Shields v E. Coomes (Holdings) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ORR |
| Judgment Date | 27 April 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0427-1 |
| Docket Number | Eat/492/76 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 April 1978 |
[1978] EWCA Civ J0427-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Employment Appeal Tribunal
The Master of the Rolls (Lord Denning)
Lord Justice Orr and
Lord Justice-Bridge
MR, E. TABACHNIK (instructed by Messrs. Pattiison & Brewer, Solicitors, London) appeared on behalf of the Applicant (Respondent).
MR. M. POTTER and MR. M. BAKER (instructed by Messrs. Prothero & Prothero, Solicitors, London) appeared on behalf of the Respondents (Appellants).
MR. A. LESTER (instructed by Miss Angharad Savage) appeared on behalf of the Equal Opportunities Commission.
E. Coomes (Holdings) Limited are bookmakers, alias turf accountants. They have 90 betting shops, 60 of them in South-East London, and the remaining 30 in South coast towns, such as Ramsgate, where they have 5. In 81 of the shops they have two counter-hands, who are both women. But in 9 of the shops one of the counter-hands is a man, and the other is a. woman. The reason why they have a man in those 9 is because they are situated in areas where the company anticipate there may be trouble from customers and others: and & man is needed to cope with it, if it arises.
One of these 9 shops is in Sussex Street, Pimlico. The Industrial Tribunal describes it thus:
"… The Company has a policy of employing some male countermands at each of those 9 shops, not only as a possible deterrent to attack or possible entry or other trouble, but also to ensure that, if trouble arises there, physical help shall be available on the spot to repel it until such time as the police are given an opportunity of arriving… The Company took over this shop in 1973-Tney were told that trouble had been experienced there before they took over, but the Company have not themselves had any trouble in their three years of ownership. The Company say that this period of calm has been ensured by employing suitable male personnel, particularly on the counter where he is readily visible… The man is especially important when the shop is opened in the mornings as a cover or precaution against illegal entry when the opening of the shop makes it most vulnerable to attack… The man is needed, too, from time to time, when cash has to be transported to and from their shop and other shops or head office."
Those findings make it clear that, at those 9 shops in troublesome areas, the man fills a protective role. He does thesame work at the counter as the woman counterhand. He takes the bets and receives and pays out the money. But, in his protective role; he works longer hours. He has to be at the shop when it is opened and most vulnerable, whereas the woman comes half-an-hour later. He is required to work a basic week of 37½ hours a week as compared with a woman counterhand who does 32½ hours.
Now here is the point: at 81 shops in trouble-free areas, the counterhands are all women and receive 92p per hour. But at the 9 shops in troublesome areas the man counterhand is paid £1.06 per hour, and the women 92p per hour.
Now the woman counterhand at the Sussex Street shop claims that she does like work with the man and should receive £1.06 per hour, the same as he. The Industrial Tribunal, by a majority of 2 to 1, rejected her claim.
The majority view of the evidence was that: "Although the Sussex Street shop had enjoyed its 3-year period of peace, it was genuinely and reasonably a requirement of the Company that it should employ at least one male counterhand in present circumstances to perform those duties of detection and deterrence and (when required) of security. The employment of a male employee, being able to give assistance of this nature as and when required (albeit at extra cost), can be likened to the payment of an insurance premium to insure against trouble… it was a reasonable requirement and stipulation… an obligation within the terms and conditions of employment… and, having regard thereto and his longer basic week, all represented differences (real and existing and of practical importance) between 'his work and hers."
The minority view was "that the alleged differences could ot be regarded as real or that, if they existed, they were not of any practical importance."
The woman appealed to the Employment Appeal Tribunal. They allowed her appeal. But I am afraid they were under a misapprehension. They thought that the Company employed male counterhands not only at the 9 shops in the troublesome areas, but also at the 81 trouble-free shops as well and that at all the 90 shops the male counterhands were paid more money than the B women. They said: "All the male counterhands, whether exercising the protective functions or not, got the same money, and this was 14p more than the girls." Before us this was acknowledged to be a mistake. There were no male counterhands employed except at the 9 shops where trouble was feared. So the decision of the Employment Appeal Tribunal can be put on one side.
The company appeal to this court. They say that a large sum of money is involved. This is true. If this woman counterhand gets an increase of 14p per hour, so will the women in the other 8 shops in the troublesome areas. And so will the women in all the 81 shops in the trouble-free areast because each of those women counterhands will be able to say that she does like work, not only with the woman counterhand in Sussex Street, but also with the man counterhand there. The companyfs wage bill will go up by at least £45,000 a year, and probably more.
The discussion before us ranged far and wide, in which we had the assistance of Mr. Lester, Q.C., on behalf of the Equal Opportunities Commission.
He introduced us to the law of the European Communities on the subject of Equal Pay and Sex Discrimination. He showed us that much of it is directly applicable in this country. So much so that I propose to set out the major provisions of Community Law, and later see how they apply to the problem in hand.
COMMDHITY LAW
Parliament has decreed that all the rights and obligationsarising under the Treaty of Rome are to be given legal effect, see section 2(1) of the European Communities Act, 1972. Amongst these rights and obligations are those contained in Article 119 of the Treaty. It lays down firmly the principle of "equal pay for equal work". It says: "Each Member State shall during the first stage ensure and subsequently maintain the principle that men and women should receive equal pay for equal work. Por the purpose 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. Equal pay without discrimination based on sex means:-
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job."
The principle was easy to apply when men and women did the same work. Such as when they were both schoolteachers, or both bank clerks, or both waiting at table, doing exactly the same work. But it ran into trouble when the work was not quite the same or the job a little different. Employers were able to make a "wage differential" between the sexes by making differences in "job content" between the man's work and the woman's work: or by giving the work of the men a different "job description" or a different "job classification" from that of women.
To meet such intrusions on "the principle of equal pay", the European Community extended it to the "principle of equal value". It was extended so as to apply not only when it was the same work but also when it was work of equal value. This "principle of equal value. was introduced into Community Law by a Council Directive of 10th February, 1975, which said: "The principle ofequal pay for men and women outlined in Article 119 of the Treaty hereinafter called 'principle of equal pay', means, for the same. work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration. In particular, when a job classification system is used for determining pay, it must be based on the same criteria for both men and women, and so drawn up as to exclude any discrimination of the ground of sex."
So much for discrimination in the field of pay. But there remained other ways in which there was discrimination against women. Such as employing only men for jobs which could be done equally well by women, for instance, in the professions or in business. To exclude this, the slogan "equal pay for equal work" became the apophthegm "no discrimination on ground of sex". The European Community announced its adherence to this principle in 1976. By a Directive of 9th February, 1976, the Council declared that its purpose was-"… to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, as to practical training and as regards working conditions", and made enacting clauses, accordingly.
APPLYING THE TREATY PROVISIONS IN ENGLAND
If you were to read Article 119 with the eyes of an English lawyer, you would think that that Article-and the Directives following upon it-imposed on the Member States an obligation to pass legislation so as to ensure equal pay for equal work, but that it had no direct application of its own force in England. You would think that the English Courts could wait and do nothing until they saw an Act on the Statute Book to give effect to the "principle of equal pay" or "the principle of equal value" or the "principle of equal treatment". But, if you should think...
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