Alabaster v Barclays Bank Plc & Anor

This is an appeal by Mrs Michelle Alabaster against a determination by the Employment Appeal Tribunal (“EAT”) dated 19^th April 2000 whereby it dismissed her appeal against a decision of an Employment Tribunal (“ET”) on 9^th March 1999 to dismiss her application for increased maternity pay over and above the amount in fact paid to her by her employers. On 27^th March 2002 this court referred certain issues that arose on this further appeal to the European Court of Justice (“ECJ”) for decision, and after receiving the ECJ’s ruling on those issues we held a further two-day hearing on 8^th and 9^th February 2005 to determine another issue that still remained open for decision.

The main question raised by this appeal related to the effect, if any, on the calculation of a woman’s statutory maternity pay (“SMP”) of an increase in pay that is granted to her before she commences her maternity leave, but which is not back-dated into the relevant reference period by which maternity pay falls to be calculated in accordance with Part XII of the Social Security Contributions and Benefits Act 1992 (“the SSCBA”) and the Statutory Maternity Pay (General) Regulations 1986, as amended (“the SMP regulations”). Now that the ECJ’s ruling on this issue is available to us, we must determine the subsidiary question whether Mrs Alabaster’s claim to the increased maternity pay the ECJ has held was properly due to her is barred because she did not issue her claim until after the expiration of the time permitted by the Employment Rights Act 1996 (“the ERA”).

Mrs. Alabaster was employed by the Woolwich Building Society (which changed its name successively first to Woolwich PLC and then, more recently, to Barclays Bank PLC) as an administrator between 7^th December 1987 and 23^rd August 1996. She became pregnant in May 1995, following which she provided her employers with the requisite statutory notices relating to her pregnancy. She commenced her maternity leave on 8^th January 1996, when the expected week of confinement was 11^th February. In fact she gave birth on 2^nd February. When she later decided not to return to work, her employment terminated on 23^rd August 1996, this being 29 weeks after the start of the actual week of confinement.

Her employers provided her with a maternity package which contained both an element of SMP and a contractual element. The statutory element entitled her to 90% of her normal weekly earnings for the first six weeks of her maternity leave, and then a flat rate for the next 12 weeks. Contractual maternity pay was available to every female employee of the company who had completed two years employment before the qualifying week. Because Mrs Alabaster qualified under this head she was contractually entitled to the difference between the lower rate and the higher rate of her SMP for a further four-week period. It followed that she was entitled to receive maternity pay at the higher rate for the first ten weeks and at the lower rate for the remaining eight weeks of her maternity leave entitlement.

As a consequence of the combined effect of ss 166(1) and (2) and 171(4) and (5) of Part XII of the SSCBA and reg 21 of the SMP regulations, the reference period for calculating Mrs Alabaster’s “normal weekly earnings” was the period of eight weeks between 1^st September and 31^st October 1995. Because her annual salary was then £11,619, her “normal weekly earnings” for this period were calculated to be £223.44. She was therefore entitled to receive £2,441.25 as maternity pay, made up of ten weeks’ pay at the higher rate (£2,011) followed by basic rate SMP for a further eight weeks (£430.25).

Before she began her maternity leave, however, her total annual salary was increased on 12^th December 1995 to £12,801 with effect from 1^st December. This salary increase was not included in the “normal weekly earnings” figure (see para 5 above) because it did not apply to the relevant reference period from 1^st September to 31^st October 1995. It was therefore not reflected in the maternity pay calculation, even though she did not start her maternity leave until after this pay increase had come into effect. If her maternity pay had been calculated by reference to this higher annual salary of £12,801, as opposed to the salary of £11,619 on which it was in fact calculated, she would have been entitled to a further £204.53.

On 21^st January 1997 she issued a complaint against her employers in the ET. She said that their failure to reflect her salary increase in the calculation of her SMP by reason of the wording of reg 21(7) of the SMP regulations constituted discrimination against her on the grounds of sex, contrary to the EPA and to what was formerly Article 119 and is now Article 141 of the Treaty of Rome, as explained by the ECJ’s decision in Gillespie v Northern Health and Social Services Board [1996] ICR 499. She did not provide a male comparator to support her claim.

By an order of the ET dated 30^th May 1997 the Secretary of State for Social Security was added as a defendant to the proceedings. He has been the effective respondent in this court, in which Mrs Alabaster’s employers have not made a substantive appearance.

On 9^th June 1997 she amended her claim by adding a complaint that deductions were deemed to have been made from the SMP paid to her during the first ten weeks of her maternity leave period, and that such deductions offended against s 13 of the ERA.

On 10^th March 1999 the ET held that her ERA claim was time barred. Section 23(2) and (3) of the ERA set a three month time limit for bringing a claim, which starts to run from the date of the last deduction of which complaint is made (see para 29 below). The ET also dismissed her Article 141 claim, although it believed it to be well founded. It explained that it had no jurisdiction to hear a free-standing Article 141 claim or an EPA claim, and that Mrs Alabaster’s correct route to a remedy would have involved bringing a claim under the ERA within the three month time limit. On 19^th April 2000 the EAT upheld the ET’s decision.

Both Mrs Alabaster and the Secretary of State then appealed, and on 26^th February 2002 this court referred certain questions to the ECJ for a preliminary ruling in order to ascertain whether or not a failure to backdate a pay increase (so that its effect would be taken into account when calculating the rate of pay for the relevant reference period) constituted a breach of Article 141.

On 30^th March 2004 the ECJ responded to the effect that Article 141 required any pay rise awarded between the beginning of the reference pay period and the end of maternity leave to be included when the amount of maternity pay is calculated. This principle must be applied whether or not the pay rise is backdated to the period covered by the reference pay. For its judgment, see Case C-147/02 Alabaster v Woolwich PLC, 30^th March 2004.

Having ascertained that the pay increase should have been taken into account when her entitlement to maternity pay was calculated and that her employers’ failure to do so constituted a breach of her rights under European Community (“EC”) law, Mrs Alabaster restored her appeal before this court for a further hearing in which she asserted that she was entitled to an effective remedy in respect of this breach.

Ms Monaghan, who appeared for Mrs Alabaster, contended that the Equal Pay Act 1970 (“the EPA”) constitutes the domestic implementation of the equal pay regime created by Article 141. In support of this contention she cited Advocate General Leger in Case No C-326/96 Levez v T H Jennings (Harlow Pools) Ltd [1999] IRLR 58 at para 47, who expressed the view that:

“…an action brought under the Equal Pay Act and an action brought under Article [141] of the Treaty are not merely similar, as the United Kingdom Government maintains: their scope is identical, that is to say, they amount to one and the same form of action.”

No Article 141 claim has ever been brought in the courts and tribunals of this country except through the EPA or the Sex Discrimination Act 1975 (“SDA”). Ms Monaghan cited Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland [1982] IRLR 333 and Marshall v Southampton and South West Area Health Authority [1993] ECR I-3367 ECJ in support of this proposition.

In arguing against the legitimacy of recourse to the ERA as a means of giving effect to Article 141, Ms Monaghan sought to rely upon the guidance of Advocate General Tisane in Case C-144/99 Commission v Netherlands [2001] ECR I-3541 at paras 15-17 as to the applicable principles in transposing Directives as fully effective in national law:

“The Court has explained that … the Member States must define a specific legal framework in the sector concerned which ensures that the national legal system complies with the provisions of the directive in question. The framework must be designed in such a way as to remove all doubt or ambiguity, not only as regards the content of the relevant national legislation and its compliance with the directive, but also as regards the authority of that legislation and its suitability as a basis for regulation of the sector…. Consequently, given that the Member State concerned is required to ensure the full and exact application of the provisions of any directive, it falls short of its obligations so long as it has not completely complied with [the directive], even if that [domestic] law has to a large extent already secured the objectives of the directive.

… Any rights conferred by [the] directive must be guaranteed full protection … Regard must be had to the Court’s consistent concern to ensure that the existing national legislation leaves no doubt as to the effects of the directive upon the legal position of individuals. In the words of the Court, ‘it is particularly important, in order to satisfy the requirement for legal certainty, that individuals should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and, where appropriate, to rely on them before the national courts.’”

Ms Monaghan relied on these principles in support of her contention that because the ERA is not a discrimination statute, it does not constitute legislation in “the sector” of the EPA and the SDA. She said that one could not say that the ERA route “removes all doubt or ambiguity … as regards the authority of [the] legislation and its suitability as a basis for regulation of the sector” because the ERA had never previously been used to enforce equal pay rights. Furthermore, any financial remedy that would be available under the ERA failed to ensure that Mrs Alabaster could enforce her Community law rights to sex equality because the continuing legal position of individuals was left in considerable doubt.

It is well known that the ECJ has prescribed that national law must ensure that rights conferred on individuals by EC law must be made fully effective in each member state. In particular, the EC principle of equivalence dictates that national rules which give effect to EC rights must not be less favourable than those that govern similar domestic actions, and the EC principle of effectiveness dictates that the national rules must not render virtually impossible or excessively difficult the exercise of rights conferred by EC law (see the judgment of the ECJ in Levez v T H Jennings (Harlow Pools) Ltd - see para 14 above - at para 18).

If Ms Monaghan’s arguments had ended there, the submissions of Mr Vajda QC, who appeared for the Secretary of State, would have provided a formidable answer. He argued that Member States are not obliged to give effect to an EC directive or an EC right by a single statutory provision, and they may elect to do this through several such provisions if they prefer. The way in which someone like Mrs Alabaster might enforce her EC right under Article 141 lay as a matter of our national law through s 13(1)(a) of the ERA, and the reason that her ERA claim failed was because it was brought out of time. He contended that the EPA furnished an inappropriate route for Mrs Alabaster to pursue her claim. Instead, the ERA, or the Social Security Administration Act 1992 (“SSAA”), should have been used. In response to the argument that the ERA has never been used to obtain a remedy for breach of Article 141, Mr Vajda contended that the ERA would, in fact, have provided Mrs. Alabaster with a suitable remedy, and to say that something had never been done before was not the same as to say that it could not be done.

He submitted that the EC principles of transparency and legal certainty were very clearly articulated by the ECJ in Case C-233/00 Commission v France, judgment of 26^th June 2003, at para 76:

“76.

While it is therefore essential that the legal situation resulting from national implementing measures is sufficiently precise and clear to enable the individuals concerned to know the extent of their rights and obligations, it is none the less the case that, according to the very words of the third paragraph of Article 189 of the Treaty, Member States may choose the form and methods for implementing directives which best ensure the result to be achieved by the directives, and that provision shows that the transposition of a directive into national law does not necessarily require legislative action in each Member State. The Court has thus repeatedly held that it is not always necessary formally to enact the requirements of a directive in a specific express legal provision, since the general legal context may be sufficient for implementation of a directive, depending on its content. In particular, the existence of general principles of constitutional or administrative law may render superfluous transposition by specific legislative or regulatory measures provided, however, that those principles actually ensure the full application of the directive by the national authorities and that, where the relevant provision of the directive seeks to create rights for individuals, the legal situation arising from those principles is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts (see, inter alia, Case 29/84 Commission v Germany [1985] ECR 1661, paragraphs 22 and 23, and Case C-217/97 Commission v Germany, cited above, paragraphs 31 and 32).”

He said that this judgment makes it clear that there is no particular magic in choosing a single correct way of devising a national implementing measure. Mrs Alabaster had not shown how the pursuit of an Article 141 claim in respect of maternity pay (whether statutory or contractual) under either the ERA or the SSAA rendered it virtually impossible or excessively difficult for her to exercise her rights under Community law. He accepted that there were some differences between the ERA and the EPA jurisdictions (in that, for instance, the ERA limitation period was shorter and a complainant did not have an absolute right to a three-person ET panel for a complaint under the ERA) but he said that these points did not mean that English law failed the EC test of effectiveness in this regard.

As the argument developed, however, Ms Monaghan placed more and more weight on the EC principle of equality, which the ECJ described in P v S [1996] IRLR 347, 354 at para 18 as “one of the fundamental principles of Community law”. Although Mrs Alabaster’s period of maternity leave antedated the coming into force of the Human Rights Act 1998, our attention was drawn to the way in which fundamental rights permeate EC law. The relevant principles were set out by the ECJ in its judgment in Case C-260/89 Elliniki Radiophonia Tileorass-AE v Plisofatissis and Kouvelas ERT [1991] ECR 1-2925 at paras 41-42:

“41.With regard to Article 10 of the European Convention on Human Rights, referred to in the ninth and tenth questions, it must first be pointed out that, as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories (see, in particular, the judgment in Case C-4/73 Nold v Commission [1974] ECR 491, paragraph 13). The European Convention on Human Rights has special significance in that respect (see in particular Case C-222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18). It follows that, as the Court held in its judgment in Case C-5/88 Wachauf v Federal Republic of Germany [1989] ECR 2609, paragraph 19, the Community cannot accept measures which are incompatible with observance of the human rights thus recognized and guaranteed.

42 As the Court has held (see the judgment in Joined Cases C-60 and C-61/84 Cinéthèque v Fédération Nationale des Cinémas Français [1985] ECR 2605, paragraph 25, and the judgment in Case C-12/86 Demirel v Stadt Schwaebisch Gmund [1987] ECR 3719, paragraph 28), it has no power to examine the compatibility with the European Convention on Human Rights of national rules which do not fall within the scope of Community law. On the other hand, where such rules do fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the European Convention on Human Rights.”

Ms Monaghan submitted that if we take into account the EC principle of equality in addition to the principles of equivalence and effectiveness, then her client’s right to recover her full maternity pay entitlement falls within the ambit of Article 6 of the European Convention on Human Rights (“ECHR”). The court should therefore examine, pursuant to ECHR Article 14, whether as a woman who seeks to assert her entitlement to equal pay during maternity leave, she is being treated differently under our national law from other employees who have rights to equal pay on the grounds of their sex guaranteed to them by Article 141 of the Treaty of Rome, and if so whether the difference in treatment is objectively justifiable (see Lord Bingham in A v Home Secretary [2004] UKHL 56 at [50], [2005] 2 WLR 87).

This is the moment at which it would be convenient to say a little more about the three principal statutes with which this appeal is concerned, before we go on to compare the ERA and EPA regimes. It is the SDA that provides the usual vehicle for complaints about discrimination on grounds of sex. Section 1 of that Act has the effect of requiring a woman to show that she has been discriminated against when her position is compared with a male comparator in relation to the matter of which she makes complaint. In Webb v EMO Air Cargo (UK) Ltd (No 2) [1995] ICR 1021, in which the applicant’s complaint related to the fact of her dismissal when her employers learned that she was pregnant, the House of Lords held that ss 1(1) (a) and 5(3) of the SDA were to be interpreted as meaning that where a woman had been engaged for an indefinite period, the fact that pregnancy was the reason for her temporary unavailability at a time when to her knowledge her services would be particularly required was a circumstance relevant to her case that could not be present in the case of the hypothetical male comparator.

Issues relating to discrimination in the field of pay are, however, taken out of the SDA by s 6, which provides, so far as is material:

(2)

“It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -

(a)

in the way he affords her access to opportunities for production, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b)

by dismissing her, or subjecting her to any other detriment.

…

(6)

Subsection (2) does not apply to benefits consisting of the payment of money when the provision of those benefits is regulated by the woman’s contract of employment.”

It is s 1 of the EPA which sets out the rules about equal pay for like work, work related as equivalent, or work of equal value. These rules reflect the philosophy of what is now Article 141 and the EC directives on equal pay and equal treatment. The equality clause which by s 1(1) is deemed to be included in a woman’s contract of employment requires a male comparator with whom the woman’s pay can be compared. This, of course, is not possible in relation to issues concerned with a pay entitlement during maternity leave.

Section 13 of the ERA, for its part, provides, so far as is material, that:

“13 (1) An employer shall not make a deduction from wages of a worker employed by him unless

(a)

the deduction is required or authorised to be made by notice of a statutory provision or a relevant provision of the worker’s contract, or

(b)

the worker has previously signified in writing his agreement or consent to the making of the deduction.

…

(3)

Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”

By s 27(1)(c) of the ERA, statutory maternity pay under Part XII of the SSCBA represents one of the sums payable to a worker in connection with his employment which fall within the statutory definition of “wages.”

Part II of the ERA, in which ss 13 and 27 appear, is the lineal successor to the Wages Act 1986 (“the 1986 Act”) which in turn replaced the Truck Acts 1831 to 1940 as Parliament’s response to the evil constituted by unauthorised deductions from an employee’s pay. Maternity pay, the precursor to SMP, which was then payable under Part III of the Employment Protection (Consolidation) Act 1978, first came within the statutory definition of “wages” for the purposes of this legislation by virtue of s 7(1)(f) of the 1986 Act.

Section 23(1)(a) of the ERA empowers a worker to present a complaint to an employment tribunal that his employer has made a deduction from his wages in contravention of s 13. Section 23(2) and (3) provide the three-month time bar, taken from the date of the final deduction of which complaint is made if there has been a series of deductions, to which we referred in para 10 above. Section 23(4) empowers an employment tribunal to extend this time if it is satisfied that it was not reasonably practicable for the complaint to have been presented in time. The ET, however, refused to extend time in Mrs Alabaster’s case, and there has been no appeal against that refusal.

It was against this statutory background, and because it became increasingly clear during the hearing that we needed to obtain a clearer understanding of the differences between, on the one hand, the regime for enforcing a woman’s right to recover her full lawful entitlement to maternity pay if she has to have recourse to the ERA, and on the other hand the regime that is available under English legislation for all the other complaints someone may have against his/her employer in respect of unfair treatment in the field of pay, that we made a request to the parties for more assistance in this respect. As a result, counsel for the appellants provided us with a helpful note after the hearing was ended, on which counsel for the Secretary of State made no substantive submissions in response. Differences between the two regimes can be identified under ten separate headings:

We have drawn, for our analysis of the ERA regime, from ERA ss 23(2) – (4) and 104, the Employment Tribunals Act 1996 s 4(1)–(3)(c) and (5), the Employment Tribunals (Interest) Order 1990, Arts 3(1) and 2(1) - (3), and the Limitation Act 1980 s 9. For the EPA regime, see EPA ss 2(4), 2ZA, 2ZB and 7B, the Employment Tribunals Act 1996 s4(1), the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 regs 1-6 and 8 (read with the Employment Tribunals (Interest) Order 1990), SDA ss 4, 6, 9, 20A and 82 (1) - (2), the Equal Pay (Questions and Replies) Order 2003, and the Burden of Proof Directive 97/80/EC Article 3H. We should make it clear that provision for service of a statutory questionnaire (which has never been available for claims under the ERA or its statutory predecessors) was first introduced in respect of EPA claims in 2003. Although s20A of the EPA (which relates to post-dismissal victimisation in relation to EPA claims) was not in force at the time of Mrs Alabaster’s complaint, the position was the same, however, under EPA s6(2) and the relevant case law.

In our judgment, whatever may be the case in relation to individual items, differences on this scale, which leave a woman in Mrs Alabaster’s position significantly disadvantaged in comparison with anyone else with an equal pay complaint, cannot be objectively justified. The only argument Mr Vajda advanced, when he had been served with the schedule of differences, was to contend that claims for SMP were essentially sui generis and could not be compared with other discrimination claims. He argued that the appropriate comparators were other people with claims under the ERA.

In our judgment, this distinction is not sustainable, particularly because the ECJ itself has refused, in its Gillespie and Alabaster judgments, to treat claims relating to SMP as sui generis: see the ECJ judgments in Gillespie at para 22 and in Alabaster at paras 47-48. We are here undoubtedly in Article 141 territory, and if s 13 of the ERA represented the only way in which Mrs Alabaster could enforce her EC rights, she would be left with a remedy under national law which did not comply with all the EC principles of equality, equivalence and effectiveness. Moreover, we do not consider that the fact that the statutory element of SMP involves Government funding (to which EC Directive 92/85 is particularly applicable) can alter the fact that we are in Article 141 territory. Mr Vajda indeed conceded that there was “some scope” for the application of Article 141 to maternity pay. He also accepted that SMP was “pay”, even if the UK regime derived in essence from the social security regime.

He contended in the alternative that Mrs Alabaster possessed an adequate remedy under s 20 of the SSAA which gives an adjudication officer jurisdiction to determine questions referred to him in connection with entitlement to SMP. This, however, would not have provided her with the complete remedy she sought, because an adjudication officer would have no jurisdiction to determine any question relating to the contractual element of her maternity pay. Although we were not provided with a comparable analysis of the differences between the EPA regime and the SSAA regime, many of the points of differences from the ERA regime clearly exist here, too: a single adjudicator, a less generous limitation period (see reg 20 of the Social Security Adjudication Regulations 1995) and a lack of many of the special safeguards and benefits attaching to a specialised statutory regime concerned with remedying complaints of discrimination in the field of pay.

What, then, should we do in order to give effect to Mrs Alabaster’s EC rights in our national law in a way which complies with the requirements of EC law? If anything at all had to be done, Mr Vajda suggested that it would be sufficient to disapply the time limit in the ERA, but this would not remedy all the other deficiencies in the ERA regime which cannot be objectively justified. Although we must remember that we are not legislators, and that we are only concerned with ensuring that Mrs Alabaster has an effective remedy, the disapplication of the limitation period alone would not permit her to recover EOC support or to remedy the deficiencies in the ERA regime as to interest. Ms Monaghan and Ms Reindorf have calculated that she would be entitled to a 36% uplift for interest on her entitlement if she were to have a remedy under the EPA, and we have already noted that the EPA regime is slightly more generous in relation to interest from the date of the decision unless the full amount is paid within 14 days.

It appears to us that the answer to this conundrum lies so obviously in an appropriate adjustment to the EPA that we can dismiss quite rapidly two alternative suggestions advanced by Ms Monaghan. First, we are governed by binding authority (Staffordshire County Council v Barber [1996] ICR 379, 395) to hold that an employment tribunal has no jurisdiction to entertain claims made directly under what is now Article 141 of the Treaty of Rome. As Mummery J made clear in Biggs v Somerset Council [1995] ICR 811, 830, in a decision approved by this court in the Barber case, what is now an employment tribunal has no inherent jurisdiction, and its statutory jurisdiction is confined to complaints that may be made to it under specific statutes. Secondly, we see no value in carving out a remedy under the SDA by disapplying s 6(6) when it is the EPA which is Parliament’s chosen vehicle for remedying unfairnesses between the sexes in the field of pay.

In our judgment the appropriate way to proceed is to follow the example shown by the House of Lords in Webb (see para 24 above) and disapply those parts of s 1 of the EPA which impose the requirement for a male comparator. In this way Mrs Alabaster can succeed in her claim for sex discrimination without the need for such a comparator, just as she would have done automatically if her claim had not related to the payment of an amount of money that was regulated by her contract of employment and had fallen within the SDA regime instead.

For these reasons this appeal is allowed, and we will hear counsel as to the consequential orders we should make.

Appeal allowed.

The Second Respondent’s cross-appeal be dismissed.

Judgment be entered by consent, the Second Respondent to pay to the Appellant compensation in the sum of £204.53 plus interest of £65.86 pursuant to Regulation 1(2) of The Employment Tribunals (Interest on Award in Discrimination Cases) Regulations 1996.

The Appellant’s costs of the present appeal before the Court of Appeal including the costs of the reference to the European Court of Justice be paid by the Second Respondent such costs to be the subject of detailed assessment if not agreed.