Duke v GEC Reliance (formerly Reliance Systems)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Templeman,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 11 February 1988 |
| Judgment citation (vLex) | [1988] UKHL J0211-3 |
| Date | 11 February 1988 |
| Court | House of Lords |
[1988] UKHL J0211-3
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
Lord Oliver of Aylmerton
Lord Goff of Chieveley
House of Lords
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.
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 for the reasons which he gives I would dismiss the appeal.
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(1 A) 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 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:
"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...
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