Garland v British Rail Engineering Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 04 April 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0404-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 1979 |
[1979] EWCA Civ J0404-3
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
From: Employment Appeal Tribunal
The Master of the Rolls (Lord Denning)
Lord Justice Lawton and
Lord Justice Geoffrey Lane
MR MICHAEL BELOFF (instructed by Messrs. Bindman & Partners, NW1, Agents for Messrs. Gilchrist, Smith, Vaux & Walker Middlesborough appeared on behalf of the Appellant (Appellant).
MR DAVID SAVILL, Q.C. and MR A.N.J. BIGGS (instructed by Messrs, Meek, Stubbs & Barnley, Middleborough) appeared on behalf of the Respondent (Respondent).
MR ANTHONY SCRIVENER, Q.C., & MR F. J. M. MARR-JOHNSON (instructed by Mr Evan Harding, NW1) appeared on behalf of the Appellant (Respondent).
MR SIMON GOLDBLATT, Q.C., & MR T.R.A. MORISON (instructed by Messrs. Russell Jones & Walker, WC1) appeared on behalf of the Respondent (Applicant).
MR PAUL KENNEDY, Q.C., & MR ANTHONY MALLEN (instructed by Messrs. Norton Ross Botterell & Roche, EC3, Agents for Messrs. Ingledew, Mark Pybus, Newcastle-upon-Tyne) appeared on behalf of the Appellant (Respondent).
MR PETER SUSMAN (instructed by Messrs. Bindman & Partners, NW1) appeared on behalf of the Respondent (Applicant).
We have heard these three cases together. They raise questions under the Sex Discrimination Act 1975. It forbids discrimination between men and women in the employment field.
Mrs Roberts is a cleaner with the Cleveland Area Health Authority. She was with a previous authority where men and women both kept on to the age of 65: but after the re-organisation of local government she was employed by the Cleveland Area Health Authority, in 1976, as a matter of policy, that Authority decided that the normal retiring age for men should be 65 and the normal retiring age for women should be the age of 60. Mrs Roberts reached the normal retiring age of 60. She went on a little longer. She was then dismissed. She claimed there was discrimination against her because of the different retiring ages for men and women. She put in her own application:
"Why do Cleveland Area Health Authority not give equal opportunities to female employees as they do to male employees?".
For many years now Parliament has drawn a distinction between the ages at which men and women respectively retire. It started with the Old Age Pension Act of 1940. It was following the various National Insurance Acts. It was continued in the Redundancy Payments Acts and the Trade Union Act 1974, which gave a remedy to unfair dismissal. In all those statutes Parliament enacted that, after a woman gets to the age of 60, she can be dismissed or made redundant without getting any compensation. The reason is, no doubt, because a woman of that age qualifies for a pension, whereas a man does not qualify until he reaches 65. That is the background against which the Sex Discrimination Act 1975 was passed.
Going through the Act, if you read sect.1 and sect.6(1) and (2) - and stopped there - a woman on retiring at the age of 60 would have a good claim that she was being discriminated against. But then you come to an exception in sect.6(4). It says:
"Subsects. 1(b) and 2" - those are the material ones here -"do not apply to a provision in relation to death or retirement".
Mr Beloff has come before us today and suggested that this subsection should be given a restricted meaning. It only applies, he said, to a provision which is consequent upon deathor consequent upon retirement. For example, a pension which is payable after retirement is consequent upon retirement. But the subsection, he says, does not apply to the age at which a person should retire. I cannot accept this argument. The phrase "provision in relation to death or retirement" is very wide. It means, as Lord Justice Lawton suggested, a provision about death or retirement. This was the view taken by the Equal Opportunities Commission themselves. Shortly after the Act, they issued a pamphlet on Sex Equality and Pension Age. In it they said:
"3.10. It is not unlawful under the Sex Discrimination Act for an employer to discriminate…
(b) in the provision he makes in relation to death or retirement (e.g. in such provision in a pension scheme or in relation to the age at which he requires workers to retire)".
There it is. It says expressly "the age at which he requires workers to retire". It covers the case of Mrs Roberts. She cannot complain of the age difference because it is "a provision in relation to retirement".
In my opinion the Industrial Tribunal and the Appeal Tribunal were both quite correct.
The next is the case of Mrs Garland. She was employed by The British Rail Engineering Ltd., which is a subsidiary of British Rail. The railway grant special travel concessions to their employees. They can travel at very cheap rates, such as one-quarter fare for an ordinary journey. They also get free travel for their holidays. They can go across Europe, free, in trains. When a man retires at 65 he is allowed the benefit of travel concessions for his wife and their dependent children for all the time after he retires until he dies. Whilst a woman is working for the railway, she gets travel concessions for her husband and dependent children just like a man. But when she retires at 6o, she is treated differently. She no longer gets the travel benefit for her husband. So the question arises: Is not this a case of discrimination between men and women? Is not she being discriminated against?
There was a difference of opinion below. The Industrial Tribunal held that the provision for travel concessions on retirement was a "provision in relation to retirement". But the Employment Appeal Tribunal took a different view. Theyheld there was unlawful discrimination. Mr Justice Phillips said:
"What, as it seems to us, has to be looked for" -
and he is speaking for a unanimous Appeal Tribunal -
"is to see whether what is being done is part and parcel of the employer's system of catering for retirement, or whether, as here, the case is...
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