Jesuthasan v London Borough Council of Hammersmith & Fulham, Court of Appeal (1998) IRLR 373
Legislative measures which have been declared incompatible with European law because they have an indirectly discriminatory effect, must be disapplied for all employees regardless of sex, the Court of Appeal has held.
This case concerned a male part-time teacher employed by the local authority at Wormwood Scrubs prison. He worked eight hours a week for three years until his fixed term contract expired on 30 July 1993 without being renewed.
At this time, the Employment Protection (Consolidation) Act 1978 prevented him from bringing a claim for unfair dismissal or redundancy because he worked insufficient hours. He did bring a complaint of race discrimination.
In March 1994 the House of Lords decided in R v Secretary of State for Employment ex parte EOC that the hours per week qualifying thresholds were incompatible with European Community Law because they indirectly discriminated against women. Fewer women than men could comply with the hours requirement and this prevented a disproportionately high number of women from claiming unfair dismissal or redundancy payments.
As a result, the qualifying hours thresholds were removed by the Employment Protection (Part-Time Employees) Regulations 1995 in force from 6 February 1995. In April 1995 Mr Jesuthasan sought leave to amend his tribunal application to add a claim for unfair dismissal and a redundancy payment, relying on the new regulations.
The Employment Appeal Tribunal decided that the regulations only applied to dismissals after the Regulations came into force in February 1995. The Court of Appeal agreed that Mr Jesuthasan could not rely on them because he was dismissed before they came into force.
However, could he rely on the declarations made by the House of Lords in the EOC case? The Court of Appeal held that, even though the applicant was a man, he was entitled to rely on the House of Lords decision in the EOC case that the weekly hours qualifying thresholds were incompatible with article 119 of the EC treaty and the equal pay and equal treatment Directives because of indirect discrimination against women.
They declared that legislative measures which had been declared incompatible with EC Law on account of their indirectly discriminatory effects had to be disapplied generally in respect of all employees regardless of sex.
The qualifying conditions in the domestic statute were displaced by the overriding force of EC law, and the applicant's employer, as a emanation of the state, were bound by the direct effect of the Directives and Article 119.