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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Duke v GEC Reliance Ltd [1987] UKHL 10 (11 February 1987)
URL: http://www.bailii.org/uk/cases/UKHL/1987/10.html
Cite as: [1988] 2 WLR 359, [1988] 1 All ER 626, [1988] AC 618, [1987] UKHL 10, [1988] 1 CMLR 719, [1988] 1 FTLR 398, [1988] ICR 339, [1988] IRLR 118

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/248

    Duke (Appellant) v. GEC Reliance Limited (formerly Reliance

    Systems Limited) (Respondents)

    JUDGMENT

    Die Jovis 11° Februarii 1988

    Upon Report from the Appellate Committee to whom was
    referred the Cause Duke against GEC Reliance Limited (formerly
    Reliance Systems Limited), That the Committee had heard
    Counsel on Wednesday the 2nd, Thursday the 3rd and Monday the
    7th days of December last, upon the Petition and Appeal of
    Ethel Alice Marjorie Duke, of 2 Crosier Road, Ickenham,
    Middlesex, UB10 8RR, praying that the matter of the Order set
    forth in the Schedule thereto, namely an Order of the Court of
    Appeal of the 16th day of February 1987, might be reviewed
    before Her Majesty the Queen in Her Court of Parliament and
    that the said Order might be reversed, varied or altered or
    that the Petitioner might have such other relief in the
    premises as to Her Majesty the Queen in Her Court of
    Parliament might seem meet; as upon the Case of GEC Reliance
    Limited (formerly Reliance Systems Limited) lodged in answer
    to the said appeal; and due consideration had this day of what
    was offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal (Civil Division) of the 16th of February 1987
    complained of in the said Appeal be, and the same is hereby,
    Affirmed and that the said Petition and Appeal be, and the
    same is hereby, dismissed this House: And it is further
    Ordered, That the Appellant do pay or cause to be paid to the
    said Respondents the Costs incurred by them in respect of the
    said Appeal, the amount thereof to be certified by the Clerk
    of the Parliaments if not agreed between the parties.

    Cler: Parliamentor:

    Judgment: 11.2.88

    HOUSE OF LORDS

    DUKE
    (APPELLANT)

    v.

    GEC RELIANCE

    (FORMERLY RELIANCE SYSTEMS LIMITED)
    (RESPONDENTS)

    Lord Keith of Kinkel
    Lord Brandon of Oakbrook
    Lord Templeman
    Lord Oliver of Aylmerton
    Lord Goff of Chieveley

    LORD KEITH OF KINKEL

    My Lords,

    I have had the opportunity of considering in draft the
    speech to be delivered by my noble and learned friend Lord
    Templeman. I agree with it, and for the reasons he gives would
    dismiss the appeal.

    LORD BRANDON OF OAKBROOK

    My Lords,

    I have had the advantage of reading in draft the speech
    prepared by my noble and learned friend Lord Templeman. I agree
    with :t, and for the reasons which he gives I would dismiss the
    appeal.

    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, G.E.C. 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 section 6(2) of the 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 section 6(4) of the Act, section 6(2) does not
    "apply to provision in relation to death or retirement." The
    appellant argues that section 6(4) only applies to discriminatory
    benefits provided after retirement and does not authorise
    discriminatory retirement ages. Alternatively, the appellant
    submits, section 6(4) must be construed in a sense favourable to
    the appellant in order to harmonise the Sex Discrimination Act
    1975 with Community law. The respondent argues that the
    practice of dismissing men at 65 and women at 60 was "provision
    in relation to" retirement and that a British court which accepts
    that construction is bound to give effect to it. If the dismissal of
    the appellant was an unlawful act of discrimination, the appellant
    was entitled by sections 63-66 of the Act of 1975 to complain to
    an industrial court and to be awarded damages on the basis that
    the unlawful act of discrimination must be treated as a tort. The
    appellant complained to an industrial tribunal but her complaint
    was dismissed on the grounds that section 6(4) preserved the right
    of an employer to operate discriminatory ages of retirement. The
    decision of the industrial tribunal was upheld by the Employment
    Appeal Tribunal and by the Court of Appeal which were bound by
    earlier Court of Appeal authorities. The appellant now appeals to
    this House.

    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 section 6(1A) an equality clause:

    "(b) . . . shall not operate in related to terms relating 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. The respondent's
    contracts with men and women did not include any term relating
    to retirement. Their contracts of employment were determinable
    at any time by notice on either side. The respondent, as a matter
    of policy, gave notice of determination to enforce retirement when
    women reached the age of 60 and when men reached the age of
    65. The Equal Pay Act did not therefore apply to the retirement
    of the appellant. And even if the appellant had been employed
    under a contract which required her to retire at the age of 60, a
    term less favourable than a term requiring a corresponding man to

    - 2 -

    retire at 65, so as to constitute discrimination under the Equal
    Pay Act, nevertheless the discriminatory term would have been
    lawful by reason of section 6(1)A of the Act.

    The European Communities Act 1972, passed in anticipation
    of the accession of the United Kingdom to the European Economic
    Community on 1 January 1973, accepted the supremacy of
    Community law under the Treaty of Rome and allied Treaties in
    these terms:

    "2(1) All such rights, powers, liabilities, obligations and
    restrictions from time to time created by 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; ..."

    Section 2(4) provides inter alia that "any enactment passed or to
    be passed . . . shall be construed and have effect subject to the
    foregoing provisions of this section; . . . . " This subsection does
    no more than reinforce the binding nature of legally enforceable

    rights and obligations imposed by appropriate Community law.

    .

    By Article 5 of the Treaty of Rome:

    "5. Member States shall take all appropriate measures,
    whether general or particular, to ensure fulfilment of the
    obligation arising out of this Treaty or resulting from action
    taken by the institutions of the Community. ..."

    By a Resolution dated 21 January 1974 (Official Journal
    1974 No. C.13, p. 1), the Council of Ministers, one of the
    institutions of the Community, approved the development of a
    social action programme and declared its intention to adopt
    measures necessary to achieve, among other objects, the
    attainment of full and better employment in the Community and
    for that purpose:

    "To undertake action for the purpose of achieving equality
    between men and women as regards access to employment
    and vocational training and advancement and as regards
    working conditions, including pay, taking into account the
    important role of management and labour in this field."

    This Resolution was in the nature of a declaration of intent and
    did not impose any specific obligation on Member States, although
    they could be expected to pursue the aims indicated by the
    Council in the Resolution.

    In September 1974 the Home Office on behalf of the United
    Kingdom Government published a White Paper Cmnd. 5724, entitled
    "Equality for Women" and announced the intention of the
    Government to introduce a Bill providing for equal treatment of
    women. The White Paper made these observations at p. 10 about
    contractual and non-contractual forms of discrimination:

    - 3 -

    "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 proposed
    Bill will require equal treatment as regards terms and
    conditions relating to marriage or any provision made in
    connection with marriage, and will amend the Equal Pay Act
    accordingly. The general exclusion of provisions relating to
    retirement or death (and childbirth) contained in that Act
    will be retained. State social security provisions are
    contained in separate legislation and will be dealt with
    together with occupational pensions schemes ...."

    Thus the changes proposed by the Government for the Equal Pay
    Act did not include any change in section 6(4) but the White Paper
    proposed that the new Bill should contain a clause similar to
    section 6(4). The Bill proposed by the White Paper was intended
    to prohibit discrimination against women where the discrimination
    was not to be found in any term of a contract of employment but
    resulted from policies and practices in industrial relations. 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. It would not have
    made sense to allow by the Equal Pay Act 1970 discriminatory
    ages of retirement expressed in contracts of employment but to
    prohibit by the proposed Bill discriminatory ages of retirement
    which were in force by employers as a matter of policy and
    practice. The White Paper referred to domestic inquiries and
    investigations and consultations dealing with discrimination against
    women but did not mention Community law or intentions. 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.

    Article 119 of the Treaty of Rome inter alia directs that:

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

    On 10 February 1975 the Council of Ministers adopted the Equal
    Pay Directive (75/117/E.E.C.) (Official Journal 1975, No. L.45 p.
    19 which recited Article 119 and the Council Resolution dated 21
    January 1974 and called upon 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.

    Article 189 of the Treaty of Rome provides inter alia:

    - 4 -

    "In order to carry out their task the Council and the
    Commission shall, in accordance with the provisions of this
    Treaty, make regulations, issue directives, take decisions,
    make recommendations or deliver opinions. A regulation
    shall have general application. It shall be binding in its
    entirety and directly applicable in all Member States. A
    directive shall be binding, as to the result to be achieved,
    upon each Member State to which it is addressed, but shall
    leave to the national authorities the choice of form and
    methods."

    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 section 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 6-21 comprising Part II of the Act deal with
    "Discrimination in the Employment Field." Section 6, so far as
    relevant, provides as follows:

    "(1) It is unlawful for a person, in relation to employment
    by him ... to discriminate against a woman -

    (a) in the arrangements he makes for the purpose of
    determining who should be offered that employment,
    or

    (b) in the terms in which he offers her that
    employment, or

    (c) by refusing or deliberately omitting to offer her
    that employment.

    (2) It is unlawful for a person, in the case of a woman
    employed by him ... to discriminate against her -

    1. in the way he affords her access to opportunities
      for promotion, transfer or training, or to any other
      benefits, facilities or services, or by refusing or
      deliberately omitting to afford her access to them, or

    2. by dismissing her, or subjecting her to any other
      detriment."

    Thus the respondent's policy of dismissing women at 60 and
    men at 65 was discriminatory within the meaning of the Act. But
    section 6 continued:

    "(4) Subsections (l)(b) and (2) do not apply to provision in
    relation to death or retirement."

    By section 82(1) "retirement" was defined to include retirement
    (whether voluntary or not) on grounds of age, length of service or
    incapacity. The Sex Discrimination Act 1975 made substantial
    amendments to the Equal Pay Act 1970 but section 6(l)A(b) of the
    Act of 1970 was not amended. Both Acts were brought into force
    on 29 December 1975 and formed a single code dealing with
    discrimination against women in the field of employment whether
    pursuant to contract or practice. The Government and Parliament

    - 5 -

    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 Article 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 (76/207/E.E.C.), (Official Journal 1976,
    No. L.39 p. 40) which after reciting the Council Resolution of 21
    January 1974 and the Equal Pay Directive contained the following
    recitals setting forth some of the reasons for the adoption of the
    Equal Treatment Directive:

    "Whereas Community action to achieve the principle of
    equal treatment for men and women in respect of access to
    employment and vocational training and promotion and in
    respect of other working conditions also appears to be
    necessary; whereas, equal treatment for male and female
    workers constitutes one of the objectives of the Community,
    in so far as the harmonisation of living and working
    conditions while maintaining their improvement are inter alia
    to be furthered; whereas the Treaty does not confer the
    necessary specific powers for this purpose;"

    The Equal Treatment Directive then provided as follows:

    "Article 1.1. 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 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.'"

    Article 1.2. With a view to ensuring the progressive
    implementation of the principle of equal treatment in
    matters of social security, the Council, acting on a proposal
    from the Commission, will adopt provisions defining its
    substance, its scope and the arrangements for its
    application.

    Article 2.1. 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. 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.

    Article 9.1. Member States shall put into force the laws,
    regulations and administrative provisions necessary in order
    to comply with this Directive within 30 months of its
    notification and shall immediately inform the Commission
    thereof."

    - 6 -

    In the event the time limited for compliance with the Equal
    Treatment Directive expired on 12 August 1978. Before that date
    the Government of the United Kingdom took no steps to repeal or
    amend section 6(1)A of the Equal Pay Act or section 6(4) of the
    Sex Discrimination Act. This observation is probably correct, but
    the result would be the same if Her Majesty's Government had not
    thought so.

    In Roberts v. Cleveland Area Health Authority [1978] I.C.R.
    370, the plaintiff, Mrs. Roberts, was dismissed by the Health
    Authority pursuant to "the policy of the area health authority
    under which the normal retirement age for female employees was
    60 whereas the normal retirement age for male employees was
    65"; per Phillips J. in the judgment of the Employment Appeal
    Tribunal at p. 371 G. Mrs. Roberts claimed damages under the Sex
    Discrimination Act 1975 for her discriminatory dismissal. The
    Health Authority successfully pleaded that the dismissal of Mrs.
    Roberts was lawful under section 6(4) of the Act. The only
    argument of substance put before the tribunal and repeated in the
    course of the present appeal on behalf of the appellant was that
    in section 6(4) provision "in relation to death" must mean provision
    "consequent upon a death" and therefore provision "in relation to
    retirement" must be limited to provision "consequent upon
    retirement." Phillips J. rejected this argument. He said at p. 374
    that the word "provision" in section 6(4) is an expression
    intentionally wide and covers all the employer's arrangements
    relating to retirement including matters of policy, including the
    fixing of the date of retirement. He thought it likely that the
    draftsman

    "recognised that death and retirement are in different
    categories in this matter, in that one cannot fix a date of
    death but one can fix a date of retirement; and that he had
    to use a form of words, in the one subsection, which was
    apt to cover both."

    My Lords, section 6(4) makes lawful a dismissal which would
    otherwise be unlawful under section 6(2). The discriminatory
    dismissal made lawful by section 6(4) is confined to a dismissal for
    which provision is made in relation to retirement. If an employer
    dismisses a woman in order to replace her by a man, the dismissal
    will infringe section 6(2) and will not be saved by section 6(4).
    But if an employer dismisses a woman because the employer has
    made provision for men and women alike to retire when they
    reach their retirement ages, then if there are differential
    retirement ages, the dismissal is saved from being unlawful by
    section 6(4) because the dismissal is pursuant to provision relating
    to retirement. The respondent made provision for men and women
    to be dismissed when they reached the retirement age of 60 in the
    case of women and 65 in the case of men. If an employer does
    not discriminate against a woman by dismissing her but provides
    that her retirement benefits are to be less favourable than the
    benefits accorded to a man, then the employer will not be
    dismissing her within section 6(2) but he will be subjecting her to
    another detriment within section 6(2). This discriminatory
    detriment is also saved by section 6(4). Section 11(1) of the Sex
    Discrimination Act 1975 is to the like effect. That section
    renders it unlawful for partners in relation to a position as partner
    in the firm to discriminate against a woman -

    - 7 -

    "

    • • •

    (b) in the terms on which they offer her that position, or

    • • • •

    (d) in a case where the woman already holds that position -

    (i) in the way they afford her access to any benefits,
    facilities or services, or by refusing or deliberately
    omitting to afford her access to them, or

    (ii) by expelling her from that position, or subjecting
    her to any other detriment."

    But section 11(4) provides that subsection (1)(b) and (d) do
    not apply to provision made in relation to death or retirement.

    Thus partners may lawfully offer a partnership to a woman
    on the terms that she will retire at 60 with power to expel her if
    she does not. Or if there is a partnership position which is
    terminable on notice, with no provision for retirement, the firm
    may give notice enforcing the retirement of the woman at 60
    notwithstanding that men are only obliged to retire at 65. So too
    in the Equal Pay Act 1970 which deals with contractual
    obligations section 6(lA)(b) enables an employer to contract with
    men and women for retirement at different retirement ages
    without incurring the penalty of an equality clause. There can be
    no logical distinction between section 6(lA)(b) of the Equal Pay
    Act 1970, section 6(4) of the Sex Discrimination Act 1975 and
    section 11(4) of the latter Act; in my opinion all three subsections
    make lawful discriminatory retirement ages.

    On 19 December 1978 the Council of Ministers adopted a
    Social Security Directive (79/7/E.E.C.) (Official Journal 1979, No.
    6, p. 24) which had been foreshadowed and reserved by the Equal
    Treatment Directive. The Social Security Directive obliged
    member states to put into effect equal treatment for Social
    Security within six years but by article 7:

    "7.1. This directive shall be without prejudice to the right
    of member states to exclude from its scope:

    (a) The determination of pensionable age for the
    purposes of granting old age and retirement pensions
    and the possible consequences thereof for other
    benefits;"

    Thus Community law did not require the abrogation of
    British statutory retirement pension schemes whereby the
    pensionable age of women is 60 and the pensionable age of men is
    65.

    In Roberts v. Cleveland Area Health Authority [1979] I.C.R.
    558 the Court of Appeal upheld the decision of the Employment
    Arbitration Tribunal that section 6(4) of the Sex Discrimination
    Act 1975 allowed discriminatory retirement ages, Lawton L.J. said
    at pp. 566, 567;

    - 8 -

    "My first impression was that the words 'provision in
    relation to death or retirement' meant 'provision about
    retirement.' Nothing has been said in the arguments which
    has made me change that first impression .... To fix a
    retiring age is to make a provision in relation to
    retirement."

    Finally, so far as English law is concerned it is material to
    consider the circumstances in which the Equal Pay Act 1970 and
    the Sex Discrimination Act 1975 were enacted. In Roberts v.
    Cleveland Area Health Authority [1979] LC.R. 370, 375 Phillips J.
    said this:

    "It is common knowledge that outside the public service, at
    all events, large parts of industry and commerce are
    organised on the basis that men and women do retire at
    different ages. The matter is highly controversial. There
    are different political and sociological views held about it;
    different economic views, and so on. But in 1975 it was an
    established fact that this was what frequently happened in
    practice. Furthermore, it reflects the longstanding course
    of social legislation going back ... 37 years to 1940, to
    the Old Age and Widows' Pension Act of that year. For
    very many years indeed, employers have made all their
    arrangements upon this basis. Pension funds are so
    organised, recruitment is so organised; and everything is
    organised on that basis. Obviously, in the Sex

    Discrimination Act 1975 there is no reason why Parliament
    should not, had it wished to do so, have brought all that to
    an end; but it seems to us largely improbable that
    Parliament would have brought it to an end, or would have
    intended to bring it to an end, at a clean sweep. The
    Equal Pay Act 1970 itself was given five years to be
    brought into operation; and when one considers the practical
    consequences of a reform of that character, the
    arrangements that would have to be made, the consultation
    that would be needed, the mind boggles at the thought that
    it should happen overnight, between the end of one night
    "and the beginning of the following day. . . . Furthermore it
    is not without relevance that other Acts such as the Equal
    Pay Act 1970 and the Trade Union and Labour Relations
    Act 1974 are in part in conformity with the view that we
    have indicated."

    Similarly, in Roberts v. Tate and Lyle Food and Distribution
    Ltd.
    [1983] I.C.R. 521 Browne-Wilkinson J. delivering the judgment
    of the Employment Appeal Tribunal said at pp. 528-529:

    "We consider that the purpose of section 6(4) is fairly
    apparent. Parliament, in enacting the Act of 1975, was
    seeking to eliminate all discrimination between men and
    women. However, it was faced by a widespread and
    inherently discriminatory practice deeply embedded in the
    social organisation of the country, namely, the differential
    in retirement ages between men and women. This
    differential treatment was blatantly discriminatory.
    However, the effect of such discriminatory practice
    percolated throughout society. State pensions reflected the
    differential; the vast majority of occupational pension

    - 9 -

    schemes reflected the differential; normal ages of
    retirement maintained the differential. Accordingly, unless
    all this was to be swept away, the Act had to exclude
    claims arising out of this inherently discriminatory practice.
    For this reason section 6(4) appeared in the Act. "

    My Lords I agree with the views expressed by Phillips J.
    and Browne-Wilkinson J. and would add this. If 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 section 6(4) of the Sex Discrimination
    Act would have been very differently worded in order to make
    clear the profound change which Parliament contemplated. For
    the reasons I have given and for the reasons advanced by the
    Employment Appeal Tribunal and the Court of Appeal in the
    judgments I have cited, 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 (76/207) did not prohibit discriminatory ages
    of retirement. The argument of the Government, put forward in
    Marshall v. Southampton and South West Hampshire Area Health
    Authority
    [1986] QB 401, 420 was that Article 7(1) of the Social
    Security Directive allowed discrimination in the determination of
    pension age; retirement provisions were conditioned by pension age.
    Women retired at 60 when they qualified for a pension. Men
    retired at 65 because they did not reach pensionable age until
    then. The discrimination under Community law permitted in
    pensionable ages must extend to discrimination in retirement ages;
    pensionable ages and retirement ages ran in harness. This
    argument was rejected by the European Court of Justice in
    Marshall's case. The court in its decision as reported in [1986]
    Q.B. 401, 420 decided that:

    "38 . . . article 5(1) of Council Directive (76/207/E.E.C.)
    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
    Treaty of Rome to give effect to Community legislation as
    construed by the European Court of Justice and following the
    decision in Marshall's case, enacted the Sex Discrimination Act
    1986 passed on November 1986 and, inter alia, amended section
    6(1A) of the Equal Pay Act 1970 and section 6(4) of the Sex
    Discrimination Act 1975 so as to render unlawful discriminatory
    retirement ages as between men and women. The Act of 1986
    was not retrospective and does not avail the appellant.

    Marshall's case decided that the Equal Treatment Directive
    required Member States to prohibit discrimination with regard to

    - 10 -

    retirement or dismissal in accordance with an employer's policy.
    In the present case therefore, the appellant can show that her
    forcible retirement before reaching the age of 65 years was
    discrimination contrary to the requirements of the Equal Treatment
    Directive. But Marshall's case also decided that the Equal
    Treatment Directive did not posses direct effect as between
    individuals, so that the appellant cannot claim damages against the
    respondent simply for breach of the Directive. In their decision
    ([1986] QB 401, 422) the European Court of Justice said that:

    "48. . . . according to Article 189 of the E.E.C.
    Treaty the binding nature of a directive, which
    constitutes the basis for the possibility of relying on
    the directive before a national court, exists only in
    relation to 'each Member State to which it is
    addressed.' It follows that a directive may not of
    itself impose obligations on an individual and that a
    provision of a directive may not be relied upon as
    such against such a person. ..."

    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
    dated 9 February 1976 as construed by the European Court of
    Justice in Marshall's case published on 20 February 1986. 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
    circumstances in which the Equal Pay Act 1970 and the Sex
    Discrimination Act 1975 were enacted are set forth in the 1974
    White Paper, in the judgment of Philips J. in Roberts v. Cleveland
    Area Health Authority
    [1978] I.C.R. 370, in the judgment of
    Browne-Wilkinson J. in Roberts v. Tate and Lyle [1983] I.C.R. 521
    and in the submission of the United Kingdom Government in
    Marshall's case [1986] QB 401. The Acts 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
    retirement ages linked to differential pensionable ages.

    The appellant relied on the speech of Lord Diplock in
    Garland v. British Rail Engineering Ltd. [1983] 2 A.C., 751, 770-
    771. Lord Diplock expressed the view that section 6(4) of the Sex
    Discrimination Act 1975 could and should be construed in the
    manner consistent with Article 119 of the Treaty of Rome, the
    Equal Pay Directive and the Equal Treatment Directive. In

    - 11 -

    Garland's case, following a reference to the European Court of
    justice it was established that there had been discrimination
    contrary to Article 119 which has direct effect between
    individuals. It was thus unnecessary to consider the effect of the
    Equal Treatment Directive. Lord Diplock observed at p. 771 that:

    "even if the obligation to observe the provisions of article
    119 were an obligation assumed by the United Kingdom
    under an ordinary international treaty or convention and
    there was no question of the Treaty obligation being directly
    applicable as part of the law to be applied by the courts in
    this country without need for any further enactment, it is a
    principle of construction of United Kingdom statutes, now
    too well established to call for citation of authority, that
    the words of a statute passed after the Treaty has been
    signed and dealing with the subject matter of the
    international obligation of the United Kingdom, are to be
    construed, if they are reasonably capable of bearing such a
    meaning, as intended to carry out the obligation, and not to
    be inconsistent with it. ... 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 section 2(4)
    anything short of an expressed 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 the Marshall case and that the words of
    section 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 jurisdiction, composition and powers of the European
    Court of Justice are contained in Articles 164-188 of the Treaty
    of Rome. Those sections include the following:

    "164. The Court of Justice shall ensure that in the
    interpretation and application of this Treaty the law is
    observed.

    177. The Court of Justice shall have jurisdiction to give
    preliminary rulings concerning:

    (a) the interpretation of this Treaty;

    - 12 -

    (b) the validity and interpretation of Acts of the
    institutions of the Community;

    (c) the interpretation of the statutes of bodies established
    by an act of the council, where those statutes so
    provide."

    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 of Justice
    in Marshall's case is said to be derived from the decision of the
    European Court of Justice in von Colson and Kamann v. Land
    Nordrhein-Westfalen
    (Case 14/83) [1984] ECR 1891, delivered on
    10 April 1984. In the von Colson case the European Court of
    Justice ruled that the provisions of the Equal Treatment Directive
    which require equal treatment for men and women in access to
    employment do not require a Member State to legislate so as to
    compel an employer to conclude a contract of employment with a
    woman who has been refused employment on the grounds of sex.
    The Directive does not specify the nature of the remedies which
    the Member States must afford to a victim of discrimination.
    But the court also ruled at p. 1910:

    "3. Although Directive 76/207/E.E.C. [The Equal Treatment
    Directive] for the purpose of imposing a sanction for the
    breach of discrimination, leaves the Member State free to
    choose between the different solutions suitable for achieving
    its object, it nevertheless requires that if a Member State
    chooses to penalise breaches of that prohibition by the
    award of compensation, then in order to ensure that it is
    effective and that it has a deterrent effect, that
    compensation must in any event be adequate in relation to
    the damage sustained and must therefore amount to more
    than purely nominal compensation such as, for example, the
    reimbursement only of the expenses incurred in connection
    with the application. It is for the national court to
    interpret and apply the legislation adopted for the
    implementation of the Directive in conformity with the
    requirements of Community law, in so far as it is given
    discretion to do so under national law."

    In the von Colson case the German court which submitted
    the case for a ruling asked whether it was acceptable that a
    woman who applied for a job and was refused because she was a
    woman, contrary to the intent of the Equal Treatment Directive,
    was only entitled under the German domestic law prohibiting such
    discrimination to the recovery of her expenses (if any) of her
    application. The German Government in making representations to
    the European court expressed the view that under German law
    compensation for discrimination could include general damages for
    the loss of the job or of the opportunity to take up the job. The
    ruling of the European Court of Justice did not constrain the
    national court to construe German law in accordance with
    Community law but ruled that if under German law the German
    court possessed the power to award damages which were adequate
    and which fulfilled the objective of the Equal Treatment Directive
    then it was the duty of the German court to act accordingly.

    - 13 -

    The von Colson case is no authority for the proposition that
    the German court was bound to invent a German law of adequate
    compensation if no such law existed and 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. If, following the von Colson
    case, the German court adhered to the view that under German
    law it possessed no discretion to award adequate compensation, it
    would have been the duty of the German Government in fulfilment
    of its obligations under the Treaty of Rome to introduce
    legislation or evolve some other method which would enable
    adequate compensation to be obtained, just as the United Kingdom
    Government became bound to introduce legislation to amend the
    Equal Pay Act and the Sex Discrimination Act in the light of
    Marshall's case. Mrs. Advocate-General Rozes in her opinion,
    delivered on 31 January 1984 in the von Colson case, said at p.
    1919 that:

    "In proceedings under Article 177 it is not for me to
    express a view on questions which fall exclusively within the
    jurisdiction of the national courts inasmuch as they concern
    the application of national law."

    The Treaty of Rome does not interfere and the European Court of
    Justice 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 of Justice 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.

    LORD OLIVER OF AYLMERTON

    My Lords,

    I have had the advantage of reading in draft the speech
    prepared by my noble and learned friend, Lord Templeman. I
    agree with it and would dismiss the appeal for the reasons which
    he has given.

    - 14 -

    LORD GOFF OF CHIEVELEY

    My Lords,

    I have had the advantage of reading in draft the speech to
    be delivered by my noble and learned friend, Lord Templeman, I
    agree with it and for the reasons which he gives would dismiss the
    appeal.

    - 15 -


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