Finnegan v Clowney Youth Training Programme Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Griffiths,Lord Ackner,Lord Oliver of Aylmerton,Lord Lowry |
| Judgment Date | 17 May 1990 |
| Judgment citation (vLex) | [1990] UKHL J0517-3 |
| Date | 17 May 1990 |
| Court | House of Lords |
[1990] UKHL J0517-3
House of Lords
Lord Bridge of Harwich
Lord Griffiths
Lord Ackner
Lord Oliver of Aylmerton
Lord Lowry
My Lords,
The appellant employee is a woman who reached the age of 60 on 22 March 1986. She was formerly employed by the respondent employers. The employer's policy with respect to the retirement of their employees was that women should retire at the age of 60, men at the age of 65. The employee was accordingly dismissed as having reached retiring age on 1 April 1986. She complained to an industrial tribunal that the employers had discriminated against her on the ground of her sex contrary to article 8 of the Sex Discrimination (Northern Ireland) Order 1976 (1976 No. 1042 (N.I. 15)). The industrial tribunal upheld her complaint and awarded her £8,000 compensation. The Court of Appeal in Northern Ireland reversed the decision of the industrial tribunal. The employee now appeals by leave of the Court of Appeal.
The employee's dismissal was a contravention of paragraph (2) of article 8 of the Order of 1976 unless exempted by paragraph (4) which provides that paragraph (2) does not apply to "provision in relation to death or retirement."
Before examining the effect of this provision in the legislation in force in Northern Ireland at the time of the appellant's dismissal, it is necessary to consider the origins and development of the comparable English legislation. The Sex Discrimination Act 1975 by section 6(2)( b) makes it unlawful for an employer to disciminate against a woman employee by dismissing her or subjecting her to any other detriment. But section 6(4) originally provided that subsection (2) should not apply to provision in relation to death or retirement. The Equal Pay Act 1970 was brought into force simultaneously with the Sex Discrimination Act 1975 and is set out in Schedule 1 to the Act of 1975, as amended by that Act. Section 1 provides for the inclusion in every woman's contract of employment of an "equality clause" designed to ensure equality of contractual terms between men and women engaged on the same or equivalent work. But section 6(lA)( b) again originally provided that an equality clause "shall not operate in relation to terms related to death or retirement, or to any provision made in connection with death or retirement."
When this legislation came into force it was very common practice in industry and commerce for men and women to be retired at different ages, generally 65 and 60 respectively, and these were, and indeed remain, the ages at which men and women qualify for their state pension under the Social Security Act 1975. There can be no doubt that the intention of the legislature in section 6(4) of the Sex Discrimination Act 1975 and section 6(1 A) of the Equal Pay Act 1970 was to exempt the practice of differentiating between men and women in retirement ages from the operation of the new law prohibiting sex discrimination in the field of employment.
On 9 February 1976 the Council of the European Communities adopted Council Directive (76/207/E.E.C.) (Official Journal 1976, No. L. 39, p. 40) "the Equal Treatment Directive." Article 5(1) provides:
"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."
But article 1(2) of the Equal Treatment Directive indicated that the implementation of the principle of equal treatment in matters of social security was to be the subject of a further Directive. In the event the Council adopted Council Directive (79/7/E.E.C.) (Official Journal 1979, No. L. 6, p. 24) "the Social Security Directive" on 19 December 1978. Article 7(1) of this Directive provides:
"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 …"
Between 1976 and 1986 no steps were taken to amend the Sex Discrimination Act 1975 or the Equal Pay Act 1970 in so far as they permitted discrimination between men and women in relation to their retirement ages. Successive governments clearly took the view that provisions relating to retirement age and pensionable age were so closely inter-related that the combined effect of the two relevant European Directives was to exempt differentiation between men and women in relation to both retirement and pensionable ages from the prohibition of sex discrimination.
In Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching) ( Case 152/84) [1986] Q.B. 401, a woman employee of the health authority complained that she had been unlawfully discriminated against because she had been required to retire pursuant to the policy of the health authority that women should retire at 60, whereas men were permitted to continue in employment until 65. The issue was referred to the European Court of Justice pursuant to article 177 of the E.E.C. Treaty (Cmnd. 5179-II). The United Kingdom Government appeared and contended that section 6(4) of the Sex Discrimination Act 1975 which permitted discrimination in retirement ages was effectively sanctioned by article 7(1) of the Social Security Directive and did not offend against the Equal Treatment Directive. The court concluded as follows, at pp. 419-420:
"35. As the court emphasised in its judgment in the Burton case [ Burton v. British Railways Board [(Case 19/81) [1982] Q.B. 1080], article 7 of Council Directive (79/7/E.E.C.) expressly provides that the Directive does not prejudice the right of member states to exclude from its scope the determination of pensionable age for the purposes of granting old age and retirement pensions and the possible consequences thereof for other benefits falling within the statutory social security schemes. The court thus acknowledged that benefits tied to a national scheme which lays down a different minimum pensionable age for men and women may lie outside the ambit of the aforementioned obligation.
36. However, in view of the fundamental importance of the principle of equality of treatment, which the court has re-affirmed on numerous occasions, article 1(2) of Council Directive (76/207/E.E.C.), which excludes social security matters from the scope of that Directive, must be interpreted strictly. Consequently, the exception to the prohibition of discrimination on grounds of sex provided for in article 7(1)( a) of Council Directive (79/7/E.E.C.) applies only to the determination of pensionable age for the purposes of granting old age and retirement pensions and the possible consequences thereof for other benefits.
37. In that respect it must be emphasised that, whereas the exception contained in article 7 of Council Directive (79/7/E.E.C.) concerns the consequences which pensionable age has for social security benefits, this case is concerned with dismissal within the meaning of article 5 of Council Directive (76/207/E.E.C.).
38. Consequently, the answer to the first question referred to the court by the Court of Appeal must be that article 5(1) of Council...
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