Grant v South West Trains Ltd (No 2) [1998] IRLR 188

Many employers now have equal opportunities policies. They range from general statements of intent to highly developed policies.

After the Employment Appeal Tribunal decision in Secretary of State for Scotland v Taylor [1997] IRLR 608 it appeared that equal opportunities policies could be incorporated into an individual's contract of employment. The High Court in Grant v South West Trains found that South West Trains' equal opportunities policy was not incorporated into Lisa Grant's contract of employment.

The facts in Lisa Grant's case are reasonably well known due to the publicity surrounding her parallel claim to the European Court of Justice (see Issue 20 of LELR, Same sex, but different discrimination rules).

Lisa is employed by South West Trains. She was refused a travel pass for her lesbian partner, Jill Percey.

Lisa's contract of employment provided that : '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.'

The staff travel facilities privilege ticket regulations provide that: 'Privilege tickets are granted to a married member of staff...for one legal spouse...Privilege tickets are granted for one common law spouse (of the opposite sex) subject to a statutory declaration being made that a meaningful relationship has existed for a period of two or more years.' Lisa's request for travel concessions for her partner was turned down because her partner was not of the opposite sex.

South West Trains also have an equal opportunities policy. This states: 'We are committed to ensuring that all individuals are treated fairly and are valued irrespective of disability, race, gender, health, social class, sexual preference, marital status, nationality, religion, employment status, age or membership or non- membership of a trade union. No one is to receive less favourable treatment on any of the above grounds or is to be disadvantaged by requirements or conditions which cannot be shown to be justifiable. Our aim is to eliminate unfair discrimination.'

In parallel to Lisa Grant's claim brought in the Industrial Tribunal, she went to the High Court claiming that South West Trains equal opportunities policy had been incorporated into her contract of employment and that she was entitled to require South West Trains to extend the travel concession to her partner.

The High Court Judge did not accept that the equal opportunities policy had been incorporated into Lisa Grant's contract of employment. He said it was a statement of policy and not of contractual obligations.

He talked of the policy being 'in very general, even idealistic terms. It also covers such matters as health and social class which would be alien to employment contractual law.' The fact that the policy was issued to employees by letter rather than going through the machinery of negotiation was indicative that no contractual rights were in the minds of the employer or employee's representatives.

The Judge therefore found that there was no evidence of any contractual intention on the part of the employer or employee. In any event, the contract itself specifically provides that travel concessions are granted for one common law spouse of the 'opposite' sex. The equal opportunities policy could not be imported to override such an express provision, so as to require the employers to grant a travel concession to a 'spouse' of the 'same sex'.

This decision will no doubt be used to challenge claims that such equal opportunities policies are incorporated into contracts. However, each case will depend on its own facts.

Where trade unions have been involved in negotiating the policy there may be greater force in the argument that the policy should have contractual force. Further, where an employee is seeking to enforce a right under an equal opportunities policy which is less politically sensitive and also where there is existing legislative protection, for example equal pay, then arguments for incorporation may be more straightforward.