61981J0019

1 . SOCIAL POLICY - MEN AND WOMEN - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUAL TREATMENT - CONDITIONS FOR ACCESS TO A VOLUNTARY REDUNDANCY SCHEME - DIFFERENT AGE FOR MEN AND WOMEN - PERMISSIBILITY

( COUNCIL DIRECTIVE 76/207 , ART . 5 )

2 . SOCIAL POLICY - MEN AND WOMEN - EQUAL TREATMENT - SOCIAL SECURITY - DIFFERENT MINIMUM PENSIONABLE AGE - PERMISSIBILITY

( COUNCIL DIRECTIVE 79/7 , ART . 7 )

1 . THE PRINCIPLE OF EQUAL TREATMENT CONTAINED IN ARTICLE 5 OF COUNCIL DIRECTIVE 76/207 APPLIES TO THE CONDITIONS OF ACCESS TO VOLUNTARY REDUNDANCY BENEFIT PAID BY AN EMPLOYER TO A WORKER WISHING TO LEAVE HIS EMPLOYMENT .

THE FACT THAT ACCESS TO VOLUNTARY REDUNDANCY IS AVAILABLE ONLY DURING THE FIVE YEARS PRECEDING THE MINIMUM PENSIONABLE AGE FIXED BY NATIONAL SOCIAL SECURITY LEGISLATION AND THAT THAT AGE IS NOT THE SAME FOR MEN AS FOR WOMEN CANNOT IN ITSELF BE REGARDED AS DISCRIMINATION ON GROUNDS OF SEX WITHIN THE MEANING OF ARTICLE 5 OF DIRECTIVE 76/207 .

2 . THE DETERMINATION OF A MINIMUM PENSIONABLE AGE FOR SOCIAL SECURITY PURPOSES WHICH IS NOT THE SAME FOR MEN AS FOR WOMEN DOES NOT AMOUNT TO DISCRIMINATION PROHIBITED BY COMMUNITY LAW .

IN CASE 19/81

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE EMPLOYMENT APPEAL TRIBUNAL FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ARTHUR BURTON

AND

BRITISH RAILWAYS BOARD

ON THE INTERPRETATION OF ARTICLE 119 OF THE TREATY AND ARTICLE 1 OF COUNCIL DIRECTIVE 75/117/EEC OF 10 FEBRUARY 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE APPLICATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN ( OFFICIAL JOURNAL L 45 , P . 19 ) AND ARTICLES 1 ( 1 ), 2 ( 1 ) AND 5 ( 1 ) OF COUNCIL DIRECTIVE 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 L 39 , P . 40 ), WITH REGARD TO PAYMENT OF A VOLUNTARY REDUNDANCY BENEFIT ,

1 BY AN ORDER OF 16 JANUARY 1981 WHICH WAS RECEIVED AT THE COURT ON 4 FEBRUARY 1981 THE EMPLOYMENT APPEAL TRIBUNAL REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS CONCERNING THE INTERPRETATION , WITH REGARD TO PAYMENT OF VOLUNTARY REDUNDANCY BENEFIT , OF ARTICLE 119 OF THE TREATY , ARTICLE 1 OF COUNCIL DIRECTIVE 75/117/EEC OF 10 FEBRUARY 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE APPLICATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN ( OFFICIAL JOURNAL L 45 , P . 19 ) AND ARTICLES 1 ( 1 ), 2 ( 1 ) AND 5 ( 1 ) OF COUNCIL DIRECTIVE 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 L 39 , P . 40 ).

2 ACCORDING TO THE CASE-FILE MR BURTON , THE PLAINTIFF IN THE MAIN ACTION , IS AN EMPLOYEE OF THE BRITISH RAILWAYS BOARD ( HEREINAFTER REFERRED TO AS ' ' THE BOARD ' ' ), A BODY ESTABLISHED BY THE TRANSPORT ACT 1962 AND RESPONSIBLE FOR OPERATING THE RAILWAY SYSTEM IN GREAT BRITAIN .

3 AS A RESULT OF AN INTERNAL REORGANIZATION THE BOARD MADE AN OFFER OF VOLUNTARY REDUNDANCY TO SOME OF ITS EMPLOYEES . A MEMORANDUM WAS DRAWN UP EMBODYING THE TERMS OF A COLLECTIVE AGREEMENT BETWEEN MANAGEMENT AND THE RECOGNIZED TRADE UNIONS ON THE TERMS ON WHICH CERTAIN ASPECTS OF THE REORGANIZATION WERE TO BE CARRIED OUT . PARAGRAPH 6 OF THE MEMORANDUM PROVIDES AS FOLLOWS :

' ' STAFF AGED 60/55 ( MALE/FEMALE ) MAY LEAVE THE SERVICE UNDER THE REDUNDANCY AND RESETTLEMENT ARRANGEMENTS WHEN THE FUNCTION IN WHICH ( THEY ARE ) EMPLOYED HAS BEEN DEALT WITH UNDER ORGANIZATION PLANNING . ' '

4 IN AUGUST 1979 MR BURTON APPLIED FOR VOLUNTARY REDUNDANCY BUT HIS APPLICATION WAS REJECTED ON THE GROUND THAT HE WAS UNDER THE MINIMUM AGE OF 60 SPECIFIED FOR MALE EMPLOYEES BY THE ABOVE-MENTIONED MEMORANDUM . MR BURTON THEREFORE CLAIMED THAT HE WAS TREATED LESS FAVOURABLY THAN FEMALE EMPLOYEES INASMUCH AS THE BENEFIT WOULD HAVE BEEN GRANTED TO A WOMAN OF HIS AGE ( 58 ).

5 AFTER THE REJECTION OF HIS APPLICATION MR BURTON COMPLAINED TO AN INDUSTRIAL TRIBUNAL UNDER THE PROVISIONS OF THE EQUAL PAY ACT 1970 , AS LAST AMENDED BY THE SEX DISCRIMINATION ACT 1975 . THE INDUSTRIAL TRIBUNAL REJECTED MR BURTON ' S CLAIM AND HE APPEALED TO THE EMPLOYMENT APPEAL TRIBUNAL . IN THE COURSE OF THE APPEAL IT WAS CONCEDED ON HIS BEHALF THAT BY VIRTUE OF SECTION 6 ( 4 ) OF THE SEX DISCRIMINATION ACT 1975 IT IS NOT CONTRARY TO THE ACT FOR AN EMPLOYER TO TREAT A MALE EMPLOYEE LESS FAVOURABLY THAN HE TREATS A FEMALE EMPLOYEE AS REGARDS ACCESS TO VOLUNTARY REDUNDANCY BENEFIT . HOWEVER , MR BURTON CONTENDED THAT SECTION 6 ( 4 ) MUST BE CONSTRUED AS SUBJECT TO THE ENFORCEABLE COMMUNITY RIGHTS CONFERRED BY ARTICLE 119 OF THE TREATY , ARTICLE 1 OF DIRECTIVE 75/117 ON EQUAL PAY AND ARTICLES 1 , 2 AND 5 OF DIRECTIVE 76/207 ON EQUAL TREATMENT .

6 IN ORDER TO RESOLVE THE ISSUE THE EMPLOYMENT APPEAL TRIBUNAL REFERRED TO THE COURT THREE QUESTIONS WORDED AS FOLLOWS :

' ' ( 1 ) IS A VOLUNTARY REDUNDANCY BENEFIT , WHICH IS PAID BY AN EMPLOYER TO A WORKER WISHING TO LEAVE HIS EMPLOYMENT , WITHIN THE SCOPE OF THE PRINCIPLE OF EQUAL PAY CONTAINED IN ARTICLE 119 OF THE EEC TREATY AND ARTICLE 1 OF COUNCIL DIRECTIVE 75/117/EEC OF 10 FEBRUARY 1975?

( 2)IF THE ANSWER TO QUESTION ( 1 ) IS IN THE AFFIRMATIVE , DOES THE PRINCIPLE OF EQUAL PAY HAVE DIRECT EFFECT IN MEMBER STATES SO AS TO CONFER ENFORCEABLE COMMUNITY RIGHTS UPON INDIVIDUALS IN THE CIRCUMSTANCES OF THE PRESENT CASE?

( 3)IF THE ANSWER TO QUESTION ( 1 ) IS IN THE NEGATIVE :

( I ) IS SUCH A VOLUNTARY REDUNDANCY BENEFIT WITHIN THE SCOPE OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ' WORKING CONDITIONS ' CONTAINED IN ARTICLE 1 ( 1 ), ARTICLE 2 ( 1 ) AND ARTICLE 5 ( 1 ) OF COUNCIL DIRECTIVE 76/207/EEC OF 9 FEBRUARY 1976?

( II)IF SO , DOES THE SAID PRINCIPLE HAVE DIRECT EFFECT IN MEMBER STATES SO AS TO CONFER ENFORCEABLE COMMUNITY RIGHTS UPON INDIVIDUALS IN THE CIRCUMSTANCES OF THE PRESENT CASE?

' '

7 THE PRINCIPAL ISSUE RAISED BY THOSE QUESTIONS IS WHETHER THE REQUIREMENT THAT A MALE WORKER SHOULD HAVE REACHED THE AGE OF 60 IN ORDER TO BE ELIGIBLE FOR PAYMENT OF A VOLUNTARY REDUNDANCY BENEFIT WHEREAS WOMEN WORKERS BECOME ELIGIBLE AT THE AGE OF 55 AMOUNTS TO DISCRIMINATION PROHIBITED BY ARTICLE 119 OF THE TREATY OR BY ARTICLE 1 OF DIRECTIVE 75/117 OR , AT LEAST , BY DIRECTIVE 76/207 AND , IF SO , WHETHER THE RELEVANT PROVISION OF COMMUNITY LAW MAY BE RELIED UPON IN THE NATIONAL COURTS .

8 CONSEQUENTLY THE QUESTION OF INTERPRETATION WHICH HAS BEEN REFERRED TO THE COURT CONCERNS NOT THE BENEFIT ITSELF , BUT WHETHER THE CONDITIONS OF ACCESS TO THE VOLUNTARY REDUNDANCY SCHEME ARE DISCRIMINATORY . THAT IS A MATTER COVERED BY THE PROVISIONS OF DIRECTIVE 76/207 TO WHICH REFERENCE WAS MADE BY THE NATIONAL COURT , AND NOT BY THOSE OF ARTICLE 119 OF THE TREATY OR DIRECTIVE 75/117 .

9 ACCORDING TO ARTICLE 5 ( 1 ) OF DIRECTIVE 76/207 APPLICATION OF THE PRINCIPLE OF EQUAL TREATMENT WITH REGARD TO WORKING CONDITIONS , INCLUDING THE CONDITIONS GOVERNING DISMISSAL , MEANS THAT MEN AND WOMEN ARE TO BE GUARANTEED THE SAME CONDITIONS WITHOUT DISCRIMINATION ON GROUNDS OF SEX . IN THE CONTEXT OF THE DIRECTIVE THE WORD ' ' DISMISSAL ' ' MUST BE WIDELY CONSTRUED SO AS TO INCLUDE TERMINATION OF THE EMPLOYMENT RELATIONSHIP BETWEEN A WORKER AND HIS EMPLOYER , EVEN AS PART OF A VOLUNTARY REDUNDANCY SCHEME .

10 IN DECIDING WHETHER THE DIFFERENCE IN TREATMENT OF WHICH THE PLAINTIFF IN THE MAIN ACTION COMPLAINS IS DISCRIMINATORY WITHIN THE MEANING OF THAT DIRECTIVE ACCOUNT MUST BE TAKEN OF THE RELATIONSHIP BETWEEN MEASURES SUCH AS THAT AT ISSUE AND NATIONAL PROVISIONS ON NORMAL RETIREMENT AGE .

11 UNDER UNITED KINGDOM LEGISLATION THE MINIMUM QUALIFYING AGE FOR A STATE RETIREMENT PENSION IS 60 FOR WOMEN AND 65 FOR MEN .

12 FROM THE INFORMATION SUPPLIED BY THE UNITED KINGDOM GOVERNMENT IN THE COURSE OF THE PROCEEDINGS IT APPEARS THAT A WORKER WHO IS PERMITTED BY THE BOARD TO TAKE VOLUNTARY EARLY RETIREMENT MUST DO SO WITHIN THE FIVE YEARS PRECEDING THE NORMAL MINIMUM AGE OF RETIREMENT , AND THAT HE MAY RECEIVE THE FOLLOWING BENEFITS : ( 1 ) THE LUMP SUM CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF THE REDUNDANCY PAYMENTS ACT 1965 , ( 2 ) A LUMP SUM CALCULATED ON THE BASIS OF THE TOTAL LENGTH OF HIS EMPLOYMENT WITH THE BOARD , AND ( 3 ) 25% OF THE SUM OF THE FIRST TWO AMOUNTS . IN ADDITION HE IS ENTITLED UP TO THE MINIMUM RETIRING AGE TO AN EARLY RETIREMENT PENSION EQUAL TO THE PENSION TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE ATTAINED THE MINIMUM STATUTORY RETIREMENT AGE AND TO AN ADVANCE , REPAYABLE AT THE MINIMUM RETIRING AGE , EQUAL TO THE SUM TO WHICH HE BECOMES ENTITLED AT THAT AGE .

13 COUNCIL DIRECTIVE 79/7/EEC OF 19 DECEMBER 1978 ON THE PROGRESSIVE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN IN MATTERS OF SOCIAL SECURITY ( OFFICIAL JOURNAL 1979 , L 6 , P . 24 ), WHICH WAS ADOPTED WITH PARTICULAR REFERENCE TO ARTICLE 235 OF THE TREATY , PROVIDES IN ARTICLE 7 THAT THE DIRECTIVE SHALL BE WITHOUT PREJUDICE TO THE RIGHT OF MEMBER STATES TO EXCLUDE FROM ITS SCOPE THE DETERMINATION OF PENSIONABLE AGE FOR THE PURPOSES OF GRANTING OLD-AGE AND RETIREMENT PENSIONS AND THE POSSIBLE CONSEQUENCES THEREOF FOR OTHER BENEFITS .

14 IT FOLLOWS THAT THE DETERMINATION OF A MINIMUM PENSIONABLE AGE FOR SOCIAL SECURITY PURPOSES WHICH IS NOT THE SAME FOR MEN AS FOR WOMEN DOES NOT AMOUNT TO DISCRIMINATION PROHIBITED BY COMMUNITY LAW .

15 THE OPTION GIVEN TO WORKERS BY THE PROVISIONS AT ISSUE IN THE PRESENT INSTANCE IS TIED TO THE RETIREMENT SCHEME GOVERNED BY UNITED KINGDOM SOCIAL SECURITY PROVISIONS . IT ENABLES A WORKER WHO LEAVES HIS EMPLOYMENT AT ANY TIME DURING THE FIVE YEARS BEFORE HE REACHES NORMAL PENSIONABLE AGE TO RECEIVE CERTAIN ALLOWANCES FOR A LIMITED PERIOD . THE ALLOWANCES ARE CALCULATED IN THE SAME MANNER REGARDLESS OF THE SEX OF THE WORKER . THE ONLY DIFFERENCE BETWEEN THE BENEFITS FOR MEN AND THOSE FOR WOMEN STEMS FROM THE FACT THAT THE MINIMUM PENSIONABLE AGE UNDER THE NATIONAL LEGISLATION IS NOT THE SAME FOR MEN AS FOR WOMEN .

16 IN THE CIRCUMSTANCES THE DIFFERENT AGE CONDITIONS FOR MEN AND WOMEN WITH REGARD TO ACCESS TO VOLUNTARY REDUNDANCY CANNOT BE REGARDED AS DISCRIMINATION WITHIN THE MEANING OF DIRECTIVE 76/207 .

17 IN THE LIGHT OF THAT ANSWER TO THE FIRST PART OF THE THIRD QUESTION IT IS NOT NECESSARY TO GIVE A REPLY TO THE SECOND PART .

18 THE ANSWERS TO BE GIVEN TO THE QUESTIONS WHICH HAVE BEEN RAISED BY THE EMPLOYMENT APPEAL TRIBUNAL ARE THEREFORE AS FOLLOWS :

1 . THE PRINCIPLE OF EQUAL TREATMENT CONTAINED IN ARTICLE 5 OF COUNCIL DIRECTIVE 76/207 OF 9 FEBRUARY 1976 APPLIES TO THE CONDITIONS OF ACCESS TO VOLUNTARY REDUNDANCY BENEFIT PAID BY AN EMPLOYER TO A WORKER WISHING TO LEAVE HIS EMPLOYMENT .

2.THE FACT THAT ACCESS TO VOLUNTARY REDUNDANCY IS AVAILABLE ONLY DURING THE FIVE YEARS PRECEDING THE MINIMUM PENSIONABLE AGE FIXED BY NATIONAL SOCIAL SECURITY LEGISLATION AND THAT THAT AGE IS NOT THE SAME FOR MEN AS FOR WOMEN CANNOT IN ITSELF BE REGARDED AS DISCRIMINATION ON GROUNDS OF SEX WITHIN THE MEANING OF ARTICLE 5 OF DIRECTIVE 76/207 .

COSTS

19 THE COSTS INCURRED BY THE GOVERNMENT OF THE UNITED KINGDOM , THE GOVERNMENT OF THE KINGDOM OF DENMARK AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS 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 EMPLOYMENT APPEAL TRIBUNAL BY ORDER OF 16 JANUARY 1981 , HEREBY RULES :

1 . THE PRINCIPLE OF EQUAL TREATMENT CONTAINED IN ARTICLE 5 OF COUNCIL DIRECTIVE 76/207 OF 9 FEBRUARY 1976 ( OFFICIAL JOURNAL L 39 , P . 40 ) APPLIES TO THE CONDITIONS OF ACCESS TO VOLUNTARY REDUNDANCY BENEFIT PAID BY AN EMPLOYER TO A WORKER WISHING TO LEAVE HIS EMPLOYMENT .

2.THE FACT THAT ACCESS TO VOLUNTARY REDUNDANCY IS AVAILABLE ONLY DURING THE FIVE YEARS PRECEDING THE MINIMUM PENSIONABLE AGE FIXED BY NATIONAL SOCIAL SECURITY LEGISLATION AND THAT THAT AGE IS NOT THE SAME FOR MEN AS FOR WOMEN CANNOT IN ITSELF BE REGARDED AS DISCRIMINATION ON GROUNDS OF SEX WITHIN THE MEANING OF ARTICLE 5 OF DIRECTIVE 76/207 .