Leverton v Clwyd County Council
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Templeman,Lord Griffiths,Lord Ackner,Lord Goff of Chieveley |
| Judgment Date | 15 December 1988 |
| Judgment citation (vLex) | [1988] UKHL J1215-1 |
| Date | 15 December 1988 |
| Court | House of Lords |
[1988] UKHL J1215-1
Lord Bridge of Harwich
Lord Templeman
Lord Griffiths
Lord Ackner
Lord Goff of Chieveley
House of Lords
My Lords,
The appellant is employed as a qualified nursery nurse by the respondents at the Golftyn Infants' School, Connah's Quay, Clwyd. On 4 September 1984 she applied to an industrial tribunal claiming under section 1(2)( c) of the Equal Pay Act 1970, as amended by the Equal Pay (Amendment) Regulations 1985, that she was employed on work of equal value to that of male employees of the respondent. The initial application was clearly defective in that it failed to name the comparators. However, after obtaining on discovery particulars of the terms and conditions of employment of some 200 men employed, as she is, in the administrative, professional, technical and clerical ("APT & C") services of the respondents, she nominated 11 male comparators by reference to whom the application proceeded. At the time of the hearing by the industrial tribunal in June 1985 the appellant was in receipt of an annual salary of £5058. The annual salaries of the comparators ranged from £6081 to £8532.
By virtue of the equality clause deemed to be included in her contract of employment under section 1(1) of the Act of 1970, the appellant, if she could establish that she was employed on work of equal value to that of "a man in the same employment", would prima facie be entitled under section 1(2)( c) to have the terms of her contract treated as modified as provided by the section to bring them into line with the terms of his contract. The far reaching scope of that modification appears from your Lordships' decision in Hayward v. Cammell Laird Shipbuilders Ltd [1988] 2 W.L.R. 1134.
The respondents resisted the appellant's claim, inter alia, on the grounds (1) that none of the comparators was "a man in the same employment" with the appellant, and (2) that the variation between the appellant's contract and the contracts of the comparators was "genuinely due to a material factor which is not the difference of sex." These two grounds relied on by the respondents, each, if well founded, sufficient to defeat the appellant's claim, give rise to the two issues for decision in the present appeal. They depend on subsections (6) and (3) respectively of section 1 which provide, so far as material as follows:-
"(6) … for purposes of this section … 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."
"(3) 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 factor which is not the difference of sex and that factor - ( a) in the case of an equality clause falling within subsection (2)( a) or ( b) above, must be a material difference between the woman's case and the man's; and ( b) in the case of an equality clause falling within subsection (2)( c) above, may be such a material difference."
It will be necessary to examine some aspects of the facts in detail later, but it is convenient at this point to summarise the facts which are of central importance. None of the comparators works at the same establishment as the appellant. The appellant and all the comparators, however, are employed on terms and conditions derived from the same collective agreement known as the "purple book", being a scheme agreed by the National Joint Council for Local Authorities' APT & C Services. Under the terms of that agreement the appellant's salary is on scale 1; the salaries of the comparators are at different points on scales 3 and 4. The appellant's basic working week including paid lunch breaks is 32½ hours. Her holidays are coterminous with the school holidays. The comparators' basic working week is 37 hours (in one case 39 hours). Their annual holiday entitlement is 20 days plus eight statutory and three local holidays with increments after five years' service. The effect of these differences is that each of the comparators works many more hours in the year to earn his annual salary than the appellant works to earn hers. As one measure of the extent of this difference the respondents put forward for comparison at the hearing a pro rata calculation of notional hourly income yielding figures of £4.42 for the appellant and £4.40 for the comparator who works 37 hours a week and earns the maximum salary under scale 4. Although rejecting this method of comparison as inappropriate, the industrial tribunal appear to have accepted the accuracy of the arithmetical calculation.
The majority of the industrial tribunal held both that the appellant was not "in the same employment" with the comparators as that phrase is defined by section 1(6) and that the respondents had established what it will be convenient to call "the material factor defence" under section 1(3) in that the variation between the appellant's contract and the comparators' contracts was genuinely due to a material factor which was not the difference in sex, viz. the difference in working hours and length of holidays, being a material difference between her case and theirs. They accordingly dismissed the application. The minority member dissented on both grounds. The Employment Appeal Tribunal [1987] 1 W.L.R. 65 affirmed the decision of the industrial tribunal on the ground that the appellant and the comparators were not in the same employment. They held, however, that the industrial tribunal had erred in law in upholding the material factor defence on the ground that there was no evidence capable of supporting a finding that the variation between the appellant's contract and the comparators' contract was "genuinely due" to a material factor which was not the difference of sex. The Court of Appeal (May, Balcombe and Stocker L.J.J.) affirmed by a majority (May L.J. dissenting) the conclusion of both tribunals that the appellant and the comparators were not in the same employment and held by a majority (Balcombe L.J. dissenting) that there was evidence to support the finding by the majority of the industrial tribunal that the respondents had established the material factor defence and that there was accordingly no ground upon which the Employment Appeal Tribunal could reverse this finding as erroneous in law. The appellant now appeals to your Lordships' House by leave of the Court of Appeal.
On the question of whether the appellant was in the same employment as the comparators working at different establishments, the view which prevailed with the majority of the industrial tribunal, the Employment Appeal Tribunal, and the majority of the Court of Appeal was that the comparison called for by section 1(6) was between the terms and conditions of employment of the appellant on the one hand and of the comparators on the other and that it was only if this comparison showed their terms and conditions of employment to be "broadly similar" that the test applied by the phrase "common terms and conditions of employment" in section 1(6) was satisfied. The majority of the industrial tribunal, affirmed by the Employment Appeal Tribunal and the majority of the Court of Appeal, held that the difference in this case in working hours and holidays was a radical difference in the "core terms" of the respective contracts of employment which prevented the comparison from satisfying the statutory test. The contrary view embraced by the dissenting member of the industrial tribunal and by May L.J. in the Court of Appeal was that the comparison called for was much broader, viz. a comparison between the terms and conditions of employment observed at two or more establishments, embracing both the establishment at which the woman is employed and the establishment at which the men are employed, and applicable either generally, i.e. to all the employees at the relevant establishments, or to a particular class or classes of employees to which both the woman and the men belong. Basing himself implicitly on this view, the dissenting member of the industrial tribunal expressed his conclusion in the matter tersely. Having referred to the purple book, he said:
3. "Within that agreement there are nine sections and numerous clauses. They do not apply, with few exceptions, to any particular grade. It is clearly a general agreement and not specific to any particular group or class of employee. 4. It is, in my opinion, beyond doubt that the applicant and the comparators are employed on common terms and conditions, i.e. the APT & C agreement, and clearly it is within the provisions of section 1(6)."
My Lords, this is an important difference in principle which depends on the true construction of section 1(6). I have no hesitation in preferring the minority to the majority view expressed in the courts below. It seems to me, first, that the language of the subsection is clear and unambiguous. It poses the question whether the terms and conditions of employment "observed" at two or more establishments (at which the relevant woman and the relevant men are employed) are "common", being terms and conditions of employment observed "either generally or for employees of the relevant classes." The concept of common terms and conditions of employment observed generally at different establishments necessarily contemplates terms and conditions applicable to a wide range of employees whose individual terms will vary greatly inter se. On the construction of the subsection adopted by the majority below the phrase "observed either generally or for employees of...
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