R v Secretary of State for Employment, ex parte Equal Opportunities Commission and Another

JurisdictionEngland & Wales
JudgeLord Keith of Kinkel,Lord Jauncey of Tullichettle,Lord Lowry,Lord Browne-Wilkinson,Lord Slynn of Hadley
Judgment Date03 March 1994
Judgment citation (vLex)[1994] UKHL J0303-1
CourtHouse of Lords
Docket NumberParliamentary Archives, HL/PO/JU/18/254
Date03 March 1994
Regina
and
Secretary of State for Employment,
(Respondent)
Ex Parte Equal Opportunities Commission and Another
(Appellants)

[1994] UKHL J0303-1

Lord Keith of Kinkel

Lord Jauncey of Tullichettle

Lord Lowry

Lord Browne-Wilkinson

Lord Slynn of Hadley

Parliamentary Archives, HL/PO/JU/18/254

HOUSE OF LORDS

Lord Keith of Kinkel

My Lords,

1

Article 119 of the Treaty of Rome provides:

"Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.

"For the purpose of this Article, 'pay' means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.

"Equal pay without discrimination based on sex means:

(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

(b) that pay for work at time rates shall be the same for the same job."

2

The Council Directive 75/117/EEC of 10 February 1975 ("the Equal Pay Directive") spells out the right to equal pay in greater detail. Article 2.1 of the Council Directive 76/207/EEC of 9 February 1976 ("the Equal Treatment Directive") provides:

"For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status."

Article 5.1 and 2 provide:

"1. 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.

"2. To this end, Member States shall take the measures necessary to ensure that:

1. any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished;

…"

3

Section 2 of the European Communities Act 1972, so far as material for present purposes, provides:

"(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies. (2) … at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision - (a) for the purpose of implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented … or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights … or the operation from time to time of subsection (1) above; and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the Communities and to any such obligation or rights as aforesaid. In this subsection 'designated Minister or department' means such Minister of the Crown or government department as may from lime to time be designated by Order in Council in relation to any matter or for any purpose, but subject to such restrictions or conditions (if any) as may be specified by the Order in Council … (4) The provision that may be made under subsection (2) above includes … any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section …"

4

By the European Communities (Designation) (No. 3) Order 1982 the Secretary of State for Employment was designated for purposes of section 2(2) of the Act of 1972 in relation to measures to prevent discrimination between men and women as regards terms and conditions of employment.

5

The United Kingdom legislation aimed at preventing such discrimination is to be found in the Equal Pay Act 1970 and the Sex Discrimination Act 1975, but nothing in the present case turns on any provision of either of these Acts. What is in issue is those provisions of the Employment Protection (Consolidation) Act 1978 which set out the conditions which govern the right not to be unfairly dismissed, the right to compensation for unfair dismissal and the right to statutory redundancy pay. These conditions require that an employee should have worked a specified number of hours a week during a specified period of continuous employment. In general, the qualifying periods for entitlement to each of the rights in question are (a) two years of continuous employment for employees who work for 16 or more hours per week, and (b) five years of continuous employment for employees who work between eight and 16 hours per week. Employees who work for fewer than eight hours per week do not qualify for any of the rights in question. The provisions of the Act which set out these conditions are to be found in sections 54, 64, 68, 71, 81 and 151, and Schedule 13, which need not be referred to in detail. It is common ground that the great majority of employees who work for more than 16 hours a week are men, and that the great majority of those who work for less than 16 hours a week are women, so that the provisions in question result in an indirect discrimination against women.

6

On 21 March 1990 the chief executive of the appellants the Equal Opportunities Commission ("E.O.C.") wrote to the Secretary of State for Employment referring to the provisions of the Act of 1978 concerning redundancy pay and compensation for unfair dismissal and expressing the view that these constituted indirect discrimination against women employees, contrary to Community law. The Secretary of State was asked to give urgent consideration to that matter and to inform the E.O.C. whether the government

7

would be willing to introduce the necessary legislation to remove the discrimination inherent in the Act of 1978, giving reasons for his decision if the reply was in the negative. The Secretary of State replied by letter dated 23 April 1990, stating, inter alia:

"[We do not accept that] statutory redundancy pay and statutory compensation for unfair dismissal constitute "pay" within the meaning of article 119 … or … that they fall within the Equal Treatment Directive … we believe that our current statutory thresholds are entirely justifiable. These thresholds have existed in one form or another ever since employment protection legislation was first introduced. Their purpose is to ensure that a fair balance is struck between the interests of employers and employees. We have no plans to change the thresholds."

8

On 6 June 1990 the E.O.C. obtained leave to move for judicial review, the matter in respect of which relief was sought being stated as:

"The decision of the Secretary of State for Employment dated 23 April 1990 declining to accept that the United Kingdom is in breach of its obligations under Community law by providing less favourable treatment of part-time workers than of full-time workers in relation to the conditions for receipt of statutory redundancy pay and compensation for unfair dismissal."

9

The substantive relief sought was expressed in these terms:

"1. A declaration that the United Kingdom is in breach of its obligations under Article 119 of the Treaty of Rome and Directive 75/117/EEC by providing less favourable treatment of part-time workers (most of whom are women) than of full-time workers (most of whom are men) in relation to the conditions for receipt of statutory redundancy pay and compensation for unfair dismissal.

2. A declaration that the United Kingdom is in breach of its obligations under Directive 76/207/EEC by providing less favourable treatment of part-time workers (most of whom are women) than of full-time workers (most of whom are men) in relation to the conditions for receipt of statutory redundancy pay and compensation for unfair dismissal."

10

At a later stage the application was amended so as to bring in as second applicant Mrs. Day, who had been employed by Hertfordshire County Council as a cleaner for just under five years working 11 hours a week and had been made redundant, and so as to seek certain further declarations and also mandamus to compel the Secretary of State to introduce legislation to abolish the discriminatory provisions of the Act of 1978.

11

The application was heard by a Divisional Court consisting of Nolan LJ. and Judge J. who on 10 October 1991 dismissed it ( 1992 I.C.R. 341). On appeal by the E.O.C. and Mrs. Day to the Court of Appeal the decision of the Divisional Court was by a majority affirmed (Kennedy and Hirst LJJ., Dillon LJ. dissenting), ( 1993 I.C.R. 251). The E.O.C. and Mrs. Day now appeal to your Lordships' House.

12

The principal issue of substance raised by the proceedings is whether the indirect discrimination against women involved in the relevant provisions of the Act of 1978 has been shown to be based upon objectively justified grounds, that being the test propounded by the European Court of Justice in Bilka-Kauflaus G.m.b.H. v. Weber von Harz [1987] I.C.R. 110 for determining whether or not measures involving indirect discrimination constitute an infringement of Article 119 of the Treaty. A number of procedural points were, however, argued in the courts below...

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