New Decisions

CONTENTS

1. Court of Appeal - East Riding of Yorkshire Council v Gibson
2. Recent EAT Decisions


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1. Court of Appeal - East Riding of Yorkshire Council v Gibson

The Court of Appeal has this morning handed down judgment in East Riding of Yorkshire Council v Gibson, overturning the decision of Morison J. in the EAT [1999] ICR 622.

Mrs Gibson, who was employed by the Council as a swimming instructor, brought a claim seeking holiday pay against the Council for the period 23rd November 1996 until 1st October 1998. The 23rd November 1996 was the date by which all member states should have implemented the Working Time Directive (93/104/EC), and 1st October 1998 was the date that the Working Time Regulations 1998 came into force.

She argued that the Directive had direct effect, and she could therefore claim directly against the Council (as an emanation of the State) for the State's failure to implement the directive between 1996 and 1998.

The employment tribunal held that the Directive did not have direct effect. The EAT held that it did, and that Mrs Gibson was entitled to succeed. The Court of Appeal (lead judgment from Mummery LJ) held that it did not have direct effect.

The main consideration was that the Directive was not sufficiently precise. It left a number of questions unanswered, such as the precise definition of 'working time' (upon which the entitlement to leave depended), the absence of criteria to assess entitlement during the first year (or part-year) of employment, or problems arising through part-time work, work on a commission basis, or where there was more than one employer.

Since the Directive was not sufficiently precise, it followed that it could not be relied upon by Mrs Gibson as having direct effect.



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2. Recent EAT Decisions

These cases are unreported (although some may be reported in due course). All transcripts can be found at http://wood.ccta.gov.uk/eat/eatjudgments.nsf.

Just the one today...

Clark v Farhenheit 451 [6.6.2000, HHJ Altman]

How long is a 'reasonable' notice period for a senior employee? The EAT held that a relevant factor is the length of service of the employee - i.e. the 'reasonable' period is not necessarily determinable as at the date of entering into the contract of employment, but will depend on how long the employee has been employed. The EAT replaced a finding that a reasonable period was one month with a notice period of three months.