Lisa Jacqueline Grant contra South-West Trains Ltd.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:1997:449
• Court: Court of Justice (European Union)
• Celex Number: 61996CC0249
• Docket Number: C-249/96
• Procedure Type: Reference for a preliminary ruling
• Date: 30 September 1997

Sex discrimination – Principle of equal pay for men and woman – Woman employee cohabiting with another woman – Employer granting travel concessions to employee with spouse of cohabitee of opposite sex – Employer refusing to grant such concessions to cohabitee of same sex – Whether amounting to sex discrimination.

The applicant was employed as a clerical officer by SWT. In her contract of employment it was stated that she would be granted certain free and reduced rate travel concessions and that her spouse and dependants would also be granted travel concessions. These concessions were further regulated under the staff facilities privilege ticket regulations, which provided, inter alia, that privileged tickets were granted for one common law opposite sex spouse of staff. The applicant sought travel concessions for her female cohabitee but that was rejected by SWT on the ground that for unmarried persons travel concessions could be granted only for a partner of the opposite sex. The applicant brought a case before an industrial tribunal claiming that art 119 of the EC Treaty precluded her being denied part of her pay consisting in obtaining travel concessions for her female cohabitee when a male employee in the same circumstances would obtain travel concessions for his female cohabitee. The tribunal, being of opinion that the question was whether refusal of the benefit at issue on the ground of the employee’s sexual orientation was ‘discrimination based on sex’ within the meaning of art 119 of the Treaty and Council Directive (EEC) 75/117 on the principle of equal pay for men and women, referred the matter to the Court of Justice of the European Communities.

Held — The condition in the ticket regulations that the worker must be living in a stable relationship with a person on the opposite sex in order for that person to benefit from the travel concessions was applied regardless of the sex of the worker. It could not, therefore, be regarded as constituting discrimination directly based on sex. Further, in the present state of the law within the Community, stable relationships between two persons of the same sex were not regarded as equivalent to marriages or stable relationships outside marriage between persons of opposite sex. Nor did Community law as it stood at present cover discrimination based on sexual orientation.

Accordingly, the refusal by an employer to allow travel concessions to the person of the same sex with whom a worker had a stable relationship, where such concessions were allowed to a worker’s spouse or to the person of the opposite sex with whom the worker had a stable relationship outside marriage, did not constitute discrimination prohibited by art 119 of the Treaty or Directive 75/117.

Cases cited

B v UK (1990) 64 D & R 278, E Com HR.

C v UK App No 14753/89 (9 October 1989, unreported) E Com HR.

Coloroll Pension Trustees Ltd v Russell Case C-200/91 [1994] ECR I-4389, [1995] All ER (EC) 23, ECJ.

Cossey v UK[1993] 2 FCR 97, (1990) 13 EHRR 622, ECt HR.

Davis v Johnson [1979] AC 264, [1978] 1 All ER 1132, [1978] 2 WLR 553, HL.

Defrenne v Sabena Case 43/75 [1976] ECR 455, [1981] 1 All ER 122, ECJ.

Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus Case C-177/88 [1990] ECR I-3941, ECJ.

Dzodzi v Belgium Joined cases C-297/88 and C-197/89 [1990] ECR I-3763, ECJ.

Enderby v Frenchay Health Authority Case C-127/92 [1993] ECR I-5535, ECJ.

Garland v British Rail Engineering Ltd Case 12/81 [1983] AC 751, [1982] 2 All ER 402, [1982] 2 WLR 918, [1982] ECR 359, ECJ.

Gillespie v Northern Health and Social Services Board Case C-342/93 [1996] ECR I-475, [1996] All ER (EC) 284, ECJ.

Kerkhoven v Netherlands App No 15666/89 (19 May 1992, unreported), E Com HR.

McDermott v Minister for Social Welfare Case 286/85 [1987] ECR 1453, ECJ.

Neath v Hugh Steeper Ltd Case C-152/91 [1993] ECR I-6935, [1994] 1 All ER 929, ECJ.

Nimz v Freie und Hansestadt Hamburg Case C-184/89 [1991] ECR I-297, ECJ.

Opinion 2/94 [1996] ECR I-1759, ECJ.

Orkem v EC Commission Case 374/87 [1989] ECR 3283, ECJ.

P v S (sex discrimination) [1997] 2 FCR 180; sub nom P v S Case C-13/94 [1996] ECR I-2143, [1996] All ER (EC) 397, ECJ.

Rees v UK[1993] 2 FCR 49, (1986) 9 EHRR 56, ECt HR.

S v UK (1986) 47 D & R 274, E Com HR.

Society for the Protection of Unborn Children Ireland Ltd v Grogan Case C-159/90 [1991] ECR I-4685, ECJ.

Toonen v Australia Communication [1994] 1-3 IHRR 97, HR Committee.

Van Cant v Rijksdienst voor Pensioenen Case C-154/92 [1993] ECR I-3811, ECJ.

X v UK (1983) 32 D & R 220, E Com HR.

Reference

In proceedings between Lisa Grant and her employer, South-West Trains Ltd (SWT), concerning the refusal by SWT of travel concessions for Ms Grant’s female partner, the industrial tribunal, Southampton, referred to the Court of Justice of the European Communities for a preliminary ruling under art 177 of the EC Treaty six questions on the interpretation of art 119 of that Treaty, Council Directive (EEC) 75/117 on the approximation of the laws of the member states relating to the application of the principle of equal pay for men and women, and Council Directive (EEC) 76/207 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. Written observations were submitted on behalf of: Ms Grant, by C Booth QC, and by P Duffy and M Demetriou, Barristers; South-West Trains Ltd, by N Underhill QC and M Shanks, Barrister; the UK government, by J E Collins, of the Treasury Solicitor’s Department, acting as Agent; and S Richards and D Anderson, Barristers; the French government, by C de Salins, Deputy Director in the Legal Affairs Department of the Ministry of Foreign Affairs, and A de Bourgoing, Chargè de Mission in that department, acting as Agents; the European Commission, by C Docksey, M Wolfcarius and C O’Reilly, of its Legal Service, acting as Agents. Oral observations were made by: Ms Grant, represented by C Booth QC, P Duffy QC and M Demetriou; South-West Trains Ltd, represented by N Underhill QC and M Shanks; the UK government, represented by J E Collins, D Anderson and P Elias QC; and the Commission, represented by C O’Reilly and M Wolfcarius. The language of the case was English. The facts are set out in the opinion of the Advocate General.

30 September 1997.

THE ADVOCATE GENERAL (M B ELMER)

delivered the following opinion (translated from the Danish).

1. Does a provision in an employer’s pay regulations according to which the employee is to be granted a pay benefit in the form of travel concessions for a cohabitee of the opposite gender to the employee, but is denied such concessions for a cohabitee of the same gender as the employee, constitute gender discrimination in breach of art 119 of the EC Treaty?

The case before the national court and the questions referred for a preliminary ruling

2. On 4 June 1993 Lisa Grant was engaged as a clerical officer by the British Railways Board. On 31 March 1995 the employment relationship was transferred to South-West Trains Ltd, a wholly-owned subsidiary, which was privatised on 4 February 1996. Clause 18 of her contract of employment, entitled ‘Travel facilities’, states:

‘You will be granted such free and reduced rate travel concessions as are applicable to a member of your grade. Your spouse and dependants will also be granted travel concessions. Travel concessions are granted at

the discretion of [the employer] and will be withdrawn in the event of their misuse.’

3. Those travel concessions are further regulated in the Staff Travel Facilities Privilege Ticket Regulations (the ticket regulations), issued by the British Railways Board and adopted by South-West Trains Ltd after privatisation. Clause 8 of the ticket regulations, entitled ‘Spouses’, provides, inter alia:

‘Privilege tickets are granted for one common law opposite sex spouse of staff . . . subject to a statutory declaration being made that a meaningful relationship has existed for a period of two years or more . . .’

4. Under cll 10 and 11 of the ticket regulations, the employee is also entitled to concessions for unmarried children living at home. Under cl 12 it is further stated that—‘Privilege tickets may be issued . . . for a relative acting as a bona fide permanent resident housekeeper to and entirely dependent upon the applicant’ if the employee is either living alone or with an invalid spouse. Under that clause ‘relative’ is defined as a mother, father, brother, sister, daughter or son.

5. Mr Potter, who was Lisa Grant’s predecessor in post, had in his time made a statutory declaration that a meaningful relationship had existed between him and his female cohabitee for a period of two years or more, and on that basis had obtained travel concessions for her.

6. On 9 January 1995 Lisa Grant similarly applied for travel concessions for her female cohabitee, Jillian Percey, at the same time making a declaration that she lived together with—

‘the individual described as my common law spouse on my application for concessionary travel facilities in a “Common law relationship” and that I have so lived for a continuous period of two years or more . . .’

Lisa Grant’s application was rejected on the ground that, under cl 8 of the ticket regulations, travel concessions were not granted for cohabitees of the same sex.

7. Lisa Grant then brought a case against South-West Trains Ltd before the industrial tribunal, Southampton, United Kingdom, claiming that art 119 of the Treaty precluded her being denied part of her pay consisting in obtaining travel concessions for her female cohabitee, when a male employee in the same circumstances would obtain travel concessions for his female cohabitee.

8. By order registered at the Court of Justice of the European Communities on 22 July 1996 the tribunal stayed the proceedings and referred the following questions to the Court of Justice:

‘(1) Is it (subject to (6) below)...