Garland v British Rail Engineering Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Scarman |
| Judgment Date | 22 April 1982 |
| Judgment citation (vLex) | [1982] UKHL J0422-1 |
| Date | 22 April 1982 |
| Court | House of Lords |
[1982] UKHL J0422-1
Lord Diplock
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Scarman
House of Lords
My Lords,
The facts which give rise to this appeal are sufficiently stated in the four explanatory paragraphs incorporated in a reference to the European Court of Justice, made by this House under Article 177 of the E.E.C. Treaty, of questions concerning the interpretation of Article 129 of that Treaty and of two directives made by the Council of Ministers. The reference was in the following terms:
1. Mrs. Eileen Mary Garland is a married woman employed by the Respondents, British Rail Engineering Limited ("BREL"). The whole of the shareholding in BREL is held by the British Railways Board which is a public authority charged by statute with the duty of providing railway services in Great Britain.
2. All employees of BREL enjoy certain valuable concessionary travel facilities during the period of their employment. These facilities entitle each employee, regardless of sex to travel free or at a reduced rate on British Rail and certain foreign railways. Such facilities are extended not only to the employee, but to his or her spouse and dependent children.
3. After employees of BREL retire from their employment on reaching retiring age (which is earlier for women than for men) there is a difference in their treatment depending on their sex. In the case of former male employees, they continue to be granted (though on a reduced scale) travel facilities for themselves, their wives and dependent children. In the case of former female employees, they receive (on a similarly reduced scale) travel facilities for themselves, but no such facilities are granted in respect of their husbands or dependent children. These facilities are not enjoyed by former employees as a matter of contractual right, but employees have a legitimate expectation that they will enjoy them after retirement and it would be difficult in practice for BREL to withdraw them unilaterally without the agreement of the trade unions of which their employees are members.
4. On 25 November 1976 Mrs. Garland complained to an industrial tribunal that BREL were discriminating against her contrary to the provisions of a United Kingdom Act of Parliament, the Sex Discrimination Act 1975 ("the Act"). Her complaint after consideration also by two intermediate appellate courts ( [1978] I.C.R. 495 (Employment Appeal Tribunal), [1979] I.C.R. 558 (Court of Appeal)) has now reached the House of Lords which is a court against whose decision there is no judicial remedy under United Kingdom law.
5. In order to enable it to give judgment on the appeal, this House considers that a decision is necessary on the following questions:
"1. Where an employer provides (although not bound to do so by contract) special travel facilities for former employees to enjoy after retirement which discriminate against former female employees in the manner described above, is this contrary to:—
( a) Article 119 of the E.E.C. Treaty?
( b) Article 1 of Council Directive 75/117/EEC?
( c) Article 1 of Council Directive 76/207/EEC?
2. If the answer to questions 1( a), 1( b) or 1( c) is affirmative, is Article 119 or either of the directives directly applicable in Member States so as to confer enforceable Community rights upon individuals in the above circumstances?"
Before it reached this House, Mrs. Garland's claim had been dealt with in an industrial court, the Employment Appeal Tribunal and the Court of Appeal upon the footing that it turned upon the true construction of section 6(4) of the Sex Discrimination Act 1975, but without any consideration being given to the fact that equal pay without discrimination on the grounds of sex is required by Article 119 of the E.E.C. Treaty and that the application of this Article had also been the subject of directives made by the Council of the E.E.C. under Article 189 of the Treaty. Furthermore, after the passing of the Sex Discrimination Act 1975, the European Court of Justice had held in Defrenne v. Sabena [1976] E.C.R. 455 that Article 119 was directly applicable in Member States, without the necessity of any further act by any institution of the Community or legislative action by a Member State, to make unlawful any discrimination between men and women in the amount of compensation receivable by them for equal work performed in the same establishment whether private or public.
Section 6 of the Sex Discrimination Act 1975 appears in Part II of the Act which bears the general heading "Discrimination in the Employment Field" and is the first of a fasciculus of five sections under the sub-heading "Discrimination by employers". For present purposes it is sufficient to set out the following provisions of section 6:—
"6.—(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman—
( a) in the arrangements he makes for the purpose of determining who should be offered...
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