Lisa Jacqueline Grant v South-West Trains Ltd.
Date: 1998-02-17
9 Ms Grant thereupon made an application against SWT to the Industrial Tribunal, Southampton, arguing that that refusal constituted discrimination based on sex, contrary to the Equal Pay Act 1970, Article 119 of the Treaty and/or Directive 76/207. She submitted in particular that her predecessor in the post, a man who had declared that he had had a meaningful relationship with a woman for over two years, had enjoyed the benefit which had been refused her.
10 The Industrial Tribunal considered that the problem facing it 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 Article 119 of the Treaty and the directives on equal treatment of men and women. It observed that while some United Kingdom courts had held that that was not the case, the judgment of the Court of Justice in Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143 was, on the other hand, `persuasive authority for the proposition that discrimination on the ground of sexual orientation [was] unlawful'.
13 As a preliminary point, it should be observed that the Court has already held that travel concessions granted by an employer to former employees, their spouses or dependants, in respect of their employment are pay within the meaning of Article 119 of the Treaty (see to that effect Case 12/81 Garland v British Rail Engineering [1982] ECR 359, paragraph 9).
14 In the present case it is common ground that a travel concession granted by an employer, on the basis of the contract of employment, to the employee's spouse or the person of the opposite sex with whom the employee has a stable relationship outside marriage falls within Article 119 of the Treaty. Such a benefit is therefore not covered by Directive 76/207, referred to in the national tribunal's Question 5 (see Case C-342/93 Gillespie and Others v Northern Health and Social Services Board and Others [1996] ECR I-475, paragraph 24).
15 In view of the wording of the other questions and the grounds of the decision making the reference, the essential point raised by the national tribunal is whether an employer's refusal to grant travel concessions to the person of the same sex with whom an employee has a stable relationship constitutes discrimination prohibited by Article 119 of the Treaty and Directive 75/117, where such concessions are granted to an employee's spouse or the person of the opposite sex with whom an employee has a stable relationship outside marriage.
16 Ms Grant submits, first, that such a refusal constitutes discrimination directly based on sex. She submits that her employer's decision would have been different if the benefits in issue in the main proceedings had been claimed by a man living with a woman, and not by a woman living with a woman.
17 Ms Grant argues that the mere fact that the male worker who previously occupied her post had obtained travel concessions for his female partner, without being married to her, is enough to identify direct discrimination based on sex. In her submission, if a female worker does not receive the same benefits as a male worker, all other things being equal, she is the victim of discrimination based on sex (the `but for' test).
25 First, it should be observed that the regulations of the undertaking in which Ms Grant works provide for travel concessions for the worker, for the worker's `spouse', that is, the person to whom he or she is married and from whom he or she is not legally separated, or the person of the opposite sex with whom he or she has had a `meaningful' relationship for at least two years, and for the children, dependent members of the family, and surviving spouse of the worker.
28 Since the condition imposed by the undertaking's regulations applies in the same way to female and male workers, it cannot be regarded as constituting discrimination directly based on sex.
37 Finally, Ms Grant submits that it follows from P v S that differences of treatment based on sexual orientation are included in the `discrimination based on sex' prohibited by Article 119 of the Treaty.
39 The national court was uncertain whether the scope of that directive was wider than that of the Sex Discrimination Act 1975, which it had to apply and which in its view applied only to discrimination based on the worker's belonging to one or other of the sexes.
42 The Court considered that such discrimination was in fact based, essentially if not exclusively, on the sex of the person concerned. That reasoning, which leads to the conclusion that such discrimination is to be prohibited just as is discrimination based on the fact that a person belongs to a particular sex, is limited to the case of a worker's gender reassignment and does not therefore apply to differences of treatment based on a person's sexual orientation.
44 The Covenant is one of the international instruments relating to the protection of human rights of which the Court takes account in applying the fundamental principles of Community law (see, for example, Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 31, and Joined Cases C-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR I-3763, paragraph 68).
45 However, although respect for the fundamental rights which form an integral part of those general principles of law is a condition of the legality of Community acts, those rights cannot in themselves have the effect of extending the scope of the Treaty provisions beyond the competences of the Community (see, inter alia, on the scope of Article 235 of the EC Treaty as regards respect for human rights, Opinion 2/94 [1996] ECR I-1759, paragraphs 34 and 35).
47 Such an observation, which does not in any event appear to reflect the interpretation so far generally accepted of the concept of discrimination based on sex which appears in various international instruments concerning the protection of fundamental rights, cannot in any case constitute a basis for the Court to extend the scope of Article 119 of the Treaty. That being so, the scope of that article, as of any provision of Community law, is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context. It follows from the considerations set out above that Community law as it stands at present does not cover discrimination based on sexual orientation, such as that in issue in the main proceedings.