R v Secretary of State for Employment, Ex parte Equal Opportunities Commission (Equal Opportunities Commission, Ex parte)

Legislation which places substantially more women than men at a disadvantage in relation to employment benefits contravenes European Community equality law unless the state establishes objective justification. The measure must pursue a necessary social-policy aim and be suitable and requisite for attaining it. General assertions or departmental opinion do not satisfy that burden.

A body charged by statute with eliminating discrimination has sufficient interest to seek judicial review of discriminatory primary legislation. The court may declare primary legislation incompatible with directly effective Community law even where no administrative decision can be quashed and no prerogative order is available.

The Equal Opportunities Commission challenged provisions of the Employment Protection (Consolidation) Act 1978 which imposed longer qualifying periods, or excluded eligibility altogether, for employees working fewer than 16 hours weekly. Most affected workers were women. The Commission contended that the thresholds contravened Community equal-pay and equal-treatment law.

Mrs Day, a part-time cleaner who had been made redundant, joined the proceedings. The Divisional Court dismissed the application: [1992] ICR 341. The Court of Appeal affirmed that decision by a majority: [1993] ICR 251. The central questions were whether judicial review and declaratory relief were available, whether the Commission had standing, and whether the discriminatory thresholds were objectively justified.

1. Disposition. The Commission’s appeal was allowed by a majority of four to one. The thresholds governing redundancy pay and unfair-dismissal compensation were declared incompatible with the applicable Community provisions. Mrs Day’s appeal was dismissed without an order for costs.
2. Standing. Per Lord Keith, with Lord Lowry, Lord Browne-Wilkinson and Lord Slynn agreeing, the Commission had sufficient interest. Its statutory duty to work towards eliminating discrimination entitled it to pursue judicial review concerning sex discrimination of public importance affecting a large section of the population. Lord Jauncey dissented on this issue. He considered the Commission’s relationship with the Secretary of State to be advisory and would have dismissed the appeal, although he agreed with the majority’s remaining reasoning if standing existed.
3. Availability of judicial review. Per Lord Keith, the Secretary of State’s letter merely stated his view and was not a reviewable decision. Nevertheless, judicial review could be used to obtain a declaration that primary legislation was incompatible with Community law. Such relief reflected the primacy given to Community law by section 2 of the European Communities Act 1972; it did not enforce an international treaty obligation.
4. Declaratory jurisdiction. Per Lord Browne-Wilkinson, judicial review could yield any declaration of public rights formerly obtainable through an ordinary civil action, whether or not a prerogative order was available. Order 53 did not confine declarations to substitutes for prerogative relief. Lord Scarman’s contrary dictum in I.R.C. v National Federation of Self-employed and Small Businesses was obiter and should not be followed.
5. Objective justification. Per Lord Keith, the state bore the burden of showing that the indirectly discriminatory thresholds rested on objective factors unrelated to sex. Increasing part-time employment was a legitimate and necessary social-policy aim. The state nevertheless failed to prove that the thresholds were suitable and requisite. Departmental views were not factual evidence, international comparisons did not support the asserted connection, and no objective justification was established.
6. Community-law consequences. Redundancy pay was “pay” under article 119. The discriminatory redundancy-pay thresholds therefore contravened article 119 and the Equal Pay Directive. It was unnecessary to decide whether unfair-dismissal compensation was “pay”, because unjustified discrimination concerning that entitlement plainly contravened the Equal Treatment Directive.
7. Mrs Day and further relief. Mrs Day’s private claim belonged before the industrial tribunal, which could determine objective justification. The House also refused a declaration intended to facilitate state-liability claims under the Francovich principle, since such proceedings would involve a different defendant and potentially different issues.

1. House of Lords: By a majority, set aside the Court of Appeal and Divisional Court orders concerning the Commission and granted declarations of incompatibility. It affirmed the Court of Appeal’s order concerning Mrs Day and dismissed her appeal.
2. Court of Appeal: By a majority, Kennedy and Hirst LJJ, Dillon LJ dissenting, affirmed the Divisional Court’s dismissal: [1993] ICR 251.
3. Divisional Court: Nolan LJ and Judge J dismissed the judicial-review application: [1992] ICR 341.