Appeal No.	 EAT/475/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 December 1998
Judgment delivered on 20 January 1999

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS R A VICKERS
MR G H WRIGHT MBE

MS STEPHANIE CAWLEY & OTHERS	APPELLANTS

HAMMERSMITH HOSPITALS NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR T PULLEN
(Representative)
Hammersmith & Fulham Community Law Centre
142/144 King Street
Hammersmith
London
W6 0QU	
For the Respondents	MS J EADY
(of Counsel)
Messrs Capsticks
Solicitors
77-83 Upper Richmond Road
Putney
London 
SW15 2TT	

	MR JUSTICE MORISON (PRESIDENT):	This appeal arises from the re-organisation of the National Health Service in 1994. 

	On 1st April 1994 the Hammersmith Hospitals NHS Trust was created [‘the Trust’]. The Trust was responsible for the administration of the Hammersmith and Queen Charlotte’s hospitals and the Charing Cross Hospital. Each of the sixteen applicants was a radiographer employed by the Trust at the Charing Cross Hospital. 

	The radiographers formed part of the Imaging Department at Charing Cross and there was an Imaging Directorate of the Trust responsible for similar departments in each of the three hospitals. 

	After the Trust had been created a review was carried out of the Imaging Departments at each of the three hospitals with a view to developing a combined group. During the course of the review it appeared to management that the radiography service at Charing Cross Hospital was significantly more expensive and less productive per member of staff than elsewhere within the Trust and that the radiographers at Charing Cross received more pay than those doing the equivalent work at Hammersmith Hospital. 

	One of the conclusions of the independent review, was that the high staffing costs at Charing Cross arose largely from the method by which the radiographers there were claiming “on call” and “standby” payments. In order to correct what was perceived by the employers to be an anomaly, negotiations were commenced with a view to changing the working conditions of the radiographers at the Charing Cross Hospital to bring them more into line with the practices and terms and conditions of employment of those employed elsewhere by the Trust. 

	Ultimately, the employers proposed to change the standby duties, the effect of which would be that one person, as opposed to two, would be engaged over a 27½ hour period. Furthermore, the employers resolved to change the method of payment. In the past under a complicated procedure, radiographers at Charing Cross Hospital were entitled to make claims in relation to the number of times they were called out to carry out duties during their period on call. The employers wished to have a fixed sum to cover the duty regardless of the number of occasions that the radiographer’s services were required during any one term of duty. What the employers were proposing was similar to a system which had already been in operation at the Hammersmith Hospital for very many years. The tribunal accepted that the radiographers at Charing Cross would be rostered to perform the standby duty five times a year only. 

	The employees were not willing to accept this change in their working conditions and accordingly notices of dismissal were sent to all the relevant radiographers terminating their existing contracts of employment with notice, by reason of their refusal to agree to the new arrangements for undertaking standby and on call duties, but were offered re-engagement on terms which required them to work the new emergency duties system. 

	The radiographers accepted the new contract under protest and “without prejudice to their legal rights”. Subsequently they brought complaints against their employers for unfair dismissal and it was against the Industrial Tribunal’s decision to dismiss their applications that the appeal has come before the Employment Appeal Tribunal.

	At the heart of the applicants’ contention that the dismissal was unfair was their belief that the new working practices presented a danger to the patients to the hospital, since it would require the radiographers to work excessively long hours, which would, they said, lead to accidents and increased sickness levels. Furthermore, it was their belief that implementation of the new system would contravene the Working Time Directive.

	Initially their complaint to the Industrial Tribunal was brought under the Directive but their complaints were amended on 12th March 1997 so as to withdraw that head of their complaint, leaving for the Industrial Tribunal’s determination the question of unfair dismissal. Nonetheless, despite the withdrawal of their claim under the Directive itself, it was argued before the Industrial Tribunal that in determining the fairness of the decision to dismiss the tribunal were required to take into account the contention that the employers were introducing a scheme which was unlawful under the Directive. It was argued on the applicants’ behalf that there could not be a fair dismissal where the reason for it was a desire by the employers to change the terms and conditions so as to produce a scheme which was unlawful.

	The grounds on which the application for unfair dismissal was rejected by the Industrial Tribunal may be summarised in this way. 

(1)	The Working Time Directive was not binding on national governments as of the date of the decision to dismiss, and, thus, it could not impact on the fairness or otherwise of the decision. 

(2)	The Working Time Directive was sufficiently unclear and ambiguous to prevent it from satisfying the conditions of a Directive to have direct effect and, therefore, it did not have direct effect without further national legislation. 

(3)	It was clear from extensive consultation that took place that the key issue for the radiographers was not an issue of heath and safety, as they alleged, but one of money and how they were to be paid for their standby duties.

(4)	The health and safety aspects of the changes were considered by the employers who took advice from their Occupational Health Officer. The tribunal made these findings:

“22 ... The Tribunal further noted that although the Applicants argued in their Originating Applications and in the disputes documents that health and safety might be a problem they did not produce any actual evidence in support of that. Assertions were made about four people who had had to seek the advice from the Occupational Health Officer because they were overtired but no statistics were produced to show how many people that affected compared with the number of people who had performed duties nor the consequences of those people who were overtired or the circumstances of their being overtired. The Tribunal did not consider that the Applicants had therefore made out a case that health and safety truly was an issue. The Applicants said that the changes that were introduced were objectionable and in breach of the Working Time Directive because it increased the standby duty from 24½ hours to 27½ hours. The Tribunal noted that the arrangement that existed prior to the changes constituted a breach of the Working Time Directive in the same way that the changed working arrangements did.”

(5)	If the new arrangements constituted a breach of the Working Time Directive, then so did the existing arrangements which the applicants were asserting should have been continued.

	The appellants’ submissions were made on their behalf by Mr Tony Pullen of the Hammersmith & Fulham Law Centre. We would like to pay tribute to the skill with which he has advanced the arguments on this appeal. As we said at the hearing, it is our view that his clients had been fortunate to have the benefit of his representation. 

	We can summarise his submissions in this way. 

(1)	Articles 3 and 8 of the Working Time Directive are “truly matters of health and safety”. Reliance was placed on the case of United Kingdom of Great Britain and Northern Ireland v Council of the European Union [1997] IRLR 30 and page 55 of the report and paragraphs 15 to 22 of the Court’s judgment, and further, paragraphs 38 and 39. 

(2)	The new emergency duties system was in breach of the relevant provisions of the Working Time Directive because a requirement that a radiographer was required to carry out emergency duties extending for a continuous 27½ hour period constituted a breach of Article 3 which guarantees to every worker a rest period of 11 consecutive hours in every day. There was a further breach of the Directive in that the requirement to work a continuous 27½ hour duty under the new system meant that the radiographers were night workers within the meaning of Article 2(4) and were involved in working during night time as defined in Article 2(3) of the Working Time Directive. Thus, it was argued, that the new system contravened Article 8 of the Working Time Directive in that the appellants’ normal hours of work exceeded the average of eight hours in any 24 hour period. 

(3)	The Working Time Directive is clear an unambiguous and unconditional and therefore has direct effect. The fact that derogations are contained in the Working Time Directive, which permit member states to exclude certain classes of persons from the operation of the protection guaranteed by the Directive does not prevent the provisions themselves from having direct effect: Karella v Minister of Labour, Energy and Technology [1991] 1 ECR 2691 at paragraphs 19-23.

(4)	The Industrial Tribunal erred in law in concluding that because the date for implementation for the Directive had not arrived as at the date of the decision to dismiss the Directive can have had no impact on the question as to whether the dismissal was fair or not.

	Mr Pullen submitted that it was an obligation on the United Kingdom Courts and tribunals to construe, so far as possible, statutory provisions in domestic law, including s.98 of the Employment Rights Act 1996, in such a way as to ensure their consistency with Community Law obligations. Reference was made to Marleasing SA v La Commercial Internacional De Alimentacion SA [1992] 1 CMLR 305; and to Wagner Miret v Fondo De Garantia Salarial [1995] 2CMLR 49, where the European Court said:

“... it should be borne in mind that when it interprets and applies national law, every national court must presume that the State had the intention of fulfilling entirely the obligations arising from the Directive concerned. As the Court held in [Marleasing], in applying national law, whether the provisions in question were adopted before or after the Directive, the national court called upon to interpret it is requested to do so, so far as possible, in the light of the wording and purpose of the Directive in order to achieve the result pursued by the [Directive] ... the principle of interpretation in conformity with Directives must be followed, in particular, where a national court considers ... that the pre-existing provisions of its national law satisfy the requirements of the Directive concerned.”

	The date by which the Directive was required to be implemented by the United Kingdom Government was 23rd November 1996; the new emergency duties system became operative on 24th November 1996. Thus, at the date when the employers contemplated the new duties would come into effect, they knew or must have known that the Working Time Directive would be effective.

(5)	The tribunal were wrong to conclude that the appellants had not made out the health and safety issue having regard to the evidence that was before them.

	For the respondents, Miss Eadie submitted as follows.

(1)	The provisions of the Working Time Directive relied upon by the appellants were not sufficiently clear, unambiguous and unconditional so as to have direct effect.

(2)	The working arrangements provided by the new contracts would not be in breach of Articles 3 and 8.

(3)	The relevant date for the tribunal’s consideration of the issue of fairness was the date when the old contract came to an end, which was before the date upon which the Working Time Directive was required to be implemented.

	Our attention was drawn to the case of SIMAP v Conselleria de Sandid y Consumo de la Generalitat Valencia. There a Spanish tribunal has referred to the European Court of Justice the question as to the proper interpretation of Article 2 of the Working Time Directive. Article 2 reads:

“(1)	Working time shall mean any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national law and/or practice;
(2)	rest period shall mean any period which is not working time;
(3)	night time shall mean any period of not less than seven hours, as defined by national law; and which must include in any case the period between midnight and 5 am.”

	One of the issues raised for determination by the European Court is whether the words in Article 2(1) are conjunctive or disjunctive. Thus, Miss Eadie on behalf of the respondents argued that it cannot be said that the provisions of Articles 3 and 8 on which the appellants rely and which hinge upon the definition of working time can be said to be sufficiently clear and unambiguous and unconditional so as to make the Directive directly effective. At the relevant date for dismissal the requirement imposed on the members of states to implement the Working Time Directive had not crystallised. There is no basis for claiming that a Directive has any legal effect prior to the end of the prescribed period for implementation by member states: see Pubblico Ministero v Tullio Tatti [1979] ECR 1629. If , contrary to their contention, the Industrial Tribunal was entitled to look beyond the date for implementation of the Directive, then it would be required to make a finding on the respondents’ submission that a collective agreement existed as between it and the Society of Radiographers with effect from 12 the November 1996. The Working Time Directive permit derogations from Articles 3 and 8:

“... by means of collective agreements or agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level.”

(4)	Furthermore, the appellants were right to withdraw their claims under the Working Time Directive and should not be permitted to reinstate them in an indirect manner. That is not to say that health and safety considerations relating to working arrangements cannot arise, it is merely that they do so no more or no less than in any other unfair dismissal case regardless of the Working Time Directive. The Industrial Tribunal accepted the employer’s explanation for the need to introduce new working conditions and the question of reasonableness was considered by it in the light of that explanation. The question of fairness was then essentially one of balance. It may well be that both the employer and the employees were acting reasonably in the positions adopted, but again, it was for the Industrial Tribunal, as an industrial jury, to consider the evidence and determine the issue. The Industrial Tribunal concluded that the burden was firmly on the respondents to prove the business reason on which they relied and they concluded at paragraph 25 of their decision that those reasons were substantial and justified the action which was taken.

	The Employment Appeal Tribunal has expressed the view that Article 7 of the Working Time Directive is sufficiently clear, unambiguous and unconditional to have direct effect. The arguments in relation to the direct effect of Articles 3 and 8, contingent as they are upon the interpretation of working time in Article 2, are, in our view, more neatly balanced. We are of the view that the wording of Article 2(1) is patently ambiguous as to whether the requirements are conjunctive or disjunctive. The Regulations which have been made by the United Kingdom Government and which took effect as from 1st October 1998, have treated them as being disjunctive. The European Court of Justice’s decision on this issue in the Spanish case will be of importance.

	It seems to us undesirable that the Employment Appeal Tribunal should endeavour to decide issues in relation to the Working Time Directive which do not directly fall for determination on an appeal. This is such an appeal, as it seems to us.

	As at the date when the decision to dismiss was taken, the Directive was not in effect. Even if the employers were obliged to have regard to the provisions of the Directive because the new scheme was coming into operation after the Directive was capable of having direct effect, the question would have arisen as to whether, on the facts, an employer could reasonably have taken the view that there was a reasonable business case for imposing the new regime. It seems to us that a reasonable employer could well have reasoned the position in the following way: The new regime might or might not be a breach of the Working Time Directive; that would depend upon the proper interpretation of Article 2(1); that was an issue that would have to be referred to the European Court of Justice, if the employees believed that there was a breach of the Working Time Directive, then they would have been able, as they in fact did, to present a complaint to the Industrial Tribunal complaining of a breach of the Directive and relying upon its direct effect; the application of the Directive could, therefore, be regarded in a neutral light. Nothing that the employers were proposing would prevent the employees from complaining that the new regime was a breach of the Working Time Directive; if the tribunal accepted that complaint then the submission would apply equally well to the existing working conditions and practices. Accordingly, it seems to us, that an Industrial Tribunal would well be able to conclude that, on the facts, the Working Time Directive was something of a red herring in relation to the complaint of unfair dismissal. In any event, on the facts, the tribunal was entitled to conclude that the real issue between the parties was not one so much of health and safety but rather of money. In these circumstances, we are of the view that the industrial jury was entitled to conclude that the decision to dismiss in order to introduce the new terms and conditions was fair and reasonable. This is not a case where the employers have overlooked any question of health and safety. Indeed, on the tribunal’s findings, that issue was directly considered by them.

	It will remain for determination at a later date no doubt whether the Working Time Directive has direct effect in relation to any Article other than Article 7. 

	For the reasons given the appeal will be dismissed.