R v Employment Secretary, Ex p Equal Opportunities Commission [1995] 1 AC 1

Key point

Courts had jurisdiction to declare primary legislation (Acts of Parliament) incompatible with EU/Community law prior to the repeal of the European Communities Act 1972
A statutory government body can have sufficient interest to apply for a judicial review, deriving from their statutory duty

The Employment Protection (Consolidation) Act 1978 laid down the threshold of employment period to entitle a worker to redundancy pay: (a) two years of continuous employment for employees who work for 16 or more hours per week, and (b) five years of continuous employment for employees who work between eight and 16 hours per week
The Equal Opportunities Commission (EOC) sought judicial review, on the basis that the law indirectly discriminated against women contrary to the EU Equal Treatment Directive as women made up a larger proportion of part time workers who worked less than 16 hours per week than men
Counsel for the Employment Secretary argued that the claim should be dismissed because 1. the EOC had no locus standi and 2. the Divisional Court had no jurisdiction to grant a declaration of incompatibility against primary legislation

EOC’s claim succeeded
By virtue of its statutory powers, the EOC had standing to make the application
The threshold on legal protection against unfair dismissal contravened the EU law on equal treatment of men and women and there was no evidence that the threshold was justifiable, thus, a declaration of incompatibility was issued

Standing of the EOC

Pursuant to s53(1) of the Sex Discrimination Act 1975 ,’The duties of the E.O.C. include: “(a) to work towards the elimination of discrimination, (b) to promote equality of opportunity between men and women generally”, giving it “sufficient interest in the matter” within the meaning of R.S.C., Ord. 53, r. 3(7) to have locus standi to apply for such a declaration: p. 26
“The determination of this issue turns essentially upon a consideration of the statutory duties and public law role of the E.O.C. …”: p. 26

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Jurisdiction to make declaration of incompatibility

Pursuant to the series of Factortame cases, the Divisional Court had jurisdiction to make a declaration that United Kingdom legislation on the threshold conditions for redundancy pay was incompatible with the Equal Treatment Directive: p. 27
Although the final result in Factortame is not reported, no doubt the Divisional Court in due course granted a declaration accordingly after the rule of the ECJ that provisions of Part II of the Merchant Shipping Act 1988 was incompatible with EC law

‘the role of the commission is advisory and it is no part of its duties to initiate proceedings against [the secretary of state]’, lacking the ‘the capacity to pursue these proceedings’: p. 33

Parliament subsequently amended the law in the Employment Protection (Part-time Employees) Regulations 1995
On the separate issue of the employee, Mrs Day’s standing, it was held that Mrs Day could make (and had made) a complaint to an industrial tribunal, she could not claim the declaration sought by way of an application for judicial review; Lord Keith characterised this as a ‘private law claim’