Pickstone and others (Respondents)
v.
Freemans plc (Appellants)
JUDGMENT
Die Jovis 30° Junii 1988
Upon Report from the Appellate Committee to whom was
referred the Cause Pickstone and others against Freemans plc,
That the Committee had heard Counsel on Monday the 9th,
Tuesday the 10th, Wednesday the 11th and Thursday the 12th
days of May last upon the Petition and Appeal of Freemans plc,
of 139 Clapham Road, London, SW9 OHR, praying that the matter
of the Order set forth in the Schedule thereto, namely an
Order of Her Majesty’s Court of Appeal of the 25th day of
March 1987, might be reviewed before Her Majesty the Queen in
Her Court of Parliament and that the said Order might be
reversed, varied or altered or that the Petitioners might have
such other relief in the premises as to Her Majesty the Queen
in Her Court of Parliament might seem meet; as upon the Case
of Mrs. I Pickstone, Mrs. A. Hepburn, Mrs. P. J. Woolner, Mrs.
C. E. Fyffe and Mrs. R. Roberts lodged in answer to the said
Appeal; and due consideration had this day of what was offered
on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal (Civil Division) of the 25th day of March 1987
complained of in the said Appeal be, and the same is hereby,
Affirmed and that the said Petition and Appeal be, and the
same is hereby, dismissed this House: And it is further
Ordered, That the Appellants do pay or cause to be paid to the
said Respondents the Costs incurred by them in respect of the
said Appeal, the amount thereof to be certified by the Clerk
of the Parliaments if not agreed between the parties.
Cler: Asst. Parliamentor
Judgment: 30.6.88
HOUSE OF LORDS
PICKSTONE AND OTHERS
(RESPONDENTS)
v.
FREEMANS PLC.
(APPELLANTS)
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
Lord Oliver of Aylmerton
Lord Jounce of Tullichettle
LORD KEITH OF KINKEL
My Lords,
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.”
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.
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.
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; …”
– 2 –
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.
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.”
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.
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 l(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.
– 3 –
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).
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 Minister and which formed the basis
of its acceptance. The terms in which it was presented to the
House of Commons are set out in the speech of my noble and
learned friend Lord Templeman. Much the same was said before
the House of Lords. There was no suggestion that the
exclusionary words in paragraph (c) were intended to apply in any
other situation than where the man selected by a woman
complainant for comparison was one in relation to whose work
paragraph (a) or paragraph (b) applied. It may be that, in order to
confine the words in question to that situation, some necessary
implication falls to be made into their literal meaning. The
precise terms of that implication do not seem to me to matter.
It is sufficient to say that the words must be construed
purposively in order to give effect to the manifest broad intention
of the maker of the Regulations and of Parliament. I would
therefore reject the appellant’s argument.
In the circumstances it is unnecessary to consider the
ground upon which the Court of Appeal found in favour of the
respondents, namely that article 119 was directly enforceable in
such a way as to enable their claim to be supported irrespective
of the true construction of the Regulations of 1983.
My Lords, for these reasons and those given by my noble
and learned friends Lord Templeman and Lord Oliver of Aylmerton,
I would dismiss the appeal.
– 4 –
LORD BRANDON OF OAKBROOK
My Lords,
I have had the advantage of reading in draft the speeches
prepared by my noble and learned friends, Lord Keith of Kinkel,
Lord Templeman and Lord Oliver of Aylmerton. I agree with
them that, in order to give effect to the purpose for which
section l(2)(c) of the Equal Pay Act 1975 was enacted, it should
be construed in the manner which they have indicated. I would
accordingly affirm the decision of the Court of Appeal, though on
different grounds, and dismiss the appeal.
LORD TEMPLEMAN
My Lords,
The appellants, Freemans Plc. (“the employers”) conduct a
mail order business. The respondents are five women who work
for the employers as “warehouse operatives;” their basic weekly
wage is £77.66. Mr. Phillips is a man who works for the
employers as a “checker warehouse operative;” his basic weekly
wage is £81.88. The respondents assert that the work carried out
by the respondents is equal in value to the work of Mr. Phillips in
terms of the demands, effort, skill and decision-making involved.
The respondents say that the difference of £4.22 between the
respondents’ pay and the pay of Mr. Phillips is due to the
difference of sex; the respondents are paid less because they are
women. The respondents complained to an industrial tribunal that
they were the victims of sex discrimination, contrary to the
provisions of the Equal Pay Act 1970 and contrary to Community
law. When the complaints of the respondents came before the
tribunal, investigation might have shown that there was no
discrimination, that the work of Mr. Phillips was of greater value
than the work of the respondents or that for some other reason
the difference between the pay of Mr. Phillips and the pay of the
respondents was not due to the difference of sex. By agreement
between the parties however, the industrial tribunal was asked to
decide a preliminary point of law which is the subject of this
appeal on assumed facts. The assumptions are that the
respondents are factually correct in their complaint; that the work
of the respondents is equal in value to the work of Mr. Phillips;
that the respondents are paid £4.22 less on the grounds of
difference of sex and for no other reason; that, in short, the
respondents are the victims of discrimination. It is unlawful under
British law and under Community law for an employer to
discriminate against a woman by paying her less than a man if the
work of the woman is the same as or is equal in value to the
work of the man. Nevertheless, the employers contend that under
British law and under Community law, the respondents have no
right to or, alternatively, no remedy for the discrimination which
on the assumed facts is practised by the employer against the
– 5 –
respondents and in favour of Mr. Phillips. The employers’
argument is based on the fact that it so happens that one of the
employer’s warehouse operatives is a man, doing the same work as
the respondents. According to the employers this fact makes all
the difference. The respondents are entitled to complain if they
are discriminated against by reason of the fact that they are not
paid the same as the man who does the same work. Therefore, it
is argued, the respondents are not entitled to complain if they are
discriminated against by reason of the fact that they are not paid
the same as Mr. Phillips who does work of equal value. The
employers admit that if there were 15 warehouse operators and all
the warehouse operators were women, paid £77.66, for work equal
in value to the work of 10 checker warehouse operatives, all men,
paid £81.88 and the difference was due to difference in sex, the
respondents would be entitled to an increase in pay of £4.22. But
the employers claim that if there were 14 women warehouse
operatives, one male warehouse operative, and 10 checker
warehouse operatives the respondents would be obliged to rest
content with £77.66 and would have no remedy for the admitted
discrimination based on difference in sex. The Industrial Tribunal
and the Employment Arbitration Tribunal accepted the argument of
the employers. The Court of Appeal (Purchas and Nicholls L.JJ.
and Sir Roualeyn Cumming-Bruce) decided that under Community
law the respondents had an enforceable right on the assumed facts
to equal pay with Mr. Phillips for work of equal value. The
employers appeal to this House.
For the purposes of determining this appeal, it will be
necessary to consider British law and Community law as they
interact one upon the other.
The Equal Pay Act 1970 was enacted on 29 May 1970.
Section 1 directed that:
“(1) The provisions of this section shall have effect with a
view to securing that employers give equal treatment as
regards Terms and conditions of employment to men and to
women, that is to say that … – (a) for men and women
employed on like work the terms and conditions of one sex
are not in any respect less favourable than those of the
other; and (b) for men and women employed on work rated
as equivalent . . . the terms and conditions of one sex are
not less favourable than those of the other in any respect in
which the terms and conditions of both are determined by
the rating of their work . . . . “
Under section 1 of the Act of 1970, as originally enacted,
the fact that a woman and a man were engaged on like work did
not debar the woman from claiming parity with another man whose
work was rated as equivalent to the work of the woman.
On 1 January 1973 the United Kingdom became a Member
of the European Community. By article 5 of the European
Community Treaty, the United Kingdom became bound to take all
appropriate measures to give effect to obligations arising under the
Treaty or as a result of actions taken by Community institutions.
At the date when the United Kingdom became a Member of the
European Economic Community, the Act of 1970 was not in
operation because the commencement of the Act had been
postponed until 1975.
– 6 –
Article 119 of the European Economic Treaty directs that:
“Each Member State shall . . . ensure and subsequently
maintain the application of the principle that men and
women should receive equal pay for equal work.”
The width of this principle is not susceptible to dissection
so as to sanction discrimination in pay against women in some
circumstances but not in others.
On 10 February 1975 the Council of Ministers of the
Community, the institution responsible for Community legislation,
adopted the Equal Pay Directive (75/117/E.E.C.). The Equal Pay
Directive recited that article 119 of the Treaty is an integral part
of the establishment and functioning of the Common Market and
that national provisions should be approximated as regards
application of the principle of equal pay. The Directive, so far as
relevant, provided as follows:
“Article 1. The principle of equal 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 ….
“Article 2. Member states shall introduce into their
national legal systems such measures as are necessary to
enable all employees who consider themselves wronged by
failure to apply the principle of equal pay to pursue their
claims by judicial process after possible recourse to other
competent authorities ….
“Article 4. Member states shall take the necessary
measures to ensure that provisions appearing in collective
agreements, wage scales, wage agreements or individual
contracts of employment which are contrary to the principle
of equal pay shall be, or may be declared, null and void or
may be amended.”
The Equal Pay Directive ordered the elimination of all
discrimination on grounds of sex with regard to all aspects and
conditions of remuneration for the same work or for work to
which equal value is attributed. This Directive also is inconsistent
with the proposition that in some circumstances discrimination
which deprives a woman of equal pay with a man for work of
equal value may be sanctioned by one or more member states.
The logic of article 119 and of the Equal Pay Directive is that
one member state cannot permit some forms of discrimination in
relation to pay in some circumstances while other member states
forbid all forms of discrimination in all circumstances. In
Defrenne v. Sabena [1976] ICR 547 the European Court of
Justice confirmed this logic in the following paragraphs of their
ruling, at p. 565, dealing with the direct effect of article 119:
“8. Article 119 pursues a double aim.
– 7 –
“9. First, in the light of the different stages of the
development of social legislation in the various member
states, the aim of article 119 is to avoid a situation in
which undertakings established in states which have actually
implemented the principle of equal pay suffer a competitive
disadvantage in intra-community competition as compared
with undertakings established in states which have not yet
eliminated discrimination against women workers as regards
pay.
“10. Secondly, this provision forms part of the social
objectives of the community, which is not merely an
economic union, but is at the same time intended, by
common action, to ensure social progress and seek the
constant improvement of the living and working conditions
of their peoples, as is emphasised by the preamble to the
Treaty.”
In the United Kingdom, the Act of 1970 was amended by
the Sex Discrimination Act 1975 and came into force on 29
December 1975. By section 1(1) of the Act of 1970 as amended
in 1975 by section 8(1) of the Sex Discrimination Act 1975:
“If the terms of a contract under which a woman is
employed at an establishment in Great Britain do not
include … an equality clause they shall be deemed to
include one.”
By section 1(2) an equality clause modifies any term in a
woman’s contract which is less favourable than a term of a similar
kind in the contract of man:
“(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 . . .
“
Section l(2)(a) entitles a woman to receive equal pay for
“like work” and corresponds to Community law which requires
equal pay “for the same work.” Section l(2)(b) entitles a woman
to receive equal pay for “work rated as equivalent” and was
thought by the United Kingdom Government to correspond to
Community law which requires equal pay for “work to which equal
value is attributed.”
By section 1(3) of the Act of 1970, as amended in 1975, a
variation between a woman’s contract and a man’s contract does
not require to be modified “if the employer proves that the
variation is genuinely due to a material factor which is not the
difference of sex.” This provision gives effect to Community law
which applies the principle of equal pay only for the purpose of
eliminating discrimination on grounds of sex.
When a claim is made for equal pay for like work under the
Act of 1970, then by section 1(4) of that Act as amended in 1975:
– 8 –
“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.”
Where a claim is made for equal pay for work rated as
equivalent with that of a man, then, by section 1(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 on a system setting different
values for men and women on the same demand under any
heading.”
By section 2(1) of the Act of 1970 as amended in 1975, any claim
under an equality clause, including a claim for arrears of
remuneration or damages, may be presented by way of complaint
to an industrial tribunal.
Where a woman complains of discrimination, she is entitled
to compare her pay and work with the pay and work of any man
in the same employment. In Ainsworth v. Glass Tubes &
Components Ltd. [1977] I.C.R. 347, a woman complained of
discrimination in favour of a male inspector who worked alongside
her. The Employment Arbitration Tribunal held that the industrial
tribunal erred in law by declining to compare the claimant with
the man who worked beside her and insisting on comparing the
claimant with some other male inspector.
Thus the position at the end of 1975 was that in Community
law the respondents were entitled to equal pay with Mr. Phillips if
the work of the respondents was work to which equal value was
attributed. In British law under the Act of 1970 as amended in
1975, the respondents were entitled to equal pay with Mr. Phillips
if the work of the respondents was rated as equivalent. The fact
that the employers did or did not discriminate against the
respondents in favour of another man engaged on like work did not
deprive the respondents of a remedy if the respondents were
entitled to equal pay with Mr. Phillips,
The United Kingdom Government took the view that sections
1 and 2 of the Act of 1970, as amended in 1975, complied with
the obligations of the United Kingdom under the Equal Pay
Directive. The Commission of the Community as the institution
entitled to arraign a Member State before the European Court of
Justice for failure to comply with Community law considered that
the Act of 1970 as amended in 1975, was defective in one respect.
By section l(2)(b) and section 1(5) a woman employed on work of
– 9 –
equal value to the work of a man could only claim equal pay if a
job evaluation study were carried out and that job evaluation study
attributed equal work to the job of the claimant and the job of
the man. A job evaluation study can only be carried out with the
consent of the employer. A woman who was not receiving equal
pay for work of equal value could not therefore pursue a claim for
parity if her employer refused to consent to a job evaluation study
being carried out. The Commission considered that the Equal Pay
Directive required that every woman should be able to obtain
equal pay for equal work whether there was a job evaluation study
or not. In Commission of the European Communities v. United
Kingdom [1982] (Case 61/81) I.C.R. 578, the Commission applied to
the European Court of Justice for a declaration that the United
Kingdom had failed to fulfil its obligation to adopt laws necessary
to comply with the Equal Pay Directive. The United Kingdom
Government defended the proceedings and argued, at p. 590, that
the Equal Pay Directive did not require:
” … member states to adopt measures entitling any
employee to insist upon some form of job valuation being
carried out in order to determine whether his or her job is
equal in value to another.”
The Commission argued at p. 592 that:
“Article 1 of the Directive obliges the member states to
adopt the measures needed to enable a female worker to
argue, for the purpose of combating any discrimination based
on sex, that two jobs, even though different, may be of
equal value.”
The European Court of Justice decided at p. 598, para. 9:
“… a worker must be entitled to claim before an
appropriate authority that his work has the same value as
other work and, if that is found to be the case, to have the
rights under the Treaty and the Directive acknowledged by a
binding decision. …”
It followed, said the European Court of Justice, at p. 598, para.
11, that the United Kingdom had not adopted the measures
necessary to comply with the Equal Pay Directive because “there
is at present no means whereby a worker who considers that his
post is of equal value to another may pursue his claims if the
employer refuses to introduce a job classification system.”
The United Kingdom Government took steps to comply with
the decision of the European Court of Justice in Commission of
the European Communities v. United Kingdom [1982] ICR 578.
The Secretary of State for Employment further amended the Act
of 1970 by the Equal Pay (Amendment) Regulations 1983 (S.I. 1983
No. 1794) made in accordance with a draft approved by a
resolution of each House of Parliament. These amendments were
made in exercise of the powers conferred on the Minister under
section 2(2) and paragraph 2(2) of Schedule 2 to the European
Communities Act 1972 to make regulations for the purpose of
implementing any Community obligation of the United Kingdom
with the approval of a resolution of each House of Parliament.
– 10 –
Section l(2)(a) of the Act of 1970 as amended in 1975, was
not further amended by the Regulations of 1983. Paragraph (a)
enables any woman to claim equal pay with a man in the same
employment engaged on like work. By section 1(4) like work is
work of the same or a broadly similar nature where the
differences in work are not of practical importance. The issue of
“like work” is decided by the industrial tribunal.
Section l(2)(b) of the Act of 1970 as amended in 1975, was
also not further amended by the Regulations of 1983. Paragraph
(b) enables a woman to claim equal pay for work rated as
equivalent to that of a man by a job evaluation study. By section
1(5) the issue of “equivalent work” is decided by the job evaluation
study. Such a study can only be carried out with the consent and
cooperation of the employer.
In compliance with the ruling of the European Court of
Justice in Commission of the European Communities v. United
Kingdom [1982] ICR 578, the Regulations of 1983 introduced
into the Act of 1970 as amended in 1975, a provision which
enables a woman to claim equal pay for work of equal value
where the employer refuses to consent to a job evaluation study.
The Regulations introduced into the Act section l(2)(c) which
modifies any term in a woman’s contract which is less favourable
than a term of a similar kind in the contract of a man
“(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.”
The Regulations of 1983 also introduced into the Act of
1970 as amended in 1975, the following direction for dealing with
claims under section l(2)(c):
“2A(1) Where on a complaint or reference made to an
industrial tribunal under section 2 above, a dispute arises as to
whether any work is of equal value as mentioned in section l(2)(c)
above the tribunal shall not determine that question unless –
-
-
-
it is satisfied that there are no reasonable
grounds for determining that the work is of
equal value as so mentioned; or -
It has required a member of the panel of
independent experts to prepare a report with
respect to that question and has received that
report.
-
-
(2) Without prejudice to the generality of paragraph (a) of
subsection (1) above, there shall be taken, for the purposes
of that paragraph, to be no reasonable grounds for
determining that the work of a woman is of equal value as
mentioned in section l(2)(c) above if –
(a) that work and the work of the man in question
have been given different values on a study
such as is mentioned in section 1(5) above; and
– 11 –
(b) there are no reasonable grounds for determining
that the evaluation contained in the study was
(within the meaning of subsection (3) below)
made on a system which discriminates on
grounds of sex.
(3) An evaluation contained in a study such as is mentioned
in section 1(5) above is made on a system which
discriminates on grounds of sex where a difference, or
coincidence, between values set by that system on different
demands under the same or different headings is not
justifiable irrespective of the sex of the person on whom
those demands are made.
(4) In paragraph (b) of subsection (1) above the reference to
a member of the panel of independent experts is a
reference to a person who is for the time being designated
by the Advisory, Conciliation and Arbitration Service for the
purposes of that paragraph as such a member, being neither
a member of the Council of that Service nor one of its
officers or servants.”
Thus by section 2A the issue of “work of equal value” is
determined by the industrial tribunal if there are no reasonable
grounds for the complaint, or by a job evaluation study if the
study is not itself discriminatory and, finally, and only if
necessary, by the tribunal with the assistance of a report of an
independent expert appointed by Acas.
According to the employers in the present appeal, the
Regulations of 1983 had the additional effect of depriving some
women of the right to pursue their claims by judicial process or
otherwise although they considered themselves wronged by failure
to apply the principle of equal pay. The respondents may have a
valid complaint in that they are not receiving equal pay with Mr.
Phillips for work of equal value. But if the respondents seek to
remedy that discrimination under section l(2)(c) of the Act of 1970
as amended by the Regulations, they will be debarred because they
are employed on “work in relation to which paragraph (a) or (b)
above applies.” It is said that paragraph (a) operates, not because
the respondents are employed on like work with Mr. Phillips but
because the respondents are employed on like work with some
other man. Since paragraph (c) is expressed to apply only when a
woman is employed on work which is not “work in relation to
which paragraph (a) or (b) above applies,” it follows, so it is said,
that where a woman is employed on like work with any man or
where a woman is employed on work rated as equivalent with any
man, no claim can be made under paragraph (c) in respect of some
other man who is engaged on work of equal value. In my opinion
paragraphs (a) or (b) only debars a claim under paragraph (c) where
paragraphs (a) or (b) applies to the man who is the subject of the
complaint made by the woman. If the tribunal decide that the
respondents are engaged “on like work” with Mr. Phillips then
paragraph (a) applies and the respondents are not entitled to
proceed under paragraph (c) and to obtain the report of an Acas
expert. If there is a job evaluation study which covers the work
of the respondents and the work of Mr. Phillips then the
respondents are debarred from proceeding under paragraph (c)
unless the job evaluation study itself was discriminatory.
– 12 –
Whenever there is a claim for equal pay, the complainant,
or the complainant’s trade union representative supporting the
claimant, may wish to obtain a report from an Acas expert under
paragraph (c) to use for the purpose of general pay bargaining and
in the hope” of finding ammunition which will lead to a general
increase in wage levels irrespective of discrimination. For this
purpose the more Acas reports there are the better. It may be
significant that in the present case a claim is made under
paragraph (c) and not under paragraph (a) as well, or, in the
alternative, although it is obvious that work of equal value in
terms of the demands made on a woman under such headings as
effort, skill and decision which may amount to discrimination under
paragraph (c) may also be work of a broadly similar nature with
differences of no practical importance which found a complaint
under paragraph (a). If there is discrimination in pay the
industrial tribunal must be able to grant a remedy. But the
remedy available under paragraph (c) is not to be applied if the
complainant has a remedy in respect of the male employee with
whom she demands parity under paragraph (a) or if paragraph (b)
applies to the woman and to that male employee. To prevent
exploitation of paragraph (c) the tribunal must decide in the first
instance whether the complainant and the man with whom she
seeks parity are engaged on “like work” under paragraph (a). If
paragraph (a) applies, no Acas report is required. If paragraph (a)
does not apply, then the tribunal considers whether paragraph (b)
applies to the complainant and the man with whom she seeks
parity; if so, the tribunal can only proceed under paragraph (c) if
the job evaluation study obtained for the purposes of paragraph (b)
is itself discriminatory. If paragraph (b) applies then, again, no
Acas report is necessary. If paragraphs (a) and (b) do not apply,
the tribunal must next consider whether there are reasonable
grounds for determining that the work of the complainant and the
work of the man with whom she seeks parity is of equal value. If
the tribunal are not so satisfied, then no Acas report is required.
The words in paragraph (c) on which the employers rely were not
intended to create a new form of permitted discrimination.
Paragraph (c) enables a claim to equal pay as against a specified
man to be made without injustice to an employer. When a woman
claims equal pay for work of equal value, she specifies the man
with whom she demands parity. If the work of the woman is work
in relation to which paragraphs (a) or (b) applies in relation to
that man, then the woman cannot proceed under paragraph (c) and
cannot obtain a report from an Acas expert. In my opinion there
must be implied in paragraph (c) after the word “applies” the
words “as between the woman and the man with whom she claims
equality.” This construction is consistent with Community law.
The employer’s construction is inconsistent with Community law
and creates a permitted form of discrimination without rhyme or
reason.
Under Community law, a woman is entitled to equal pay for
work of equal value to that of a man in the same employment.
That right is not dependent on there being no man who is
employed on the same work as the woman. Under British law,
namely the Equal Pay Act 1970 as amended in 1975, a woman was
entitled to equal pay for work rated as equivalent with that of a
man in the same employment. That right was not dependent on
there being no man who was employed on the same work as the
– 13 –
woman. Under the ruling of the European Court of Justice in
Commission of the European Communities v. United Kingdom
[1982] ICR 578, the Equal Pay Act as amended in 1975 was held
to be defective because the Act did not entitle every woman to
claim before a competent authority that her work had the same
value as other work, but only allowed a claim by a woman who
succeeded in persuading her employer to consent to a job
evaluation scheme. The Regulations of 1983 were intended to give
full effect to Community law and to the ruling of the European
Court of Justice which directed the United Kingdom Government
to introduce legislation entitling any woman to equal pay with any
man for work of equal value if the difference in pay is due to the
difference in sex and is therefore discriminatory. I am of the
opinion that the Regulations of 1983, upon their true construction,
achieve the required result of affording a remedy to any woman
who is not in receipt of equal pay for work equal in value to the
work of a man in the same employment.
In Mary Murphy v. Bord Telecom Eireann [1988] (Case
157/86) 1 C.M.L.R. 879, 29 women were employed as factory
workers engaged in such tasks as dismantling, cleaning, oiling and
reassembling telephones and other equipment; they claimed the
right to be paid at the same rate as a specified male worker
employed in the same factory as a stores labourer engaged in
cleaning, collecting and delivering equipment and components and
in lending general assistance as required. The European Court of
Justice in their judgment at p. 887, para. 9, said that the principle
of equal pay for men and women
“forbids workers of one sex engaged in work of equal value
to that of workers of the opposite sex to be paid a lower
wage than the latter on grounds of sex, it a fortiori
prohibits such a difference in pay where the lower-paid
category of workers is engaged in work of higher value.”
I cannot think that in Community law or in British law the result
would be any different if instead of there being 29 women working
on telephone maintenance and one male stores labourer, there were
28 women and one man working on telephone maintenance and one
male stores labourer.
The draft of the Regulations of 1983 was not subject to any
process of amendment by Parliament. In these circumstances the
explanations of the Government and the criticisms voiced by
Members of Parliament in the debates which led to approval of
the draft Regulations provide some indications of the intentions of
Parliament. The debate on the draft Regulations in the House of
Commons which led to their approval by Resolution was initiated
by the Under Secretary of State for Employment who, in the
reports of the House of Commons for 20 July 1983 at column 479
et seq, said this:
“The Equal Pay Act allows a woman to claim equal pay
with a man … if she is doing the same or broadly similar
work, or if her job and his have been rated equal through
job evaluation in effort, skill and decision. However, if a
woman is doing different work from a comparable man, or
if the jobs are not covered by a job evaluation study, the
woman has at present no right to make a claim for equal
– 14 –
pay. This is the gap, identified by the European Court
which we are closing . . . . “
In the course of his speech at column 485, the Minister
outlined the procedure which will apply if a claim is made under
paragraph (c) in the following words:
“Under the amending Regulations which are the subject of
this debate, an employee will be able to bring a claim for
equal pay with an employee of the opposite sex working in
the same employment on the ground that the work is of
equal value. When this happens, conciliation will first be
attempted, as in all equal pay claims. If conciliation is
unsuccessful, the industrial tribunal will take the following
steps. First, it will check that the work is not in fact so
similar that the case can be heard under the current Act.
Secondly, it will consider whether the jobs have already
been covered by a job evaluation scheme and judged not to
be of equal value. If this is the case, the claim may
proceed only if the original job evaluation scheme is shown
to have been sexually discriminatory. Having decided that
the case should proceed, the tribunal will first invite the
parties to see if they can settle the claim voluntarily. If
not, the tribunal will consider whether to commission an
independent expert to report on the value of the jobs. It
will not commission an expert’s report if it feels that it is
unreasonable to determine the question of value – for
example, if the two jobs are quite obviously of unequal
value. Nor . . . will it commission an expert’s report if the
employer shows at this stage that inequality in pay is due
to material factors other than sex discrimination . . . . “
Thus it is clear that the construction which I have placed
upon the Regulations corresponds to the intentions of the
Government in introducing the Regulations. In the course of the
debate in the House of Commons, and in the corresponding debate
in the House of Lords, no one suggested that a claim for equal
pay for equal work might be defeated under the Regulations by an
employer who proved that a man who was not the subject of the
complaint was employed on the same or on similar work with the
complainant. The Minister took the view, and Parliament accepted
the view, that paragraph (c) will only apply if paragraphs (a) and
(b) are first held by the Tribunal not to apply in respect of the
work of the woman and the work of the man with whom she seeks
parity of pay. This is also the only view consistent with
Community law.
In von Colson and Kamann v. Land Nordrhein – Westfalen
(Case 14/83) (1984) ECR 1891, 1910, 1911, the European Court
of Justice advised that in dealing with national legislation designed
to give effect to a Directive:
“3. … It is for the national court to interpret and apply
the legislation adopted for the implementation of the
Directive in conformity with the requirements of Community
law, in so far as it is given discretion to do so under
national law.”
– 15 –
In Duke v. G.E.C. Reliance Systems Ltd. [1988] 2 WLR 359 this
House declined to distort the construction of an Act of Parliament
which was not drafted to give effect to a Directive and which was
not capable of complying with the Directive as subsequently
construed by the European Court of Justice. In the present case I
can see no difficulty in construing the Regulations of 1983 in a
way which gives effect to the declared intention of the
Government of the United Kingdom responsible for drafting the
Regulations and is consistent with the objects of the European
Community Treaty, the provisions of the Equal Pay Directive and
the rulings of the European Court of Justice. I would dismiss the
appeal.
LORD OLIVER OF AYLMERTON
My Lords,
The respondents to this appeal are assumed to be engaged
upon work which is, for all practical purposes, identical with work
upon which at least one man employed in the same establishment
is engaged and they are employed upon the same terms as he is.
They claim, however, that there are other men employed in the
same establishment whose work, though not the same as theirs, is
of equal value to theirs and who are remunerated at a higher rate
and they claim that the difference is due to discrimination against
them on the grounds of their sex. The appellants have resisted
the claim for parity with this latter group, from whom the
respondents selected a Mr. Phillips as the comparator, on the
preliminary point that, even assuming the discrimination claimed by
the respondents to be established, they have no remedy. There
are, they contend, three reasons for this. First, the claim is
precluded by the terms of the Equal Pay Act 1970 (as amended) so
that the industrial tribunal has no jurisdiction to entertain the
claim. Secondly, it is said that even on the construction of
article 119 of the Treaty of Rome and the Equal Pay Directive
(75/117/E.E.C.) which clarified it, assuming the article and
Directive to be directly applicable as a matter of domestic law, a
claim to parity for work of equal value cannot be made by a
woman who is employed on the same work as another man.
Thirdly, it is said that even could such a claim subsist as a matter
of the construction of article 119, the article is not directly
enforceable in such a case in domestic law. Your Lordships were
therefore invited by the appellants to submit both the question of
construction of the article and the question of direct enforceability
to the European Court of Justice under the provisions of article
177 of the Treaty. The Court of Appeal, whilst upholding the
appellants’ contentions as regards the construction of the Act,
entertained no doubts that the discrimination claimed, if proved,
contravened the terms of the Treaty and the Directive, and
referred the matter back to the industrial tribunal to deal with
the claim on the footing that the respondents’ rights were directly
enforceable as a matter of domestic law.
My Lords, whilst, like the Court of Appeal, I entertain no
doubt that the discrimination claimed falls squarely within the
general principle of equal pay for equal work (or work of equal
– 16 –
value) which is enshrined in article 119, I confess to some doubt
whether, if the appellants’ construction of the Act of 1970 is
correct, the article is directly enforceable in the circumstances of
the instant case and before reading the draft of the speech of my
noble and learned friend, Lord Templeman, I should, for my part,
have been minded to accede to the appellants’ request that that
question at least be submitted to the European Court of Justice.
Broadly, my doubts arise from this, that the cases in the European
Court to which your Lordships have been referred clearly establish
that there is an area within which the article is not directly
applicable. The bounds of that area are far from clear to me,
however, but the cases appear to indicate that the article may not
be directly applicable in an “equal value” claim, at any rate where
there is no machinery in the domestic law by which the criterion
of what is work of equal value can be readily ascertained. The
difficulty in this case arises from the fact that the industrial
tribunal is a statutory tribunal whose jurisdiction and procedure is
circumscribed by statutory instrument, so that although machinery
is provided for the ascertainment of what is “work of equal value,”
that machinery is confined by definition to a claim falling within
section l(2)(c) of the Act of 1970 (see Industrial Tribunals (Rules
of Procedure) Regulations 1985 (S.I. 1985 16), regulation 3(2) and
the definition of “equal value claim” in Schedule 2 to the
Regulations). If, therefore, the Act does, as the appellants claim,
restrict the entertainment of claims by the tribunal to cases in
which there is no man performing the same work as the claimant,
the tribunal’s machinery for establishing the criterion of what is
work of equal value is equally restricted.
The critical question, therefore, is whether the Court of
Appeal, in common with the industrial tribunal and the
Employment Appeals Tribunal, were right in concluding that the
respondents’ claim was not one which could be made under the
provisions of the Act of 1970. I have to confess to sympathising
with that conclusion which coincided with the very definite opinion
which I myself had formed at the conclusion of the hearing.
Indeed, it is only the persuasive speech delivered by my noble and
learned friend, Lord Templeman, which has enabled me to change
the opinion which I had formed. It is beyond dispute that the Act
in its amended form in 1975 was intended to give effect to the
United Kingdom’s obligations under article 119 and the Equal Pay
Directive and that the amendment introduced in 1983, following
the ruling of the European Court of Justice in Commission of the
European Communities v. United Kingdom [1982] ICR 578, was
intended to fill the gap to which that case had drawn attention
and to complete what was quite obviously intended to be a
comprehensive code for dealing with sex discrimination in the area
of pay and conditions at work. What has to be said, if the
appellants are right, is that Parliament simply failed in its purpose
and that is a conclusion the court must strive to avoid –
particularly having regard to the provisions of section 2(4) of the
European Communities Act 1972 – unless it is compulsively driven
to it. It has, I think, to be said that if the section falls to be
construed in isolation apart from the evident purpose of the Act,
there is very little scope for a construction other than that to
which the Court of Appeal felt itself driven. In contrast to the
way in which, for instance, the Belgian legislature complied with
the Treaty obligation by simply reproducing the terms of the
article as part of the domestic legislation, the way in which the
– 17 –
United Kingdom Act seeks to accomplish its object is by reading
into every woman’s contract of employment a deemed contractual
term, described as “an equality clause.” The terms of the clause
are not spelled out but the effect of it – broadly that the terms
of a woman’s contract are to be brought into line with those of
comparable man – is stated and is related to three, and only
three, prescribed situations, viz.: (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; and (c) “where a woman is employed
on work which, not being work in relation to which paragraph (a)
or (b) above applies, is … of equal value to that of a man in
the same employment. Now, on the face of it, where a man is
employed on the same work as a woman, paragraph (a) applies to
that work and the equality clause in the woman’s contract has the
effect specified in that paragraph. If she then makes a claim for
equal pay with someone whose work she claims to be of equal
value with hers but which is not the same, she does not change
the nature of her work. It remains work which has the effect
specified in paragraph (a) and to which, therefore, that paragraph
“applies.” If, therefore, the section is to be read literally and in
accordance with its terms, paragraph (c) cannot apply to that work
so long as paragraph (a) applies to it. It can be made to apply in
only one of two ways. Either there has to be given to the word
“applies” an artificial meaning which will enable it to be read in
the sense of “is applied by the claimant as part of her claim” or
there has to be read into the Act some qualifying words which
will restrict the word “applies” to a particular comparator selected
by the claimant. Either way, a construction which permits the
section to operate as a proper fulfilment of the United Kingdom’s
obligation under the Treaty involves not so much doing violence to
the language of the section as filling a gap by an implication
which arises, not from the words used, but from the manifest
purpose of the Act and the mischief it was intended to remedy.
The question is whether that can be justified by the necessity –
indeed the obligation – to apply a purposive construction which will
implement the United Kingdom’s obligations under the Treaty.
For the reasons given by my noble and learned friend, Lord
Templeman, I am now persuaded that it can and that paragraph (c)
is to be construed as if modified in the manner suggested by my
noble and learned friend or as if it included a parenthetic phrase
and read “(c) where a woman is employed on work which, not
being work in relation to which (in respect of the man hereinafter
mentioned) paragraph (a) or (b) above applies, is … etc.” It
must, I think, be recognised that so to construe a provision which,
on its face, is unambiguous involves a departure from a number of
well-established rules of construction. The intention of Parliament
has, it is said, to be ascertained from the words which it has used
and those words are to be construed according to their plain and
ordinary meaning. The fact that a statute is passed to give effect
to an international treaty does not, of itself, enable the treaty to
be referred to in order to construe the words used in other than
in their plain and unambiguous sense. Moreover, even in the case
of ambiguity, what is said in Parliament in the course of the
passage of the Bill, cannot ordinarily be referred to to assist in
construction. I think, however, that it has also to be recognised
that a statute which is passed in order to give effect to the
United Kingdom’s obligations under the Treaty of Rome falls into
-18 –
a special category and it does so because, unlike other treaty
obligations, those obligations have, in effect, been incorporated
into English law by the European Communities Act 1972. Section
2(1) of that Act provides that:
“all such . . . obligations . . . from time to time created
by the Treaties … as in accordance with the Treaties are
without further enactment to be given legal effect or used
in the United Kingdom shall be recognised and available in
law, and be enforced, allowed and followed accordingly. . .
Although, at any rate on one construction, this may be said to
apply only to rights which are clearly directly applicable,
subsection (2) goes on to provide for a designated Minister to
make provision by regulation “for the purpose of implementing any
Community obligations of the United Kingdom” and “for the
purpose of dealing with matters arising out of or related to any
such obligations.” Subsection (4) provides that a provision made
under subsection (2) includes such provision as might be made by
Acts of Parliament, and that “any enactment passed or to be
passed . . . shall be construed and have effect subject to the
foregoing provisions of this section.” One is thus thrown back to
the provisions of subsection (1). Subsection l(2)(c) of the Equal
Pay Act 1970 was inserted into the Act under this power by the
Equal Pay (Amendment) Regulations 1983, which recited that the
Secretary of State was the designated Minister “in relation to
measures to prevent discrimination between men and women as
regards terms and conditions of employment.” The history of the
legislation up to that point has been fully recited in the speech of
my noble and learned friend, Lord Templeman, and it is perfectly
plain that the amendments to the Act were inserted for the
purpose of completing the compliance by the United Kingdom with
its Treaty obligations under article 119 and the Equal Pay
Directive by remedying what was then perceived as the only
remaining lacuna, namely that a woman was excluded from making
an equal value claim unless she could persuade her employer to
initiate a work evaluation study. It is worth noting that the
explanatory note (which is not, of course, part of the Regulations
but is of use in identifying the mischief which the Regulations
were attempting to remedy) states that:
“Regulation 2 amends section 1 of the Equal Pay Act 1970
to enable a woman to take advantage of an equality clause
where she is employed on work of equal value to that of a
man in the same employment.”
Those Regulations having been passed with the manifest and
express purpose of producing a full compliance with the United
Kingdom’s obligation, they fall to be construed accordingly and
that which I have suggested as falling to be implied into section
l(2)(c) is necessary to achieve that purpose. In Garland v. British
Rail [1983] 2 AC 751, 771, Lord Diplock observed:
“My Lords, even if the obligation to observe the
provisions of article 119 were an obligation assumed by the
United Kingdom under an ordinary international treaty or
convention and there were no question of the treaty
obligation being directly applicable as part of the law to be
– 19 –
applied by the courts in this country without need for any
further enactment, it is a principle of construction of
United Kingdom statutes, now too well established to call
for citation of authority, that the words of the statute
passed after the Treaty has been signed and dealing with
the subject matter of the international obligation of the
United Kingdom, are to be construed, if they are reasonably
capable of bearing such a meaning, as intended to carry out
the obligation, and not to be inconsistent with it. A
fortiori is this the case where the Treaty obligation arises
under one of the Community treaties to which section 2 of
the European Communities Act 1972 applies.
“The instant appeal does not present an appropriate
occasion to consider whether, having regard to the express
direction as to the construction of enactments ‘to be passed’
which is contained in section 2(4), anything short of an
express positive statement in an Act of Parliament passed
after January 1, 1973, that a particular provision is intended
to be made in breach of an obligation assumed by the
United Kingdom under a Community treaty, would justify an
English court in construing that provision in a manner
inconsistent with a Community treaty obligation of the
United Kingdom, however wide a departure from the prima
facie meaning of the language of the provision might be
needed in order to achieve consistency. …”
In the instant case, the strict and literal construction of the
section does indeed involve the conclusion that the Regulations,
although purporting to give full effect to the United Kingdom’s
obligations under Article 119, were in fact in breach of those
obligations. The question, following Lord Diplock’s formulation of
principle, is whether they are reasonably capable of bearing a
meaning which does in fact comply with the obligations imposed by
the Treaty. I was, initially, in some doubt whether, if the section
is to be construed in the way for which the respondents’ contend,
any sensible purpose could be given to the exclusionary words “not
being work in relation to which paragraphs (a) or (b) above
applies.”
However, the Regulations which introduced paragraph (c)
into the Act introduced at the same time the procedural provisions
in section 2A and the significance of the exclusionary word in the
context of the industrial tribunals procedure and of the definition
of “like work” which is contained in section 1(4) is demonstrated in
the analysis of my noble and learned friend, Lord Templeman.
That doubt removed, I am satisfied that the words of section
l(2)(c), whilst on the face of them unequivocal, are reasonably
capable of bearing a meaning which will not put the United
Kingdom in breach of its Treaty obligations. This conclusion is
justified, in my judgment, by the manifest purpose of the
legislation, by its history, and by the compulsive provision of
section 2(4) of the Act of 1972. It is comforting indeed to find,
from the statement made by the Minister to which my noble and
learned friend has referred, that this construction does in fact
conform not only with what clearly was the parliamentary
intention but also with what was stated to be the parliamentary
intention. I do not, however, think that it is necessary to rely
upon this, since the conclusion is, in my judgment, amply justified
– 20 –
by the other factors which I have mentioned. For these reasons
and for those given by my noble and learned friend, Lord
Templeman, I agree that the appeal should be dismissed.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the advantage of reading in draft the speeches
prepared by my noble and learned friends Lord Keith of Kinkel,
Lord Templeman and Lord Oliver of Aylmerton. Like my noble
and learned friend Lord Oliver I had, at the conclusion of the
hearing, reached the firm conclusion that the Court of Appeal had
correctly construed the relevant provisions of the Equal Pay Act
1970 but I have similarly been persuaded to the contrary view by
the speeches of my noble and learned friends. For the reasons set
out in those speeches I too would dismiss the appeal.
– 21 –
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