Gibson v East Riding of Yorkshire Council

A provision in a directive has direct effect only if it is unconditional and sufficiently precise. In employment cases, its content must be determinable from the directive alone, including the beneficiaries, duty-bearers and nature and extent of the right. Article 7 of the Working Time Directive (93/104/EC) stated a four-week minimum, but left essential conditions of entitlement undefined. Those gaps could not be supplied by workplace custom or judicial legislation. Detailed national measures, including legislation or collective agreements, were required. Article 7 therefore had no direct effect against a state employer.

Mrs Gibson worked part time as a swimming instructor for the Council under two contracts which provided no annual leave and had never received holiday pay. She brought claims under sections 11 and 13 of the Employment Rights Act 1996. The Employment Tribunal dismissed the relevant claim, but the Employment Appeal Tribunal allowed her appeal and held that she was entitled to four weeks’ paid annual leave: [1999] ICR 622. The Council appealed. The central issue was whether Article 7 of the Working Time Directive (93/104/EC) had direct effect against the Council for the period before the Working Time Regulations 1998 came into force.

Appeal allowed unanimously. Mummery LJ delivered the leading judgment. Brooke LJ and Pill LJ agreed. The Employment Tribunal’s order was reinstated.

1. A directive provision may have direct effect only if it is unconditional and sufficiently precise. In the employment field, the provision must identify the beneficiaries, the persons under a duty to give effect to the right, and the nature and extent or content of the right.
2. Article 7 had to be considered in the wider scheme of the Directive. Article 1 described minimum safety and health requirements for the organisation of working time. The definition of “working time” in Article 2 was imprecise and referred to national law or practice. Article 17 allowed derogations from various provisions but not Article 7. Article 18(1)(a) contemplated implementation through national laws, regulations, administrative provisions or measures agreed by the two sides of industry.
3. The four-week period in Article 7 was precise, but the provision left unanswered the period of working time required before entitlement arose, and the criteria applicable during a first or part year of employment, multiple employment, part-time work or commission-based work. The right was therefore not sufficiently defined for direct enforcement by an individual.
4. A tribunal could not fill those essential gaps by relying on its members’ experience of workplace custom and practice. Further definition through detailed national legislation or collective agreements was required. The Council, being an emanation of the state, could not be sued on the basis of Article 7 because Article 7 lacked direct effect.
5. Pill LJ added that the Directive imposed an unqualified obligation on Member States, but that obligation did not itself create an individually enforceable right. The wording of Article 7(1) confirmed that national measures were needed to lay down the conditions of entitlement.
6. Alternatively, if Article 7 had direct effect, the Council could not rely on the three-week transitional option in Article 18(1)(b)(ii). The United Kingdom had not exercised the option, and it was no longer available.

The Council was awarded the costs of the appeal, subject to detailed assessment, with an interim payment of £8,000 by Mrs Gibson.

• Court of Appeal: Allowed the Council’s appeal and reinstated the Employment Tribunal’s order.
• Employment Appeal Tribunal: Allowed Mrs Gibson’s appeal on 29 January 1999 and held that she was entitled to four weeks’ paid annual leave: [1999] ICR 622.
• Employment Tribunal: Dismissed Mrs Gibson’s complaint in reasons sent on 23 July 1998.