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Valentina R., lawyer
European Court reports 1986 Page 00703
1 . THE TERM ' DISMISSAL ' CONTAINED IN ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 MUST BE GIVEN A WIDE MEANING ; AN AGE LIMIT FOR THE COMPULSORY REDUNDANCY OF WORKERS AS PART OF A MASS REDUNDANCY FALLS WITHIN THE TERM ' DISMISSAL ' CONSTRUED IN THAT MANNER , EVEN IF THE REDUNDANCY INVOLVES THE GRANT OF AN EARLY RETIREMENT PENSION .
2 . IN VIEW OF THE FUNDAMENTAL IMPORTANCE OF THE PRINCIPLE OF EQUALITY OF TREATMENT FOR MEN AND WOMEN , ARTICLE 1 ( 2 ) OF DIRECTIVE NO 76/207 ON THE IMPLEMENTATION OF THAT PRINCIPLE AS REGARDS ACCESS TO EMPLOYMENT AND WORKING CONDITIONS , WHICH EXCLUDES SOCIAL SECURITY MATTERS FROM THE SCOPE OF THE DIRECTIVE , MUST BE INTERPRETED STRICTLY . IT FOLLOWS THAT THE EXCEPTION TO THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF SEX PROVIDED FOR IN ARTICLE 7 ( 1)(A ) OF DIRECTIVE NO 79/7 ON THE PROGRESSIVE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT IN MATTERS OF SOCIAL SECURITY APPLIES ONLY TO THE DETERMINATION OF PENSIONABLE AGE FOR THE PURPOSES OF GRANTING OLD-AGE AND RETIREMENT PENSIONS AND THE POSSIBLE CONSEQUENCES THEREOF FOR OTHER BENEFITS .
3 . ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 MUST BE INTERPRETED AS MEANING THAT A CONTRACTUAL PROVISION WHICH LAYS DOWN A SINGLE AGE FOR THE DISMISSAL OF MEN AND WOMEN UNDER A MASS REDUNDANCY INVOLVING THE GRANT OF AN EARLY RETIREMENT PENSION , WHEREAS THE NORMAL RETIREMENT AGE IS DIFFERENT FOR MEN AND WOMEN , DOES NOT CONSTITUTE DISCRIMINATION ON GROUNDS OF SEX , CONTRARY TO COMMUNITY LAW .
IN CASE 151/84
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COURT OF APPEAL OF ENGLAND AND WALES FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
ON THE INTERPRETATION OF COUNCIL DIRECTIVE NO 76/207/EEC OF 9 FEBRUARY 1976 ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT , VOCATIONAL TRAINING AND PROMOTION , AND WORKING CONDITIONS ( OFFICIAL JOURNAL 1976 , L 39 , P . 40 ),
1 BY AN ORDER OF 12 MARCH 1984 , WHICH WAS RECEIVED AT THE COURT ON 19 JUNE 1984 , THE COURT OF APPEAL OF ENGLAND AND WALES REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF COUNCIL DIRECTIVE NO 76/207/EEC OF 9 FEBRUARY 1976 ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT , VOCATIONAL TRAINING AND PROMOTION , AND WORKING CONDITIONS ( OFFICIAL JOURNAL 1976 , 39 , P . 40 ).
2 THE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS BETWEEN JOAN ROBERTS ( HEREINAFTER REFERRED TO AS ' THE APPELLAND ' ) AND TATE & LYLE INDUSTRIES LIMITED , PREVIOUSLY TATE & LYLE FOOD AND DISTRIBUTION LIMITED , ( HEREINAFTER REFERRED TO AS ' THE RESPONDENTS ' ) CONCERNING THE QUESTION WHETHER THE APPELLANT ' S DISMISSAL WAS IN ACCORDANCE WITH SECTION 6 ( 4 ) OF THE SEX DISCRIMINATION ACT 1975 AND WITH COMMUNITY LAW .
3 THE APPELLANT WAS EMPLOYED BY THE RESPONDENTS AT THEIR LIVERPOOL DEPOT FOR 28 YEARS AND , AT THE AGE OF 53 , WAS MADE REDUNDANT ON 22 APRIL 1981 , FOLLOWING THE CLOSURE OF THE DEPOT , TOGETHER WITH OTHER EMPLOYEES , UNDER A MASS REDUNDANCY .
4 THE APPELLANT WAS A MEMBER OF AN OCCUPATIONAL PENSION SCHEME , WHICH HAD BEEN CREATED IN 1978 BY THE RESPONDENTS FOR THEIR EMPLOYEES AND WHICH WAS CONTRACTED OUT OF THE STATE RETIREMENT PENSION SCHEME . THAT SCHEME IS FUNDED PARTLY BY THE RESPONDENTS THEMSELVES AND PARTLY BY VOLUNTARY CONTRIBUTIONS BY EMPLOYEES . IT PROVIDES FOR COMPULSORY RETIREMENT WITH A PENSION AT THE AGE OF 65 FOR MEN AND 60 FOR WOMEN . NEVERTHELESS , MEN AND WOMEN OVER THE AGE OF 50 MAY , WITH THE RESPONDENTS ' CONSENT , RETIRE BEFORE ATTAINING THE AFOREMENTIONED NORMAL RETIREMENT AGE , IN WHICH CASE THEY ARE ENTITLED TO A REDUCED PENSION IMMEDIATELY . AN EMPLOYEE WHO HAS BEEN A MEMBER OF THE SCHEME FOR 10 YEARS MAY CHOOSE TO RETIRE AT ANY TIME UP TO FIVE YEARS BEFORE THE NORMAL RETIREMENT AGE AND RECEIVE THE PENSION EARNED UP TO THAT DATE .
5 ON THE CLOSURE OF THE LIVERPOOL DEPOT THE RESPONDENTS AGREED SEVERANCE TERMS WITH THE TRADE UNION OF WHICH THE APPELLANT WAS A MEMBER . UNDER THOSE TERMS ALL EMPLOYEES MADE REDUNDANT WERE TO BE OFFERED EITHER A CASH PAYMENT OR AN EARLY PENSION OUT OF THE PENSION SCHEME UP TO FIVE YEARS BEFORE THE DATE OF THEIR ENTITLEMENT UNDER THE SCHEME . THE PENSION WAS THEREFORE PAYABLE IMMEDIATELY TO WOMEN OVER THE AGE OF 55 AND MEN OVER THE AGE OF 60 . NEVERTHELESS , AS A RESULT OF REPRESENTATIONS MADE BY MALE EMPLOYEES AGAINST THE ALLEGEDLY DISCRIMINATORY NATURE OF THOSE ARRANGEMENTS WITH REGARD TO MEN AGED BETWEEN 55 AND 60 , THE RESPONDENTS AMENDED THEM BY AGREEING TO GRANT AN IMMEDIATE PENSION TO BOTH MEN AND WOMEN OVER THE AGE OF 55 , WITH THE AMOUNT OF THEIR CASH PAYMENT REDUCED .
6 THE APPELLANT , WHO WAS AGED 53 AT THE DATE OF REDUNDANCY , BROUGHT PROCEEDINGS AGAINST THE RESPONDENTS BEFORE AN INDUSTRIAL TRIBUNAL , CLAIMING THAT HER DISMISSAL CONSTITUTED UNLAWFUL DISCRIMINATION CONTRARY TO THE SEX DISCRIMINATION ACT AND TO COMMUNITY LAW , SINCE UNDER THE NEW ARRANGEMENTS , A MALE EMPLOYEE WAS ENTITLED TO RECEIVE AN IMMEDIATE PENSION 10 YEARS BEFORE THE NORMAL RETIREMENT AGE FOR MEN WHEREAS A FEMALE EMPLOYEE WAS NOT SO ENTITLED UNTIL FIVE YEARS BEFORE THE NORMAL RETIREMENT AGE FOR WOMEN .
7 AFTER HER CASE WAS DISMISSED BY THE INDUSTRIAL TRIBUNAL SHE APPEALED TO THE EMPLOYMENT APPEAL TRIBUNAL , WHICH HELD THAT , EVEN IF IT WAS ASSUMED THAT THE APPELLANT HAD BEEN TREATED IN A DISCRIMINATORY MANNER , THE RESPONDENTS HAD NOT ACTED UNLAWFULLY SINCE , IN THE FIRST PLACE , SECTION 6 ( 4 ) OF THE SEX DISCRIMINATION ACT PROVIDED THAT THE PROVISIONS OF THE ACT CONCERNING THE PROHIBITION OF DISCRIMINATION ON THE BASIS OF SEX DID NOT APPLY TO ' PROVISION IN RELATION TO DEATH OR RETIREMENT ' , AND , IN THE SECOND PLACE , DIRECTIVE NO 76/207 WAS NOT DIRECTLY APPLICABLE BEFORE THE COURTS OF THE UNITED KINGDOM .
8 THE APPELLANT APPEALED TO THE COURT OF APPEAL , WHICH DECIDED TO REFER THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING : ' ( 1 ) WHETHER OR NOT THE RESPONDENTS DISCRIMINATED AGAINST THE APPELLANT CONTRARY TO THE EQUAL TREATMENT DIRECTIVE BY ARRANGING FOR MALE EMPLOYEES WHO WERE MADE REDUNDANT TO RECEIVE A PENSION FROM THE OCCUPATIONAL PENSION FUND 10 YEARS PRIOR TO THEIR NORMAL RETIREMENT AGE OF 65 BUT ARRANGING FOR FEMALE EMPLOYEES ( SUCH AS THE APPELLANT ) WHO WERE MADE REDUNDANT TO RECEIVE A PENSION ONLY FIVE YEARS PRIOR TO THEIR NORMAL RETIREMENT AGE OF 60 , THEREBY ARRANGING FOR BOTH MEN AND WOMEN TO RECEIVE AN IMMEDIATE PENSION AT THE AGE OF 55 . ( 2)IF THE ANSWER TO ( 1 ) ABOVE IS IN THE AFFIRMATIVE , WHETHER OR NOT THE EQUAL TREATMENT DIRECTIVE CAN BE RELIED UPON BY THE APPELLANT IN THE CIRCUMSTANCES OF THE PRESENT CASE IN NATIONAL COURTS AND TRIBUNALS NOTWITHSTANDING THE INCONSISTENCY ( IF ANY ) BETWEEN THE DIRECTIVE AND SECTION 6 ( 4 ) OF THE SEX DISCRIMINATION ACT 1975 . '
COSTS
39 THE COSTS INCURRED BY DENMARK , THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COURT OF APPEAL BY AN ORDER OF 12 MARCH 1984 , HEREBY RULES :
ARTICLES 5 ( 1 ) OF DIRECTIVE NO 76/207 MUST BE INTERPRETED AS MEANING THAT A CONTRACTUAL PROVISION WHICH LAYS DOWN A SINGLE AGE FOR THE DISMISSAL OF MEN AND WOMEN UNDER A MASS REDUNDANCY INVOLVING THE GRANT OF AN EARLY RETIREMENT PENSION , WHEREAS THE NORMAL RETIREMENT AGE IS DIFFERENT FOR MEN AND WOMEN , DOES NOT CONSTITUTE DISCRIMINATION ON GROUNDS OF SEX , CONTRARY TO COMMUNITY LAW .