Duke v GEC Reliance (formerly Reliance Systems)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RALPH GIBSON,LORD JUSTICE BINGHAM |
| Judgment Date | 16 February 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0216-1 |
| Docket Number | 87/0124 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 February 1987 |
[1987] EWCA Civ J0216-1
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Ralph Gibson
Lord Justice Bingham
87/0124
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE POPPLEWELL)
Royal Courts of Justice
MR A. P. LESTER, Q.C., and MR D. P. PANNICK, instructed by Messrs Bindman & Partners, appeared for the Appellant (Appellant).
MR PATRICK ELIAS, instructed by Messrs Barlow Lyde & Gilbert, appeared for the Respondents (Respondents).
This is an appeal against a decision of the Employment Appeal Tribunal given on 21st July 1986. It then dismissed an appeal from a decision of the Industrial Tribunal that there had been no breach of the Sex Discrimination Act 1975 when Mrs Duke's employers, Reliance Systems Limited, dismissed her or, to use a kinder term, required her to retire, soon after she reached the age of sixty. Although she was dismissed, this involves no reflection upon Mrs Duke whatsoever. There was pressure from the trade unions with a view to providing more jobs for younger people, and the employers thought it right to accede to that pressure and terminate the employment of all women employees when, broadly speaking, they reached the age of sixty.
The Industrial Tribunal held that there was no breach of the employers' obligations under the Act. That decision was appealed to the Employment Appeal Tribunal who again held that there was no breach, in each case without argument, for reasons which will appear. If anybody is interested in the detailed facts they are set out in a most helpful agreed statement of facts, but I do not think it would be helpful to anybody if I read it out.
It is said, and for my part I entirely accept, that if you look at Section 1(1)(a) and Section 2(b) of the Sex Discrimination Act 1975, there is a clear breach of the Act in having differential ages for retirement as between men and women, with women being required to retire at sixty and men at sixty-five or no normal age for women and a fixed age for men.
However, it is said that the employers are protected by the terms of Section 6(4) of the 1975 Act, which provides that subsections (1)(b) and (2) do not apply to "provision in relation to death or retirement". That has given rise to an argument as to whether that phrase means " consequent upon death or retirement" or " about death or retirement". If it means that subsections (1)(b) and (2) do not apply to provisions about death or retirement, then of course there is no actionable breach in this case. If, however, it means that subsections (1)(b) and (2) do not apply to provisions consequent upon retirement, then there is a claim under the statute, because a provision relating to when you retire is not a provision consequent upon retiring.
It is also clear, from a decision of the European Court in Marshall v Southampton Area Health Authority (1986) I.C.R. 335, that what occurred in this case constitutes a breach of the E.E.C. directive 76/207 on equal treatment published on 9th February 1976, but that there is no independent right of action based upon that directive and that a private, i.e. non-state, employer can rely upon Section 6(4) if, on its true construction it excludes the application of subsection (1)(b) and (2) of Section 6 of the Act. It is otherwise when a state is involved, even as an employer, since,...
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...Review, January/February 1987. 11. Cf. Marshall v. SWHA supra with the Court of Appeal ruling in Duke v. Reliance Systems Ltd (1987) IRLR 139. 12. Case 9/70 Grad (1971) II ECR 825. 13. See Department of Employment, Employment the Challenge for the Nation, Cmnd 9474, HMSO, London, March 1985......