Alabaster v Woolwich Plc & Anor

Where the calculation of statutory maternity pay depends on the interpretation of Article 141 and an earlier Court of Justice judgment, and the scope of that judgment is materially uncertain, the Court of Appeal should refer the necessary questions to the Court of Justice under Article 234 before determining the claim.

The principle of effectiveness does not require domestic remedy issues to be decided before it is established that the underlying Community-law right has been infringed. Available domestic procedures, including claims for unauthorised deductions and social-security appeals, may be relevant to the effectiveness analysis, but their adequacy should be assessed only if a breach is found.

Mrs Alabaster was employed by Woolwich Plc and went on maternity leave in January 1996. Her earnings-related statutory maternity pay was calculated by reference to an eight-week period before the expected week of confinement. A salary increase took effect after that reference period but before her maternity leave began, and was not reflected in her maternity pay.

The Employment Tribunal dismissed her complaint, although it held that the calculation breached Article 141. The Employment Appeal Tribunal dismissed her appeal on jurisdiction and remedy, reporting its decision at [2000] ICR 1037. The Secretary of State cross-appealed on the Article 141 issue. The central questions were whether the increase had to be taken into account and, if so, whether an effective domestic remedy was available.

1. Reference to the Court of Justice. The court held that it could not determine with confidence whether Article 141, as interpreted in Gillespie, required a salary increase granted after the statutory reference period, and not backdated into that period, to be reflected in earnings-related statutory maternity pay. The context and reasoning of Gillespie materially concerned a pay increase backdated to the reference period. Its application to the present situation was therefore sufficiently uncertain to require a reference under Article 234.
2. The reference asked whether such an increase had to be taken into account, whether the answer depended on its effective date, how any recalculation should be made, and whether related changes such as reduced pay should also be reflected.
3. Domestic remedies. It was premature to decide whether the Employment Tribunal had erred in refusing a remedy under the Equal Pay Act 1970, whether that Act could be construed compatibly with Article 141, or whether any provision required disapplication. Those questions could arise only if a breach of Article 141 were established.
4. The court nevertheless recorded that a claim for unauthorised deductions under the Employment Rights Act 1996 had been available but was out of time, and that a separate social-security appeal route existed. The refusal to extend the statutory time limit had not been appealed.
5. The questions were referred forthwith to the European Court of Justice. Proceedings were stayed pending the preliminary ruling and costs were reserved.

• Court of Appeal (Civil Division) — The court referred questions to the European Court of Justice under Article 234 and stayed the proceedings pending the ruling.
• Employment Appeal Tribunal — Appeal dismissed; permission to appeal granted. Decision reported at [2000] ICR 1037.
• Employment Tribunal — Complaint dismissed, despite the tribunal holding that the Article 141 claim was well founded.