Nature of the procedure

Nature of the procedure: Comm initiates either on its own, or in response to complaint.

    • Comm has acknowledged that citizens’ complaints is a significant source, suggesting procedure contributes to a more participatory Community – Dentist Airdrie
      • Developed standard complaint form in 1999 to facilitate indiv use
    • But also emphasised that enforcement procedure NOT primarily meant as means of redress for indivs, rather it is objective mechanism for ensuring MS compliance – Comm’s discretion in deciding whether to initiate proceedings, and bilateral (not trilateral) nature.
      • Even where there are clear violations, this does not compel Comm to bring enforcement proceedings! Comm still has a discretion, though in a Communication of 2002, Comm itself said if there’s clear evidence it will start proceedings.
    • Hence, the indiv’s role is imprecise and varies.
    • But since establishment of Ombudsman’s office, indivs have complained about Comm’s procedures, and Ombudsman held investigation of own initiative in 1996.
      • Comm stopped practice of failing to inform indiv Cs where case was terminated.
      • In 2002, Comm published consolidated version of internal procedural rules in a Communication, allowing Ombudsman to assess Comm’s performance. Also aided transparency/good admin.
      • ➔ includes standard form for complaints to be submitted to Comm
    • Access to documents: complainants/interested parties often complain of difficulty in accessing docs related to infringement, while Comm uses exception in Reg on access to docs (see previous sup’s notes) on ‘inspections, investigations and audits’. ECJ generally supports Comm.
      • Petrie v Comm, 2001: CFI underscored bilateral nature of infringement proceedings
      • Cf Bavarian Lager II, 2007: CFI held disclosure of docs relating to proceedings closed 6 years ago would not jeopardise Comm’s investigations, hence not within exception.
      • Sweden/API v Comm, 2010: ECJ held there is general presumption that disclosure of pleadings would undermine protection of those proceedings, but rebuttable! Also, after ECJ has delivered judgment for art 258 proceedings, docs relating to Comm’s investigations in Dentist Airdrie and in context of these proceedings are NOT within exception, even if art 260 proceedings are still pending (no presumption of undermining art 260 case)!


Comm’s discretion? Concerns that the Comm uses discretion to bring proceedings in arbitrary manner, or unfairly/oppressively. Comm might have political motivations.

    • Art 258(2): indicates that after it issues reasoned opinion indicating breach, Comm has discretion whether to refer to ECJ or not [between stages (3) and (4)].
      • ECJ carries out objective analysis: will only examine if infringement alleged by Comm exists – will not look at Comm’s motives for bringing the action (Comm v UK, 1988). Comm also acts in ‘general interest’, hence does not have to have specific interest!
      • Here, UK tried to argue that Comm was acting for political reasons. But ECJ affirmed Comm has full discretion as to why it will pursue a certain breach.
    • Also generally agreed that Comm has discretion whether/when to issue reasoned opinion.

Relationship to prelim ref procedure

      • Over the years, main criticisms such as 1) lack of effectiveness; 2) absence of role for indiv Cs; 3) elite, unresponsive attitude of the Comm have gradually been addressed!


  • Relationship to prelim ref procedure


      • Van Gend en Loos, 1963: said that arts 258 and 267 are complementary. Indiv enforcement is in addition to enforcement by MS/Commission. Held that the 2 are not mutually exclusive! All have common aim of ensuring greater adherence to EU law. Comm does not have monopoly in enforcing EU law – rather, it is a complete system of judicial protection. – The case of Manchester Taxi
      • Cf Molkerei-Zentrale, 1968: ECJ emphasised the distinction between proceedings brought by indiv (intended to protect indiv rights in the specific case), and Commission enforcement proceedings (intended to ensure general and uniform observance of EC law) – different objects, aims and effects!
      • Hence, in Comm v UK, 2006: ECJ rejected UK’s argument that Comm infringement proceedings ought to be inadmissible on basis that national judicial proceedings were pending.
      • Also, in Comm v Germany, 1985: ECJ held that direct effect of Comm provision (indivs’ ability to enforce it before national courts) was NO defence to Comm action for failure to implement!


  • Art 258 TFEU: where Comm thinks MS failed to fulfil Treaty obligation, it will deliver reasoned opinion. If further non-compliance, it will bring matter before ECJ!


      • Lisbon’s change: ‘the Treaties’: infringement proceedings can now be brought for violations of obligations under both TEU and TFEU, except CFSP which is still beyond ECJ’s jurisdiction (reflects abolition of the ‘pillar’ structure).

Contradictions in the Laws

  • Obviously, needs care of legislator. More difficult: when does contradiction exist?
  • It’s not a simple logic problem, i.e., that A cannot be. Check out the Dentist Calgary
  • E.g 1: must put license plate on care on jan 1 but then also says crime to work on car on jan 1. its harsh, but not against logic.
    • How to remedy?
    • Find guilty of crime and then remit punishment because he worked under compulsion of statute.  But if no value in that, one of two options how to interpret of statute>
    • 1. that section making work on that day a crime overrides provision concerning license plates, so that you can postpone installing of license plates on jan 2 or
    • 2. license plates provision overrides work prohibition.
    • BEST solution: combine these two, that both are within the law.
  • Eg. 2: From actual decision in US v Cardiff: president of company of manufacturing food convicted of crim of refusing to permit a federal inspector to enter his factory to determine whether it was complying with Federal Food, drug and Cosmeic Act. Problem, act seems to say that inspector has right to enter factory but that owner has right to keep huim out by refusing permission. Remedy?: —
    • —- Interpret act to mean that owner violates act if AFTER granting consent he THEN refuses entry. i.e man doesn’t have to make a promise, but if he does, he may fasten a liability on himself by doing so.
    • Supreme Court didn’t accept this, not because of lack of logic, but because didn’t accord with statutory intention.  Held that clash between to provisions produced a result too ambiguous to give adequate warning of the nature of the crim: the Court therefore set the conviction aside.



To be entitled to a redundancy payment, the e/e must, within 6 months of the date of dismissal

(s164 ERA 1996):

i. give the e/er written notice of the claim; or

ii. refer the claim to the ET; or

iii. have presented a complaint of UD to the ET (this will have had to be done within

3 months of the EDT)

Effective Date of Termination (EDT) RB 59

The complaint must be presented to the ET within 3 months beginning with the effective date

of termination (EDT). For Redundancy, the EDT is called the “relevant date”

Principle – continuity of employment ends on the EDT which is usually the last day

of work or garden leave

– need to know when your continuity ends to see if you’ve got enough time in

to claim.

– HR departments check how long e/es have been there and sack using UD if

e/ee has less than 12 months

– If an e/ee receives short notice or PILON he can extend his EDT by the

STATUTORY minimum period (and not contract period) to try and get his

time in to allow him to claim

– If constructive dismissal, you can only extend for UD and not for R

Extending the EDT The EDT is defined by s97ERA 1996 and cannot be extended if the e/ee did

not receive the statutory minimum period of notice. The ET may extend the

3 month period if it considers that it was not reasonably practicable for the

complaint to be presented within 3 months, but in practice it rarely does so

(s111 ERA 1996).


i. M has worked for 5 years, she’s dismissed on 5 th Jan and given 4 weeks’

notice and paid in lieu. Start point for EDT is last day she worked (5 th

Jan) – she only needs to extend if she is getting close to 6 years in (to

get higher award). She could extend by STAT minimum of 5 weeks.

ii. M will have worked for 1 year on 11 th Jan but is dismissed on 5 th Jan and

given contractual 5 weeks’ notice and paid in lieu. She can only extend

by the STAT minimum of 1 week which is OK for UD as it takes her EDT

to 12 th Jan and therefore 12 months service.

M resigns on 10 th Jan and claims UD and R. She would have been employed 2 years on 14 th Jan.

UD is not a problem, she could have extended by the STAT minimum but no need as she can

claim as she has 12 months. She cannot claim for R as she does not have 2 years in and cannot

extend (as constructive dismissal)


i. employee ?


ii. aged between 20-65 years (or below ‘normal’ retirement age if there is one

and it is under 65) ?

iii. 2 years continuous service ?


i. actual ? ie, you’re sacked

ii. constructive ? ie, a fundamental change of terms and conditions of

employment without the individual’s consent (pay

reduced, hours/place of work changed, role, specific



The definition of redundancy is contained in s 139(1) of the ERA 1996:

‘ For the purposes of this Act an employee who is dismissed shall be taken to be

dismissed by reason of redundancy if the dismissal is wholly or mainly

attributable to—

(a) the fact that his employer has ceased or intends to cease –

(i) to carry on the business for the purposes of which the employee was

employed by him; or

(ii) to carry on that business in the place where the employee was so

employed; or

(b) the fact that the requirements of that business –

(i) for employees to carry out work of a particular kind; or

(ii) for employees to carry out work of a particular kind in the place

where the employee was employed by the employer, have ceased or

diminished or are expected to cease or diminish.’

Looking at this definition, it can be seen that redundancy occurs in three main

situations: job redundancy, place of work redundancy and employee redundancy.

i. job redundancy – ie, business goes bust

Bass Leisure v Thomas (1994): theTest

if there is a mobility clause, the test is whether the e/er ceased

operations at the place where the e/ee was in fact employed and

NOT any place where e/ee might lawfully be sent under his


ii. place of work redundancy – ie, relocated

Hightable v Hurst (1997):

Agreed with Bass but suggested that where e/ee had a mobility

clause and was told to move by e/er cos of reduction in work

where they were actually working, any refusal by e/ee may be a

valid reason for dismissal due to gross misconduct

iii. employee redundancy – known as “bumping” or re-shuffle

– use 3 stage test from Safeway v Burrell (1997) in the EAT

i) was there a dismissal ?

ii) if yes to (i) have the requirements of the business for e/ees to

carry out ‘work of a particular kind’ ceased or diminished ?

iii) was the dismissal at (i) caused by (ii) ? if yes it is a redundancy




2 stage test:

i. offer made: made by e/er ?

before the end of the contract ?

to commence within 4 weeks ?

e/ee has a 4 week stat trial period to try out the new job (see




ii. is the offer suitable ?

1 st = BURDEN – it is for the e/er to show his offer was reasonable and

if the e/ee refuses, it is still on the e/er to show e/ees

refusal was unreasonable

2 stage test:

e/er = objective test: is it reasonable ? is it same pay,

benefits, status, responsibility, hours, prospects,


e/ee = subjective test: is it reasonable/unreasonable in circs to

refuse to accept the offer?

does it involve a move which e/ee

cannot comply with ? ie e/ee has an

elderly parent to look after, will it affect

e/ee’s ability to pay the mgage…..

Practical Issues for E/ee: – take alternative job but ask for

different hours, pay, etc

Statutory trial Period – he can agree to do the new role under

4 week stat trial period to see if it will

work and if it doesn’t he can still resign

claiming redundancy – PLUS he doesn’t

have to tell e/er he is going on the stat

trial period !


dependent on age: i. 1.5 gross weeks pay for each complete year of

continuous employment during which the e/ee

was aged 41 or over

ii. 1 weeks gross pay for each earlier complete

year during which the e/ee was aged 22 or over

iii. ½ week’s gross pay for each earlier complete

year during which the e/ee was aged 18 or over

REMEMBER – week’s gross pay is subject to a maximum of E270 for

dismissals on or after 1.2.04

– claim is for a maximum of 20 years

– maximum award of £8,100 for dismissals on or after 1.2.04 (ie,

£270 x 1.5 x 20 = £8100)

6 General points

E/er should always give as much warning as possible.


Need a fair selection process to decide who goes – look at performance, time keeping, etc

Nowadays, cant really use “last in 1 st out” policy….

Must involve a fair method of selection based on objective criteria and apply these fairly

Must involve consultation with e/ees affected and any recognized trade unions

Wherever possible, try and offer an e/ee re-engagement – Visit Abogados de accidentes today


A dismissed employee may have more than one potential claim against his employer.


Wrongful dismissal The wrongful dismissal action is a breach of contract action which may

be brought as a court action or pursued in an employment tribunal.

Unfair Dismissal The unfair dismissal claim is pursued only in an employment tribunal.


UD and WD a dismissal that is both unfair and without proper notice or within a

fixed term can give rise to both an unfair dismissal claim and a wrongful

dismissal action.

Red, UD If an employee is unfairly selected for redundancy, he will be entitled to a

redundancy payment and be able to present an unfair dismissal claim.

Red, UD and WD All three claims of wrongful dismissal, redundancy payment and unfair

dismissal would be available to the employee unfairly dismissed without

proper notice by reason of redundancy.

Short Notice Period In the case of a less well paid employee who is only entitled to a short

period of notice, the unfair dismissal claim is usually more advantageous

as compensation for future loss can extend beyond the employee’ s

notice period.

DEDUCTIONS- As provided by Notary public solicitors in London

WD and UD If both claims are brought, and both succeed, the basic principle is that

compensation will not be awarded for the same loss twice. The tribunal

will deduct the breach of contract damages awarded from the

compensatory award for unfair dismissal.

Red payment and UD

The redundancy payment will be set against the UD award. Usually it will simply offset the basic

award, but if it exceeds the basic award (eg because the basic award has been reduced by

contributory fault) the remainder will reduce the compensatory award. The excess redundancy

payment should be deducted after the other deductions (eg for contributory fault) have been


Red payment and WD

Since a redundancy payment is a reward for past services, and a WD payment is an award for

future loss, a redundancy payment is not taken into account in awarding damages for WD.

A discriminatory dismissal (DD)

If a person is dismissed for reasons relating to sex or race or disability, this is not automatically

unfair but, in practice, will often be found to be unfair.


UD and DD

A claim for unfair dismissal may be pursued alongside a discrimination claim. Discrimination

awards are not subject to any maximum figure and can include an award in respect of injured

feelings. In addition, no eligibility conditions need be satisfied.

As against this, the award for UD includes a basic award in addition to compensation.

Alternatively, re-engagement or reinstatement may be ordered.

If both claims are pursued, s 126 of ERA 1996 provides that compensation cannot be awarded

again in respect of any loss or other matter which has already been taken into account in dealing


  • This book is about theoretical disagreement in law” – pg 11 Trying to see what this is all about.

“I am concerned with issue of law, not reason judges may have for tempering their statements of what it is.” It centers on judges in black robes.

  • Critics may say project is misapplied and incomplete and obscure. But, “theories that ignore structure of legal argument for supposedly larger questions of history and society are therefore perverse.”
  • “This book take up the internal participants point o view, tries to grasp argumentative character of our legal practice. “ “We will study formal legal argument from judge’s point of view.” Citizens and politicians also important, but judicial argument more explicit and more influential on legal discourse.


  • Let’s see how PF thesis distorts legal practice by looking at actual cases.
  • Elmer’s Case
    • Elmer murdered grandfather in hope of getting will he knew he left for him. Caught, put in jail. Residuary legatees were grandfathers daughters, they sued administrator of will, demanding that property go to them not Elmer. New York statutes of wills was silent.  Judges felt compelled by law, must give to elmer, but disagreed about what law actually was, what statute required when properly read.
    • How possible? Like a poem, we agree on literal words, but not the second sense. So judges disagreed on impact of words of statue on legal rights of elmer, and daughters because disagreed about how to construct real statute.
    • Dissenting Judge Gray: Proposed literal reading, must look at statute context-independent, voted for Elmer. Much to say for this, because we don’t know if grandfather changes mind, can’t substitute own opinion. Also, would be double punishment if Elmer, after jail, also looses inheritance.
    • Majority Judge Earl:
      • *“It is familiar canon that a thing which is within intention of makers of statute is as much within statute as if it were within the letter; and a thing in letter but not in intention, is not in the statute.”. And here, with murderers, legislators had no intention either way. Earl meant that statue doesn’t have any consequences the legislators would have rejected if they had contemplated it.
      • Also, must construct statute to make larger legal order coherent. Here – no one should profit from their own wrong.
    • *Comment: Most important point from case: dispute was not about whether follow law or adjust law. It was dispute about what the law was, about what the real statute really said.
  • The Snail Darter Case
    • Facts: Endangered Species act gave minister of interior special power to make sure nothing happens that endangers it. Conservationists convinced it to protect the snail darter, a fish of no importance, and stop a building project by TVA.   Tenessee Valley authority argued that because project substantially underway, act doesn’t apply and cited acts of Congress in support.
    • Chief Justice Warren Burger: found that dam must be halted. Said that when text is clear the Court has no right to refuse to apply it just because it believes the results silly. But rejected Earl’s principle about way in which congressional intention is relevant. “Not for us to speculate on whether Congress would have altered its stance had specific situation been anticipated.”   (bit like Gray, but less rigid)
    • Justice Lewis Powell: Courts should accept an absurd result only if they find compelling evidence that it was intended. (a bit like Earl’s, but substitutes common sense for principles of justice found elsewhere in law).
    • Comment: Again, they disagreed about the question of law; about how judges should decide what law is made by particular text enacted by Congress when congressmen had the kinds of beliefs and intentions both justices agreed they had in this instance.



  • Mr Learned Hand, “I fear lawsuits more than death or taxes.” In fact, civil suits can be more consequential than all but most momentous criminal trials.
  • Moral dimension: risk of public injustice, e.g., innocent person convicted of crime.
  • IN UK and US, judicial decisions affect more people because law becomes what judges say it is. (Constitutional position of Supreme Court in US, e.g. In 1954 decided cannot segregate schools by race, led to big social revolution).
    • UK Eg.
      • 1: 19th English judges said factory worker cannot sue employer for compensation if injured through carelessness of another employee because he “assumes risk fellow servants may be careless.”
      • 2: 1975, HL fixed time Cabinet minister must wait before publishing his memoirs.


  • Thus, matters what judges think law is. Lawsuits raise 3 issues:
    • Issue of fact: What happen?
    • Issue of Law: What is pertinent law? Does it allow damages?
    • Political morality/fidelity: Is denying compensation unjust, should judges ignore law?
  • Judges usually disagree most about issue 2.Mostly in two ways
    • Empirical Disagreement: May agree about grounds of law (what lays beneath every proposition of law, e.g., 55 miles in california is proposition, the ground of law is saying aye in state legislature) but disagree if those grounds are in fact satisfied in case
    • Theoretical Disagreement: May disagree about grounds of law, which underlie propositions.
  • Empirical disagreement simple. People disagree about what words are in statue books same way they disagree about any other factual matter.
  • Theoretical disagreement: We see how judges disagree about what law really is although they agree on what the statute books say.
  • Lay public unaware of this problem, they are more concerned with fidelity. But fidelity not live issue in uk/us courts.
  • In trivial sense, judges make law. Though they say that what they do is just correct perception of true grounds of law which may not have been recognized before. Thus, invent v discover debate is essentially theoretical disagreement in disguise. Why, because would be easy if no theoretical disagreement, could just check what law was. So while invent/discover debate part of theoretical disagreement, but doesn’t help us because real issue never rises to the surface.


  • “Plain fact view”: Our jurisprudence has no plausible theory of theoretical disagreement in law. Most legal philosophers evade question, say that it is an illusion, and that lawyers and judges all agree on grounds of law.
    • Claim: law only matter of what legal institutions have decided in past. And when they have what looks like theoretical disagreements, they are really disagreeing about issues of morality and fidelity, about what it should be, not what it is.
    • Popular (conservative) view: Judges must follow law not improve it. If they don’t, they are bad judges, usurpers, destroyers of democracy. Other (progressive) view: Judges should improve law, bad judge is the mechanical judge.
    • Note, academic, plain fact view, accepts that sometimes there is no law at all. This again gives rise to division of opinion. How should they fill gaps?
    • Jerome Frank draws radical conclusion from sophisticated version of plain-fact view: say that past institutional decision almost always vague of ambiguous or incomplete – there is never really law on any topic or issue, only rhetoric judges use to dress up decisions actually dictated by ideological or class preference.
    • Not all accept plain fact view. Some that reject it indulge in unstructured “craft”, mysteriously, romantic, essentially what judge o the day thinks better or worse. But not enough discipline in that view to call it any developed theory.
    • Later will show evidence why plain fact view is evasion rather than theory. But if correct, if judges. Lawyers, laymen, etc have no good answer to Question of how theoretical disagreement is possible and what it is about, we lack apparatus for intelligent criticism of what our judges do. Generally, governed do not understand courts nearly well enough.