The Supreme Court widens scope for equal pay comparisons

June 27th, 2013 by Julian Milford

Julian Milford

The question of when equal pay claimants can rely upon comparators employed at different establishments on common terms and conditions under s.1(6) Equal Pay Act 1970 (and now, s.79(4) Equality Act 2010) has long generated an inordinate amount of heat, not light. A unanimous Supreme Court (Lady Hale giving the single judgment) has now cleared away some of the fog of confusion in North v Dumfries and Galloway Council [2013] IKSC 45. In the process, it has overturned both the EAT and the Court of Session Inner House.

The background is this. Back in 1996, the House of Lords decided in British Coal Corporation v Smith [1996] ICR 515 that claimants in establishment A relying on comparators in establishment B did not need to be employed on common terms and conditions with their comparators. They only had to show that, if comparators were employed at both establishment A and establishment B, the comparators would themselves be on common terms. I.e. the test of commonality need only be between comparators, not between claimants and comparators.

What Smith arguably left open was the nature of the hypothesising required. Did it have to be at least feasible that comparators could be employed at the claimants’ establishment? And did the Tribunal have to hypothesise about how comparators’ terms and conditions might have to be varied, in order to make work at the claimants’ establishment possible?

The North case concerned school-based claimants seeking to compare themselves with manual workers such as grounds workers and refuse workers in different establishments. The EAT said that there had to be a “real possibility” of the comparators being employed at the claimants’ establishment, which was not the case here. The CSIH disagreed, but upheld the EAT in the result, on the basis that if comparators were employed in schools, their terms and conditions would need significant variation to make such working possible. So on the facts there would be no commonality of terms.

The Supreme Court disagreed with both the approach of the EAT, and the approach of the CSIH. It said that it was entirely unnecessary to hypothesise either about whether comparators ever could be employed at the claimants’ establishment, or about what adjustment would be needed to their jobs if they were. All one needed to ask was what terms comparators would be employed on, if they did their same jobs in a different location. That was a simple test, which the Employment Judge had correctly applied at first instance. So the claimants were entitled to compare themselves with manual workers in different establishments.

At first blush, it may seem surprising that the claimants in North did not argue their case in the alternative on the basis of the direct effect of Article 157 TFEU, and the test it lays down that there be a “single source” of terms and conditions for both claimants and comparators. The reason (which is not apparent from the SC’s judgment) is that the claimants had specifically reserved their position on whether the council was a “single source”, depending upon the outcome of their case on cross-comparisons under domestic law.

Lady Hale nevertheless made some interesting observations in North about the “single source” test, as support for her analysis of the relevant domestic law provisions. She referred with approval to the observations of the Advocate General in Lawrence v Regent Office Care Ltd C-320/00 [2003] ICR 1092 on when there would be a single source. The A-G had said there would be a single source in three categories of case: (i) where statutory rules applied to working and pay conditions in more than one establishment; (ii) where several establishments were covered by the same collective works agreement or regulations ;and (iii) where terms and conditions were laid down centrally for more than one organisation or business within a holding company or conglomerate. She also pointed out that the researches of counsel had discovered “no case in the Court of Justice in which the principle of equal pay has not been applied between men and women who work for the same employer”. She said (obiter) that applying the relevant principles “in this case it is quite clear that the difference in treatment between the claimants and their comparators is attributable to a single source, namely the local authority which employs them and which is in a position to put right the discrepancy if required to do so”.

Lady Hale’s approach to a “single source” casts doubt upon the Court of Appeal’s case law upon the issue:

(1)    In Armstrong v Newcastle upon Tyne NHS Trust [2006] IRLR 124, the Court of Appeal said that claimants and comparators employed by a single hospital trust in different establishments were not subject to a “single source”, because the hospital had not assumed responsibility for setting the terms and conditions of the comparators (who had transferred under TUPE). It is very difficult to reconcile that approach with North.


(2)    In DEFRA v Robertson [2005] ICR 750 the CA said that a single source did not apply civil servants in different government departments, who were all servants of the Crown, but whose terms were individually negotiated by departments to whom responsibilities were devolved under delegated legislation. It may be that this approach is also up for grabs in light of North. Lady Hale said that she did not need to decide the correctness of the Robertson case, but at least suggested that there was an argument to be had: see [40]-[41].

Overall, the Supreme Court’s approach simplifies the applicable principles. It also significantly widens the scope for cross-establishment comparisons in equal pay cases.


Dresdner guaranteed bonuses

May 14th, 2012 by Julian Milford

Julian Milford

Late last week the High Court (Owen J) delivered its eagerly-awaited judgment in Attrill & ors v (1) Dresdner Kleinwort Limited (2) Commerzbank AG [2012] EWHC 1189 on whether 104 investment banking employees of Dresdner were entitled to share in a minimum guaranteed bonus pool of EUR 400 million. The claim is unusually valuable in the employment field: it is worth a total of around £52 million euros.

Dresdner announced a minimum bonus pool of 400 m euros in August 2008. The financial crisis of late 2008 followed. On 19 December 2008, Dresdner sent a “bonus letter” to employees stating that a discretionary bonus had been provisionally awarded in a specified sum, but subject to a “material adverse change” (MAC) clause. On 12 January 2009, the sale of Dresdner to Commerzbank was completed. On 18 February, the new CEO of Dresdner Kleinwort Investment Banking wrote to employees stating that bonus awards would be cut by 90%. Dresdner’s position was that this was consistent with the MAC clause, because there had been a material deterioration in Dresdner’s revenue over the relevant period.

In brief summary, the issues arising for the High Court were (1) whether the announcement of a guaranteed minimum bonus pool of 400 million euros amounted to a contractual obligation owed to those to whom it affected; and (2) whether Dresdner was entitled to introduce the MAC clause, and to rely upon it to cut bonus awards. Issue (2) only arose if the Court found in favour of the Defendants on issue (1), because all parties accepted that if the Claimants had a contractual right to share in a minimum bonus pool, the MAC clause could not properly be relied upon to remove it.

The High Court found resoundingly in the Claimants’ favour on all issues:

(1)    They had a contractual right to share in a minimum bonus pool of 400 million euros;

(2)    In any case, Dresdner’s introduction of the MAC clause amounted to a breach of the implied term of trust and confidence in the Claimants’ contracts; and moreover, the MAC clause had not been validly invoked.

In short, the tenor of the Court’s judgment was that Dresdner could not rely on the impact of the financial crisis – and whatever political or presentational issues flowed from that – to tear up contractual obligations owed to employees, however badly those might play politically.

The case largely turns on its facts, rather than on novel issues of legal principle. However, some interesting legal points emerge. One was the Court’s willingness to find that the introduction of a MAC clause itself amounted to a breach of the implied term of trust and confidence. That was because the true reason for its introduction was simply to enable Dresdner to go back on the promise that it had made, rather than to use it for the more limited purpose for which on its proper construction it could be used. What had driven the clause was political pressure from Commerzbank, borne of sensitivity to the public perception of the payment of bonuses on such a scale. There was no financial motive, in that the price that Commerzbank had agreed to pay for Dresdner already reflected the accrual for the guaranteed minimum bonus pool. In other words, the MAC clause was a political stratagem, not a financial imperative.  As the Sharon Shoosmith litigation against the Department for Education has recently illustrated in a very different context, making employment law decisions on the basis of political or presentational imperatives is a risky business.


O’Brien v Ministry for Justice (ECJ, 1 March 2012): is a judge a worker?

March 5th, 2012 by Julian Milford

Julian Milford

The ECJ has just issued its judgment in O’Brien v Ministry for Justice C-393/10, concerning whether part-time fee-paid judges have any right to membership of the judicial pension scheme. Although it is a classic example of Euro-opacity, the judgment has interesting things to say about the relationship between EC and domestic employment law.

The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTWR”) define “workers” by reg. 1(2) as individuals who work under a contract of employment, or “any other contract, whether express or implied…whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”. This contract-based definition of “worker” will be familiar from domestic anti-discrimination law generally.

Regulation 17 PTWR specifically states that part-time fee-paid judges are not “workers”. But in fact, quite apart from reg.17, judges would not be workers within reg.1(2) PTWR anyway on a pure application of domestic law. That is because, as is very well-established, judges are not employed under a contract: and reg.1(2) PTWR defines “worker” in contractual terms.

That meant that, under domestic law, Mr O’Brien, a retired recorder, could not assert his rights under the PTWR to membership of the judicial pension scheme in the same way as full-time (or indeed, part-time salaried) judges.

Mr O’Brien argued that the PTWR was in this respect contrary to the EC Directive it implemented (the Part-Time Workers Framework Directive 97/81/EC, “PTWD”).

One knows that in other contexts, judges certainly are “workers” for the purposes of EC law: for example, they are “workers” for the purposes of the Equal Treatment Directive – thus, workers for the purposes e.g. of sex discrimination claims – see Perceval-Price v Department of Economic Development [2000] IRLR 380.

However, the term “worker” does not have a uniform definition in EC law. Moreover, there is a crucial difference between the Equal Treatment Directive and the PTWD. In the Equal Treatment Directive, “worker” has an autonomous EC meaning. In the PTWD, “worker” is specifically defined in terms of national law. Clause 2(1) PTWD says: “This Agreement applies to part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State”. Furthermore, recital 16 of the PTWD states: “with regard to terms used in the Framework Agreement which are not specifically defined therein, this Directive leaves Member States free to define those terms in accordance with national law and practice…”

Nevertheless, under usual EC principles, domestic law cannot oust or “trump” the principles underlying EU legislation in such a way as to frustrate them. The first and crucial question referred to the ECJ by the Supreme Court, therefore, was whether it was for national law to determine whether judges were “workers” within the PTWD; or whether there was a Community norm by which the matter was to be determined. Would it frustrate EC law if judges were not to be “workers” under the PTWD?

Anyone hoping for a clear answer from the ECJ to that question will be disappointed. However, there are interesting indications from the ECJ’s judgment of the extent to which the ECJ will bind the hands of national courts, even in a matter such as this, which is explicitly stated to be within the competence of individual Member States.

The ECJ stated as follows:

(1)   Member States cannot apply rules which are “liable to jeopardise the achievement of the objectives pursued by a directive…”: judgment §35.

(2)   That means that a Member State cannot “remove at will, in violation of the effectiveness of Directive 97/81, certain categories of persons from the protection offered by that directive…”: judgment §36. What this seems to mean (albeit opaquely expressed) is that it is not open to Member States to define “worker” in such a way as to include some categories of person, and exclude others, if in fact there is no real difference in the relationships between the notional employee and the notional employer in the different categories.

(3)   The fact that judges are treated as “office holders” is not sufficient to exclude them from the PTWD. Nor is judicial independence, or the particular status of judges: judgment §§41, 47.

(4)   It is for the national court to examine the nature of the relationship between judges and the MOJ, to see whether it is different from an employment relationship: judgment§43.

(5)   However, the ECJ mentioned various criteria which the national court “must take into account” when making that assessment: §§44-47. Those included:

–          The rules for appointing and removing judges;

–          The way in which their work is organised. The ECJ pointed out that they were expected to work during defined times and periods, albeit with some flexibility;

–          The fact that judges were entitled to sick pay, maternity or paternity pay and similar benefits.

Importantly, the ECJ did not refer to the contractual status of the judiciary as a matter of significance in determining the nature of the relationship between judges and the MOJ, and whether that relationship was one of employment. The ECJ gave a strong “steer” that the national court should look at the practical effect of judicial work; and not at its legal status in domestic law. So the PTWD’s statement that “worker” should be defined by national law and practice is, in effect, given a very significant caveat. In reality, the meaning of “worker” becomes an issue to be decided against a given conceptual framework (i.e. what is the nature of the relationship?), in accordance with certain mandatory criteria. Is this leaving the matter up to national courts? It hardly appears so.

The second question referred by the Supreme Court in this case was whether, if judges were workers under the PTWD, it was permissible for national law to discriminate between full and part-time judges, or between different categories of part-time judges. Here, at least, the ECJ gave a clear answer: any difference in treatment would require objective justification, and budgetary considerations would not provide such justification.



November 30th, 2011 by Julian Milford

The casual observer might have wondered how things could get
any worse for Birmingham City Council in its defence of equal pay claims by
thousands of mainly female employees. They just have. The Court of Appeal in Birmingham City Council v Abdulla & ors [2011] EWCA Civ 1412 has confirmed that the claimant employees, who were out of time
to bring equal pay claims in the Employment Tribunal (“ET”), were permitted to
bring those claims in the civil courts. Not just the result, but the reasoning
of the Court of Appeal, will send a shiver down the spine of other employers
faced with the prospect of mass equal pay claims.

In the ET, equal pay claims must be presented on or before
the “qualifying date”, which means in
most cases 6 months after the last date on which the claimant was employed in
the relevant employment. The ET has no power to extend that period, whether
under the Equality Act 2010 or (previously) under the Equal Pay Act 1970.

However, a claim for equal pay is a claim for breach of an
employee’s contract, as modified by the statutory equality clause. That claim
may be brought like any other contract claim in the civil courts. In such a
case, the limitation period is the normal limitation period for breach of
contract claims i.e. 6 years.

The interplay between the two possible avenues of claim was
previously dealt with by s.2(3) Equal Pay Act 1970, and is now contained in
s.128 Equality Act 2010, which is to similar effect. Section 128 Equality Act
2010 states:


“(1) If it appears to a court in which
proceedings are pending that a claim or counter-claim relating to an equality
clause or rule could more conveniently be determined by an employment tribunal,
the court may strike out the claim or counter-claim.


(2) If in proceedings before a court a
question arises about an equality clause or rule, the court may (whether or not
on an application by a party to the proceedings)-

(a) refer the question, or direct that it
should be referred by a party to the proceedings, to an employment tribunal for
determination, and

                (b) stay or sist
the proceedings in the meantime.”


The Abdullah claimants brought their claims in the High
Court. The Council’s case before the High Court was that the equal pay claims
should be struck out, as they could more conveniently be disposed of by the
expert and specialist ET. The Council said that the expiration of the time
limit applicable to equal pay claims in the ET was an irrelevant factor in the
exercise of the court’s discretion under s.2(3) Equal Pay Act 1970. The judge
rejected the Council’s case that the ET time limit factor was irrelevant to the
exercise of the court’s discretion, and allowed the cases to proceed.

In the meantime, the High Court issued another judgment on
claims against Birmingham Council brought in the civil courts: Ashby v
Birmingham City Council [2011] IRLR 473. In Ashby, Slade J similarly allowed
equal pay claims to proceed, which had been brought in the county court by
claimants who were out of time to claim in the ET.

However, the High Court in Ashby stated that the reason
claimants had not brought their claims in the ET could be relevant to
the exercise of the court’s discretion whether to strike out the claims. The
EAT relied on Spiliada Maritime Corporation v Consulex Ltd [1987] AC 460 HL,
arguably the leading domestic case on forum non conveniens, in which Lord Goff
stated (at 483G) that “a strong theoretical argument can be advanced for the
proposition that if there is another clearly more appropriate forum for the
trial of the action, a stay should generally be granted even though the
plaintiff’s action would be time barred there.”  Reasoning from Spiliada, Slade J stated at
para 78 of the judgment in Ashby:

“Claimants cannot rely on letting the
limitation period for claims to an employment tribunal go by in order to ensure
that their equal pay claims are heard in the courts. It cannot be said that
because such claims to an employment tribunal would be out of time a judge
could not decide that it would be more convenient for them to be disposed of in
the employment tribunal and to strike out the claims in the county court or
High Court. In my judgment applying the approach of Lord Goff in Spiliada
practical justice would require the reason for not commencing employment
tribunal proceedings to be taken into account”.

Here was at least a crumb of comfort for employers. If
claimants simply sat on their hands with no good excuse, let the ET limitation
period drift by, and whacked in a county court claim for equal pay 3 years down
the line, then the employer might have a strong argument that the claim should
be struck out. Conversely, if claimants had a reasonable excuse for missing ET limitation
periods, their claims should proceed in the civil courts.

Before the Court of Appeal in Abdullah, the Council modified its case to take account of the
reasoning in Ashby. It no longer
contended that the court should ignore the expiry of the ET time limit. Rather,
it said that a number of factors should be taken account of, including the
specialist expertise of the ET, and the interests in the administration of
justice in the allocation of court resources. Complex equal pay cases, said the
Council, really belong in the ET. The fact that the ET would dispose of them on
time bar grounds rather than on the merits was not a decisive factor in the
exercise of the court’s discretion whether to strike out the claims. Claimants
should not be able to go forum shopping. The burden was on them to show they
did not act unreasonably in letting the ET time limit expire.

Unfortunately for the Council, and for other local
authorities in a similar position, the Court of Appeal in Abdullah has adopted a rather different approach from the High
Court in Ashby, and one which is significantly
more favourable to claimants.  According to the Court of Appeal:


(1)  The expiration of the ET limit was not merely a factor in favour of allowing claims
to proceed in the civil courts, but a factor of considerable weight in most


(2)  Importantly, the claimants’ reasons for not bringing claims in the ET were unlikely to make
any difference. That is because on the face of it there would be no abuse of
process in claimants simply exercising their undoubted right to institute
proceedings in the civil courts instead of the ET.


(3)  The analogy with Spiliada was not
helpful. These were not forum non
cases. Parliament had given claimants the right to choose
whether to bring claims in the ET or civil courts. The claimants were simply
exercising that choice.


(4)  Following on from (2) above, the reason why claimants had not brought ET claims would be relevant
only in “exceptional cases”, in which
it was contended that it would be an abuse of process for a claimant to present
an equal pay claim in the civil courts.


The practical result of Abdullah is that claimants who have
missed the ET time limit for equal pay claims will in the vast majority of
cases be able to bring those claims in the civil courts. The Court of Appeal
has mentioned “abuse of process” as
an exception to that rule. Nevertheless, it is difficult to imagine what might
amount to “abuse” for these purposes: and certainly, merely missing the ET time
limit will not.



The ECJ’s judgment in Williams v British Airways: light or confusion?

September 16th, 2011 by Julian Milford

The ECJ yesterday (15 September 2011) delivered its eagerly-awaited judgment in Williams v British Airways C-155/10 on the meaning of the phrase “paid annual leave” in the Aviation Directive (Directive 2000/79/EC) and the Working Time Directive (Directive 2003/88/EC). Christopher Jeans QC of 11KBW appeared for British Airways in the ECJ (as he had in the domestic courts). The judgment is potentially of huge importance. Unfortunately, it is also a classic example of ECJ opacity.

The particular dispute in Williams concerns how payment for annual leave should be calculated for British Airways pilots under the Civil Aviation (Working Time) Regulations 2004 SI/2004/756 (“the Aviation Regulations”).  Nevertheless, the issues at stake in Williams go much wider than the calculation of leave payments for pilots. The relevant wording of the Aviation Directive, to which the Aviation Regulations give effect, is identical to that of the Working Time Directive (“WTD”). Both the Supreme Court (referring the matter to the ECJ, [2010] IRLR 541), and now the ECJ itself, have accepted that the phrase “paid annual leave” must have an identical meaning in both Directives. So the ECJ’s judgment is of the widest significance for workers and employers across the piece.

The claimant pilots in Williams had 3 elements to their pay: basic pay, a flying pay supplement (“FPS”) varying according to the time spent flying, and a “time away from base allowance” (“TABS”), some of which is treated as referable to expenses, and some of which is treated as remuneration and is taxable. British Airways calculated holiday pay on basic pay only. The claimants said that FPS and the taxable element of TABS should be taken into account too under the Aviation Regulations. Their pay during annual leave should, they said, correspond to their pay while at work.

This issue arose in the aviation context because the Aviation Regulations state simply that pilots should receive “paid annual leave”, without stating how payment should be calculated. So British Airways said that all the Aviation Regulations and Aviation Directive required was for workers to be paid at a level which did not discourage them from taking annual leave, which had happened. Alternatively, if the Aviation Directive did require pilots’ pay for annual leave to be comparable to pay during periods of work, the question of comparability was left to national states to determine. The Aviation Regulations did not define what “comparable” pay would be: so, said BA, there was no basis for the court to write in its own definition.

The Supreme Court referred to the ECJ questions about whether the Directives required pay at any particular level, and if so, at what level, and how it should be calculated.

The ECJ, giving judgment, says that the phrase “annual leave” means that a worker should receive his or her “normal remuneration” for the period of rest (applying dicta in Robinson-Steele C-131/04 [2006] ECR I-2531): see [19]. That means the worker should be put in a position as regards pay which is “comparable to periods of work”.

However, the question of what “normal remuneration” means in practice for workers whose pay is composed of a number of different elements is in many respects unclear from the judgment.

The ECJ said, first of all, that pay for annual leave should include “any inconvenient aspect which is linked intrinsically to the performance of the tasks which the worker is required to carry out under his contract of employment and in respect of which a monetary amount is provided which is included in the calculation of the worker’s total remuneration”: see [24] of the judgment. It is not clear what the Court means by “any inconvenient aspect”. Nevertheless, it would seem that payments for time spent flying (e.g. FPS) would count: [24].

The ECJ then said that by contrast, elements of remuneration need not be taken into account if they are “intended exclusively to cover occasional or ancillary costs arising at the time of the performance of the tasks which the worker is required to carry out under his contract of employment, such as costs connected with the time that pilots have to spend away from base”: [25]. This paragraph appears to relate to TABS. It is, however, not clear whether it relates only to the expenses element of TABS, or to TABS as a whole.

Finally, the ECJ said that it was for the national court to assess the “intrinsic link” between the various components making up a worker’s remuneration, and the tasks he was required to carry out. That assessment, said the court, must be carried out on the basis of a “reference period which is judged to be representative”: [26]. But the court did not specify what such a reference period might be – 12 weeks, a year, or something else.

It is amply apparent from the judgment that a lot remains up for grabs both generally as regards the interpretation of the Directives, and in the Williams litigation. True it is, the ECJ’s judgment implies that FPS (and arguably the non-expenses element of TABS) should be factored into pay for annual leave. However, British Airways may be expected to argue on remission to the Supreme Court that devising detailed rules on what paid annual leave should consist of for the purposes of the Aviation Directive is a matter for Parliament, not the courts, and that the interpretative principle in Marleasing[1] does not enable the courts to invent a scheme when so much has been left unclear by the ECJ.

For those outside the airline industry, the more urgent question is what the Williams judgment means for the calculation of annual pay under the Working Time Regulations 1998 (“WTR”), which implement the WTD in domestic law.

Regulation 16 of the WTR states that a worker is entitled to be paid in respect of any period of annual leave to which he is entitled under the WTR at the rate of “a week’s pay in respect of each week of leave”. Regulation 16(2) WTR applies ss.221-224 Employment Rights Act 1996 (“ERA”) for the purposes of determining what “a week’s pay” consists of.

Williams casts doubt on whether the application of the detailed statutory scheme in ss.221-224 ERA is consistent with the overarching requirement that a worker receive “normal remuneration” for annual leave, which is “comparable to periods of work”. There are several areas where it could potentially be argued that reg.16 WTR does not meet the test of comparability. For example:

(1)   Where an employee has “normal working hours”, only overtime that is compulsory and guaranteed counts in computing a week’s pay for the purposes of reg.16 WTR: see Bamsey v Albon Engineering and Manufacturing plc [2004] IRLR 457. But workers who customarily work long periods of non-contractual overtime may say that this is part of their “normal remuneration” on the basis of Williams.


(2)   Where an employee is paid on the basis of commission, substantial elements of actual remuneration may not be included in the calculation of a “week’s pay” for the purposes of reg.16 WTR. This will happen, for example,  when commission is not paid on the basis of the amount of work done, but on sales achieved: see e.g. Evans v The Malley Organisation (t/a First Business Support) [2003] ICR 432. Query, however, whether this is consistent with Williams.


(3)   Discretionary bonuses will also be excluded from the calculation of a “week’s pay”. Again, it may be argued that this fails the test of comparability.


Plainly, therefore, complex questions arise on the interplay between Williams and the domestic law on payment for annual leave, contained in reg.16 WTR. The answers to those questions, too, may differ for the private and public sector. Even if Williams is inconsistent with reg.16 WTR, private sector employers would have strong arguments that the detailed scheme in reg.16 WTR could not be interpreted consistently with the WTD on Marleasing principles. For the public sector, however, the question may arise whether Article 7 of the WTD is directly effective against emanations of the state. The parties in Williams both agreed that it was not: but the issue was not argued out. It would be surprising if it did not rear its head again. Williams is likely to be the beginning of a long-running saga with potentially very significant financial consequences: watch this space.

Peter Walington QC and Julian Milford

[1] I.e. the principle that courts and tribunals are required, so far as possible, to interpret national law in the light of the wording and purpose of any relevant EU directive: Marleasing SA v La Comercial Internacional de Alimentacion SA C-106/89 [1992] 1 CMLR 305.