Preston v Wolverhampton Healthcare NHS Trust; Fletcher v Midland Bank Plc (C-78/98)
| Jurisdiction | UK Non-devolved |
| Judge | LORD GOFF OF CHIEVELEY,LORD SLYNN OF HADLEY,LORD LLOYD OF BERWICK,LORD NOLAN,LORD HOPE OF CRAIGHEAD,LORD CLYDE |
| Judgment Date | 08 February 2001 |
| Neutral Citation | [2001] UKHL 5 |
| Date | 08 February 2001 |
| Court | House of Lords |
[1998] UKHL J0205-2
HOUSE OF LORDS
Lord Goff of Chieveley
Lord Slynn of Hadley
Lord Lloyd of Berwick
Lord Nolan
Lord Hope of Craighead
And Others
And Others
And Others
And Others
(Second Appeal)
And Others
(Conjoined Appeals)
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley, I agree with him that the three questions which he has set out at the end of his speech should be referred to the European Court of Justice, and I would make the same order as he has proposed.
My Lords,
On 28 September 1994 the European Court of Justice ruled that the right to membership of an occupational pension scheme, as well as benefits payable under the scheme, fell within the scope of Article 119 of the EC Treaty; that the exclusion of married women from membership of such a scheme entailed discrimination based on sex; and that the exclusion of part time workers from membership could amount to a contravention of that Article if it affected a much greater number of women than men unless the employer showed that exclusion was explained by objectively justified factors unrelated to discrimination on the ground of sex. The court further held that the right to join an occupational pension scheme was not limited to employment subsequent to the court's judgment in Barber v. Guardian Royal Exchange Assurance Group ( Case C-262/88 [1990] ECR I-1889) but that Article 119 could be relied on to claim equal treatment in the right to join an occupational pension scheme as from 8 April 1976, the date of the court's judgment in Defrenne v. Sabena ( Case 43/75 [1976] ECR 455). ( Vroege v. NCTV Instituut voor Volkshuisvesting B.V. and Another ( Case C-57/93 [1994] ECR I-4541) and Fisscher v. Voorhuis Hengelo B.V. and Another ( Case C-128/93 [1994] ECR I-4583).
At the same time the court applied the principle in Rewe-Zentralfinanz e.G. v. Landwirtschaftskammer für das Saarland ( Case 33/76 [1976] ECR 1989) that time-limits under national law applied to the assertion of such rights so long as the rules were not less favourable for that type of action than for similar actions of a domestic nature and that they did not render the exercise of rights conferred by Community law impossible in practice.
As a result of these decisions a large number of part-time workers (estimated by now at around 60,000 and mainly, but not exclusively, women) began proceedings before Industrial Tribunals throughout the country, variously claiming that as part-time workers they had been excluded from occupational pension schemes or that their part-time service had not been credited for pension purposes. Some claimants had been employed in the private sector, others in the public sector.
These cases covered a wide range of different employments and were likely to raise difficult and detailed questions of fact, inter alia, as to whether the distinction between full-time and part-time workers could be justified on objective factors other than sex. A number of cases also raised distinct questions as to the position of men in such employment.
Sensibly, it was arranged that a group of claims by women employees in the public sector (employed by the Wolverhampton Healthcare NHS Trust, the Secretaries of State for Health, Education and Employment and the Environment and a number of local authorities) and a group of claims by women employees in the private sector (employed by Midland Bank plc) should be taken as test cases to decide limited issues of law before the questions of fact were investigated.
These issues were principally concerned with the effect on the women's rights under Article 119, as explained in the Vroege and Fisscher cases, of section 2(4) and (5) of the Equal Pay Act 1970. S. 2(4) and (5) are amended by s. 8(6) of and Sch. 1, Pt. 1, para 2 to the Sex Discrimination Act 1975 and modified by reg. 12(1). Those subsections as amended provide as follows:
Section 2(4)
"No claim in respect of the operation of an [equality clause] relating to a woman's employment shall be referred to an industrial tribunal…. if she has not been employed in the employment within the six months preceding the date of the reference."
Section 2(5)
'A woman shall not be entitled, in proceedings brought in respect of a failure to comply with an [equality clause] (including proceedings before an industrial tribunal), to be awarded any payment by way of arrears of remuneration or damages in repect of a time earlier than two years before the date on which the proceedings are instituted."
Regulation 12(1)
"The Equal Pay Act shall be so modified as to provide that where a court or an industrial tribunal finds that there has been a breach of a term in a contract of employment which has been included in the contract, or modified, by virtue of an equality clause and which relates to membership of a scheme, or where it makes an order declaring the right of an employee to admission to membership of a scheme in pursuance of the equal access requirements, it may declare that the employee has a right to be admitted to the scheme in question with effect from such date ('the deemed entry date') as it may specify, not being earlier than whichever is the later of the following dates, namely -
(a)6th April 1978; and
(b)the date 2 years before the institution of the proceedings in which the order was made…"
The cases came before the Industrial Tribunal in Birmingham. The Chairman gave a decision to the care and clarity of which the Employment Appeal Tribunal paid and I would pay tribute. After an analysis of the facts so far as relevant to the issues reserved to him he decided that the time limit in section 2(4) of the Employment Protection Act 1970 applied and that it did not render the exercise by the appellants of their European Community law rights impossible or excessively difficult. It followed that a claim was only in time if brought not later than the end of the period of six months beginning when the employment which gave rise to the complaint ended. He further held that, by reason of section 2(5), as amended, a claim could not be made in respect of the time earlier than the period of two years referred to in the subsection, and that this was not incompatible with Community law and in particular with the European Court's decision in Marshall v. Southampton & S.W. Hampshire Area Health Authority(No. 2) [1993] ECR 1-4367 since during the two year period a full and complete recovery could be made. Section 2(5) did not make it impossible or excessively difficult to enforce rights under Article 119.
On appeal the Employment Appeal Tribunal upheld the decision of the Industrial Tribunal. They directed themselves that it was for the domestic legal system of each member state to determine the procedural rules and conditions governing actions at law intended to ensure the protection of the rights which individuals derive from the direct effect of Community law. The applicants could have enforced their rights of legal access to an occupational pension scheme at any time since 1976 and the time of six months under section 2(4) of the 1970 Act in which to invoke Article 119 was the same as that for bringing claims under the 1970 Act itself. Neither section 2(4) nor section 2(5) made it impossible or excessively difficult for the claimants to assert their Article 119 rights. The Tribunal decided not to refer questions to the European Court of Justice but to stay their final decision on the issue under section 2(5) of the 1970 Act until the European Court's decision in Mrs. B. S. Levez v. T. J. Jennings (Harlow Pools) Limited (appeal No. EAT/812/94) where questions as to the compatibility of section 2(5) with Community law were raised.
By judgment dated 13 February 1997 the Court of Appeal upheld the decision of the EAT. The court rejected the argument that ignorance of rights under community law made their exercise impossible. The six-month period under section 2(4) was a reasonable limitation. Moreover the exercise of rights under Article 119 was to be compared only with the exercise of rights under the 1970 Act which came into force before Article 119 was of direct effect in the United Kingdom. To make comparison with remedies under the Race Relations Act 1976 was inappropriate and it was not clear in any event that the latter were more favourable. The two year limitation under section 2(5) was not incompatible with the court's decision in Fisscher and they rejected arguments of the applicants based on the decision of the European Court of Justice in Emmott v. Minister for Social Welfare [1991] ECR I-4269 but those arguments had not been pursued before their Lordships. The Court of Appeal also exercised its discretion against making any reference to the European Court.
By Article 177, third paragraph, of the Treaty, however, if questions as to the interpretation of the Treaty arise which it is necessary for the House to decide to enable judgment to be given they must be referred to the Court of Justice unless your Lordships are satisfied that the answer is so clear that a reference is not necessary.
On this appeal two groups of questions have arisen, which do not depend on the determination of any issue of domestic law, as to the compatibility of provisions of the Act of 1970 as amended with Article 119 of the Treaty and which clearly must be decided before judgment can be given.
The appellants contend, first, that the effect of the provision of section 2(4) of the Act of 1970, that a claim for membership of an...
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