Duke v GEC Reliance Ltd  1 All ER 626
LORD TEMPLEMAN. My Lords, this appeal raises a question of construction of an Act of the Parliament of the United Kingdom in the light of laws passed by the European Economic Community. The appellant, Mrs Duke, was employed by the respondent, GEC Reliance Ltd (then Reliance Systems Ltd). The policy of the respondent was to enforce the retirement of employees when they reached the pensionable age of 60 in the case of women and 65 in the case of men. In conformity with this policy the respondent ceased to employ the appellant after she attained the age of 60 and before she attained the age of 65; if she had been a man her employment would not have been discontinued on account of age before the age of 65. The appellant claims that she was the victim of discrimination on the grounds of sex and that she is entitled to damages under the Sex Discrimination Act 1975 because the discriminatory retirement enforced on her was rendered unlawful by s 6(2) of that Act, which prohibits discrimination against a woman 'by dismissing her'. The respondent admits that the appellant was discriminated against by dismissal but denies that the discriminatory dismissal was unlawful because, by s 6(4) of the Act, s 6(2) does not 'apply to provision in relation to death or retirement'. The appellant argues that s 6(4) only applies to discriminatory benefits provided after retirement and does not authorise discriminatory retirement ages. Alternatively, the appellant submits, s 6(4) must be construed in a sense favourable to the appellant in order to harmonise the 1975 Act with Community law....
The Equal Pay Act 1970 was passed on 29 May 1970 and, as subsequently amended, introduced into every contract of employment of a woman an equality clause whereby, if the terms of her contract vary unfavourably from the terms of employment of a corresponding man, then the woman's contract shall be treated as modified so far as is necessary to eliminate that variation. By s 6(1A) an equality clause-
(b) shall not operate in relation to terms related to death or retirement, or to any provision made in connection with death or retirement.
Thus the Equal Pay Act did not prohibit an employer from contracting with men and women on terms that women must retire at the age of 60 and men at 65. The Equal Pay Act was directed to come into force on 29 December 1975 so that employers were able to adjust their contractual policies and industrial relations in the light of the requirements of the Act.
In September 1974 the Home Office on behalf of the United Kingdom government published a white paper 'Equality for Women' (Cmnd 5724), and announced the intention of the government to introduce a Bill providing for equal treatment of women. The white paper (p 10) made these observations about contractual and non-contractual forms of discriminations:
41 The Equal Pay Act requires equal treatment with respect to contractual terms and conditions of employment. The Bill will complement the Equal Pay Act by applying to non-contractual aspects of employment.
42. The Equal Pay Act does not require equal treatment as regards terms and conditions 'related to retirement, marriage and death or to any provision made in connection with retirement, marriage or death'....
The Equal Pay Act and the Bill were to form part of a single code prohibiting many forms of discrimination but permitting discrimination in connection with retirement.... But the government must have considered that the Equal Pay Act and the proposed Bill would be consistent with the letter and spirit of Community law and Community intentions.... On 10 February 1975 the Council of Ministers adopted the equal pay directive (EC Council Directive 75/117) which recited art 119 and the Council resolution dated 21 January 1974 and called on member states within one year to put into force laws necessary to establish the 'principle of equal pay'. That principle was defined to mean that 'for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration'. Article 119 and the equal pay directive did not deal with discriminatory ages of retirement but were otherwise relevant to the Equal Pay Act....
The Bill foreshadowed by the 1974 white paper was introduced and was finally enacted on 12 November 1975 as the Sex Discrimination Act 1975. By s 1(1) a person discriminates against a woman if on the ground of her sex he treats her less favourably than he treats or would treat a man. Sections 6 to 21 comprising Pt II of the Act deal with 'Discrimination in the Employment Field'. Section 6, so far as relevant, provides as follows:
- It is unlawful for a person, in relation to employment by him, to discriminate against a woman....
But s 6 continued:
(4) Subsections (1)(b) and (2) do not apply to provision in relation to death or retirement....
The government and Parliament of the United Kingdom must have considered that the Equal Pay Act and the Sex Discrimination Act complied with the obligation of the United Kingdom to observe Community law and Community intentions including art 119 and the equal pay directive, so far as Community law was understood in the United Kingdom and so far as Community intentions were discernible.
On 9 February 1976 the Council of Ministers adopted an equal treatment directive (EC Council Directive 76/207).... The equal treatment directive then provided as follows:
1. The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as 'the principle of equal treatment'.
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.
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.
My Lords....[i]f the government had intended to sweep away the widespread practice of differential retirement ages, the 1974 white paper would not have given a contrary assurance and if Parliament had intended to outlaw differential retirement ages, s 6(4) of the Sex Discrimination Act 1975 would have been very differently worded in order to make clear the profound change which Parliament contemplated.....I am of the opinion that the legality of discrimination between men and women with regard to retirement ages was preserved, whether as a matter of contract to which the Equal Pay Act was directed or as a matter of practice to which the Sex Discrimination Act applied.
The United Kingdom government considered that the equal treatment directive (EC Council Directive 76/207) did not prohibit discriminatory ages of retirement....This argument was rejected by the Court of Justice of the European Communities in Marshall case. The court in its decision decided:
"art 5(1) of Directive 76/207 must be interpreted as meaning that a general policy concerning dismissal involving the dismissal of a woman solely because she has attained the qualifying age for a state pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex, contrary to that directive".
The United Kingdom, pursuant to its obligations under the EEC Treaty to give effect to Community legislation as construed by the European court and following the decision in Marshall, enacted the Sex Discrimination Act 1986 passed on 7 November 1986 and, inter alia, amended s 6(1A) of the Equal Pay Act 1970 and s 6(4) of the Sex Discrimination Act 1975 so as to render unlawful discriminatory retirement ages as between men and women. The 1986 Act was not retrospective and does not avail the appellant.
Marshall also decided that the equal treatment directive did not possess direct effect as between individuals, so that the appellant cannot claim damages against the respondent simply for breach of the directive.... Nevertheless, it is now submitted that the appellant is entitled to damages from the respondent because Community law requires the Equal Pay Act enacted on 29 May 1970 and the Sex Discrimination Act enacted on 12 November 1975 to be construed in a manner which gives effect to the equal treatment directive....Of course a British court will always be willing and anxious to conclude that United Kingdom law is consistent with Community law. Where an Act is passed for the purpose of giving effect to an obligation imposed by a directive or other instrument a British court will seldom encounter difficulty in concluding that the language of the Act is effective for the intended purpose. But the construction of a British Act of Parliament is a matter of judgment to be determined by British courts and to be derived from the language of the legislation considered in the light of the circumstances prevailing at the date of enactment. The...Equal Pay Act 1970 and the Sex Discrimination Act 1975....were not passed to give effect to the equal treatment directive and were intended to preserve discriminatory retirement ages. Proposals for the equal treatment directive dated 9 February 1976 were in circulation when the Bill for the Sex Discrimination Act 1975 was under discussion but it does not appear that these proposals were understood by the British government or the Parliament of the United Kingdom to involve the prohibition of differential retirements ages linked to differential pensionable ages.
The appellant relied on the speech of Lord Diplock in Garland v British Rail Engineering Ltd....Lord Diplock expressed the view that s 6(4) of the Sex Discrimination Act 1975 could and should be construed in the manner consistent with art 119 of the EEC Treaty, the equal pay directive and the equal treatment directive....
The instant appeal does not present an appropriate occasion to consider whether, having regard to the express direction as to the construction of enactments 'to be passed' which is contained in s 2(4), anything short of an express positive statement in an Act of Parliament passed after 1 January 1973 that a particular provision is intended to be made in breach of an obligation assumed by the United Kingdom under a Community treaty would justify an English court in construing that provision in a manner inconsistent with a Community treaty obligation of the United Kingdom however wide a departure from the prima facie meaning of the language of the provision might be needed in order to achieve consistency.
On the hearing of this appeal, your Lordships have had the advantage, not available to Lord Diplock, of full argument, which has satisfied me that the Sex Discrimination Act 1975 was not intended to give effect to the equal treatment directive as subsequently construed in Marshall's case and that the words of s 6(4) are not reasonably capable of being limited to the meaning ascribed to them by the appellant. Section 2(4) of the European Communities Act 1972 does not in my opinion enable or constrain a British court to distort the meaning of a British statute in order to enforce against an individual a Community directive which has no direct effect between individuals. Section 2(4) applies and only applies where Community provisions are directly applicable....
The submission that the Sex Discrimination Act 1975 must be construed in a manner which gives effect to the equal treatment directive as construed by the European court in Marshall's case is said to be derived from the decision of the European court in von Colson and Kamann v Land Nordrhein-Westfalen.... The von Colson case is no authority for the proposition that... a court of a member state must distort the meaning of a domestic statute so as to conform with Community law which is not directly applicable....The EEC Treaty does not interfere and the European court in the von Colson case did not assert power to interfere with the method or result of the interpretation of national legislation by national courts.
It would be most unfair to the respondent to distort the construction of the 1975 Sex Discrimination Act in order to accommodate the 1976 equal treatment directive as construed by the European court in the 1986 Marshall case. As between the appellant and the respondent the equal treatment directive did not have direct effect and the respondent could not reasonably be expected to reduce to precision the opaque language which constitutes both the strength and the difficulty of some Community legislation. The respondent could not reasonably be expected to appreciate the logic of Community legislators in permitting differential retirement pension ages but prohibiting differential retirement ages. The respondent is not liable to the appellant under Community law. I decline to hold that liability under British law attaches to the respondent or any other private employer to pay damages based on wages which women over 60 and under 65 did not earn before the amending Sex Discrimination Act 1986 for the first time and without retrospective effect introduced the statutory tort of operating differential retirement ages. I would dismiss this appeal.