Foster and Others v British Gas (Case C-188/89)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Templeman,Lord Ackner,Lord Jauncey of Tullichettle |
| Judgment Date | 18 April 1991 |
| Judgment citation (vLex) | [1991] UKHL J0418-2 |
| Date | 18 April 1991 |
| Court | House of Lords |
[1991] UKHL J0418-2
House of Lords
Lord Keith
Lord Templeman
Lord Ackner
Lord Jauncey
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 allow this appeal.
My Lords,
Article 5 of the equal treatment Directive of 9 February 1976 (76/207/E.E.C.) provides that member states of the European Economic Community shall apply the principle of equal treatment with regard "to working conditions, including the conditions governing dismissal" so "that men and women shall be guaranteed the same conditions without discrimination on grounds of sex." The United Kingdom Government took the view that the equal treatment Directive did not render unlawful a rule that men and women must retire at pensionable age even if this meant that women must retire at the age of 60 whereas men need not retire before 65 and so the laws of the United Kingdom were not amended to make such a rule unlawful. In Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching) Case 152/84 ( Case 152/84) [1986] Q.B. 401 (" Marshall's case"), however, the European Court of Justice ruled that a general policy such as that adopted by the defendant, Southampton Health Authority, of retiring women when they reach pensionable age at 60 and men when they reach pensionable age at 65 was an infringement of the equal treatment Directive: see p. 420, para. 38 and p. 423. In Marshall's case the European Court of Justice reiterated, at para. 47, pp. 421-422, that a member state which had not adopted measures to give effect to the equal treatment Directive "may not plead, as against individuals, its own failure to perform the obligations which the Directive entails" and ruled, at paragraph 49, p. 422, that "where a person involved in legal proceedings is able to rely on a Directive as against the state he may do so regardless of the capacity in which the latter is acting, whether employer or public authority. In either case it is necessary to prevent the state from taking advantage of its own failure to comply with Community law." On the other hand, a Directive may not of itself impose obligations on an individual and a provision of a Directive may not be relied upon as such against such a person; para. 48, p. 422. The Directive could be enforced against a National Health Authority.
In Johnston v. Chief Constable of the Royal Ulster Constabulary [1987] Q.B. 129 [1987] Q.B. 129, 154, the European Court of Justice observed that the Chief Constable was:
"… an official responsible for the direction of the police service. Whatever its relations may be with other organs of the state, such a public authority, charged by the state with the maintenance of public order and safety, does not act as a private individual. It may not take advantage of the failure of the state, of which it is an emanation, to comply with Community law."
As a result of Marshall's case, section 2 of the Sex Discrimination Act 1986 which came into force on 7 November 1987, rendered unlawful any discrimination by any person against a woman in relation to the age of retirement so that the anomaly between employees in the public sector, who could rely on the equal treatment directive and employees in the private sector who could not rely on the equal treatment Directive, was eliminated. It remains the position, however, that a woman in the public sector, who was discriminated against by retirement between 9 February 1976 and 7 November 1987, may be able to obtain compensation for breach of the provisions of the equal treatment Directive.
In the present case each of the appellants, all of whom are women, were employed by the British Gas Corporation ("the B.G.C.") for whose liabilities the respondent British Gas Plc. is now responsible. The B.G.C. had a policy that female employees shall retire at the age of 60 and male employees at the age of 65; the appellants were compulsorily retired when they respectively reached the age of 60 between 27 December 1985 and 22 July 1986. It is clear that this policy infringed the equal treatment Directive. In these proceedings the appellants claim compensation for unlawful discrimination.
This House referred the following question to the European Court of Justice for a preliminary ruling under article 177 of the European Economic Community Treaty:
"Was the B.G.C. (at the material time) a body of such a type that the appellants are entitled in English courts and tribunals to rely directly upon" the equal treatment Directive.
The European Court of Justice gave its ruling on 12 July 1990 ( Case C-188/89) and the relevant contents of that ruling are ( [1991] Q.B. 405, 426-428 as follows:
"15. … the Court of Justice has jurisdiction in proceedings for a preliminary ruling to determine the categories of persons against whom the provisions of a Directive may be relied on. It is for the national courts, on the other hand, to decide whether a party to proceedings before them falls within one of the categories so defined.
16. As the court has consistently held … where the Community authorities have, by means of a Directive, placed member states under a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law. Consequently, a member state which has not adopted the implementing measures required by the Directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the Directive entails …
17. The court further held in Marshall's case [1986] Q.B. 401, 422, para. 49, that where a person is able to rely on a Directive as against the state he may do so regardless of the capacity in which the latter is acting, whether as employer or as public authority. In either case it is necessary to prevent the state from taking advantage of its own failure to comply with Community law.
18. On the basis of those considerations, the court has held in a series of cases that unconditional and sufficiently precise provisions of a Directive could be relied on against organisations or bodies which were subject to the authority or control of the state or had special powers beyond those which result from the normal rules applicable to relations between individuals.
19. The court has accordingly held that provisions of a Directive could be relied on against tax authorities (the judgments of 19 January 1982 in Case 80/81, Becker C-221/88 … and of 22 February 1990 in Case C-221/88, E.C.S.C. v. Acciaierie e Ferriere Busseni (in liquidation)...
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