McMeechan v Secretary of State for Employment
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE POTTER,LORD JUSTICE MCCOWAN |
| Judgment Date | 11 December 1996 |
| Neutral Citation | [1995] EWCA Civ J0731-14 |
| Judgment citation (vLex) | [1996] EWCA Civ J1211-5 |
| Docket Number | QBCOF 94/0856/D.,EATRF 95/1563/B |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 1996 |
[1995] EWCA Civ J0731-14
Before: Lord Justice Neill Lord Justice Roch Lord Justice Schiemann
QBCOF 94/0856/D.
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR. R ALLEN QC appeared on behalf of the Plaintiff. (Instructed by Camden Community Law Centre, Londond.)
MR. S RICHARDS appeared on behalf of the Defendant. (Instructed by The Treasury Solicitors.)
31st July 1995
This is the judgment of the Court. All the members of the Court have made contributions to the judgment.
Introduction. The appellants in these proceedings are Ms Nicole Seymour Smith and Ms Laura Perez. Both appellants commenced their relevant periods of employment (with different employers) in February 1990. Ms Seymour-Smith was dismissed on 1 May 1991. Ms Perez was dismissed on 25th May 1991. Both appellants sought to complain to an Industrial Tribunal that they had been unfairly dismissed and sought compensation, but they were unable to register their applications. The reason for their inability to proceed was that the general right of an employee not to be unfairly dismissed (conferred by section 54(1) of the Employment Protection (Consolidation) Act 1978) (the 1978 Act) does not apply to a dismissal where the employee has not been continuously employed for the minimum period specified in section 64(1)(a) of the 1978 Act. The period specified in section 64(1)(a) is, and was at all material times, two years ending with the effective date of termination. The two appellants had been employed for about fifteen months at the dates of their respective dismissals.
Before turning to the history of the present proceedings it may be convenient to say something about the genesis of the two year rule.
The Industrial Relations Act 1971 (the 1971 Act) introduced into English law a new right not to be unfairly dismissed. The legislation followed recommendations in favour of the creation of such a right by the International Labour Organisation in 1963 and by the Donovan Commission in 1968. By section 28 of the 1971 Act, however, it was provided that the right did not apply to the dismissal of an employee who had not been continuously employed for a minimum period of 104 weeks. In 1974 the period of 104 weeks was reduced to 26 weeks by paragraph 10 of Schedule 1 to the Trade Union and Labour Relations Act 1974, and the 26 weeks period was re-enacted in section 64(1)(a) of the 1978 Act as originally passed. By section 149(1)(c) of the 1978 Act, however, the Secretary of State was empowered to vary the operation of section 64(1). This power was exercised in 1979 when the qualifying period under section 64(1)(a) was increased to one year by the Unfair Dismissal (Variation of Qualifying Period) Order 1979 ( SI 1979 No.959).
In 1980 the Employment Act 1980 was passed which introduced a two year qualifying period for those who were employed in firms employing less than 20 employees. It is unnecessary, however, to make any further reference to this special provision. We are concerned with the extension to the qualifying period introduced by The Unfair Dismissal (Variation of Qualifying Period) Order 1985 ( SI 1985 No.782) (the 1985 Order) which substituted two years as the qualifying period in section 64(1)(a) of the 1978 Act.
The appellants contend that the proportion of women who can comply with the two year qualifying period is smaller than the proportion of men who can comply. Accordingly, the appellants seek to argue that the two year period indirectly discriminates against women.
The Present Proceedings.
On 12th September 1991 McCullough J. gave leave to the appellants to bring proceedings seeking an order of certiorari to quash the 1985 Order and seeking other relief including a declaration. The appellants asserted that the making of the 1985 Order was beyond the powers of the Secretary of State and that it was contrary to the European Communities Act 1972 (the 1972 Act) and the Equal Treatment Directive 72/207/EEC (the ET Directive).
We shall have to refer later to the ET Directive in more detail. At this stage it is sufficient to note that the substance of the appellants' case is that the two-year qualifying period prima facie indirectly discriminates against women and, unless justified, contravenes the principle of equal treatment for men and women, with regard to working conditions including any conditions governing dismissal, which is enshrined in particular in Articles 1 and 5 of the ET Directive.
The appellants' application for judicial review came before the Divisional Court in 1994. The application was dismissed. The judgments are reported — [1994] IRLR 448.
In his judgment Balcombe L.J. identified the three principal issues which had been considered:
(1) Jurisdiction.
(2) Prima facie discrimination or disparate adverse impact.
(3) Justification.
Though McCullough J. in his judgment adopted somewhat different headings his judgment followed the same pattern.
The issue of jurisdiction, as identified by Balcombe L.J., embraced two questions. The first question was whether the appellants had the requisite standing to seek judicial review at all. The second question concerned the relief which the Court might grant. On the first question Balcombe L.J. concluded that, although the rights conferred by a Directive are not necessarily of direct effect in a domestic court because Directives are addressed to Member States, in the present case the appellants had the necessary standing to seek Judicial Review.
Balcombe L.J. addressed the second question, that is, the question concerning relief, on the basis that the appellants were not interested in anything less than an order to quash the 1985 Order. He concluded that even if the appellants could succeed on the merits the only appropriate form of relief would be a declaration. He was of the view that it would not be right to make an order to quash the 1985 Order.
For the purpose of considering Balcombe L.J.'s first issue McCullough J. used the heading "Standing, rights flowing from the Directive and relief". However, McCullough J. considered that the three elements in the heading which he used were so connected with one another that it was better to consider the position compendiously and "to ask whether, if discrimination could be shown, they should be granted relief in reliance on the terms of the Directive in these particular proceedings."
McCullough J.'s analysis of the appellants' claim was that in reality they were trying to enforce the Directive against their employers despite the fact that the Directive gave them no such rights. He said that the position might have been different had the proceedings included or been a prelude to a claim for damages against the U.K. Government. McCullough J. concluded that he would not in any event have thought it right to grant certiorari and that a declaration would be of no use to them. At the end of this part of his judgment he put the matter as follows (para. 84):
"If the conclusions to which I have come lead to the further conclusion that the court should hold, either as a matter of law or in the exercise of its discretion, that the applicants lack the necessary standing to make this application, then I reach that conclusion. I do not, however, think it necessary to decide whether an application should fail because of want of standing or because of inability to rely on the terms of the allegedly unimplemented Directive, or because, in the event of unjustifiable discrimination being shown, relief should be refused as a matter of discretion. It is enough to say that, even if incompatibility with the Directive is demonstrated, I would refuse this application."
On the two issues which related to the merits of the application Balcombe L.J. and McCullough J. reached similar conclusions. Both judges held that the degree of disparity between men and women was less than considerable, but both concluded that, had a prima facie case of discrimination been established, the Secretary of State had failed to satisfy the burden on him of showing objective justification for the discrimination.
The appellants have appealed. In addition there is a cross appeal by the Secretary of State by which he seeks to argue that the Divisional Court were wrong in their conclusion that objective justification had not been established.
The Issues for this Court.
In the course of the hearing of the appeal counsel for the appellants sought to amend the grounds of his application to include a contention that the right to compensation for unfair dismissal constituted "pay" for the purposes of Article 119 of the EC Treaty and that by making and maintaining in force the 1985 Order the United Kingdom was in breach of its obligations under Article 119. In order that all the different ways in which the appellants might put their case could be disposed of in one set of proceedings we exceptionally decided to grant leave. Accordingly the issues for consideration fall under the following headings:
(1) The standing of the appellants in relation to the ET Directive.
(2) The claim under Article 119.
(3) The form of relief.
(4) Whether discrimination has been proved.
(5) Justification.
Before turning to these issues it will be convenient to set out the relevant EC legislation.
The EC Legislation.
We should start by setting out four Articles from the Treaty of Rome. They are as follows:
" Article 5.
Member States shall take all appropriate...
To continue reading
Request your trial
-
R (Age UK) v Secretary of State for Business, Innovation and Skills
...... Age UK, a charity for the promotion of the welfare of older people, which challenged the legality of regulations 3(1) and 30 of the of the Employment Equality (Age) Regu lations (SI 2006 No 1031) on the ground, inter alia, that they were over-broad in what they permitted by way of derogation from ......
-
Rutherford v Secretary of State for Trade and Industry (No 1)
...reference was made by the House on 13 March 1997, following decisions of the Divisional Court and the Court of Appeal reported at [1995] ICR 889; the Court of Justice gave judgment on 9 February 1999, [1999] 2 AC 554; when the matter returned to this House judgment was given on 17 February......
- Stephenson v Delphi Diesel Systems Ltd
-
Rutherford v Secretary of State for Trade and Industry (No 1)
.... . EMPLOYMENT APPEAL TRIBUNAL Before Mr Justice Wall, Mr I. Ezekiel and Mr S. Springer. Secretary of State for Trade and Industry. and. Rutherford and Another ......
-
Mutuality of Obligations and the Contract of Employment: Carmichael and Another v National Power plc
...QB 173.5 Freedland, The Contract of Employment, (Oxford: Clarendon Press, 1976).6Labour Law, (Butterworths, London, 2nd edition, 1998).7 [1997] ICR 549.8 ERA 1996, s continuity, and absences attributable to a ‘temporary cessation of work’ do notbreak continuity. So where individuals are emp......
-
Globalisation and the labouragenda in small economies, with special reference to Guyana
...s. 2(d). 43 Ibid . s.2(g). 44 Wickens v. Champion Employment [1984] I.C.R. 365; but see McMeechan v. Secretary of State for Employment [1997] I.C.R. 549. 45 Ibid. s.8(1)(a). 46 Ibid. means [sic] the responsibilities in respect of any dependentfamilymember.' 47 While the spirit and intendmen......