Duke v GEC Reliance Ltd

Differential retirement ages for men and women were lawful under section 6(4) of the Sex Discrimination Act 1975 before its prospective amendment in 1986. That subsection covered an employer’s provision fixing retirement ages, not merely benefits arising after retirement.

A domestic court should construe legislation consistently with Community law where its language reasonably permits. It cannot distort an earlier statute to impose on a private employer obligations arising from a subsequent directive which has no direct effect between individuals. Section 2(4) of the European Communities Act 1972 did not require a contrary result because it applied only to directly applicable Community provisions.

The appellant’s employer operated retirement ages of 60 for women and 65 for men. It dismissed her after she reached 60. She alleged unlawful sex discrimination under section 6(2) of the Sex Discrimination Act 1975. The employer relied on section 6(4), which excluded provision relating to death or retirement from section 6(2).

The industrial tribunal dismissed the complaint. The Employment Appeal Tribunal and Court of Appeal upheld that result, being bound by earlier Court of Appeal authority. The appellant appealed to the House of Lords.

The central issues were whether section 6(4) preserved differential retirement ages and whether the 1975 Act had to be construed consistently with the Equal Treatment Directive, notwithstanding that the Directive had no direct effect against a private employer.

1. Appeal dismissed unanimously. Lord Templeman delivered the leading speech. Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Oliver of Aylmerton and Lord Goff of Chieveley agreed with his reasoning.

2. Per Lord Templeman, section 6(4) of the Sex Discrimination Act 1975 preserved differential retirement ages. It covered an employer’s arrangements and policies fixing retirement dates. A dismissal made pursuant to such provision was excluded from section 6(2), although a dismissal for another discriminatory reason remained unlawful. Sections 6(1A)(b) of the Equal Pay Act 1970, 6(4) and 11(4) of the 1975 Act formed a consistent scheme permitting discrimination connected with retirement.

3. The legislative setting confirmed that construction. Differential retirement ages were an established feature of employment and pension arrangements. Parliament would have used clear language had it intended their immediate abolition. The 1975 Act was therefore intended to preserve them, whether they arose contractually or through employment practice.

4. The European Court’s ruling in Marshall established that an employer’s policy of dismissing women at a lower pensionable age contravened the Equal Treatment Directive. It also established that the Directive could not itself impose obligations on a private individual. The later Sex Discrimination Act 1986 removed the domestic exemption prospectively and did not assist the appellant.

5. Per Lord Templeman, courts should willingly construe domestic legislation consistently with Community law where the statutory words are reasonably capable of that meaning. The 1975 Act preceded the Equal Treatment Directive, was not enacted to implement it and could not reasonably bear the appellant’s proposed construction. Section 2(4) of the European Communities Act 1972 neither authorised nor required distortion of a statute to enforce horizontally a directive lacking direct effect.

6. The decision in von Colson required a national court to use any discretion available under domestic law to achieve the Directive’s result. It did not require the invention of a domestic remedy or distortion of national legislation where no such discretion existed. The respondent therefore incurred no liability under either Community or domestic law for the pre-1986 dismissal.

1. House of Lords: The appeal was dismissed unanimously and the Court of Appeal’s order was affirmed. The appellant was ordered to pay the respondent’s costs.
2. Court of Appeal: The tribunal’s dismissal of the complaint was upheld. The court was bound by earlier Court of Appeal authority.
3. Employment Appeal Tribunal: The industrial tribunal’s decision was upheld.
4. Industrial tribunal: The complaint was dismissed because section 6(4) of the Sex Discrimination Act 1975 preserved an employer’s ability to operate differential retirement ages.