R v Secretary of State for Employment, ex parte Seymour-Smith and Another (Case C-167/97)
| Jurisdiction | England & Wales |
| Judge | LORD MUSTILL,LORD JAUNCEY OF TULLICHETTLE,LORD SLYNN OF HADLEY,LORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN,LORD STEYN,LORD GOFF OF CHIEVELEY |
| Judgment Date | 17 February 2000 |
| Judgment citation (vLex) | [1997] UKHL J0313-3 |
| Date | 17 February 2000 |
| Court | House of Lords |
and Another
[1997] UKHL J0313-3
Lord Mustill
Lord Jauncey of Tullichettle
Lord Slynn of Hadley
Lord Nicholls of Birkenhead
Lord Hoffmann
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann with which I agree.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann with which I agree.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. I agree with his conclusions on both parts of the appeal and that the questions which he proposes to refer should be referred to the European Court of Justice.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann with which I also agree.
My Lords,
By section 64(1) (a) of the Employment Protection (Consolidation) Act 1978 the right not to be unfairly dismissed does not apply to a dismissal which takes place after less than two years' employment. The Act originally specified a period of one year but the Secretary of State has power under section 149(1)(c) to vary this period by order. The Unfair dismissal (Variation of Qualifying Period) Order 1985 ( S.I. 1985 No. 782) ("the Order") extended it to two years.
In 1991 Ms Seymour-Smith and Ms Perez ("the employees") were each dismissed by their respective employers after more than one but less than two years' employment. They complain that a two year qualifying period indirectly discriminates against women because in practice they find it more difficult to qualify than men. In judicial review proceedings against the Secretary of State, they sought to have the Order quashed on the ground that it was contrary to article 5 of Council Directive 76/207/E.E.C., generally known as the Equal Treatment Directive ("the Directive"). The Divisional court, after examining substantial statistical and other evidence, concluded that the Order had not been shown to be discriminatory. In any case, they would not have been willing to quash it. The Court of Appeal took a different view of the merits and held that the Order was discriminatory. It agreed that it should not be quashed but made a declaration that, as at the date of the employees' dismissals, it was incompatible with the Directive.
The Court of Appeal also gave the employees leave to amend their grounds of application to include a complaint that the Order infringed article 119 of the E.C. Treaty, which lays down the principle that "men and women should receive equal pay for equal work." It considered, however, that it could not decide that "pay" included the right to compensation for unfair dismissal without referring the question to the European Court of Justice. As it had granted a declaration in respect of the Directive, as a matter of discretion, it decided not to make a reference and granted no relief under article 119.
The Secretary of State now appeals to your Lordships' House against the grant of the declaration by the Court of Appeal. In opening the appeal, Mr. Elias Q.C. submitted that even if the Court of Appeal was right on the question of discrimination, it should not have made a declaration that the Order was incompatible with the Directive. It could serve no purpose because even if there had been incompatibility at the dates of the dismissals, the Directive could not affect the respective rights and duties of the employees and their employers. As for article 119, Mr. Elias said that it should not be considered in proceedings for judicial review. If the employees were right, it conferred upon them rights in private law which they could enforce in an industrial tribunal. The latter was therefore the appropriate forum in which the question of discriminatory effect should be decided and which could, if necessary, make a reference to the European Court of Justice. Your Lordships decided to hear argument on these submissions by way of preliminary points because if they were well founded, the appeal would have to be dismissed without any reference to the Court of Justice or inquiry into whether the Order had a discriminatory effect.
1. The Equal Treatment Directive
Mr. Allen Q.C., who appeared for the employees, submitted that the declaration of incompatibility with the Equal Treatment Directive made by the Court of Appeal would affect the legal rights of his clients. They would be able to go back to the industrial tribunal and argue that the Order, being incompatible with Community law, should not be given effect. This would leave them in possession of their rights under the original legislation by which they qualified after one year of employment. He said that even if your Lordships were not fully persuaded that a directive could have this effect, the contrary was not acte claire and the question should be referred to the Court of Justice.
For the purposes of the preliminary point, it must be assumed that the Order brought English law into conflict with the terms of the Directive. But, by virtue of a consistent jurisprudence expressed in a series of decisions of the Court of Justice, it is in my view acte claire that a directive, as such, has no effect upon the private rights of parties such as the employees in this case and their employers. The position is otherwise when the question concerns the rights and duties of the citizen as against the State or one of its emanations. The basis of the distinction is explained in the decision of the Court of Justice in Marshall v. Southampton and South-West Hampshire Area Health Authority ( Case 152/84) [1986] E.C.R. 723, 748-749:
"47. … a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.
"48. With regard to the argument that a directive may not be relied upon against an individual, it must be emphasised that according to article 189 of the EEC Treaty the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to 'each Member State to which it is addressed.' It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person…."
This reasoning has been reaffirmed by the Court in Faccini Dori v. Recreb S.r.l. ( Case C-91/92) [1994] E.C.R. 1-3325, 1-3355-6, paras. 20-25. But Mr. Allen submitted that the recent decision of the court in CIA Security International SA v. Signalson SA ( Case C-194/94) (Judgment 30 April 1996) shows a departure. I do not agree. The case arose out of an action for unfair trade practice by a Belgian manufacturer of alarm systems. He complained that a competitor had wrongfully published an assertion that his product did not comply with Belgian law. The domestic regulations with which it was said not to comply should have been notified to the Commission under Directive 83/189/EEC and the Court of Justice held that they were accordingly unenforceable against individuals. It went on to say that the national court should decline to apply them in the unfair trade practice litigation.
There is no hint in the judgment of the court that it intended to depart from its previous jurisprudence and a clear explanation in the opinion of the Advocate-General (para. 73) which shows that he saw no incompatibility. The case was one in which, unusually, the issue in litigation between private parties was whether, as a matter of public law, the manufacturer was doing something unlawful. If the regulation alleged to have been infringed could not be enforced against him by the State, it could not be right for the defendant to say that his alarm system did not comply with the law. I therefore regard the CIA case as plainly distinguishable.
Mr. Allen tried to build upon the Marshall doctrine that directives can confer rights upon individuals against the State by saying that the employees had a right against the State as legislator that it should implement, or not legislate incompatibly with, a directive. On this basis they were entitled to have relief against the State clearing the Order out of their path and leaving them free to sue their employers. But this seems to me no more than a play upon words, a piece of legerdemain with the word "right." The basis of the enforceability of directives against the State and its emanations is a species of estoppel: the Member State "may not plead, as against individuals, its own failure to perform the obligations which the directive entails." But the individual has no right to a mandamus against the State in his national court requiring that the directive be implemented: see the opinion of the Advocate General, Sir Gordon Slynn in Marshall at pp. 734-735. In the last resort it is for the Commission to take proceedings under article 169. The "right" asserted by Mr. Allen would be something quite different from the rights against the State applied in Marshall. The effect would be to give the Directive, by an easy two-stage process, the very effect which the jurisprudence of the Court says it cannot have, namely to impose obligations upon an individual. Furthermore, those obligations would be imposed arbitrarily and retrospectively, depending upon whether and when some interested person...
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