Garland v British Rail Engineering Ltd (No 2) [1982] UKHL 2

House of Lords
Between
GarlandAppellantBritish Rail Engineering Ltd (No 2)Respondent
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 of the 4th day of April 1979 complained of in the said Appeal be, and the same is hereby, Reversed and that the Order of the Employment Appeal Tribunal of the 16th day of November 1977 be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant the Costs incurred by her in the Courts below and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments if not agreed between the parties: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Employment Appeal Tribunal to do therein as shall be just and consistent with this Judgment.

HOUSE OF LORDS

GARLAND (APPELLANT)

v.

BRITISH RAIL ENGINEERING LIMITED (RESPONDENTS)

Lord Diplock Lord Edmund-Davies Lord Fraser of Tullybelton Lord Russell of Killowen Lord Scarman

Lord Diplock

My Lords,The facts which give rise to this appeal are sufficiently stated in the four explanatory paragraphs incorporated in a reference to the European Court of Justice, made by this House under Article 177 of the E.E.C. Treaty, of questions concerning the interpretation of Article 129 of that Treaty and of two directives made by the Council of Ministers. The reference was in the following terms :Mrs. Eileen Mary Garland is a married woman employed by the Respondents, British Rail Engineering Limited (" BREL "). The whole of the shareholding in BREL is held by the British Railways Board which is a public authority charged by statute with the duty of providing railway services in Great Britain.All employees of BREL enjoy certain valuable concessionary travel facilities during the period of their employment. These facilities entitle each employee, regardless of sex to travel free or at a reduced rate on British Rail and certain foreign railways. Such facilities are extended not only to the employee, but to his or her spouse and dependent children.After employees of BREL retire from their employment on reaching retiring age (which is earlier for women than for men) there is a difference in their treatment depending on their sex. In the case of former male employees, they continue to be granted (though on a reduced scale) travel facilities for themselves, their wives and dependent children. In the case of former female employees, they receive (on a similarly reduced scale) travel facilities for themselves, but no such facilities are granted in respect of their husbands or dependent children. These facilities are not enjoyed by former employees as a matter of contractual right, but employees have a legitimate expectation that theywill enjoy them after retirement and it would be difficult in practice for BREL to withdraw them unilaterally without the agreement of the trade unions of which their employees are members.4. On 25 November 1976 Mrs. Garland complained to an industrial tribunal that BREL were discriminating against her contrary to the provisions of a United Kingdom Act of Parliament, the Sex Discrimination Act 1975 (" the Act "). Her complaint after consideration also by two intermediate appellate courts ([1978] I.C.R. 495 (Employment Appeal Tribunal), [1979] I.C.R. 558 (Court of Appeal)) has now reached the House of Lords which is a court against whose decision there is no judicial remedy under United Kingdom law.5. In order to enable it to give judgment on the appeal, this House considers that a decision is necessary on the following questions:"1. Where an employer provides (although not bound to do so by "contract) special travel facilities for former employees to enjoy after " retirement which discriminate against former female employees in "the manner described above, is this contrary to:- "(a) Article 119 of the E.E.C. Treaty? "(b) Article 1 of Council Directive 75/117/EEC? "(c) Article 1 of Council Directive 76/207/EEC?2
" 2. If the answer to questions 1 (a) , 1 (b) or 1 (c) is affirmative, is " Article 119 or either of the directives directly applicable in Member " States so as to confer enforceable Community rights upon individuals " in the above circumstances? "
Before it reached this House, Mrs. Garland's claim had been dealt with in an industrial court, the Employment Appeal Tribunal and the Court of Appeal upon the footing that it turned upon the true construction of section 6(4) of the Sex Discrimination Act 1975, but without any consideration being given to the fact that equal pay without discrimination on the grounds of sex is required by Article 119 of the E.E.C. Treaty and that the application of this Article had also been the subject of directives made by the Council of the E.E.C. under Article 189 of the Treaty. Furthermore, after the passing of the Sex Discrimination Act 1975, the European Court of Justice had held in Defrenne v. Sabena [1976] ECR 455 that Article 119 was directly applicable in Member States, without the necessity of any further act by any institution of the Community or legislative action by a Member State, to make unlawful any discrimination between men and women in the amount of compensation receivable by them for equal work performed in the same establishment whether private or public.Section 6 of the Sex Discrimination Act 1975 appears in Part II of the Act which bears the general heading " Discrimination in the Employment " Field" and is the first of a fasciculus of five sections under the sub-heading " Discrimination by employers ". For present purposes it is sufficient to set out the following provisions of section 6: —" 6.—(1) It is unlawful for a person, in relation to employment by " him at an establishment in Great Britain, 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 on 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 at an establishment in Great Britain, to discriminate against her—" (a) 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
" (b) by dismissing her, or subjecting her to any other detriment.
" . . . . .
" (4) Subsections 1 (b) and (2) do not apply to provision in relation " to death or retirement."
The Industrial Tribunal was of opinion that concessionary travel facilities afforded to ex-employees after their retirement fell within subsection (4); they were " provision in relation to ... retirement" and so were not subject to the prohibition on discrimination imposed by subsection (1) (b) or (2) (a) . The Employment Appeal Tribunal took the contrary view. They considered that the words of the exception created by subsection (4) ought not to be construed so widely as to include " a privilege [that] has existed during employment " and is allowed by the employer " to continue after retirement." The Court of Appeal (Lord Denning M.R. Lawton and Geoffrey Lane, L.JJ) restored the decision of the Industrial Tribunal. Lawton L.J. described the question of construction of subsection (4) as being " largely a matter of first impression ". His own first impression, which was shared and adopted by the Master of the Rolls, was that " provision in relation to ... retirement" was a wide expression and included any provision about retirement.In neither the Employment Appeal Tribunal nor the Court of Appeal was attention drawn by counsel, as it should have been, to Article 119 of the E.E.C. Treaty or to either of the two directives dealing with sex discrimina-3tion, No.75/117 of 10 February 1975 and No. 76/207 of 9 February 1976; although in the light of the answers given by the European Court of Justice to the questions referred by this House, reference to Article 119 is sufficient to dispose of the matter and reliance upon neither of these directives has turned out to be necessary.

The relevant provisions of Article 119 are:-

" Each Member State shall during the first stage ensure and subse- " quently 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."
My Lords,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 were 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. A fortiori is this the case where the Treaty obligation arises under one of the Community Treaties to which section 2 of the European Communities Act 1972 applies.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 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. For, in the instant case the words of section 6(4) of the Sex Discrimination Act 1975 that fall to be construed, "provision in relation to ... retire- " ment ", without any undue straining of the ordinary meaning of the language used, are capable of bearing either the narrow meaning accepted by the Employment Appeal Tribunal or the wider meaning preferred by the Court of Appeal but acknowledged by that court to be largely a matter of first impression. Had the attention of the court been drawn to Article 119 of the E.E.C. Treaty and the judgment of the European Court of Justice in Defrenne v. Sabena, I have no doubt that, consistently with statements made by the Master of the Rolls in previous cases, they would have construed section 6(4) so as not to make it inconsistent with Article 119.In order to decide whether the construction of section 6(4) in fact adopted by we Court of Appeal was inconsistent with Article 119, and whether that alternative construction adopted by the Employment Appeal Tribunal was consistent with it, it was desirable to obtain a ruling of the European Court Justice that would be binding upon all courts in England, including this House, upon the question of the effect of Article 119 on the kind of discrimination as respects concessionary travel facilities after retirement to which Mrs. Garland was subjected by her employers simply because she was a woman and not a man.Although I do not believe that any of your Lordships had any serious doubt as to what answer would be given to that question by the European Court, there was not in existence at the date. 19 January 1981 when the order of reference under Article 177 was made, so considerable and4consistent a line of case law of the European Court of Justice on the interpretation and direct applicability of Article 119, as would make the answer too obvious and inevitable to be capable of giving rise to what could properly be regarded as " a question " within the meaning of Article 177. It thus became mandatory on this House, as a court from whose decisions there is no possibility of appeal under internal law, to refer to the European Court of Justice the questions that were in fact referred by the order that I have quoted at the beginning of this speech, so as to provide the House with material necessary to aid it in construing section 6(4) of the Sex Discrimination Act 1975.To those questions the answers given by the European Court are:

" THE COURT

" hereby rules: —

" 1. Where an employer (although not bound to do so by contract) " provides special travel facilities for former male employees to enjoy " after their retirement this constitutes discrimination within the meaning " of Article 119 against former female employees who do not receive " the same facilities.
" 2. Where a national court is able, using the criteria of equal " work and equal pay, without the operation of Community or national " measures, to establish that the grant of special travel facilities solely " to retired male employees represents discrimination based on difference " of sex, the provisions of Article 119 of the Treaty apply directly to " such a situation."
As is rightly conceded by the respondent employers, British Railway Engineering Ltd., these answers make it clear that the construction put upon section 6(4) of the Sex Discrimination Act 1975 by the Employment Appeal Tribunal was correct, with the result that the appeal must be allowed.

Lord Edmund-Davies

My Lords,I have had the privilege of reading in draft the speech of my noble and learned friend, Lord Diplock, with which I concur.

Lord Fraser of Tullybelton

My Lords,I concur.

Lord Russell of Killowen

my lords. I concur.

Lord Scarman

My Lords,I concur.140159—2 Dd 8209971 C3 4/82