Clay Cross (Quarry Services) Ltd v Fletcher
|England & Wales
|THE MASTER OF THE ROLLS,LORD JUSTICE BROWNE
|11 July 1978
|Judgment citation (vLex)
| EWCA Civ J0711-1
|Court of Appeal (Civil Division)
|11 July 1978
 EWCA Civ J0711-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Employment Appeal Tribunal
The Master of the Rolls (Lord Denning)
Lord Justice Lawton and
Lord Justice Browne
MR. H. LESTER, Q.C. and MR. E. ELHACHNIK (instructed by Messrs. Pattison & Brewer, Solicitors, London) appeared on behalf of the Appellant.
MR. C. GIBSON (instructed by Messers Knight & Sons, Solicitors, Newcastle-Under-Lyme) appeared on behalf of the Respondents.
The Clay Cross Company employs three clerks in their sales office. One of them, a Mrs. Fletcher, is a young woman of 22 years of age. She started with them in May 1972. She was the senior of the three. In June 1975 one of the others left and the company advertised the vacancy. They had only three applications for the job. Only one of the applicants was worthy of consideration. He was a man - Mr. Tunnicliffe. They interviewed him, but not the others. He was a young man aged 24. He said he wanted £43 a week. That was what he was getting from his then employers, and he would not come for less. So the company employed him at that wage. That was much more than the other two clerks in the office were getting. They were both women, and were receiving only £35 a week. Mrs. Fletcher spent quite a long time helping to train Mr. Tunnicliffe. But she did not ask for equal pay at that time. The Equal Pay Act had not then come into force. It only came into force six months later on 29th December, 1975.
In February 1976 the company increased the wages of all the clerks by £6 a week. So Mrs. Fletcher and the other women went up to £41 a week, and Mr. Tunnicliffe to £49 a week.
About this time the company employed a firm of consultants to carry out a job evaluation scheme. These consultants recommended that the appropriate wage for the work of a. sales clerk was £43.46 a week. That showed that Mrs. Fletcher was being underpaid and Mr. Tunnicliffe was being overpaid. So the company increased Mrs. Fletcher's pay from £41 to £43.46 (the rate for the job) and back-dated it to 29th December, 1975. They did not reduce Mr. Tunnicliffe wage. They felt they could not reduce it. So it remained at £49.
In June, 1976, Mrs. Fletcher applied to the Industrial Tribunal, and filled in her own application: "I wish to make aclaim under the Equal Pay Act, 1970, for the following reason: I work alongside a man doing the same job. My weekly wage is £45.46. The man concerned's wage is £49.00. I would also like to point out that I have been with the company for four years, and the man concerned as (sic) only been employed for approx. 9 months."
The company resisted the claim. The case was heard in. August 1976. Mrs. Fletcher conducted her own case. The company were represented by a solicitor. By a majority of 2 to 1 the Industrial Tribunal decided in favour of Mrs. Fletcher. They awarded her the same pay as Mr. Tunnicliffe - £49 a week. The company appealed to the Employment Appeals Tribunal. They held in favour of the company and rejected the woman's claim. Mrs. Fletcher appeals to this court.
There is no doubt that Mrs. Fletcher made out a prima facie case. She proved that she was employed on like work with a man in the same employment: and that her wages were less than his. So her contract is deemed to include an equality clause by which her wages are to be brought up so as to be equal to his, see Section 1(2)(a) of the Equal Pay Act, 1970.
In order to avoid payment, the Clay Cross Company rely on the exception contained in Section 1(3) of the Equal Pay Act, 1970, which reads: "An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material difference (other than sex) between her case and his."
There was undoubtedly a variation here between her pay and his. The question is: What was the variation due to? Was it due to a material difference (other than sex) between her caseand his?
THE REASONING OF THE EMPLOYMENT APPEALS TRIBUNAL
As I read the decision of the Employment Appeals Tribunal, they thought that the issue depended on the employer's state of mind - on the reason why he paid the man more than the woman. If the reason had nothing to do with sex, they could pay him more. They relied on the evidence of the managing director, who said: "We did not specify in the advertisement whether we were seeking a man or a woman. Sex was of no importance. If Tunnicliffe had been a woman asking £43, we would have employed her at that rate."
I am sorry that the Managing Director was not cross-examined. But Mrs. Fletcher was in person and could not be expected to do so. Any experienced advocate would have asked him: "If you took on a new woman at £43 what would the other two women have said? Would you have kept those two on at £35 whilst paying the new woman £43 for the like work?". The Managing Director, if he told the truth, would have had to answer: "I could not possibly have done that. I would have had to increase those two to £43; or, alternatively kept them at £35 and not taken on the new woman". Nevertheless the Managing Director was not cross-examined: and the Employment Appeals Tribunal felt that his reasons were decisive. They said: "The Industrial Tribunal accepted that it was a matter of indifference to the employers whether they engaged a male or a female clerk. The only reason why they had to pay Mr. Tunnicliffe more was because he had previously been paid more in another 30b. It was not because he was a man the reason here was nothing to do with Mr. Tunnicliffe's sex the only basis on which they could get him was to pay him more money".
In so deciding the case, the Employment Appeals Tribunalfell, I think, into error. The issue does not depend on the employer's state of mind. It does not depend on his reasons for paying the man more. The employer may not intend to discriminate against the woman by paying her less: but, if the result of his actions is that she is discriminated against, then his conduct is unlawful, whether he intended it or not.
The issue depends on whether there is a material difference (other than sex) between her case and his. Take heed to those words: "between her case and his". They show that the Tribunal is to have regard to her and to him - to the personal equation of the woman as compared to that of the man - irrespective of any extrinsic forces which led to the variation in pay. As I said in , the sub-section applies when "the personal equation of the man is such that he deserves to be paid at a higher rate than the woman". Thus the personal equation of the man may warrant a wage differential if he has much longer length of service, or has superior skill or qualifications; or gives bigger output or productivity; or has been placed, owing to down-grading, in a protected pay category, vividly described as "red-circled"; or to other circumstances personal to him in doing his job.
But the Tribunal is not to have regard to any extrinsic forces which have led to the man being paid more. An employer cannot avoid his obligations under the Act by saying: "I paid him more because he asked for more", or "I paid her less because she was willing to come for less". If any such excuse were permitted, the Act would be a. dead letter. Those are the very reasons why there was unequal pay before the Statute. They are the very circumstances in which the Statute was intended to operate.
Nor can the employer avoid his obligations by giving the reasons why he submitted to the extrinsic forces. As for instance by saying: "He asked for that sum because it was what he was getting in his previous job": or, "He was the only applicant for the job, so I had no option". In such cases the employer may beat his breast, and say: "I did not pay him more because he was a man. I paid it because he was the only suitable person who applied for the job. Man or woman made no difference to me." Those are reasons personal to the employer. If any such reasons were permitted as an excuse, the door would be wide open. Every employer who wished to avoid the Statute would walk straight through it.
In saying this, I find support from the words of Mr. Justice Phillips in : "The general principle is that it is no justification for a refusal to pay the same wages to women doing the same work as a man to say that the man could not have been recruited for less", and he applied it to the man in that case, saying: "What was being paid: was the rate necessary to secure his services. For ourselves, we do not see why this is a 'material difference' between his case and that of the woman".
During the argument in this case, Mr, Lestor, Q.C. drew our attention to the Community Law and to United States' Law. I found them helpful.
(1) Community Law
In , I pointed out that Article 119 of the Treaty is part of our law. It provides equal pay for equal work. It contains no exception, such as is in Section 1(3) of the Equal Pay Act, 1970. But I have no doubt that the European Court, with its liberal approach, wouldintroduce an exception on the same lines. I do not suggest that we should refer the matter to them. Suffice it that I feel confident that it would have regard to the personal equation of the man and the woman, and not to any extrinsic forces.
(ii) United States Law
The Equal Pay Act of 1963 expressly permitted a. difference in the pay of men and women if it was made pursuant to "a differential based...
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