MR H MARSHALL v NORTH WEST LONDON MENTAL HEALTH TRUST [2000] UKEAT 30_98_2709

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 30_98_2709

Case No Appeal No. EAT/30/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR H MARSHALLAPPELLANT

NORTH WEST LONDON MENTAL HEALTH TRUSTRESPONDENT

Before

Mr Justice Morison

Date 27 September 2000

[1]APPEARANCES For the Appellant MR THOMAS LINDEN (of Counsel) Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA For the Respondent MR MARTIN GRIFFITHS (of Counsel) Messrs Beachcroft Stanleys Solicitors 20 Furnival Street London EC4A 1BN MR JUSTICE MORISON (PRESIDENT) : This appeal is against the decision of an Employment Tribunal held at London (North) which struck out Mr Marshall's originating application. The applicant/appellant claimed that he was employed by the Respondents from 1 May 1996 to 22 May 1997 and been unfairly dismissed. The Employment Tribunal struck out the complaint on the grounds that:

"... the Tribunals must apply the domestic law of this country as it exists at the present time and there is no realistic prospect of the European Court of Justice deciding Seymour-Smith in a way that it will allow claims to be brought retrospectively."

[2]The appellant's appeal recites the history of the proceedings. The originating application was presented on 29 August 1997. On 10 September the Tribunal pointed out that Mr Marshall did not have two years' continuous service and that it ought to consider whether the case should be struck out. Although reference in the letter was made to the wrong rule, there is no doubt that it was informing the parties that the Tribunal was considering whether the application was frivolous. The Tribunal invited representations but the applicant made none. Without hearing any evidence it struck the case out based upon the principle of law it referred to in its decision.

[3]The appellant submits that the Tribunal erred in law.

[4]In the Seymour-Smith case a number of questions were asked of the European Court of Justice. The principal question at issue in that case was whether the two-year time limit was unlawfully discriminatory on the grounds that fewer women than men fulfilled the condition. There were a number of problems caused by that case. At what moment should the question of disproportionate effect be judged: at the time when the limit was increased from one to two years, or at the time of the originating application or at the date of the hearing before the domestic or European Court. The statistical data is different depending on what date is chosen. Second, if the condition was unlawful, what would be the effect? Would the condition be void and, if so, would it be void so that there were no condition of continuous service, or would it be void so that the law reverted to what it had been before the change? And third, from what date would the decision have effect? Would people who had made claims but had failed on jurisdiction grounds be able to resurrect their claims or would the decision apply only to those cases which were in being at the date of the ECJ's judgment, or would it only apply to a date from the ECJ judgment.

[5]If the condition were held to be unlawful, and if the decision were to apply to future cases and to cases which had been started but had not been completed, then a complainant who had started proceedings might be the beneficiary of a favourable decision. Accordingly, a number of professional advisers and organisations advised their clients to start proceedings in the Employment Tribunal to await the outcome of the Seymour Smith case. In the early days, after the reference, a number of Employment Tribunals dismissed claims on the grounds that there was not the requisite period of qualifying service and appeals were lodged with the EAT. A decision was taken that the outcome of these appeals should await the disposal of the Seymour Smith case. The decision was taken by the then President, Mummery LJ. At the time of his decision, it could not have been anticipated that the litigation would take so long. For reasons, which are not relevant, the House of Lords had the matter under consideration for many months before being persuaded that a reference should be made. The matter took a long time before the ECJ gave judgment.

[6]This appeal came on for hearing before the EAT before the decision of the ECJ in the Seymour Smith case.

[7]Essentially, the employers argue that Tribunals should hear and determine applications on the basis of the law as it stands at the time. Justice may be impeded or denied if cases are put on hold. As in this case, the evidence relating to Mr Marshall's dismissal may be lost in the mists of time whilst the Seymour Smith issues are being determined. Whilst it might be unobjectionable to adjourn a case to await the coming into force of changes in procedure which have already been enacted, it would be objectionable to await the enactment of such changes [see West Bromwich BS v Mander Hadley & Co (March 1998)]. It was pointed out that the applicant did not invite the tribunal to grant a stay of his proceedings, and that he did not respond to the tribunal's 'minded' letter. There was no indication in his application that he was relying upon Article 119. He had available no relevant statistical material to justify a 'European point' if he had one. He should not now be permitted to argue what had not been sought before the Employment Tribunal. Points of law which were not argued before the Tribunal should not be argued for the first time at the EAT: see Kumchyk . There is no particular exception to the general rule, in relation to jurisdiction issues. But even if there were such an exception, the qualifying period of two years was not a jurisdictional requirement, rather it was a qualification of the applicant's right not to be unfairly dismissed. Further, it was submitted that Mr Marshall's claim would be bound to fail before the ECJ. He would have to establish that compensation for unfair dismissal was 'pay' to which Article 119 could apply and Mr Griffiths of counsel referred to a number of other difficulties. He criticised the decision of Lord Johnston in Davidson , arguing that it was decided per incuriam and conflicted with another EAT decision: Thomas v National Training Partnership . The question whether to adjourn or not was very much a matter for the Employment Tribunal and the answer was a decision with which this court should be reluctant to interfere with.

[8]For the appellant, it was submitted that the tribunal erred in their whole approach to the question at issue. There is no dichotomy between domestic and European Union law. They interact one with another as part of one system of law in which the ECJ is the supreme court. Therefore, it would be wrong to approach the matter on the basis that there is a presumption that domestic law applies unless and until the contrary is shown to the case in European Law. Until the determination of the Seymour Smith case there is no "law as it stands" which can be identified with any certainty. The Kumchyk principle does not apply as the Employment tribunal were considering the very point at issue on this appeal, namely whether, in the light of Seymour Smith Mr Marshall's case was frivolous or hopeless. In any event the EAT has a discretion as to the points which it will permit to be argued and the interests of justice demands that the appellant be allowed to put into legal form what the Employment Tribunal had well understood Mr Marshall was in fact contending for by presenting a claim in respect of which he did not have the requisite period of employment. He did not have the benefit of legal advice at the time of making his complaint; the tribunals' 'minded' letter was complex and a lay person is not to be criticised or penalised for not responding to it. Davidson was correctly decided and the EAT should adopt the principle that a litigant in Mr Marshall's shoes has a right to lodge his complaint and have it 'sisted' or adjourned until the outcome of Seymour Smith is known.

[9]It seems to us clear that Mr Marshall's complaint should not have been struck out. There are not two systems of law in operation; rather there is a unified system in which decisions of the ECJ inform and determine questions of rights arising under the Treaty or European Directives. Mr Marshall's right not to be unfairly dismissed may have been unlawfully curtailed by a condition which offends the principle of equality. Before his claim could be described as hopeless or frivolous he would have been entitled to ask the tribunal to refer the issues to the ECJ for a determination of that issue. Rather than ask the ECJ to accept references in a whole series of individual cases it was obvious that a policy of waiting for the outcome in Seymour Smith was correct. This is not the same as a person waiting for a change in the law, rather it is a case where the due administration of justice demands that the claim be put on hold until the law has been clarified. It is obvious that the Tribunal was well aware that Mr Marshall was asserting a right to have his claim considered despite the statutory condition as the references to Seymour Smith make clear. This is not a situation governed by the Kumchyk principle as the point was firmly before the Employment Tribunal when it made its decision. In our view, the tribunal was wrongly depriving Mr Marshall of his right to argue his case in the light of the decision in Seymour Smith . Until the ECJ had reached its conclusion the Employment Tribunal were not entitled to describe his claim as hopeless or frivolous.

[10]In reaching this conclusion the EAT is well aware of the problems which have been caused by the sensible policy adopted by the EAT and, recently, by all Employment Tribunals. There is an obvious risk of injustice to the employers as the facts get cloudier. There may be cases which are virtually untriable as a result of changes in personnel. But that is the price that must be paid in an imperfect world. Once the Seymour Smith hare was out of the traps, it must run its course.

[11]It was the President's understanding that the parties did not desire a judgment in this case and hence the delay in its preparation. Since the case was heard matters have moved on. Compensation for unfair dismissal has been held to be pay and the ECJ have given their decision in Seymour Smith . It would not be appropriate for this judgment to attempt to deal with the consequences of these changes. This is just one of a very large number of cases whose outcome has yet to be decided.