Reed Packaging Ltd v Boozer
| Jurisdiction | UK Non-devolved |
| Year | 1988 |
| Date | 1988 |
| Court | Employment Appeal Tribunal |
Discrimination, Sex - Equal pay - Work of equal value - Applicants claiming work of equal value with male comparator - Defence of variation due to material factor other than sex - Industrial tribunal considering defence at preliminary hearing - Tribunal's duty to consider merits of defence -
The applicants, female dispatch clerks, were graded on the employers' staff pay structure with a weekly wage of £124.56. They claimed equality of pay under section 2 of the Equal Pay Act 1970F1 with a male dispatch clerk paid according to the employers' pay structure for hourly workers and earning £141.75 a week, part of which was an overpayment of £5 due to an administrative error by the employers. The applicants contended that their work was of equal value with that of the male clerk within the meaning of section 1(2)(c) of the Act. An industrial tribunal exercised their discretion under rule 8(2E) of the rules of procedure in Schedule 2 to the Industrial Tribunals (Rules of Procedure) Regulations 1985F2 to hear evidence and argument at the preliminary stage on the employers' defence under section 1(3) of the Act, that the variation in pay was due to a material factor other than sex, namely, the different pay structures for staff and hourly-paid employees. The tribunal accepted that neither of the pay structures was inherently discriminatory but they rejected the defence without considering its merits on the ground that if they allowed it at the preliminary stage the applicants would be prevented from pursuing their claims by reason of the employers' own pay structures, and they referred the case to an independent expert to prepare a report in accordance with the requirements of rule 7A(1)
On the employers' appeal: —
Held, allowing the appeal, that where an industrial tribunal chose to consider a defence under section 1(3) at a preliminary hearing in accordance with rule 8(2E) of the Regulations of 1985, they could either decide that the matter could not be fairly resolved without the assistance of an expert and adjourn the matter to the substantive hearing or they ought to reach a decision on the evidence before them; that the object of considering a defence at the preliminary hearing was to decide whether or not the claim should be allowed to proceed and that if the defence were made out a tribunal would be failing in their duty under rule 8(2E) if they did not dismiss the applicants' claim; and that, since the variation in pay was due to the separate pay structures and that was an objectively justified administrative reason and a genuine factor not based on sex, the employers' defence under section 1(3) would be upheld and the applicants' claim would be dismissed (post, pp. 399G–400A).
Per curiam. The fact that due to an administrative error the variation in pay between the applicants and the comparator was slightly higher than it should have been did not amount to a “red-circling” situation as it did not relate to the personal circumstances of the comparator (post, p. 403C–D).
The following cases are referred to in the judgment:
Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [
McGregor v. General Municipal Boilermakers and Allied Trades Union [
National Vulcan Engineering Insurance Group Ltd. v. Wade [
Waddington v. Leicester Council for Voluntary Service [
The following additional case was cited in argument:
Farthing v. Ministry of Defence [
Appeal from an industrial tribunal sitting at Ashford.
The applicants, Sandra Boozer and Betty Everhurst, applied to the industrial tribunal pursuant to section 2 of the Equal Pay Act 1970, as amended, for equality of pay with a male comparator, Mr. Jones, on the ground that they were engaged on work of equal value within the meaning of section 1(2)(c) of the Act. The employers, Reed Packaging Ltd., resisted the application on the ground that the variation in pay was due to a material factor other than sex within the meaning of section 1(3). On 7 April 1987, the tribunal considered the employers' defence as a preliminary issue under rule 8(2E) of the rules of procedure in Schedule 2 to the Industrial Tribunals (Rules of Procedure) Regulations 1985. On 2 June 1987, in a reserved decision, they held that the defence failed and they referred the case to an independent expert in accordance with rule 7A of the Regulations.
The employers appealed on the grounds that the industrial tribunal ought to have considered the merits of their defence under section 1(3) at the preliminary hearing; that their decision that the defence failed was perverse and that the tribunal ought to have found that the element of the pay differential caused by the employers' administrative error provided a genuine material factor.
The facts are stated in the judgment.
Christopher Jeans for the employers.
Michael Supperstone for the applicants.
18 March. Wood J. read the following judgment of the appeal tribunal. This is an appeal from a decision of an industrial tribunal sitting at Ashford in Kent on 7 April 1987. The decision is dated 2 June.
This was a first or preliminary hearing of an equal value claim under section 2 of the Equal Pay Act 1970. It was never suggested that it was a “like work” claim. We have been told that there is no authority upon the various points raised in this appeal, and as our decision requires a detailed examination of the provisions of the Equal Pay Act 1970 and of the Industrial Tribunals (Rules of Procedure) Regulations 1985, it is convenient to set them out at this stage in our decision. Section 1 of the Equal Pay Act 1970, as amended, provides:
“(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 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 — … (b) where the woman is employed on work rated as equivalent with that of a man in the same employment — … (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.
“(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. …
“(5) A woman is to be regarded as employed on work rated as equivalent with that of any men if, but only if, her job and their job have been given an equal value, in terms of the demand made on a worker under various headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value but for the evaluation being made...
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