"(4)  No claim in respect of the operation of an equal treatment rule in respect of an occupational pension scheme shall be referred to an industrial tribunal otherwise than by virtue of subsection (3) above unless the woman concerned has been employed in a description or category of employment to which the scheme relates within the six months preceding the date of the reference."

He accepts that that subsection does not apply directly since it did not come into force until 1 January 1996, but he submits that when Parliament did think of the position in relation to occupational pension schemes it substituted a more general phrase and that should guide the interpretation of section 2(4) when pension schemes are being considered.

      There are several answers to this point. In the first place it is really not possible to give a different meaning to section 2(4) according to whether a question arose in relation to pay or in relation to occupational pension schemes, prior to the coming into force of the Act of 1995.

      The second is that the question of pension schemes had been considered earlier and yet section 2(4) had been left as it stood. (See sections 53 and 54 of the Social Security Pensions Act 1975, the Occupational Pension Schemes (Equal Access to Membership) Regulations 1976 (S.I. 1976/142) in particular paragraph 9, and the Pension Schemes Act 1993).

      The third is, as Miss Booth QC showed, that there is a clear, independent reason for the difference in wording. The Act of 1970 is concerned with contracts, a contract between a specific employer and a specific employee. It was therefore appropriate to import a clause into that contract. The Act of 1995 is concerned with pension schemes applicable not just to one contract or form of contract but to different employment contracts not all of which are identical. A broader group was needed hence the words "description or category of employment" for the purposes of such schemes. It was also appropriate to refer to rules rather than clauses being inserted into the pension schemes. As Mr. Paines QC pointed out section 2(4) of the Act of 1970 continues in force where it is relevant even if a more suitable formulation is adopted in the Act of 1995 in relation to occupational pension schemes.

      I do not, therefore, consider that the Act of 1995 should influence the interpretation of the Act of 1970 in the way for which Mr. Pannick contends.

      On the domestic law question raised in this appeal I agree with the conclusions of Otton L.J. with which the other members of the Court of Appeal agreed and I would dismiss the appeal on that point.

      That in my view is not the end of the matter. The question arises as to whether such conclusion means that the provisions of section of 2(4) in this respect are incompatible with, or render excessively difficult to enforce, the exercise of rights under Article 119 of the Treaty either in relation to access to a pension scheme or as to benefits payable under it.

      Mr. Elias QC submits that it is illogical and factually incorrect to say that it is impossible to claim within the six-month period of an earlier contract when it is perfectly possible to make a claim in respect of the last of such contracts. He also says that it is quite plain that on the construction of section 2(4) for which he contends, and which I accept, there can be no conflict with Article 119.

      He may or may not be proved to be right but the question whether the restriction on the aggregation of periods of employment frustrates the purpose of Article 119, and is incompatible with it, is a question which, so far as I am aware, has not been specifically decided by the European Court of Justice. I agree with Mr. Pannick that it is necessary for this question to be decided in the context of a case where the compatibility generally of section of 2(4) is in issue. I do not accept Mr. Elias' argument that the answer to it is so clearly against Mr. Pannick's contention that it is not necessary to refer it to the European Court.

      Accordingly since the effect of section 2(4) in relation to Article 119 is being referred in other respects I would refer question 3 of the questions which I now set out:-

Where:

 (a) a claimant has been excluded from membership of an occupational pension scheme by reason of being a part-time worker; and

 (b) consequently, has not accrued pension benefits referable to service with her employer, which benefits become payable upon reaching pensionable age; and

 (c) the claimant alleges that such treatment is indirect sex discrimination contrary to Article 119 of the EC Treaty,

 the following three questions arise:



1. Is:

 (a) a national procedural rule which requires that a claim for membership of an occupational pension scheme (from which the right to pension benefits flows) which is brought in the Industrial Tribunal be brought within six months of the end of the employment to which the claim relates;

 (b) a national procedural rule which provides that a claimant's pensionable service is to be calculated only by reference to service after a date falling no earlier than two years prior to the date of her claim (irrespective of whether the date on which pension benefits become payable is before or after the date of the claim)

 compatible with the principle of EC law that national procedural rules for breach of Community law must not make it excessively difficult or impossible in practice for the claimant to exercise her rights under Article 119?



2. In circumstances where:

 (a) rights under Article 119 fall, as a matter of domestic law, to be enforced through the medium of a statute which was enacted in 1970, prior to the United Kingdom's accession to the European Community, and came into effect on 29 December 1975, and which, prior to 8 April 1976, already conferred a right to equal pay and equality of other contractual provisions;

 (b) the domestic statute contains the procedural rules referred to in question (1) above;

 (c) other statutes prohibiting discrimination in the employment field and the domestic law of contract provide for different time limits:

 (1) Does the implementation of Article 119 through that domestic statute constitute compliance with the principle of EC law that national procedural rules for a breach of Community law must be no less favourable than those which apply to similar claims of a domestic nature?

 (2) If not, what are the relevant criteria for determining whether another right of action in domestic law is a domestic action similar to the right under Article 119?

 (3) If a national court identifies any such similar claim in accordance with any criteria identified under (2) above, what, if any, are the relevant criteria under Community law for determining whether the procedural rules governing the similar claim or claims are more favourable than the procedural rules which govern the enforcement of the right under Article 119?



3. In circumstances where:

 (a) an employee has served under a number of separate contracts of employment for the same employer covering defined periods of time and with intervals between the periods covered by the contracts of employment;

 (b) after the completion of any contract, there is no obligation on either party to enter into further such contracts; and

 (c) she initiates a claim within six months of the completion of a later contract or contracts but fails to initiate a claim within six months of any earlier contract or contracts:  Is a national procedural rule which has the effect of requiring a claim for membership of an occupational pension scheme from which the right to pension benefits flow to be brought within six months of the end of any contract or contracts of employment to which the claim relates and which, therefore, prevents service under any earlier contract or contracts from being treated as pensionable service compatible with:

 (1) the right to equal pay for equal work in Article 119 of the EC Treaty; and

 (2) the principle of EC law that national procedural rules for breach of Community law must not make it excessively difficult or impossible in practice for the claimant to exercise her rights under Article 119?

 

SCHEDULE OF FACTS

THE PENSION SCHEMES

      1. The "test" cases concern the following pension schemes, all of which are contracted out schemes under United Kingdom law:

      (a) The NHS Pension Scheme contained in Statutory Instruments made by the Secretary of State for Health and administered by the Secretary of State;

      (b) The Teachers' Superannuation Scheme contained in Statutory Instruments made by the Secretary of State for Education and Employment and administered by the Secretary of State;

      (c) the Local Government Superannuation Scheme contained in Statutory Instruments made by the Secretary of State for the Environment pursuant to which certain local authorities (not the Secretary of State) maintain pension schemes;

      (d) the Electricity Supply (Staff) Superannuation Scheme Pension Scheme, originally established by resolution of the Electricity Council in 1947, and, since 1994, the Electricity Supply Pension Scheme, established under a trust deed; and

      (e) the Midland Bank Pension Scheme and the Midland Bank Key-Time Pension Scheme.

      2. The terms of the above schemes governing eligibility of part-time employees to be members have been as follows:

      (a) The NHS Pension Scheme

      The relevant occupational pension scheme is the National Health Service Pension Scheme ("the NHS Scheme"). At the material times, the rules relating to access to the NHS Scheme were contained, successively, in the NHS Superannuation Regulations 1961 (S.I. 1961/1441), as amended by the NHS Superannuation (Amendment) Regulations 1973 (S.I. 1973/242), and the NHS Superannuation Regulations 1980 (S.I. 1980/362) ("the 1980 Regulations").

      Until 1 April 1991, part-time workers who worked for less than one half of the hours which would constitute whole-time employment in their case did not qualify for membership of the NHS Scheme.

      Since 1 April 1991 all NHS employees have been permitted to join the NHS Scheme regardless of the number of hours worked. Existing part-time workers who were not already members of the Scheme were able to elect to become members.

      The 1980 Regulations were replaced by the National Health Service Pension Scheme Regulations 1995 (S.I. 1995/300), under which access to the NHS Scheme is granted to all officers, medical and dental practitioners, regardless of the number of hours worked.

      (b) The Teachers' Superannuation Scheme

      The terms of the Teachers' Superannuation Scheme were contained until 1 January 1977 in the Teachers' Superannuation Regulations 1967 (S.I. 1967/489), until 1 November 1988 in the teachers' Superannuation Regulations 1976 (S.I. 1976/1987), and until 1 September 1995 in the Teachers' Superannuation (Consolidated) Regulations 1988 (S.I. 1988/1652).

      Under the 1967, 1977 and 1988 Regulations, part-time workers did not have a right of access to the Scheme if:

      (1) their remuneration was calculated on an hourly-paid basis, though part-timers could join the Scheme if they were paid a pro rata proportion of a full-time worker's salary; or

      (2) they were already in receipt of a teacher's pension.

      On 1 September 1995, the Teachers' Superannuation (Amendment) Regulations (S.I. 1995/2004) came into force. The 1995 Regulations amended the 1988 Regulations so that hourly paid workers ceased to be excluded from access with effect from 1 May 1995.

      Further, the effect of the Occupational Pension Schemes (Equal Access to Membership) (Amendment) Regulations 1995 (S.I. 1995/1215) was to provide that occupational pension schemes, including the Teachers' Superannuation Scheme, should be treated with effect from 31 May 1995 as having been modified so as to eliminate indirect discrimination between the sexes.

      A number of the applicants in the education sector became eligible to join the Teachers' Superannuation Scheme before May 1995 because of a change of job, or a change in salary payment method.

      (c) The Local Government Superannuation Scheme

      In the period up until 1 April 1986, the conditions for access to pension funds forming part of the Local Government Superannuation Scheme ("the L.G.S.S.") were set out in the Local Government Superannuation Regulations 1974 (S.I. 1974/520) and, with effect from 1 March 1986, the Local Government Superannuation Regulations 1986 (S.I. 1986/24). Both Statutory Instruments limited access to the L.G.S.S. to officers who were "whole-time employees," that is, employees whose contractual minimum working hours usually amounted to 30 or more per week.

      The conditions for access to the L.G.S.S. were amended by the Local Government Superannuation (Miscellaneous Provisions) Regulations 1987 )S.I. 1987/293). The 1987 Regulations extended the right of access to the L.G.S.S., with effect from 1 April 1986, to part-time employees who were contracted to work 35 or more weeks per year and whose contractual hours were between 15 and 30 hours per week.

      In addition, the 1986 Regulations excluded persons appointed to a post in a temporary capacity of not more than three months or whose employment was of a casual nature.

      The conditions of access were further amended on 17 August 1993 with retrospective effect from 1 January 1993 by the Local Government Superannuation (Part-Time Employees) Regulations 1993 (S.I. 1993/1814). The requirement of a minimum of 15 contractual hours per week was removed.

      Since 1 May 1995 the terms of the Scheme have been contained in the Local Government Pension Scheme Regulations 1995 (S.I. 1995/1019)> Under these Regulations all employees of the relevant bodies are eligible to join the Scheme.

      (d) The Electricity Supply (Staff) Superannuation Scheme and the Electricity Supply Pension Scheme

      Until 1 April 1984, the relevant occupational pension scheme for the applicants who were employed in the Electricity Supply Sector was the Electricity Supply (Staff) Superannuation Scheme ("the 1947 Scheme") which had been established pursuant to a resolution of the Electricity Council dated 15 August 1947.

      Until 1 October 1980, access to the 1947 Scheme was open only to those "staff" employees in the Electricity Supply Industry who worked at least thirty four and a half hours per week.

      By a resolution of the Electricity Council dated 1 October 1980, membership of the 1947 Scheme was extended to "staff" employees who worked at least 20 hours per week.

      By a resolution of the Electricity Council dated 20 January 1983, the 1947 Scheme and the Electricity Supply (Industrial Staff) Superannuation Scheme 1948 were merged to form the Electricity Supply Pension Scheme ("ESPS"), which was established under a trust deed and which came into force on 1 April 1984.

      At the inception of the ESPS the conditions for access to the Scheme were the same as they had been in the last years of the 1947 Scheme, namely that the employee worked a minimum of 20 hours per week.

      By an amendment to the trust deed governing the ESPS, and with effect from 1 April 1988, the qualifying hours threshold for membership of the ESPS was removed, so that employees became entitled to membership of ESPS, regardless of the number of hours worked.

      In 1990, and following privatisation of the Electricity Supply Industry, the trustees structure of the ESPS was devolved to two levels of trustees: a central trustee, Electricity Pension Trustee Limited, and group trustees responsible for the administration of the ESPS in the regions covered by the former electricity boards.

      (e) The Midland Bank Pension Scheme and Midland Bank Key-Time Pension Scheme

      Midland Bank plc has operated at all times material to the applicants' claims a non-contributory pension scheme for the benefit of its staff.

      Before 1 January 1989, it operated a scheme known as the Midland Bank Pension Scheme which only full-time employees were eligible to join. From 1 January 1989, Midland Bank plc set up an additional pension scheme, the Midland Bank Key-Time Pension Scheme, for the benefit of part-time employees who worked for more than fourteen hours per week. Access to that scheme was extended to all part-time workers, irrespective of their hours of service, as from 1 September 1992.

      With effect from 1 January 1994, the two pension schemes were merged.

      No service before 1 January 1989 is credited for pension purposes to any part-time employees. Further, in order to qualify for a pension under the scheme, it is necessary to have completed at least two years' pensionable service.

      THE PARTIES

      3. Each of the applicants in the national proceedings was, for a period or periods, ineligible to join one of the above schemes because he or she did not satisfy the qualifying conditions referred to above.

      4. The respondents to the applications (and these appeals) are in each case the applicant's employer or former employer. In addition, each applicant in the Health, Education, and Local Government Sectors has added the Secretary of State as second respondent.

      THE FACTS

      5. During the periods when the applicants were excluded from membership of the schemes, the law of England and Wales did not (apart from the effect of European Community law) prohibit indirect sex discrimination in relation to access to membership of an occupational pension scheme. With effect from 31 May 1995, such indirect discrimination was prohibited by section 118 of the Pension Schemes Act 1993 as substituted by Regulation 3 of the Occupational Pension Schemes (Equal Access to Membership) (Amendment) Regulations 1995 (S.I. 1995/1215).

      6. The applicants' claims were all presented to the Industrial Tribunal either within the six month time limit set out in section 2(4) of the Equal Pay Act 1970 ("EPA") or within six months of the decision of the European Court of Justice given on 28 September 1994 in Vroege v. NCIV Institut voor Volkshuisvesting BV (Case-57/93 [1994] ECR 1-4541) and Fisscher v. Voorhuis Hengelo BV (Case-128/93 [1994] ECR 1-4583).

      7. By was of example only, in the Midland Bank pension scheme, the different ways in which the pension rights of part-time workers have been affected by their exclusion from the pension schemes are illustrated by the cases of the following four appellants:

      (i) Dorothy Mary Isobel Fletcher

      Mrs. Fletcher was employed by Midland Bank plc as a secretary/typist between 1974 and 30 June 1991. She worked part-time for hours varying between about ten and twenty per week. She was granted access to the Midland Bank Key-Time Pension Scheme on 1 January 1989. Since 1 July 1991, she has been in receipt of a pension. Her pension is calculated on the basis of her service only between 1 January 1989 and 30 June 1991.

      (ii) Judith Barron

      Mrs. Barron is and has since 30 July 1984 been employed by Midland Bank plc in a clerical position. Until 11 July 1988, she worked part- time for hours varying between seven and twenty-five hours per week. Since 12 July 1988 she has worked full-time. She has been a member of the Midland Bank Pension Scheme since 1988. None of her part-time service has been credited for pension purposes.

      (iii) Mary Foster

      Mrs. Foster was employed by Midland Bank plc as a part-time cashier between May 1979 and May 1994 when she reached normal retiring age. She worked eleven hours per week. She was granted access to the Midland Bank Key- Time Pension Scheme on 1 September 1992 but has received no pension at all because she had not been in the Scheme for two years at the date of her retirement.

      (iv) Rachel Mary Harrison

      Mrs. Harrison was employed by Midland Bank plc as a cashier full-time between 1956 and 1964 and between 1982 and 1993 and part-time between 1975 and 1982. She became a member of the Midland Bank Pension Scheme in March 1982 and none of her part-time service has been credited for pension purposes.

      8. In the education sector, the applicants include applicants falling into the following categories:

      (1) Part-time teachers or lecturers who taught at the same school or college for a number of years and who were employed under a succession of contracts which lasted for the academic year only (known as "sessional contracts"), with a break between contracts over the summer vacation from the end of one academic year to the beginning of the next.

      (2) Part-time lecturers who taught at the same school or college for a number of years and who were employed under a succession of fixed term contracts for each term ("termly contracts"), with breaks between contract during the school holidays and college vacations. Such contracts normally involved the teaching of a specific course and were therefore co-terminous with the course in question. They might therefore in some cases last the course in question. They might therefore in some cases last for less than a term.

      (3) Part-time teachers who, by reason of the nature of their jobs, worked intermittently. The said teachers worked when called on to do so by their local education authority employer and entered into a specific contract of employment which covered each period when they were called on to work.

      9. It is possible for a succession of specific contracts for regular or short occasional work to be governed by another underlying, continuing, "umbrella" contract which requires the employer to offer and the employee to accept work from time to time. The third question related to applicants employed under the types of contract described above when employment was not also covered by an "umbrella" contract.

LORD LLOYD OF BERWICK

My Lords,

      I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley, I agree with him that the three questions which he has set out at the end of his speech should be referred to the European Court of Justice, and I would make the same order as he has proposed.

LORD NOLAN

My Lords,

      I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley, I agree with him that the three questions which he has set out at the end of his speech should be referred to the European Court of Justice, and I would make the same order as he has proposed.

LORD HOPE OF CRAIGHEAD

My Lords,

      I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Slynn of Hadley. For the reasons which he has given I also would dismiss the appeal on the domestic law question. I agree with him that the three questions which he has set out at the end of his speech should be referred to the European Court of Justice, and I would make the same order as he has proposed.