UKSC and JCPC electronic bundle sample - The Supreme Court

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890 12lIOOJ [COURT OF APPEAL] GIBSON v. EAST RIDING OF YORKSHIRE COUNCIL A 2000 April 19; June 21 Pill. Brooke and Mummery L.JJ. Employmenf.-Working lime provisions-Local authority employer-No contrQctual entitlement to paid annual leave-Failure to implement Community law 10 provide entitlement-Whether Community law provision having direct effect-Council Direct;Ye (93/J04IE.C.), arts. 2. 7 The applicant, a swimming instructor employed by a local authority. Was paid an hourly rate and had no contractual entitlement to paid annual leave. In June 1997, after the date by which member states were required to implement the Working Time Directive (93/104/E.C.)1 but before the Uoited Kiogdom had done so, the applicant made a complaint to an industrial tribunal that by not paying her for annual leave. contrary to article 7 of the Directive, her employers were making unlawful deductions from her wages. The tribunal found that, although. as the employers were an emanation of the sta~ the applicant could prima facie enforce a right against them under the Directive, its terms were not sufficiently precise and unconditional to have direct effect, and it dismissed her claim. The appeal tribunal allowed the applicant's appeal holding that, on a necessary examination of the Directive as a whole, its structure was consistent with its having direct effect in that it was designed to require member states to confer minimum rights on workers in a way which could be said to be unconditional. that article 7 was clear and precise and gave effect to the Directive's purpose, and that the article had direct effect and varied the applicant's contractual rights in that, had the Directive been implemeoted timeously, she would have been entitled to paid annual leave at the date of her complaint. On the local authority's appeal:- Held, allowing the appeal, that, notwithstanding that article 7 or the Working Time Directive (931I041E.C.) provided that the length of the minimum period or paid annual leave was four weeks, on an examination of the wider context of the nature, genenl scheme and wording of the Directive in. respect of the organisation of working time, the article left unanswered key questions aft"ecting individual entitlement to aonual leave; that the concept of "working time" in article 2 was not defined precisely enough to enable a court to detennine the period an employee had to have worked berore he was eotitled to the specified period of annual leave; that, in the absence of sufficient precision in anicle 7 or by reference to other provisions in the Directive, it was impermissible to interpret the article as having direct effeet by rel'erence to national practice or custom in the WOTkplacc; and tha~ accordingly, the provisions of article 7 or Directive 93/104 did not have direct effect so as to be enforceable by a national court at the instance of an individual employee (pos~ pp. 895c-o, 896Il-O, 8970-0. 898&-E). B C D E F G H I Council Directive (9311041E.C.), art, 2: see post, pp, 89SH-896A. Art. 7: see post. p. 893e-o. MS MS Page Number 691 78
894 [HOUSE OF LORDS) (llIIf HAYWARD • AnELLANT AND CAMMELL LAIRD SHIPBUILDERS LTD.• 1988 REsPoNDENTS [On appeal from HAYWARD v. CAMMELL LAmo SHlPBUlLDERS LTD. (No. 2») Feb. 15. 16. 17; May 5 Lord Mackay of Casbfem L.C•• Lord Bridge of Hanvich. Lord Brandon of Oakbrook. Lord Griffitba BDd Lord Goff of Cbieveley Discriminlllion, Sex-EqUlll pay-Work of Iicant', appeal. On appeal by the app6cant:- Htld, allowing tbe appeal, tbat on ill true CDIlStruc:tion section 1(2) of the Act ot 1970 refemd 10 the IpCCific: term or terms of the coatract of which c:ompIaint bad been made IIOIW1tbatanding that. when looked at as a whole. the complainant'. contract may have been no .... fa......able than the comparalolS because she ..as entitled 10 other beneftts 10 ..bich they weno not entitled; that the upression "term" .... 10 he given ita natural meaning as a diItinct proviaioa or part of the contract ..hich bad sufficient coateDt for it 10 he compared with a similar provision or part in other CODtracts; and that, ao:cordingly, the appIicant's contract coalllined a term as 10 her basic: pay [n respect of..bleb ,he .... aatitIed 10 raIief under the sectioa BDdthe ease would he remiltad 10 the industrial tribnnal for determinatioD (post, pp. 900D-G, 9010-0, 903A-I, 9041H1, 9071f-901la). , EqUal Pay Act 1!1lIJ............. So 1(2)«): sec post. p. II!l9o-L A B C D E F G H MS MS Page Number 700 79
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