Duke v GEC Reliance Ltd [1987] UKHL 10

House of Lords
Between
DukeAppellantGEC Reliance LtdRespondent
Before
Lord Keith of Kinkel
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; ifshe 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

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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 enforceablerights 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:

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"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:

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"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 -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

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

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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."

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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 -

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"

• • •

(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;

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"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

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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

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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

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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;

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( 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.

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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.

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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.

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