Garland v British Rail Engineering Ltd

Domestic legislation enacted after the United Kingdom entered an international treaty should, so far as its language reasonably permits, be construed consistently with the treaty obligation. This principle applies with particular force to Community Treaty obligations under the European Communities Act 1972.

Article 119 of the E.E.C. Treaty applied directly to non-contractual post-retirement travel facilities received in respect of employment. Granting family travel concessions to retired men while withholding them from retired women constituted discrimination in pay.

Because section 6(4) of the Sex Discrimination Act 1975 reasonably bore a compatible, narrower meaning, “provision in relation to retirement” did not include the continuation after retirement of a privilege enjoyed during employment.

Mrs Garland was employed by British Rail Engineering Ltd. Employees received concessionary travel facilities for themselves, their spouses and dependent children. After retirement, former male employees retained reduced family facilities, while former female employees received facilities only for themselves. The concessions were not contractual, although employees legitimately expected their continuation.

Mrs Garland complained of unlawful discrimination under the Sex Discrimination Act 1975. The Industrial Tribunal held that the facilities fell within the section 6(4) exception for provision relating to retirement. The Employment Appeal Tribunal reversed that decision in [1978] ICR 495, but the Court of Appeal restored it in [1979] ICR 558.

The House referred questions concerning Article 119 of the E.E.C. Treaty to the Court of Justice under Article 177. After receiving the preliminary ruling, the central issue was whether section 6(4) should receive the narrower construction adopted by the Employment Appeal Tribunal so that it remained consistent with directly effective Community law.

1. Disposition. The House, in accordance with Lord Diplock’s leading speech, unanimously allowed the appeal. Lords Edmund-Davies, Fraser of Tullybelton, Russell of Killowen and Scarman concurred. The Court of Appeal’s order was reversed, the Employment Appeal Tribunal’s order was restored, and the cause was remitted to that Tribunal. The respondent was ordered to pay the appellant’s costs in the courts below and in the House.
2. Article 119. Per Lord Diplock, with all the other Law Lords concurring, the binding answers of the Court of Justice established that special travel facilities granted after retirement to former male employees, but withheld from comparable former female employees, constituted discrimination within Article 119. Their non-contractual character did not prevent the facilities from being consideration received in respect of employment. Article 119 applied directly where the national court could establish unequal pay for equal work without further Community or national measures.
3. Consistent statutory construction. Per Lord Diplock, domestic legislation enacted after the signing of a treaty and dealing with its subject matter should, where its language is reasonably capable of doing so, be construed consistently with the United Kingdom’s treaty obligations. That principle applied a fortiori to Community Treaty obligations governed by section 2 of the European Communities Act 1972.
4. Section 6(4). Per Lord Diplock, the expression “provision in relation to retirement” in section 6(4) of the Sex Discrimination Act 1975 was reasonably capable of either the wider construction adopted by the Court of Appeal or the narrower construction adopted by the Employment Appeal Tribunal. The Court of Justice’s answers showed that the wider construction would conflict with Article 119. The narrower construction therefore prevailed: the exception did not encompass a privilege enjoyed during employment which the employer allowed to continue after retirement.
5. Reference and reserved issue. Per Lord Diplock, the Article 177 reference had been mandatory because the House was a court of final resort and, when the reference was made, the existing Community case law did not make the answers so obvious and inevitable that no question arose. Reliance on the two Council directives proved unnecessary. The House left open whether section 2(4) of the European Communities Act 1972 permits departure from the apparent meaning of post-1972 legislation whenever needed to secure Treaty conformity, absent an express statement that Parliament intended a breach.

1. House of Lords: In Garland v British Rail Engineering Ltd [1982] UKHL 2, [1983] 2 AC 751, unanimously allowed the appeal, reversed the Court of Appeal’s order, restored the Employment Appeal Tribunal’s order and remitted the cause to that Tribunal.
2. Court of Justice of the European Communities: On the House’s Article 177 reference, ruled that the unequal post-retirement travel facilities constituted discrimination within Article 119 and that Article 119 applied directly where the national court could establish unequal pay without further measures.
3. Court of Appeal: In [1979] ICR 558, restored the Industrial Tribunal’s decision. It adopted the wider construction that “provision in relation to retirement” included any provision about retirement.
4. Employment Appeal Tribunal: In [1978] ICR 495, reversed the Industrial Tribunal. It held that section 6(4) did not extend to a privilege existing during employment which continued after retirement.
5. Industrial Tribunal: Held that concessionary travel facilities afforded after retirement were provision relating to retirement within section 6(4) of the Sex Discrimination Act 1975.