-- Two decisions delivered last week by the European Court of Justice and the House of Lords are relevant to anyone concerned with the practical implementation of equal opportunities in the workplace.In Kalanke v Freie Hansestadt Bremen C-450/93, 17 October 1995, the ECJ ruled that positive discrimination has its limits.

The provision in the Equal Treatment Directive (art 2(4)) which confirms the lawfulness of measures to promote equal opportunity for men and women had to be seen against, and as an exception to, the general prohibition of discrimination contained in art 2(1) of the same Directive.In line with its earlier case law, eg Johnston v Chief Constable of the Ulster Constabulary C-222/84 [1986] IRLR 263 ECJ, the court insisted that the exception to the general rule had to be construed narrowly.

This meant that a workplace rule giving automatic priority to women in the drawing up of promotion shortlists was in breach of the Directive.

The rule stated that where male and female candidates were equally qualified, a female was to be given priority in sectors where women did not make up at least half of the staff in the relevant group.According to the court, such a rule went too far.

Art 2(4) only permitted measures giving 'a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men'.

Whilst the rule sought to achieve equal representation, it had an improper objective.

Art 2(4) authorised only measures giving advantages to women to allow them to compete, but it did not allow measures which sought to achieve a particular quota-based result.The decision is of prime importance in the interpretation of s.47 of the Sex Discrimination Act 1975, which deals with discriminatory training.

(Th e corresponding provision of the Race Relations Act 1976, s.37, is not subject to EU law in the same way, and, therefore, not directly affected.) It means that any employment policies which automatically give priority to women in appointments or promotions fall outside what is permitted by that section.

It is the same with policies which aim at a quota or fixed number of women within an organisation or department.

Even if the quota aims at less than equal representation, it may be unacceptable on the Kalanke test.

Such a policy goes too far because it aims at achieving a particular numerical or statistical result.

Employees who work in the public sector will be able to rely on this ECJ ruling as having direct effect if our own courts are unable to read s.47 as having the same meaning.

However, there is no reason why these limits on positive discrimination should not be applied to domestic legislation through the process of statutory interpretation.In Webb v EMO Air Cargo (UK) Ltd, 19 October 1995, the House of Lords gave an affirmative answer to a question it had set: whether it would be possible to interpret the Sex Discrimination Act in a way which complied with the ruling of the ECJ ([1994] QB 718) on the interpretation of the Equal Treatment Directive.

The ECJ decision had confirmed that discrimination on grounds of pregnancy was sex discrimination.

It had also established the important point that it was not permissible to compare the treatment accorded to a pregnant woman with the treatment accorded to a sick man.Mrs Webb had been hired specifically to provide cover for an employee absent on maternity leave, and had been dismissed when it was discovered she was pregnant.

Their Lordships found she had been unfairly dismissed and remitted the case for compensation to be fixed.

Following the earlier approach of the advocate-general, Lord Keith emphasised that the duration of Mrs Webb's appointment had been indefinite.

There is a strong suggestion that, if her appointment had been for a limited time and her pregnancy had made her unavailable for the whole of that time, her dismissal, or non-engagement, would not have contravened the SDA.The decision is that pregnancy dismissals are caught by the SDA.

However, there appears to be little scope for arguing retrospective claims based on the direct effect of the Equal Treatment Directive, and far less Francovich claims against government.The Government has immediately implemented a ruling of the European Court of Justice on 19 October 1995 which entitles men as well as women to receive free prescriptions from age 60.The court's ruling arose from a reference under art 177 of the EEC Treaty in judicial review proceedings brought by Cyril Richardson against the secretary of state for health.

The reference concerns the scope of Council Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.The court had little difficulty in deciding that reg 6(1)(c) of the NHS, Charges for Drugs and Appliances Regulations 1989 falls within the scope of the Directive.

However, the government sought to rely on art 7(1)(a) of the Directive which allows member states to exclude from its scope not only the setting of pensionable age for the purpose of granting old-age and retirement pensions, but also the possible consequences for other benefits.

In this instance the court decided that the regulation was not necessarily and objectively linked to the state pension ages and the exclusion did not operate.An important i ssue for the court was whether or not there was a case for limiting the effects of its judgment in time to prevent a claim for damages for periods prior to the date of the judgment by persons who had not yet brought proceedings or made an equivalent claim.

The court ruled that there was no reason to limit temporal effect.