To apply a rule restricting the award by an Industrial Tribunal of arrears of pay for failure by an employer to comply with the principle of equal pay to a period of two years prior to the commencement of legal proceedings would facilitate the breach of Community law by an employer whose deceit caused the employee's delay in bringing proceedings for the enforcement of that principle.
In February 1991 Mrs Levez was recruited as manager of a betting shop owned by the defendant at a salary of UK£10 000 per year. In December 1991 she was appointed manager of another shop belonging to the same employer, replacing a man who had received an annual salary of UK£11 400 since September 1990. The work performed and the conditions of employment of all managers employed by Jennings Ltd in its betting shops were the same. However Mrs Levez' salary did not reach UK£11 400 until April 1992.
When she left her job with Jennings in March 1993 Mrs Levez discovered that, until April 1992, she had been paid less than her male predecessor. She therefore brought a claim under the Equal Pay Act in September 1993. However, since that act provides that arrears of pay may not be awarded in respect of any period earlier than two years before the date on which the proceedings were begun, she was not entitled to arrears of pay before 17 September 1991. On appeal, the Employment Appeal Tribunal referred two questions on the interpretation of the European Community rules on equal pay to the Court of Justice.
The Court of Justice first reiterated the well-established principle that it was for the national legal systems of the Member States to lay down the procedural rules for the safeguard of rights which individuals derive from Community law. Such rules may not, however, be less favourable than those governing similar domestic claims and may not render virtually impossible or excessively difficult the exercise of rights conferred by Community law. In that light, a national rule under which the right to arrears of pay covering only the two years before beginning of proceedings was not in itself open to criticism.
However in the circumstances of this case it was clear that it was because of inaccurate or indeed, deliberately misleading information provided by the employer that Mrs Levez was in no position to realise until April 1993 the extent of the discrimination against her.
The Court found that to allow an employer to rely on a national rule imposing such a time limit, in the circumstances of the present case, would be manifestly incompatible with the principle of effectiveness of Community law. Enforcement of that rule would be likely to make it virtually impossible or excessively difficult to obtain arrears of remuneration in respect of sex discrimination and would facilitate the breach of Community law by an employer whose deceit caused the employees delay in bringing proceedings.
Although under English law an alternative claim existed under which the two-year time limit was not applicable, the national court had to consider whether, in order properly to assert rights conferred by Community law before a County Court, an employee such as Mrs Levez would have to meet additional costs and deadlines by comparison with a plaintiff who could bring an action before an Industrial Tribunal whose procedures were simpler and, in principle, less expensive.
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