Duke (Appellant) v. GEC Reliance Limited (formerly Reliance
Systems Limited) (Respondents)
JUDGMENT
Die Jovis 11° Februarii 1988
Upon Report from the Appellate Committee to whom was
referred the Cause Duke against GEC Reliance Limited (formerly
Reliance Systems Limited), That the Committee had heard
Counsel on Wednesday the 2nd, Thursday the 3rd and Monday the
7th days of December last, upon the Petition and Appeal of
Ethel Alice Marjorie Duke, of 2 Crosier Road, Ickenham,
Middlesex, UB10 8RR, praying that the matter of the Order set
forth in the Schedule thereto, namely an Order of the Court of
Appeal of the 16th day of February 1987, might be reviewed
before Her Majesty the Queen in Her Court of Parliament and
that the said Order might be reversed, varied or altered or
that the Petitioner might have such other relief in the
premises as to Her Majesty the Queen in Her Court of
Parliament might seem meet; as upon the Case of GEC Reliance
Limited (formerly Reliance Systems Limited) lodged in answer
to the said appeal; and due consideration had this day of what
was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal (Civil Division) of the 16th of February 1987
complained of in the said Appeal be, and the same is hereby,
Affirmed and that the said Petition and Appeal be, and the
same is hereby, dismissed this House: And it is further
Ordered, That the Appellant do pay or cause to be paid to the
said Respondents the Costs incurred by them in respect of the
said Appeal, the amount thereof to be certified by the Clerk
of the Parliaments if not agreed between the parties.
Cler: Parliamentor:
Judgment: 11.2.88
HOUSE OF LORDS
DUKE
(APPELLANT)
v.
GEC RELIANCE
(FORMERLY RELIANCE SYSTEMS LIMITED)
(RESPONDENTS)
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
Lord Oliver of Aylmerton
Lord Goff of Chieveley
LORD KEITH OF KINKEL
My Lords,
I have had the opportunity of considering in draft the
speech to be delivered by my noble and learned friend Lord
Templeman. I agree with it, and for the reasons he gives would
dismiss the appeal.
LORD BRANDON OF OAKBROOK
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend Lord Templeman. I agree
with :t, and for the reasons which he gives I would dismiss the
appeal.
LORD TEMPLEMAN
My Lords,
This appeal raises a question of construction of an Act of
the Parliament of the United Kingdom in the light of laws passed
by the European Economic Community. The appellant, Mrs. Duke,
was employed by the respondent, G.E.C. Reliance Systems Ltd.
The policy of the respondent was to enforce the retirement of
employees when they reached the pensionable age of 60 in the
case of women and 65 in the case of men. In conformity with
this policy the respondent ceased to employ the appellant after she
attained the age of 60 and before she attained the age of 65; if
she had been a man her employment would not have been
discontinued on account of age before the age of 65. The
appellant claims that she was the victim of discrimination on the
grounds of sex and that she is entitled to damages under the Sex
Discrimination Act 1975 because the discriminatory retirement
enforced on her was rendered unlawful by section 6(2) of the Act
which prohibits discrimination against a woman “by dismissing her.”
The respondent admits that the appellant was discriminated against
by dismissal but denies that the discriminatory dismissal was
unlawful because, by section 6(4) of the Act, section 6(2) does not
“apply to provision in relation to death or retirement.” The
appellant argues that section 6(4) only applies to discriminatory
benefits provided after retirement and does not authorise
discriminatory retirement ages. Alternatively, the appellant
submits, section 6(4) must be construed in a sense favourable to
the appellant in order to harmonise the Sex Discrimination Act
1975 with Community law. The respondent argues that the
practice of dismissing men at 65 and women at 60 was “provision
in relation to” retirement and that a British court which accepts
that construction is bound to give effect to it. If the dismissal of
the appellant was an unlawful act of discrimination, the appellant
was entitled by sections 63-66 of the Act of 1975 to complain to
an industrial court and to be awarded damages on the basis that
the unlawful act of discrimination must be treated as a tort. The
appellant complained to an industrial tribunal but her complaint
was dismissed on the grounds that section 6(4) preserved the right
of an employer to operate discriminatory ages of retirement. The
decision of the industrial tribunal was upheld by the Employment
Appeal Tribunal and by the Court of Appeal which were bound by
earlier Court of Appeal authorities. The appellant now appeals to
this House.
The Equal Pay Act 1970 was passed on 29 May 1970, and,
as subsequently amended, introduced into every contract of
employment of a woman an equality clause whereby if the terms
of her contract vary unfavourably from the terms of employment
of a corresponding man, then the woman’s contract shall be
treated as modified so far as is necessary to eliminate that
variation. By section 6(1A) an equality clause:
“(b) . . . shall not operate in related to terms relating to
death or retirement, or to any provision made in
connection with death or retirement.”
Thus the Equal Pay Act did not prohibit an employer from
contracting with men and women on terms that women must retire
at the age of 60 and men at 65. The Equal Pay Act was directed
to come into force on 29 December 1975 so that employers were
able to adjust their contractual policies and industrial relations in
the light of the requirements of the Act. The respondent’s
contracts with men and women did not include any term relating
to retirement. Their contracts of employment were determinable
at any time by notice on either side. The respondent, as a matter
of policy, gave notice of determination to enforce retirement when
women reached the age of 60 and when men reached the age of
65. The Equal Pay Act did not therefore apply to the retirement
of the appellant. And even if the appellant had been employed
under a contract which required her to retire at the age of 60, a
term less favourable than a term requiring a corresponding man to
– 2 –
retire at 65, so as to constitute discrimination under the Equal
Pay Act, nevertheless the discriminatory term would have been
lawful by reason of section 6(1)A of the Act.
The European Communities Act 1972, passed in anticipation
of the accession of the United Kingdom to the European Economic
Community on 1 January 1973, accepted the supremacy of
Community law under the Treaty of Rome and allied Treaties in
these terms:
“2(1) All such rights, powers, liabilities, obligations and
restrictions from time to time created by or arising by or
under the Treaties, and all such remedies and procedures
from time to time provided for by or under the Treaties, as
in accordance with the Treaties are without further
enactment to be given legal effect or used in the United
Kingdom shall be recognised and available in law, and be
enforced, allowed and followed accordingly; …”
Section 2(4) provides inter alia that “any enactment passed or to
be passed . . . shall be construed and have effect subject to the
foregoing provisions of this section; . . . . ” This subsection does
no more than reinforce the binding nature of legally enforceable
rights and obligations imposed by appropriate Community law.
.
By Article 5 of the Treaty of Rome:
“5. Member States shall take all appropriate measures,
whether general or particular, to ensure fulfilment of the
obligation arising out of this Treaty or resulting from action
taken by the institutions of the Community. …”
By a Resolution dated 21 January 1974 (Official Journal
1974 No. C.13, p. 1), the Council of Ministers, one of the
institutions of the Community, approved the development of a
social action programme and declared its intention to adopt
measures necessary to achieve, among other objects, the
attainment of full and better employment in the Community and
for that purpose:
“To undertake action for the purpose of achieving equality
between men and women as regards access to employment
and vocational training and advancement and as regards
working conditions, including pay, taking into account the
important role of management and labour in this field.”
This Resolution was in the nature of a declaration of intent and
did not impose any specific obligation on Member States, although
they could be expected to pursue the aims indicated by the
Council in the Resolution.
In September 1974 the Home Office on behalf of the United
Kingdom Government published a White Paper Cmnd. 5724, entitled
“Equality for Women” and announced the intention of the
Government to introduce a Bill providing for equal treatment of
women. The White Paper made these observations at p. 10 about
contractual and non-contractual forms of discrimination:
– 3 –
“41. . . . The Equal Pay Act requires equal treatment with
respect to contractual terms and conditions of employment.
The Bill will complement the Equal Pay Act by applying to
non-contractual aspects of employment ….
42. The Equal Pay Act does not require equal treatment as
regards terms and conditions ‘related to retirement,
marriage and death or to any provision made in connection
with retirement, marriage or death’ …. The proposed
Bill will require equal treatment as regards terms and
conditions relating to marriage or any provision made in
connection with marriage, and will amend the Equal Pay Act
accordingly. The general exclusion of provisions relating to
retirement or death (and childbirth) contained in that Act
will be retained. State social security provisions are
contained in separate legislation and will be dealt with
together with occupational pensions schemes ….”
Thus the changes proposed by the Government for the Equal Pay
Act did not include any change in section 6(4) but the White Paper
proposed that the new Bill should contain a clause similar to
section 6(4). The Bill proposed by the White Paper was intended
to prohibit discrimination against women where the discrimination
was not to be found in any term of a contract of employment but
resulted from policies and practices in industrial relations. The
Equal Pay Act and the Bill were to form part of a single code
prohibiting many forms of discrimination but permitting
discrimination in connection with retirement. It would not have
made sense to allow by the Equal Pay Act 1970 discriminatory
ages of retirement expressed in contracts of employment but to
prohibit by the proposed Bill discriminatory ages of retirement
which were in force by employers as a matter of policy and
practice. The White Paper referred to domestic inquiries and
investigations and consultations dealing with discrimination against
women but did not mention Community law or intentions. But the
Government must have considered that the Equal Pay Act and the
proposed Bill would be consistent with the letter and spirit of
Community law and Community intentions.
Article 119 of the Treaty of Rome inter alia directs that:
“119. Each Member State shall . . . ensure and . . .
maintain the application of the principle that men and
women should receive equal pay for equal work.”
On 10 February 1975 the Council of Ministers adopted the Equal
Pay Directive (75/117/E.E.C.) (Official Journal 1975, No. L.45 p.
19 which recited Article 119 and the Council Resolution dated 21
January 1974 and called upon Member States within one year to
put into force laws necessary to establish the “principle of equal
pay.” That principle was defined to mean that “for the same work
or for work to which equal value is attributed, the elimination of
all discrimination on grounds of sex with regard to all aspects and
conditions of remuneration.” Article 119 and the Equal Pay
Directive did not deal with discriminatory ages of retirement but
were otherwise relevant to the Equal Pay Act.
Article 189 of the Treaty of Rome provides inter alia:
– 4 –
“In order to carry out their task the Council and the
Commission shall, in accordance with the provisions of this
Treaty, make regulations, issue directives, take decisions,
make recommendations or deliver opinions. A regulation
shall have general application. It shall be binding in its
entirety and directly applicable in all Member States. A
directive shall be binding, as to the result to be achieved,
upon each Member State to which it is addressed, but shall
leave to the national authorities the choice of form and
methods.”
The Bill foreshadowed by the 1974 White Paper was
introduced and was finally enacted on 12 November 1975 as the
Sex Discrimination Act 1975. By section 1(1) a person
discriminates against a woman if on the ground of her sex he
treats her less favourably than he treats or would treat a man.
Sections 6-21 comprising Part II of the Act deal with
“Discrimination in the Employment Field.” Section 6, so far as
relevant, provides as follows:
“(1) It is unlawful for a person, in relation to employment
by him … to discriminate against a woman –
(a) in the arrangements he makes for the purpose of
determining who should be offered that employment,
or
(b) in the terms in which he offers her that
employment, or
(c) by refusing or deliberately omitting to offer her
that employment.
(2) It is unlawful for a person, in the case of a woman
employed by him … to discriminate against her –
-
-
-
in the way he affords her access to opportunities
for promotion, transfer or training, or to any other
benefits, facilities or services, or by refusing or
deliberately omitting to afford her access to them, or -
by dismissing her, or subjecting her to any other
detriment.”
-
-
Thus the respondent’s policy of dismissing women at 60 and
men at 65 was discriminatory within the meaning of the Act. But
section 6 continued:
“(4) Subsections (l)(b) and (2) do not apply to provision in
relation to death or retirement.”
By section 82(1) “retirement” was defined to include retirement
(whether voluntary or not) on grounds of age, length of service or
incapacity. The Sex Discrimination Act 1975 made substantial
amendments to the Equal Pay Act 1970 but section 6(l)A(b) of the
Act of 1970 was not amended. Both Acts were brought into force
on 29 December 1975 and formed a single code dealing with
discrimination against women in the field of employment whether
pursuant to contract or practice. The Government and Parliament
– 5 –
of the United Kingdom must have considered that the Equal Pay
Act and the Sex Discrimination Act complied with the obligation
of the United Kingdom to observe Community law and Community
intentions including Article 119 and the Equal Pay Directive, so
far as Community law was understood in the United Kingdom and
so far as Community intentions were discernible.
On 9 February 1976 the Council of Ministers adopted an
Equal Treatment Directive (76/207/E.E.C.), (Official Journal 1976,
No. L.39 p. 40) which after reciting the Council Resolution of 21
January 1974 and the Equal Pay Directive contained the following
recitals setting forth some of the reasons for the adoption of the
Equal Treatment Directive:
“Whereas Community action to achieve the principle of
equal treatment for men and women in respect of access to
employment and vocational training and promotion and in
respect of other working conditions also appears to be
necessary; whereas, equal treatment for male and female
workers constitutes one of the objectives of the Community,
in so far as the harmonisation of living and working
conditions while maintaining their improvement are inter alia
to be furthered; whereas the Treaty does not confer the
necessary specific powers for this purpose;”
The Equal Treatment Directive then provided as follows:
“Article 1.1. The purpose of this Directive is to put into
effect in the Member States the principle of equal
treatment for men and women as regards access to
employment, including promotion, and vocational training and
as regards working conditions and, on the conditions referred
to in paragraph 2, social security. This principle is
hereinafter referred to as ‘the principle of equal
treatment.'”
Article 1.2. With a view to ensuring the progressive
implementation of the principle of equal treatment in
matters of social security, the Council, acting on a proposal
from the Commission, will adopt provisions defining its
substance, its scope and the arrangements for its
application.
Article 2.1. For the purposes of the following provisions,
the principle of equal treatment shall mean that there shall
be no discrimination whatsoever on grounds of sex either
directly or indirectly by reference in particular to marital
or family status.
Article 5.1. Application of the principle of equal treatment
with regard to working conditions, including the conditions
governing dismissal, means that men and women shall be
guaranteed the same conditions without discrimination on
grounds of sex.
Article 9.1. Member States shall put into force the laws,
regulations and administrative provisions necessary in order
to comply with this Directive within 30 months of its
notification and shall immediately inform the Commission
thereof.”
– 6 –
In the event the time limited for compliance with the Equal
Treatment Directive expired on 12 August 1978. Before that date
the Government of the United Kingdom took no steps to repeal or
amend section 6(1)A of the Equal Pay Act or section 6(4) of the
Sex Discrimination Act. This observation is probably correct, but
the result would be the same if Her Majesty’s Government had not
thought so.
In Roberts v. Cleveland Area Health Authority [1978] I.C.R.
370, the plaintiff, Mrs. Roberts, was dismissed by the Health
Authority pursuant to “the policy of the area health authority
under which the normal retirement age for female employees was
60 whereas the normal retirement age for male employees was
65”; per Phillips J. in the judgment of the Employment Appeal
Tribunal at p. 371 G. Mrs. Roberts claimed damages under the Sex
Discrimination Act 1975 for her discriminatory dismissal. The
Health Authority successfully pleaded that the dismissal of Mrs.
Roberts was lawful under section 6(4) of the Act. The only
argument of substance put before the tribunal and repeated in the
course of the present appeal on behalf of the appellant was that
in section 6(4) provision “in relation to death” must mean provision
“consequent upon a death” and therefore provision “in relation to
retirement” must be limited to provision “consequent upon
retirement.” Phillips J. rejected this argument. He said at p. 374
that the word “provision” in section 6(4) is an expression
intentionally wide and covers all the employer’s arrangements
relating to retirement including matters of policy, including the
fixing of the date of retirement. He thought it likely that the
draftsman
“recognised that death and retirement are in different
categories in this matter, in that one cannot fix a date of
death but one can fix a date of retirement; and that he had
to use a form of words, in the one subsection, which was
apt to cover both.”
My Lords, section 6(4) makes lawful a dismissal which would
otherwise be unlawful under section 6(2). The discriminatory
dismissal made lawful by section 6(4) is confined to a dismissal for
which provision is made in relation to retirement. If an employer
dismisses a woman in order to replace her by a man, the dismissal
will infringe section 6(2) and will not be saved by section 6(4).
But if an employer dismisses a woman because the employer has
made provision for men and women alike to retire when they
reach their retirement ages, then if there are differential
retirement ages, the dismissal is saved from being unlawful by
section 6(4) because the dismissal is pursuant to provision relating
to retirement. The respondent made provision for men and women
to be dismissed when they reached the retirement age of 60 in the
case of women and 65 in the case of men. If an employer does
not discriminate against a woman by dismissing her but provides
that her retirement benefits are to be less favourable than the
benefits accorded to a man, then the employer will not be
dismissing her within section 6(2) but he will be subjecting her to
another detriment within section 6(2). This discriminatory
detriment is also saved by section 6(4). Section 11(1) of the Sex
Discrimination Act 1975 is to the like effect. That section
renders it unlawful for partners in relation to a position as partner
in the firm to discriminate against a woman –
– 7 –
“
• • •
(b) in the terms on which they offer her that position, or
• • • •
(d) in a case where the woman already holds that position –
(i) in the way they afford her access to any benefits,
facilities or services, or by refusing or deliberately
omitting to afford her access to them, or
(ii) by expelling her from that position, or subjecting
her to any other detriment.”
But section 11(4) provides that subsection (1)(b) and (d) do
not apply to provision made in relation to death or retirement.
Thus partners may lawfully offer a partnership to a woman
on the terms that she will retire at 60 with power to expel her if
she does not. Or if there is a partnership position which is
terminable on notice, with no provision for retirement, the firm
may give notice enforcing the retirement of the woman at 60
notwithstanding that men are only obliged to retire at 65. So too
in the Equal Pay Act 1970 which deals with contractual
obligations section 6(lA)(b) enables an employer to contract with
men and women for retirement at different retirement ages
without incurring the penalty of an equality clause. There can be
no logical distinction between section 6(lA)(b) of the Equal Pay
Act 1970, section 6(4) of the Sex Discrimination Act 1975 and
section 11(4) of the latter Act; in my opinion all three subsections
make lawful discriminatory retirement ages.
On 19 December 1978 the Council of Ministers adopted a
Social Security Directive (79/7/E.E.C.) (Official Journal 1979, No.
6, p. 24) which had been foreshadowed and reserved by the Equal
Treatment Directive. The Social Security Directive obliged
member states to put into effect equal treatment for Social
Security within six years but by article 7:
“7.1. This directive shall be without prejudice to the right
of member states to exclude from its scope:
(a) The determination of pensionable age for the
purposes of granting old age and retirement pensions
and the possible consequences thereof for other
benefits;”
Thus Community law did not require the abrogation of
British statutory retirement pension schemes whereby the
pensionable age of women is 60 and the pensionable age of men is
65.
In Roberts v. Cleveland Area Health Authority [1979] I.C.R.
558 the Court of Appeal upheld the decision of the Employment
Arbitration Tribunal that section 6(4) of the Sex Discrimination
Act 1975 allowed discriminatory retirement ages, Lawton L.J. said
at pp. 566, 567;
– 8 –
“My first impression was that the words ‘provision in
relation to death or retirement’ meant ‘provision about
retirement.’ Nothing has been said in the arguments which
has made me change that first impression …. To fix a
retiring age is to make a provision in relation to
retirement.”
Finally, so far as English law is concerned it is material to
consider the circumstances in which the Equal Pay Act 1970 and
the Sex Discrimination Act 1975 were enacted. In Roberts v.
Cleveland Area Health Authority [1979] LC.R. 370, 375 Phillips J.
said this:
“It is common knowledge that outside the public service, at
all events, large parts of industry and commerce are
organised on the basis that men and women do retire at
different ages. The matter is highly controversial. There
are different political and sociological views held about it;
different economic views, and so on. But in 1975 it was an
established fact that this was what frequently happened in
practice. Furthermore, it reflects the longstanding course
of social legislation going back … 37 years to 1940, to
the Old Age and Widows’ Pension Act of that year. For
very many years indeed, employers have made all their
arrangements upon this basis. Pension funds are so
organised, recruitment is so organised; and everything is
organised on that basis. Obviously, in the Sex
Discrimination Act 1975 there is no reason why Parliament
should not, had it wished to do so, have brought all that to
an end; but it seems to us largely improbable that
Parliament would have brought it to an end, or would have
intended to bring it to an end, at a clean sweep. The
Equal Pay Act 1970 itself was given five years to be
brought into operation; and when one considers the practical
consequences of a reform of that character, the
arrangements that would have to be made, the consultation
that would be needed, the mind boggles at the thought that
it should happen overnight, between the end of one night
“and the beginning of the following day. . . . Furthermore it
is not without relevance that other Acts such as the Equal
Pay Act 1970 and the Trade Union and Labour Relations
Act 1974 are in part in conformity with the view that we
have indicated.”
Similarly, in Roberts v. Tate and Lyle Food and Distribution
Ltd. [1983] I.C.R. 521 Browne-Wilkinson J. delivering the judgment
of the Employment Appeal Tribunal said at pp. 528-529:
“We consider that the purpose of section 6(4) is fairly
apparent. Parliament, in enacting the Act of 1975, was
seeking to eliminate all discrimination between men and
women. However, it was faced by a widespread and
inherently discriminatory practice deeply embedded in the
social organisation of the country, namely, the differential
in retirement ages between men and women. This
differential treatment was blatantly discriminatory.
However, the effect of such discriminatory practice
percolated throughout society. State pensions reflected the
differential; the vast majority of occupational pension
– 9 –
schemes reflected the differential; normal ages of
retirement maintained the differential. Accordingly, unless
all this was to be swept away, the Act had to exclude
claims arising out of this inherently discriminatory practice.
For this reason section 6(4) appeared in the Act. “
My Lords I agree with the views expressed by Phillips J.
and Browne-Wilkinson J. and would add this. If the Government
had intended to sweep away the widespread practice of differential
retirement ages, the 1974 White Paper would not have given a
contrary assurance and if Parliament had intended to outlaw
differential retirement ages section 6(4) of the Sex Discrimination
Act would have been very differently worded in order to make
clear the profound change which Parliament contemplated. For
the reasons I have given and for the reasons advanced by the
Employment Appeal Tribunal and the Court of Appeal in the
judgments I have cited, I am of the opinion that the legality of
discrimination between men and women with regard to retirement
ages was preserved, whether as a matter of contract to which the
Equal Pay Act was directed or as a matter of practice to which
the Sex Discrimination Act applied.
The United Kingdom Government considered that the Equal
Treatment Directive (76/207) did not prohibit discriminatory ages
of retirement. The argument of the Government, put forward in
Marshall v. Southampton and South West Hampshire Area Health
Authority [1986] QB 401, 420 was that Article 7(1) of the Social
Security Directive allowed discrimination in the determination of
pension age; retirement provisions were conditioned by pension age.
Women retired at 60 when they qualified for a pension. Men
retired at 65 because they did not reach pensionable age until
then. The discrimination under Community law permitted in
pensionable ages must extend to discrimination in retirement ages;
pensionable ages and retirement ages ran in harness. This
argument was rejected by the European Court of Justice in
Marshall’s case. The court in its decision as reported in [1986]
Q.B. 401, 420 decided that:
“38 . . . article 5(1) of Council Directive (76/207/E.E.C.)
must be interpreted as meaning that a general policy
concerning dismissal involving the dismissal of a woman
solely because she has attained the qualifying age for a
state pension, which age is different under national
legislation for men and for women, constitutes discrimination
on grounds of sex, contrary to that Directive.”
The United Kingdom, pursuant to its obligations under the
Treaty of Rome to give effect to Community legislation as
construed by the European Court of Justice and following the
decision in Marshall’s case, enacted the Sex Discrimination Act
1986 passed on November 1986 and, inter alia, amended section
6(1A) of the Equal Pay Act 1970 and section 6(4) of the Sex
Discrimination Act 1975 so as to render unlawful discriminatory
retirement ages as between men and women. The Act of 1986
was not retrospective and does not avail the appellant.
Marshall’s case decided that the Equal Treatment Directive
required Member States to prohibit discrimination with regard to
– 10 –
retirement or dismissal in accordance with an employer’s policy.
In the present case therefore, the appellant can show that her
forcible retirement before reaching the age of 65 years was
discrimination contrary to the requirements of the Equal Treatment
Directive. But Marshall’s case also decided that the Equal
Treatment Directive did not posses direct effect as between
individuals, so that the appellant cannot claim damages against the
respondent simply for breach of the Directive. In their decision
([1986] QB 401, 422) the European Court of Justice said that:
“48. . . . according to Article 189 of the E.E.C.
Treaty the binding nature of a directive, which
constitutes the basis for the possibility of relying on
the directive before a national court, exists only in
relation to ‘each Member State to which it is
addressed.’ It follows that a directive may not of
itself impose obligations on an individual and that a
provision of a directive may not be relied upon as
such against such a person. …”
Nevertheless, it is now submitted that the appellant is
entitled to damages from the respondent because Community law
requires the Equal Pay Act enacted on 29 May 1970 and the Sex
Discrimination Act enacted on 12 November 1975 to be construed
in a manner which gives effect to the Equal Treatment Directive
dated 9 February 1976 as construed by the European Court of
Justice in Marshall’s case published on 20 February 1986. Of
course a British court will always be willing and anxious to
conclude that United Kingdom law is consistent with Community
law. Where an Act is passed for the purpose of giving effect to
an obligation imposed by a Directive or other instrument a British
court will seldom encounter difficulty in concluding that the
language of the Act is effective for the intended purpose. But
the construction of a British Act of Parliament is a matter of
judgment to be determined by British courts and to be derived
from the language of the legislation considered in the light of the
circumstances prevailing at the date of enactment. The
circumstances in which the Equal Pay Act 1970 and the Sex
Discrimination Act 1975 were enacted are set forth in the 1974
White Paper, in the judgment of Philips J. in Roberts v. Cleveland
Area Health Authority [1978] I.C.R. 370, in the judgment of
Browne-Wilkinson J. in Roberts v. Tate and Lyle [1983] I.C.R. 521
and in the submission of the United Kingdom Government in
Marshall’s case [1986] QB 401. The Acts were not passed to give
effect to the Equal Treatment Directive and were intended to
preserve discriminatory retirement ages. Proposals for the Equal
Treatment Directive dated 9 February 1976 were in circulation
when the Bill for the Sex Discrimination Act 1975 was under
discussion but it does not appear that these proposals were
understood by the British Government or the Parliament of the
United Kingdom to involve the prohibition of differential
retirement ages linked to differential pensionable ages.
The appellant relied on the speech of Lord Diplock in
Garland v. British Rail Engineering Ltd. [1983] 2 A.C., 751, 770-
771. Lord Diplock expressed the view that section 6(4) of the Sex
Discrimination Act 1975 could and should be construed in the
manner consistent with Article 119 of the Treaty of Rome, the
Equal Pay Directive and the Equal Treatment Directive. In
– 11 –
Garland‘s case, following a reference to the European Court of
justice it was established that there had been discrimination
contrary to Article 119 which has direct effect between
individuals. It was thus unnecessary to consider the effect of the
Equal Treatment Directive. Lord Diplock observed at p. 771 that:
“even if the obligation to observe the provisions of article
119 were an obligation assumed by the United Kingdom
under an ordinary international treaty or convention and
there was no question of the Treaty obligation being directly
applicable as part of the law to be applied by the courts in
this country without need for any further enactment, it is a
principle of construction of United Kingdom statutes, now
too well established to call for citation of authority, that
the words of a statute passed after the Treaty has been
signed and dealing with the subject matter of the
international obligation of the United Kingdom, are to be
construed, if they are reasonably capable of bearing such a
meaning, as intended to carry out the obligation, and not to
be inconsistent with it. … The instant appeal does not
present an appropriate occasion to consider whether, having
regard to the express direction as to the construction of
enactments “to be passed” which is contained in section 2(4)
anything short of an expressed positive statement in an Act
of Parliament passed after 1 January 1973, that a particular
provision is intended to be made in breach of an obligation
assumed by the United Kingdom under a Community treaty,
would justify an English court in construing that provision in
a manner inconsistent with a Community treaty obligation of
the United Kingdom, however wide a departure from the
prima facie meaning of the language of the provision might
be needed in order to achieve consistency.”
On the hearing of this appeal, your Lordships have had the
advantage, not available to Lord Diplock, of full argument which
has satisfied me that the Sex Discrimination Act 1975 was not
intended to give effect to the Equal Treatment Directive as
subsequently construed in the Marshall case and that the words of
section 6(4) are not reasonably capable of being limited to the
meaning ascribed to them by the appellant. Section 2(4) of the
European Communities Act 1972 does not in my opinion enable or
constrain a British court to distort the meaning of a British
Statute in order to enforce against an individual a Community
directive which has no direct effect between individuals. Section
2(4) applies and only applies where Community provisions are
directly applicable.
The jurisdiction, composition and powers of the European
Court of Justice are contained in Articles 164-188 of the Treaty
of Rome. Those sections include the following:
“164. The Court of Justice shall ensure that in the
interpretation and application of this Treaty the law is
observed.
177. The Court of Justice shall have jurisdiction to give
preliminary rulings concerning:
(a) the interpretation of this Treaty;
– 12 –
(b) the validity and interpretation of Acts of the
institutions of the Community;
(c) the interpretation of the statutes of bodies established
by an act of the council, where those statutes so
provide.”
The submission that the Sex Discrimination Act 1975 must
be construed in a manner which gives effect to the Equal
Treatment Directive as construed by the European Court of Justice
in Marshall’s case is said to be derived from the decision of the
European Court of Justice in von Colson and Kamann v. Land
Nordrhein-Westfalen (Case 14/83) [1984] ECR 1891, delivered on
10 April 1984. In the von Colson case the European Court of
Justice ruled that the provisions of the Equal Treatment Directive
which require equal treatment for men and women in access to
employment do not require a Member State to legislate so as to
compel an employer to conclude a contract of employment with a
woman who has been refused employment on the grounds of sex.
The Directive does not specify the nature of the remedies which
the Member States must afford to a victim of discrimination.
But the court also ruled at p. 1910:
“3. Although Directive 76/207/E.E.C. [The Equal Treatment
Directive] for the purpose of imposing a sanction for the
breach of discrimination, leaves the Member State free to
choose between the different solutions suitable for achieving
its object, it nevertheless requires that if a Member State
chooses to penalise breaches of that prohibition by the
award of compensation, then in order to ensure that it is
effective and that it has a deterrent effect, that
compensation must in any event be adequate in relation to
the damage sustained and must therefore amount to more
than purely nominal compensation such as, for example, the
reimbursement only of the expenses incurred in connection
with the application. It is for the national court to
interpret and apply the legislation adopted for the
implementation of the Directive in conformity with the
requirements of Community law, in so far as it is given
discretion to do so under national law.”
In the von Colson case the German court which submitted
the case for a ruling asked whether it was acceptable that a
woman who applied for a job and was refused because she was a
woman, contrary to the intent of the Equal Treatment Directive,
was only entitled under the German domestic law prohibiting such
discrimination to the recovery of her expenses (if any) of her
application. The German Government in making representations to
the European court expressed the view that under German law
compensation for discrimination could include general damages for
the loss of the job or of the opportunity to take up the job. The
ruling of the European Court of Justice did not constrain the
national court to construe German law in accordance with
Community law but ruled that if under German law the German
court possessed the power to award damages which were adequate
and which fulfilled the objective of the Equal Treatment Directive
then it was the duty of the German court to act accordingly.
– 13 –
The von Colson case is no authority for the proposition that
the German court was bound to invent a German law of adequate
compensation if no such law existed and no authority for the
proposition that a court of a Member State must distort the
meaning of a domestic statute so as to conform with Community
law which is not directly applicable. If, following the von Colson
case, the German court adhered to the view that under German
law it possessed no discretion to award adequate compensation, it
would have been the duty of the German Government in fulfilment
of its obligations under the Treaty of Rome to introduce
legislation or evolve some other method which would enable
adequate compensation to be obtained, just as the United Kingdom
Government became bound to introduce legislation to amend the
Equal Pay Act and the Sex Discrimination Act in the light of
Marshall’s case. Mrs. Advocate-General Rozes in her opinion,
delivered on 31 January 1984 in the von Colson case, said at p.
1919 that:
“In proceedings under Article 177 it is not for me to
express a view on questions which fall exclusively within the
jurisdiction of the national courts inasmuch as they concern
the application of national law.”
The Treaty of Rome does not interfere and the European Court of
Justice in the von Colson case did not assert power to interfere
with the method or result of the interpretation of national
legislation by national courts.
It would be most unfair to the respondent to distort the
construction of the 1975 Sex Discrimination Act in order to
accommodate the 1976 Equal Treatment Directive as construed by
the European Court of Justice in the 1986 Marshall case. As
between the appellant and the respondent the Equal Treatment
Directive did not have direct effect and the respondent could not
reasonably be expected to reduce to precision the opaque language
which constitutes both the strength and the difficulty of some
Community legislation. The respondent could not reasonably be
expected to appreciate the logic of Community legislators in
permitting differential retirement pension ages but prohibiting
differential retirement ages. The respondent is not liable to the
appellant under Community law. I decline to hold that liability
under British law attaches to the respondent or any other private
employer to pay damages based on wages which women over 60
and under 65 did not earn before the amending Sex Discrimination
Act 1986 for the first time and without retrospective effect
introduced the statutory tort of operating differential retirement
ages. I would dismiss this appeal.
LORD OLIVER OF AYLMERTON
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Templeman. I
agree with it and would dismiss the appeal for the reasons which
he has given.
– 14 –
LORD GOFF OF CHIEVELEY
My Lords,
I have had the advantage of reading in draft the speech to
be delivered by my noble and learned friend, Lord Templeman, I
agree with it and for the reasons which he gives would dismiss the
appeal.
– 15 –
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