National Coal Board v Sherwin
| Jurisdiction | UK Non-devolved |
| Year | 1978 |
| Date | 1978 |
| Court | Employment Appeal Tribunal |
Discrimination - Sex - Equal pay - Variation due to material difference - Women canteen workers engaged on similar work as man - Man doing night shift - Whether engaged on “like work” - Man paid more because of difficulty of recruitment - Whether red circled - Whether variation in pay due to material difference other than sex -
In 1966, because of difficulties in recruiting night shift canteen staff, the employers, the Coal Board, agreed with local union officials to employ male canteen staff doing permanent night shifts on surface workers' rates with concessionary coal. In 1973, T, a man, was employed on a permanent night shift in the canteen on those rates. The complainants, women canteen workers on day shifts, applied to an industrial tribunal for equality of pay with T on the ground that they were engaged on like work within the meaning of section 1 (4) of the Equal Pay Act 1970, F1 and were paid less than T and did not receive concessionary coal. The tribunal found that although T worked at night the complainants were employed on like work and that the differential in pay was more than was justified by the fact that T worked the night shift. They rejected the employers' contention that they had been unable to find a man to do the job at a lower rate of pay, that T had been placed in a protected pay category or “red circle” and that the variation in pay was genuinely due to a material difference other than sex between their cases and his within the meaning of section 1 (3) of the Act, and granted the applications for equal pay.
On the employers' appeal: —
Held, dismissing the appeal, that if a man and a woman did the same work, the mere fact that they did it at different times should be disregarded when considering whether they were employed on like work within the meaning of section 1 (4), and that the industrial tribunal had correctly found that the complainants were employed on like work with T; that the circumstances in which an employee could claim that his pay had been protected or “red circled” did not arise in the present case, that between 1973, when T was first employed, and the complainants' application for equal pay, the employers had had ample time to adopt a common scale for canteen workers irrespective of their sex; and that accordingly the industrial tribunal were correct in holding that section 1 (3) did not apply and that the complainants were entitled to equal pay with T, after allowing for the fact that he worked alone permanently at night.
Per curiam. Even in a case where it is appropriate, the expression “red circle” is no more than a useful shorthand and should not be used as a substitute for an analysis of precisely what is the material difference alleged by the employer (post, p. 706F).
The following cases are referred to in the judgment:
Clay Cross (Quarry Services) Ltd. v. Fletcher [
Dugdale v. Kraft Foods, Ltd. [
Early (Charles) & Marriott (Whitney) Ltd. v. Smith [
The following additional cases were cited in argument:
Capper Pass Ltd. v. Lawton [
Eaton Ltd. v. Nuttall [
Electrolux Ltd. v. Hutchinson [
Kerr v. Lister & Co. Ltd. [
Appeal from an industrial tribunal sitting at Shrewsbury.
The employers, the National Coal Board, appealed from a decision of the industrial tribunal on June 13, 1977, that the complainants, Mrs. E. Spruce and Mrs. P. M. Sherwin, day colliery canteen workers, were entitled to equal pay with a male colleague who worked a permanent night shift. They appealed on the grounds that the industrial tribunal had erred in law in finding that the complainants were employed on like work with their male colleague within the meaning of section 1 (4) of the Equal Pay Act 1970 and that the variation in pay was not due to a material difference other than sex within the meaning of section 1 (3).
The facts are stated in the judgment.
T. R. A. Morison for the employers.
John Hand for the complainants.
February 21. Phillips J. read the following judgment of the appeal tribunal. This is an appeal from an industrial tribunal sitting at Shrewsbury on April 18 and 19, 1977, which by a decision entered on June 13, 1977, found in favour of Mrs. Spruce and Mrs. Sherwin, the complainants, on their claim under the Equal Pay Act 1970.
The complainants were employed as canteen workers at the canteen at the Hem Heath colliery, their employment having begun on May 27 and April 7, 1975, respectively, and are still so employed. They are employed as shift workers, working alternate weeks on the day shift and the noon shift; the day shift is from 5:30 a.m. to 2 p.m., and the noon shift from 2 p.m. until 11 p.m.; thus they never work between 11 p.m. and 5:30 a.m. When working on the day shift they also work on Saturday mornings. There is no full-time male canteen worker at Hem Heath colliery canteen working on the morning or noon shift, but there is a part-time male canteen worker who works during the day, normally for four hours only.
There is a male canteen worker employed permanently on the night shift, namely Mr. Tilstone, whose normal hours of work are from 10 p.m. to 6 a.m. It will be seen that his hours of work overlap with the complainants' hours of work from 5.30 a.m. to 6 a.m. and from 10 p.m. to 11 p.m. But from 11 p.m. to 5.30 a.m. Mr. Tilstone works alone as the sole canteen worker, and is permanently so employed.
The terms of the complainants' contracts of employment at the date of the commencement of the proceedings before the industrial tribunal were less favourable to them than the terms of a similar kind in the contract under which Mr. Tilstone was employed, namely the terms relating to remuneration. Furthermore, their contracts did not include a term corresponding to a term benefiting Mr. Tilstone, included in the contract under which he was employed, namely that under which he was entitled to concessionary coal.
Under the Equal Pay Act 1970 every contract of employment which does not include an equality clause is to be deemed to include one, and the complainants' claims were that they were employed on like work with Mr. Tilstone, being in the same employment, and that the terms of their contract of employment should be treated as so modified as not to be less favourable. The agrument on the hearing of the appeal at some stages became complicated, as indeed it seems to have done before the industrial tribunal. In these cases much depends on how one approaches the problem, and it appears to us to be better to approach it by considering what the complainants and the National Coal Board, the employers, respectively had to establish, rather than by starting chronologically with the employment of Mr. Tilstone.
The complainants had first to show that they were employed on like work with Mr. Tilstone, it being admitted that he and they were in the same employment at an establishment in Great Britain.
The test by which it is to be decided whether a woman is to be regarded as employed on like work with a man is to be found in section 1 (4) of the Act of 1970, which provides:
“A woman is to be regarded as employed on like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences.”
The industrial tribunal concluded that the complainants were employed on like work with Mr. Tilstone. Upon the hearing of the appeal Mr. Morison has challenged this finding. The industrial tribunal deal with this question in paragraphs 15 to 17 of the decision. The matters which the industrial tribunal had to consider for this purpose fell into two classes: first, that Mr. Tilstone worked permanently at nights alone, and secondly, various miscellaneous matters such as being in sole charge of the till, the need to do certain cleaning work, and so on; and the fact that being alone at night he was subjected to greater pressures and had greater responsibility. In deference to the decision of the appeal tribunal in Dugdale v. Kraft Foods Ltd. [
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