Blaik v Post Office [1993] UKEAT 726_91_1611

EAT

Blaik v Post Office

[1993] UKEAT 726_91_1611 · 1993-11-16

MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr Blaik, a former employee of the Post Office, against a decision of the Industrial Tribunal held at Sheffield on the 22nd October 1991.

The Industrial Tribunal held, on the only issue which the parties by consent had asked it to decide, that Mr Blaik had no right to apply to the Industrial Tribunal under the provisions of the EEC Council Directive 76/207 .

It followed from that decision, and the reasons given for it, that it refused to exercise its discretion to refer the matter to the European Court under Article 177 of the EEC Treaty.

The background to this long running dispute between Mr Blaik and the Post Office is fully set out, not only in the reasons given by the Industrial Tribunal for its decision, but also in a decision of this Tribunal given on the 8th May 1990. We do not therefore propose to repeat, yet again, the long history that this dispute has had before the Industrial Tribunal, this Tribunal and the Court of Appeal.

The only point with which we are required to deal is Mr Blaik's unsuccessful contention before the Industrial Tribunal that he is now entitled to complain of conduct on the part of the Post Office, which he says violates his rights under Article 5(1) of the Equal Treatment Directive 76/207 , in circumstances where he has already unsuccessfully complained of the Post Office's conduct in an application under Sex Discrimination Act 1975 heard and disposed of in 1985. Mr Blaik brought a complaint that he had been dismissed for not wearing a tie when required to do so by the Post Office as part of their "look smart" campaign. His complaint was that this was an infringement of his rights under the Sex Discrimination Act because a female employee of the Post Office would not have been dismissed for refusing to do what he had refused to do.

His complaint under the Sex Discrimination Act was dismissed by the Industrial Tribunal for reasons issued on the 3rd September 1985 and his appeal against that decision was dismissed by this Tribunal on the 18th December 1985 at a preliminary hearing.

What Mr Blaik has now sought to do before the Industrial Tribunal at Sheffield is to make the same complaint, which he unsuccessfully made in 1985, but this time under Article 5(1) of the Equal Treatment Directive instead of under the domestic legislation in the form of the Sex Discrimination Act . I should mention that he has made similar complaints of infringements of rights under the Equal Pay legislation and the Equal Pay Directive with which neither the Industrial Tribunal nor we are concerned today.

Article 5(1) of the Directive reads:

"Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex."

Mr Blaik's submission, which is amplified in a very helpful skeleton argument in which he makes reference to all the relevant authorities on the principles of law, is that this Article is unconditional and precise in its terms. He submits that it is enforceable by him in proceedings between him and the Post Office and that the Article has been infringed because he has not been guaranteed the same conditions of work or conditions governing dismissal without discrimination on grounds of sex as a woman employee of the Post Office.

It is unnecessary to go into all the detailed argument or authority that Mr Blaik has elaborated in his skeleton argument. The Industrial Tribunal summarised his submissions and stated its conclusion in paragraph 14 of the decision. In dealing with Mr Blaik's submission that he was entitled to complain for breach of the relevant Directive, even though he had already unsuccessfully invoked the principles of domestic legislation, the Tribunal said this:

"There is undoubtedly some merit in Mr Blaik's argument. On the face of it where there are 2 legal remedies available it is not unreasonable to suppose that an applicant or plaintiff can choose which of those he prefers to use. If that is applied in this context then arguably there are two avenues which can be used - that is to say European law or the National law. That there must be some merit in the argument appears to be supported by the fact that it found favour with 3 Judges in the Court of Appeal in Pickstone & Others v. Freemans plc [1987] IRLR 218 CA. However in the highest court of the land, the House of Lords, the view was taken that if national legislation gave a sufficient remedy then there was no room for a matter to be pursued through the alternative route of the direct application of European law."

The reference to the view of the House of Lords is a reference to a sentence in the speech of Lord Keith in [1988] ICR at 712D. The issues in that case were first, what was the true construction of Article 119 in relation to equal pay, and secondly, what was the true construction of the Regulations, that is to say the Equal Pay Amendment Regulations 1983, and thirdly, whether Article 119 was enforceable in such a way as to enable the claim that was made to be supported, irrespective of the true construction of the Regulations. The House of Lords held unanimously that there was no difference between the construction of the 1983 Regulations and the terms of Article 119. It was not, therefore, necessary to deal with questions extensively canvassed in the Court of Appeal as to the direct enforceability of Article 119.

Lord Keith stated in paragraph D on page 712 that it was not necessary to deal with the enforceability of Article 119 in the House of Lords because of the construction which had been placed on the 1983 Regulations to accord with Article 119 that, it is implicit in that passage where there is no difference between EEC law and domestic law, it is not appropriate to enforce EEC law.

The passage in question was examined by Mr Justice Knox in the decision given by the Tribunal in the context of Mr Blaik's equal pay complaints on the 8th May 1990. In that decision that sentence in Lord Keith's speech was cited. The decision of the Tribunal states:

"That was, as we understand it, because the 1983 Regulations provided an effective remedy for the protection of the rights of the citizen under article 119 of the Treaty of Rome.

The result, in our judgement, is that since the 1983 Regulations came into force, which in fact was on 1 January 1984, the United Kingdom domestic law in the shape of the Equal Pay Act 1970, as thus amended, has provided full compliance with article 119 and with the principle of equal pay enshrined therein."

In a later passage in the judgement the following is stated:

"In our judgement, once it is appreciated that the House of Lords did not, in fact, alter the law but declared what the law already was and has been since the 1983 Regulations came into force, it becomes obvious to our way of thinking that the Industrial Tribunal's Decision is soundly based because the situation today and since 1 January 1984 is that English domestic law does provide an adequate framework for the exercise of the rights protected by article 119 and there is, therefore, neither a call for nor, indeed, is it permissible, for there to be an alternative mode of claiming relief under article 119 by-passing the provisions of the Equal Pay Act 1970. It would, in our judgment, be most undesirable for applicants to have a choice whether or not they would pay any attention to the provisions of the Equal Pay Act 1970 in pursuing their legitimate aspirations to rely on the rights that are enshrined in article 119. Such a by-passing of United Kingdom domestic law can only be justified, in our view, if, as the Court of Appeal held, there was a failure in United Kingdom domestic law to give effect to the principles in article 119. Once that substratum has been removed we can see no possible justification for applicant to have an option whether or not to comply the procedural requirements and other provisions of the Equal Pay domestic legislation."

In our view, that passage correctly states the legal position regarding options to use EEC law, as well as domestic law, following the decision of the House of Lords in the Pickstone v. Freemans plc

[1988] ICR 697

case. In brief, if there is a sufficient remedy given by the domestic law, it is unnecessary, and indeed, impermissible, to explore the same complaint under the equivalent provisions in the Directive. It is only if there is a disparity between the two that it becomes necessary to consider whether the provisions in EEC law are directly enforceable by the complainant in his proceedings against the respondent. We are reinforced in those views by brief statements in the Court of Appeal by Lord Justice Balcombe when Mr Blaik sought leave to appeal in relation to his complaints under the Equal Pay Directive. Lord Justice Balcombe refused Mr Blaik leave to appeal against the decision of this Tribunal of the 8th May, 1990. (By coincidence the application was dealt with on the 8th May 1991, exactly a year following the EAT decision.) There are two passages in Lord Justice Balcombe's judgment which are applicable to the issue raised on this appeal. He said at page 3 at F of the transcript:

"As I understand it, it is accepted that if this country has by its domestic legislation introduced effective legislation to comply with the European directive, then an applicant complaining that he has not received equal pay for work of equal value is confined to his rights under the domestic law and cannot bring a claim based directly on European law."

there was a similar passage at the end of the transcript, page 5 A:

"I have to say that I do not think that that is an argument which has any reasonable prospect of success before this court."

The argument referred to by Lord Justice Balcombe was Mr Blaik's argument that he has remedies under both English law and European law in relation to his equal pay complaint.

Lord Justice Balcombe continued:

"Once it is accepted that at the time he brought his application in October 1985 English domestic law, even though subsequently declared to be so, did provide him with a remedy in relation to his claim that he was not being given equal pay for work of equal value, then he was confined to that remedy, as he was in relation to procedural matters, such as time limits, periods within which the claim should be made and so on. That was, in effect, the decision of the Employment Appeal Tribunal, which was given in much greater detail than in this ex tempore judgement, but my task, as I understand it, is only to give leave to appeal if I am of the view that there is an arguable point worthy of consideration before the full Court of Appeal. For those reasons that I have endeavoured to give, in my judgement there is no arguable point in relation to jurisdiction."

Those statements of the decision of this Tribunal on the 8th May 1990, and of Lord Justice Balcombe on the 8th May 1991 are good authority for the view adopted by the Industrial Tribunal in this case that Mr Blaik had no right to bring proceedings before it under Article 5(1) of the Equal Treatment Directive.

The position is that the Sex Discrimination Act 1975 is a sufficient remedy, under English law, to deal with the complaint made by Mr Blaik against the Post Office. There is no significant disparity between the relevant provisions of that legislation and the provisions of the Equal Treatment Directive relied on by Mr Blaik. Mr Blaik has unsuccessfully invoked his rights under the 1975 Act, both in the Industrial Tribunal and in the Employment Appeal Tribunal. What he is now seeking to do, in our judgment, is to have the same complaint decided under equivalent provisions. His real complaint is that he lost in the first round, not that there is some failure on the part of the State to implement in English law the provisions of the Directive.

In those circumstances we are unable to accept Mr Blaik's submissions. In conclusion that we are very grateful to him for the careful way in which he has put his point in his written skeleton argument.

It follows that we are unable to accede to his further applications that this Tribunal should set aside provisions in the Sex Discrimination Act and other legislation which do not, in his submission, accord with EEC law. For the same reasons it is unnecessary to deal with further proposed applications regarding the joinder of parties. For those reasons the appeal is dismissed.