passage at page 630 A-C in which the EAT responded to specific objections to direct effect in these circumstances:-
" Article 7 is clear and precise and, in our view, admits of no ambiguity or conditionality. In the lay members' experience, custom and practice in the workplace will invariably fill the gap if there were doubts as to the start and end of a "leave year." It may well be that the employers have a defined leave year, which would be appropriately applicable to the applicant. No...
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