Department for Environment Food and Rural Affairs v Robertson and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Maurice Kay,Lord Justice Gage |
| Judgment Date | 22 February 2005 |
| Neutral Citation | [2005] EWCA Civ 138 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A1/2003/2774 |
| Date | 22 February 2005 |
[2005] EWCA Civ 138
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE
EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE BURTON (PRESIDENT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Maurice Kay and
Lord Justice Gage
Case No: A1/2003/2774
MR BRIAN LANGSTAFF QC and MR MICHAEL FORD (instructed by Thompsons) for the Appellant
MR NICHOLAS UNDERHILL QC, MR BRUCE CARR AND MR ALAN PAYNE (instructed by Solicitor, Department for Environment, Food and Rural Affairs) for the Respondent
Introduction
The general principle of equal pay, which forms part of the foundations of the European Community, is contained in Article 141(ex- Article 119) of the EEC Treaty:
"(1) Each member state shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
(2) For the purposes of this Article "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer."
Six male civil servants have brought this equal pay case. They are all employed in the Home Civil Service, which consists of about half a million civil servants managed under the Civil Service Order in Council 1995 (the 1995 Order). Their union (PCS) and the Equal Opportunities Commission support them in their efforts to invoke the direct effect of the EC equal pay principle against the Government Department in which they work, the Department of Environment, Food and Rural Affairs (DEFRA). Three of the applicants are Executive Officers. The other three are Administrative Officers. They all argue that a comparison should be made between their pay and the higher pay received by two female civil servants, who worked at the relevant date as Senior Personal Secretaries in a different Government Department, the Department of Transport, Environment and the Regions (DETR). The facts of the individual cases and the details of the comparisons sought to be made are contained in an Agreed Statement of Facts. It is unnecessary to include them in this judgment, as the arguments in this court were confined to preliminary issues of law on the interpretation and application of Article 141.
Although the male applicants and the chosen female comparators worked under different terms and conditions of employment set respectively by DEFRA and DETR acting under powers delegated to them, they all had one and the same employer, the Crown.
The preliminary issue of law, which was directed by the employment tribunal on the agreed facts, is whether it is permissible for civil servants in an equal pay case to use as comparators civil servants of the opposite sex, who work in a different Government Department under different pay and conditions set by that different Government Department. In other words, can cross-departmental comparisons be made, if all those concerned are Crown servants?
The employment tribunal ruled on the preliminary point in favour of the applicants and approved the choice of the female comparators: see the extended reasons sent to the parties on 10 January 2003.
The Employment Appeal Tribunal took a different view of the legal position. It overturned the ruling and found in favour of DEFRA, but gave permission to appeal: see judgment given by the President (Burton J) reported at [2004] ICR 1289.
The claim is brought under Article 141. It is common ground that the 1970 Act does not permit the applicants' choice of comparators. It is, however, instructive to explain the applicants' problems under the 1970 Act.
Applying the statutory direction to transpose the references to men and women in the 1970 Act, the relevant provisions read as follows:
"1 (1) If the terms of a contract under which a man is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.
(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a man is employed (the "man's contract"), and has the effect that—
(a) where the man is employed on like work with a woman in the same employment—
(i) if (apart from the equality clause) any term of the man's contract is or becomes less favourable to the man than a term of a similar kind in the contract under which that woman is employed, that term of the man's contract shall be treated as so modified as not to be less favourable, and
(ii) if (apart from the equality clause) at any time the man's contract does not include a term corresponding to a term benefiting that woman included in the contract under which she is employed, the man's contract shall be treated as including such a term…"
The 1970 Act applies to service for the purposes of a Government Department as it applies to employment by a private person and as if references to a contract of employment included references to the terms of service: s 1(8). Under s1(6) "employed" means- "employed under a contract of service." Related expressions are to be construed accordingly. It is provided by a deeming provision in s 1 (6) (c) (again transposing gender), that
"…. men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes."
The applicants accept that, although they have the same employer as the comparators (the Crown), they are not employed "in the same employment." They do not work "at the same establishment" as the two female comparators and "common terms and conditions of employment" have not been observed in DEFRA and DETR since the delegation of pay negotiations and settlements referred to later in this judgment. Cross-departmental comparison is accordingly unavailable under the 1970 Act.
Article 141 and the Single Source Approach of the ECJ
Like many other employees in recent years, the applicants looked for support to European Community law. Article 141 embodies a directly effective principle of equal pay on which the applicants are entitled to rely and to have directly enforced in national tribunals and courts: Defrenne v. SABENA (No 2) [1976] ECR 455.
Article 141 does not contain any detail on the comparison required or permitted by it for the purpose of determining whether there is equal pay for equal work by male and female workers. On that issue litigants have had to bring cases in order to obtain rulings from the Court of Justice on the interpretation of Article 141. Guidance is now available in the judgment of the Court of Justice in Lawrence v. Regent Office Care Ltd [2003] ICR 1092, and recently followed by it in Allonby v. Accrington & Rossendale Further Education College [2004] IRLR 224, paragraphs 45–46. Most of the excellent arguments in this court focused on the "single source" approach to Article 141 laid down in Lawrence and how it applies as between civil servants, who work for the Crown under different pay and conditions set by different Government Departments.
In Lawrence the Court of Justice held that, for equal pay proceedings to come within the ambit of Article 141(1), the pay differences between workers of different sex performing equal work must be "attributed to a single source." As I understand it, the focus of this rather imprecise approach is on the location of the body responsible for making decisions on levels of pay in the relevant employment or establishment rather than on the identification of the relevant legal source of that decision-making power. The comparator issue does not turn on precise legal analysis or on a comparison of the employment relationships between the workers and their respective employers or, in the case of state workers, on particular constitutional doctrines and arrangements, which condition the nature of the legal relationship between a member state and its civil servants and which are liable to differ from one member state to another.
Discussion of the Lawrence Judgment
The applicants in Lawrence were female school catering and cleaning staff. They were originally employed by the local authority. The local authority then contracted out to the respondent companies the provision of the relevant services performed by the applicants. The local authority thereby made transfers of the undertakings in which the applicants were employed. The applicants became employees of the respondent companies. The male comparators selected by the female applicants in proceedings seeking equality of pay were, however, still employed by the local authority. On a reference by the Court of Appeal for a preliminary ruling on the interpretation of Article 141(1) the Court of Justice ruled
" A situation such as that in the main proceedings, in which the differences in the pay conditions of workers of different sex performing equal work or work of equal value cannot be attributed to a single source, does not come within the scope of Article 141(1)EC."
In paragraph 15 of its judgment the Court identified three distinguishing features of the case—
"…..First, the persons whose pay is being compared work for different employers, that is to say, on the one hand the council...
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