The Court of Appeal dismissed an appeal by Mary Biggs and affirmed the decision of the Employment Appeal Tribunal ( ICR 811) upholding the ruling of an industrial tribunal that her unfair dismissal complaint against Somerset County Council had been brought out of time.
James Goudie QC (Bindman & Ptrs) for Mrs Biggs; David Pannick QC and Paul Golding (Andrew North, Taunton) for Somerset.
Lord Justice Neill said that in R v Secretary of State for Employment, ex p Equal Opportunities Commission  1 AC 1 at 31, (the EOC case) the House of Lords made two declarations of great significance in employment law: the provisions of the Employment Protection (Consolidation) Act 1978, whereby employees working fewer than 16 hours per week were subject to different conditions in respect of 1) qualification for redundancy pay, and 2) the right to compensation for unfair dismissal, from those applying to employees working 16 hours or more per week, were incompatible with article 119 of the EEC Treaty and Council Directives 75/117/EEC and 76/207/EEC.
Mrs Biggs was employed by Somerset in 1975 as a part-time science teacher working 14 hours per week. On 31 August 1976 she was dismissed. At that time, the right not to be unfairly dismissed, under para 4 of Schedule 1 to the Trade Union and Labour Relations Act 1974, did not apply to contract of employment for less than 21 hours weekly: see Schedule 1, para 9(1)(f). The comparable provisions of the 1974 Act were now in Schedule 13 of the 1978 Act.
The House of Lords announced its decision in the EOC case on 3 March 1994. Mrs Biggs's unfair dismissal claim was lodged on 1 June 1994. The normal three-month time limit for claims under section 67(2) of the 1978 Act was the same as in Schedule 1 to the 1974 Act.
Section 67(2) provided that a tribunal "shall not consider" a complaint unless it was presented within the three-month time limit "or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented" within three months.
The tribunal's chairman found it had not been reasonably practicable for Mrs Biggs to present her claim within three months because of the statutory provisions excluding part-time employees from bringing such claims. But he did not consider a "further period" of 18 years to be "reasonable". In the Employment Appeal Tribunal Mr Justice Mummery concluded:
It was possible by virtue of the decision in Defrenne v Sabena  ICR 547 . . . for the applicant to present her complaint . . . within three months of her being dismissed and to argue then that the qualifying
conditions in UK domestic law at
that time were ineffective barriers to her claim by reason of their incompatibility with art 119.
His Lordship agreed. Mrs Biggs's mistake as to what her rights were was a mistake of law, not fact. The decision in the EOC case was declaratory of what the law had been since the primacy of Community law was established by section 2 of the European Communities Act 1972.
Accordingly, since 1 January 1973, and certainly since the decision of the European Court in Defrenne v Sabena, there had been no legal impediment preventing someone claiming to have been unfairly dismissed from arguing that the restriction on claims by part-time workers was indirectly discriminatory.
The fact that it was not until 3 March 1994 that the House of Lords declared the threshold provisions in the 1978 Act to be discriminatory could not be used to argue that it was not "reasonably practicable" before then to present a claim within the time limit.
For these and other reasons the appeal should be dismissed.
Lord Justice Auld and Sir Iain Glidewell concurred.
Paul Magrath, BarristerReuse content