Derbyshire and Others v St Helens Metropolitan Borough Council

JurisdictionEngland & Wales
JudgeLORD BINGHAM OF CORNHILL,LORD NEUBERGER OF ABBOTSBURY,BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD HOPE OF CRAIGHEAD
Judgment Date25 April 2007
Neutral Citation[2007] UKHL 16
Date25 April 2007
CourtHouse of Lords

[2007] UKHL 16

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Neuberger of Abbotsbury

St Helens Borough Council
(Respondents)
and
Derbyshire

and others

(Appellants)

Appellants:

John Hendy QC

Damian Brown

(Instructed by Michelle Cronin, Solicitor, Thompsons Solicitors, Liverpool)

Respondents:

Christopher Jeans QC

Simon Gorton

(Instructed by Peter Blackburn, Solicitor to St Helens Borough Council, St Helens)

Interveners

Ms Tess Gill

Miss Nadia Motraghi

(Instructed by Mrs Sarah Lowe, Solicitor, Equal Opportunities Commission, Manchester)

LORD BINGHAM OF CORNHILL

My Lords,

1

The Universal Declaration of Human Rights 1948 provided in article 2 that "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". Since 1948 steps have been taken, in this country and the European Community, to give legal effect, in part, to this general objective of non-discriminatory treatment. As explained by my noble and learned friend Lord Neuberger of Abbotsbury, whose account of the facts, the proceedings and the legislative background I gratefully adopt, Mrs Derbyshire and 38 other women, the appellants, brought proceedings against their employer, the St Helens Borough Council, complaining under section 2 of the Equal Pay Act 1970 that they were less well paid than men doing comparable work. Their claims succeeded, but it is not those proceedings which give rise to this appeal. For the appellants also complained, in separate proceedings, that while pursuing their claim for equal pay they were subjected to adverse treatment by the Council because they had persisted in pursuing that claim. It is that complaint, upheld by the Employment Tribunal, the Employment Appeal Tribunal and a minority of the Court of Appeal but remitted to the Employment Tribunal for fresh determination by a majority of the Court of Appeal, which now comes before the House.

2

A number of statutes have been passed in this country, and a number of orders made, to proscribe various kinds of discriminatory treatment. Immediately relevant in this case is section 6(2)(b) of the Sex Discrimination Act 1975, which makes it unlawful for an employer to discriminate against a woman employed by him at an establishment in Great Britain by dismissing her or subjecting her to any other detriment. Section 6 appears in Part II of the Act, which is directed to discrimination in the employment field, and applies not only to employers but also trade unions, qualifying bodies, vocational training bodies, employment agencies and others. Part III covers sexual discrimination in education and the provision of certain goods, facilities, services and premises. A similar proscription of discriminatory conduct on grounds of race is found in section 4(2)(c) of the Race Relations Act 1976, on grounds of disability in section 4(2)(d) of the Disability Discrimination Act 1995, on grounds of religious belief in regulation 6(2)(d) of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660), on grounds of sexual orientation in regulation 6(2)(d) of the Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) and on grounds of age in regulation 7(2)(d) of the Employment Equality (Age) Regulations 2006 (SI 2006/1031). Part of this ground has been covered in legislation of the European Community, although the legislative technique employed has been somewhat different. Instead of proscribing specified forms of discriminatory conduct as unlawful, European directives have imposed an obligation on member states to secure non-discriminatory treatment in the specified field. Examples are found in articles 1, 3 and 4 of the Equal Pay Directive (Council Directive 75/117/EEC), articles 1-5 of the Equal Treatment Directive (Council Directive 76/207/EEC) and Chapter 1 of the Race Directive ( Council Directive 2000/43/EC).

3

The right not to be discriminated against on one of the grounds proscribed by domestic law would be of little value if a victim of proscribed conduct, or a person claiming to be the victim of proscribed conduct, could not have recourse to a judicial body competent to rule on the merits of the claim and, if it is held to be made out, give redress. Such a right is found in section 63 of the Sex Discrimination Act 1975, section 54 of the Race Relations Act 1976, section 17A of the Disability Discrimination Act 1995, regulation 28 of the Religion or Belief Regulations, regulation 28 of the Sexual Orientation Regulations and regulation 36 of the Age Regulations. The Community instruments mentioned above have direct effect, and oblige member states to give victims of proscribed discrimination a domestic remedy: see article 6 of the Equal Pay Directive, article 6 of the Equal Treatment Directive and article 7 of the Race Directive.

4

The right to seek effective legal redress conferred on a person who is or claims to be the victim of proscribed discriminatory conduct would itself be of limited value and perhaps no value if the alleged discriminator were free, otherwise than by defeating the claim on its merits, to frustrate or interfere with the conduct of the proceedings in a way that undermined the integrity of the judicial process to which the claim had given rise. This has been recognised in domestic and also Community legislation. Thus by section 4(1)(a) of the Sex Discrimination Act 1975 it is unlawful discrimination for A to treat B less favourably (in any circumstances relevant for the purposes of any provision of the Act, including but not limited to employment) than he treats or would treat other persons in those circumstances if he does so because ("by reason that") B has brought proceedings against A or any other person under the Act or the Equal Pay Act 1970. The object of section 4 is not in doubt. If the Act was to be effective, there had to be protection for those who sought to rely on it ( Cornelius v University College of Swansea [1987] IRLR 141, para 31). As Lord Nicholls of Birkenhead put it in Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48, [2001] ICR 1065, para 16, "The primary object of the victimisation provisions in section 2 [of the Race Relations Act 1976] is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory rights or are intending to do so".

5

Provisions analogous to section 4 of the 1975 Act are found in section 2 of the Race Relations Act 1976, section 55 of the Disability Discrimination Act 1995 and regulation 4 of each of the Religion or Belief, the Sexual Orientation and the Age Regulations. They are matched by article 5 of the Equal Pay Directive, article 7 (as amended) of the Equal Treatment Directive and article 9 of the Race Directive.

6

Addressing the House on behalf of the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission, who had been given leave to intervene, Ms Gill submitted that our domestic provisions relating to discrimination should be interpreted and applied in a broadly similar manner, and in a manner consistent with European Community legislation in areas to which such legislation applies. I would accept that submission. It may well be that there are differences (other than as to their subject matter) between one domestic provision and another, but none is said to be significant in this case and the provisions have a very similar purpose. It was not suggested in argument that there is, in a respect relevant to this case, any disharmony between the European directives referred to and our domestic legislation. The object is to protect those seeking to assert what they claim to be their rights.

The present case

7

If sections 4(1)(a) and 6(2)(b) of the 1975 Act are read together, the question in the present case becomes: did the Council, in circumstances relevant for any provision of the Act, discriminate against the appellants by treating them less favourably than in such circumstances it treats or would treat other persons because ("by reason that") the appellants had brought proceedings against the Council under the Equal Pay Act 1970, such less favourable treatment subjecting the appellants to a detriment?

8

Certain elements of this omnibus question are uncontentious. Thus the Employment Tribunal held (para 4(b) of their Reasons) the relevant circumstances to be the employment relationship between the parties, and that ruling has not been challenged. The Employment Tribunal held (Reasons, para 4(c)) that the treatment of the appellants was to be compared with the treatment of employees who had not brought and continued equal pay proceedings. This conclusion was not disputed in the Employment Appeal Tribunal (judgment, para 29) and was accepted by all members of the Court of Appeal (judgments, paras 22, 44-45, 68). The Employment Tribunal found (para 4(d)) that the sending of the letters of which the appellants complained, in particular the more widely disseminated letter, treated the appellants less favourably than those employees who had not brought and continued equal pay proceedings, and that each of them as a result suffered a detriment. The Employment Appeal Tribunal (para 26) accepted the finding of less favourable treatment. In the Court of Appeal, a majority upheld the finding of less favourable treatment and detriment: [2005] EWCA Civ 977, [2006] ICR 90, per Mummery LJ, paras 25-29, per Jonathan Parker LJ, para 46. It was on the Council's reason for treating the appellants less favourably than other employees ("by reason...

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