Case Facts
The Equal Opportunities Commission (EOC) and Patricia Day brought judicial review proceedings challenging provisions of the Employment Protection (Consolidation) Act 1978 that imposed qualifying thresholds for part-time workers seeking to claim unfair dismissal compensation and redundancy pay. The threshold provisions operated on a tiered basis: those working fewer than eight hours a week were excluded altogether from both entitlements, whilst those working between eight and sixteen hours a week were required to meet a substantially longer qualifying period of employment than those working sixteen or more hours a week. Because considerably more women than men worked part-time, this tiered structure disproportionately disadvantaged women.
Patricia Day, the second applicant, had been employed part-time by a health authority and was subsequently made redundant. She worked eleven hours a week, placing her in the intermediate threshold bracket, and had not qualified for a redundancy payment as a result.
The EOC wrote to the Secretary of State for Employment challenging the compatibility of these provisions with Community law. The Secretary of State replied by letter dated 23 April 1990, maintaining that the threshold provisions were objectively justified. The EOC and Day then sought judicial review of that position. The Divisional Court dismissed the application, finding the thresholds to be objectively justified. The Court of Appeal, by a majority, upheld the decision in relation to the EOC on the ground that the Secretary of State's letter was not susceptible to judicial review. The matter came before the House of Lords, which reversed the Court of Appeal's decision.
The legal challenge centred on whether the threshold provisions were compatible with Article 119 of the EEC Treaty, Council Directive 75/117/EEC (the Equal Pay Directive), and Council Directive 76/207/EEC (the Equal Treatment Directive). The objective justification test applicable to claims of indirect sex discrimination had been established by the Court of Justice of the European Communities in Bilka-Kaufhaus GmbH v Weber von Hartz (Case 170/84) [1987] and subsequently applied to part-time workers' exclusions in Case 171/88 Rinner-Kuhn v FWW Spezial-Gebaudereinigung GmbH.
Held
The House of Lords held as follows.
First, the appeal brought by Patricia Day was dismissed. Even assuming the threshold provisions were not objectively justified under Community law, her claim to a redundancy payment was a claim against her employer and ought to have been pursued in the industrial tribunal. It was not appropriate for her to seek relief against the Secretary of State by way of judicial review in the Divisional Court.
Second (Lord Jauncey of Tullichettle dissenting on this point), the EOC had sufficient interest — that is, locus standi — to bring the judicial review proceedings. By reason of its statutory duty under s 53(1) Sex Discrimination Act 1975 to work towards the elimination of discrimination, the EOC satisfied the sufficient interest requirement imposed by s 31(3) Supreme Court Act 1981 and RSC Order 53 r.3(7). The majority (comprising three of the five Law Lords) further held that, although the Secretary of State's letter of 23 April 1990 did not constitute a "decision" against which a prerogative order could lie, the Divisional Court nonetheless had jurisdiction under RSC Order 53 r.1(2) to grant declarations that primary legislation — specifically, the threshold provisions of the Employment Protection (Consolidation) Act 1978 — was incompatible with Community law. The EOC's standing was also supported by its prior recognition in R (Equal Opportunities Commission) v Birmingham City Council [1989].
Third (Lord Jauncey of Tullichettle again dissenting), the EOC's appeal was allowed. The onus of demonstrating that the indirect discrimination against women inherent in the threshold provisions was objectively justified lay upon the Secretary of State. Whilst increasing the availability of part-time work could in principle constitute a legitimate and beneficial aim of social policy, and thus provide an objective justification, the Secretary of State had not established on the evidence before the Divisional Court that the threshold provisions had actually resulted in greater availability of part-time work than would otherwise have been the case. The provisions had not been shown, by reference to objective factors, to be suitable and requisite for achieving that aim. Declarations were accordingly made that the threshold provisions of the Employment Protection (Consolidation) Act 1978 were incompatible with Article 119 of the EEC Treaty and with the relevant Council Directives.
Ratio Decidendi
The central ratio of this decision is that domestic statutory provisions which indirectly discriminate against women by imposing more onerous qualifying conditions on part-time workers must be objectively justified by the Member State; if they are not, they are incompatible with Community law and a domestic court may declare them to be so.
The onus of proving objective justification rests on the Secretary of State. Applying the test established in Bilka-Kaufhaus GmbH v Weber von Hartz (Case 170/84) [1987], a measure will be objectively justified only if it corresponds to a real need on the part of the undertaking or the Member State, is appropriate for achieving the objective pursued, and is necessary to that end. Although a policy of encouraging the availability of part-time work is capable of constituting such a justification in principle, vague assertions of policy intent are insufficient: the Secretary of State must demonstrate, by reference to objective evidence, that the impugned provisions have in fact produced the desired effect. Here, that evidential burden was not discharged.
The decision also confirms two important procedural and constitutional propositions. First, a body such as the EOC, which holds a statutory duty to work towards the elimination of sex discrimination under s 53(1) Sex Discrimination Act 1975, possesses sufficient interest within the meaning of s 31(3) Supreme Court Act 1981 to bring judicial review proceedings in its own name. Secondly, and of broader constitutional significance, the Divisional Court has jurisdiction to declare that provisions of primary UK legislation are incompatible with Community law even where there is no discrete "decision" susceptible to challenge by prerogative order. This built upon the jurisdiction confirmed in Factortame (No 2) [1991] and reinforced the principle that Community law rights must be given effective protection in domestic courts.
It was left as an open question whether compensation for unfair dismissal constitutes "pay" within the meaning of Article 119 of the EEC Treaty and Council Directive 75/117/EEC. Only redundancy pay was conclusively treated as falling within the concept of "pay" for Article 119 purposes in this case.
Obiter Dicta
Not applicable.