Out-Law News | 18 Apr 2007 | 4:23 pm | 3 min. read
Ann Southcott was a clerical worker at Treliske Hospital in Cornwall and was sacked on 30th September last year, the day before new age discrimination legislation came into force. She brought a claim before an employment tribunal but was given back her job before it ruled.
According to Unison, the trade union which backed her case, the timing of the sacking meant that she was entitled to 11 weeks' pay rather than the 11 months' pay she would receive under the new legislation.
A case was lodged with the local employment tribunal and a hearing held, but the Royal Cornwall Hospitals NHS Trust in charge of the hospital reinstated her job and the jobs of 35 others before the tribunal gave a verdict in the case.
"There is no doubt that the decision to dismiss Ann Southcott was fuelled by the debt crisis at the Royal Cornwall Hospitals NHS Trust," said Dave Prentis, general secretary of Unison. "However, the appointment of John Watkinson, the new chief executive, in January this year signalled a positive change in direction and has led to a partnership approach between management, staff and unions. A new policy on age discrimination has been agreed with the Trust and Ann is now able to return to the hospital to a job she clearly did well and enjoyed."
A deadline passed at the start of this month which means that most new cases like Southcott's cannot be begun. Any fomer employee who had suffered similar treatment would have had to take some procedural steps within the six months since the Act came into force, according to Catherine Barker, an employment law specialist with Pinsent Masons, the law firm behind OUT-LAW.COM. The six month period expired at the start of April.
"For most cases you have three months from the date of the act complained of to lodge a case in an employment tribunal," said Barker. "If you lodge a grievance with your employer in those three months then that extends the time in which you can put in a claim by another three months, which is designed to facilitate internal discussions to resolve the dispute." That six month period is over, the majority of cases will now be time-barred.
Barker said, though, that the tribunals have an overriding discretion to extend the time limits where it is just and equitable to do so. "This may be where the discrimination is so overwhelming and the claimant has not had the benefit of any advice, she said. Tribunals are highly unlikely to extend the deadline for any potential claimant who has consulted a solicitor, since they should have already been informed of the timescale.
Though the Trust reinstated the workers by choice, Mark Gray, the lawyer from Thompsons who represented Southcott, said that the new legislation and the European Union Directive behind it were vital in changing the attitudes of employers.
"These discussions would never be taking place if it wasn't for the Directive and if it wasn't for the Regulations, because if what happened to Mrs Southcott had taken place five or 10 years ago prior to the implementation of the Regulations and the Directive then nobody would have been able to do anything about it at all," Gray told OUT-LAW.COM.
In the tribunal hearing Gray made an argument that the hospital was bound by the Directive even before it became UK law. He said that a German case that was ruled on in the European Court of Justice (ECJ) set a relevant precedent.
In that case, Mangold versus Helm, the ECJ said that a country could not act contrary to the intentions of a Directive, even if it had not yet turned the Directive into national law.
Gray said that as a state body, the hospital could not, on 30th September, act contrary to the EU Directive on age discrimination, even though it did not become UK law on 1st October.
"Our argument was that the NHS is an emanation of the state, and in the Mangold case a state was told that you can't do anything that flies in the face of a Directive," he said. "And if the state can't then why should an emanation of the state be able to?"
An emanation of the state is a body that carries out a public service under the control of the state or which has special powers for that purpose.
The argument remains untested, though, since the NHS Trust's decision to reinstate the workers meant that the tribunal did not make a ruling on the argument.
The emanation of the state argument has never been won in a case where the implementation deadline for an EU Directive had not yet expired.