Pickstone v Freemans Plc

JurisdictionUK Non-devolved
JudgeLord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Templeman,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle
Judgment Date30 June 1988
Judgment citation (vLex)[1988] UKHL J0630-1
CourtHouse of Lords
Date30 June 1988
Pickstone and Others
(Respondents)
and
Freemans Plc.
(Appellants)

[1988] UKHL J0630-1

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Templeman

Lord Oliver of Aylmerton

Lord Jauncey of Tullichettle

House of Lords

Lord Keith of Kinkel

My Lords,

1

Under the Equal Pay Act 1970, as brought into force with amendments on 29 December 1975, a woman employee could claim parity of pay with a male employee in the same establishment only where she was employed on like work with the man or where she was employed on work rated as equivalent with that of the man. That was the effect of section 1(1) and (2) of the Act, providing:

"1(1) If the terms of a contract under which a woman 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 woman is employed (the "woman's contract"), and has the effect that - ( a) where the woman is employed on like work with a man in the same employment - (i) if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman'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 woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term; ( b) where the woman is employed on work rated as equivalent with that of a man in the same employment - (i) if (apart from the equality clause) any term of the woman's contract determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman'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 woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed and determined by the rating of the work, the woman's contract shall be treated as including such a term."

2

By virtue of section 1(5) a woman's work could only be rated as equivalent with that of a man if her job and his job had been given an equal value, according to certain criteria, on a job evaluation study. A job evaluation study could not be carried out otherwise than with the consent of the employer.

3

The Commission of the European Community took the view that this state of the law did not comply with the obligation of the United Kingdom Government to implement Article 119 of the Treaty of Rome, enjoining application of the principle that men and women should receive equal pay for equal work, together with the Equal Pay Directive adopted by the Council of Ministers of the Community on 10 February 1975. The Commission accordingly applied to the European Court of Justice for a declaration that the United Kingdom had failed to obtemper this obligation in respect that it had not adopted measures enabling women to obtain equal pay for equal work in circumstances where there had been no job evaluation study. The European Court of Justice sustained the Commission's claim. It made a declaration that:

"By failing to introduce into its national legal system in implementation of the provisions of Council Directive (75/117/E.E.C.) of February 10 1975 such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principle of equal pay for men and women for work to which equal value is attributed and for which no system of job classification exists to obtain recognition of such equivalence, the United Kingdom has failed to fulfil its obligations under the Treaty." See Commission v. United Kingdom [1982] (Case 61/81) I.C.R. 578, 599.

4

The United Kingdom Government took steps to correct the defect in its equal pay legislation identified in the judgment of the European Court. Section 2(2)( a) of the European Communities Act 1972 provides:

"Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, or any designated Minister or department may by regulations, make provision - ( a) for the purpose of implementing any Community obligation, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; …"

5

Schedule 2 to the Act contains general provisions as to subordinate legislation, including, in paragraph 2(2) a provision making subject to annulment by resolution of either House of Parliament any statutory instrument containing regulations made without a draft having been approved by resolution of each House.

6

So the Secretary of State for Employment made a draft which was introduced as the Equal Pay (Amendment) Regulations 1983 (S.I. 1983 No. 1794) in the House of Commons on 20 July 1983 and in the House of Lords on 5 December 1983. Both Houses approved the draft albeit, in the case of the House of Lords, subject to a reservation. Quotations from the speech of the Under Secretary of State for Employment, initiating the debate in the House of Commons, are to be found in the speech of my noble and learned friend Lord Templeman. Regulation 2(1) provides:

"In subsection (2) of section 1 of the Equal Pay Act 1970 (equality clauses to be implied into contracts of employment), after paragraph ( b) there shall be inserted the following paragraph:- ( c) where a woman is employed on work which, not being work in relation to which paragraph ( a) or ( b) above applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment - (i) if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman'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 woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term."

7

Regulation 3 introduced into the Act of 1970 a new section 2A prescribing the procedure to be followed before an industrial tribunal where a dispute arises as to whether any work is of equal value. The procedure may involve obtaining a report from an independent expert who is a member of a panel designated by A.C.A.S.

8

In the present case the respondent, Mrs. Pickstone, who is employed by the appellant employers as a "warehouse operative," claims that her work as such is of equal value with that of a man, Mr. Phillips, who is employed in the same establishment as a "checker warehouse operative," and who is paid £4.22 per week more than she is paid. However, it happens to be the fact that one man is employed in the establishment as a warehouse operative doing the same work as Mrs. Pickstone. The employers maintain that the existence of this fact precludes Mrs. Pickstone from claiming equal pay with Mr. Phillips under section 1(2)( c) of the Act of 1970 as amended, notwithstanding that she may be performing work of equal value with his and notwithstanding that the difference in pay may be the result of discrimination on grounds of sex.

9

This argument is based on the words in paragraph ( c) "not being work in relation to which paragraph ( a) or ( b) above applies." The employers say that the work on which Mrs. Pickstone is employed is work to which paragraph ( a) applies because it is like work with a man in the same employment, namely the one male warehouse operative. So Mrs. Pickstone's work does not qualify under paragraph ( c).

10

The question is whether the exclusionary words in paragraph ( c) are intended to have effect whenever the employers are able to point to some man who is employed by them on like work with the woman claimant within the meaning of paragraph ( a) or work rated as equivalent with hers within the meaning of paragraph ( b), or whether they are intended to have effect only where the particular man with whom she seeks comparison is employed on such work. In my opinion the latter is the correct answer. The opposite result would leave a large gap in the equal work provision, enabling an employer to evade it by employing one token man on the same work as a group of potential women claimants who were deliberately paid less than a group of men employed on work of equal value with that of the women. This would mean that the United Kingdom had failed yet again fully to implement its obligations under article 119 of the Treaty and the Equal Pay Directive, and had not given full effect to the decision of the European Court in Commission v. United Kingdom [1982] I.C.R. 578. It is plain that Parliament cannot possibly have intended such a failure. The draft Regulations of 1983 were presented to Parliament as giving full effect to the decision in question. The draft Regulations were not subject to the Parliamentary process of consideration and amendment in Committee, as a Bill would have been. In these circumstances and in the context of section 2 of the European Communities Act 1972 I consider it to be entirely legitimate for the purpose of ascertaining the intention of Parliament to take into account the terms in which the draft was presented by the responsible...

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