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Pickstone v Freeman

Legal Citation:

Pickstone and others v Freemans plc [1988] 2 All ER 803, [1988] 3 WLR 265, [1989] A.C. 66 House of Lords

 

1987 Jan 26, 27; March 25 Purchas and Nicholls L.JJ. 1988 May 9, 10, 11, 12; June 30

Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Templeman, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle

Discrimination, Sex - Equal pay - Work of equal value - Applicants claiming work of equal value with male comparator - Other male employees doing like work with applicants - Whether applicants entitled to rely on equal value provisions - Equal Pay Act 1970 (c. 41), s. 1(2)(a)(c) (as amended by Sex Discrimination Act 1975 (c. 65), s. 8 and Equal Pay (Amendment) Regulations 1983 (S.I. 1983 No. 1794), reg. 2) - E.E.C. Treaty (Cmnd. 5179-II), art. 119 - Council Directive (75/117/E.E.C.), art. 1

Statute - Construction - Hansard - Statutory provisions to implement decision of European Court of Justice - Whether recourse to Parliamentary proceedings permissible as aid to interpretation

The employers employed both men and women as warehouse operatives and as checker warehouse operatives. The applicants, female warehouse operatives, claimed against the employers that they were entitled to equal pay with a male checker warehouse operative on the basis that they were doing work of equal value within the meaning of section 1(2)(c) of the Equal Pay Act 1970,1 as amended. An industrial tribunal dismissed the claim holding that because the applicants were employed on like work with other male employees in the same establishment within the meaning of section 1(2)(a) of the Act they were not entitled to rely on the equal value provisions contained in section 1(2)(c) thereof, or upon any rights derived from article 119 of the E.E.C. Treaty. The appeal tribunal dismissed the applicants’ appeal. On appeal by the applicants, the Court of Appeal allowed the appeal on the ground that in the circumstances the applicants were entitled to pursue equal value claims under article 119.

On appeal by the employers:-

Held, dismissing the appeal, that the applicants were entitled to rely on section 1(2)(c) of the Act of 1970, as amended since on a purposive construction of the provision the exclusionary words in paragraph (c), "not being work in relation to which paragraph (a) or (b) above applies," were limited to the situation where the male comparator selected by a female complainant was one in relation to whose work paragraph (a) or paragraph (b) applied, and that the exclusionary words did not have effect whenever the employer was able to identify a male employee employed by him on like work with the female claimant within the meaning of paragraph (a) or work rated as equivalent with hers within the meaning of paragraph (b); and

1 Equal Pay Act 1970, s. 1(2) as amended: see post, p. 74E-H.

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that, accordingly, the matter would be remitted to the industrial tribunal for determination on the merits (post, pp. 111G-H, 112C-E, F-G, 120A-B, 125F - 126B, 128E-F).

Per curiam. Section 1(2)(c) was inserted into the Equal Pay Act 1970 by the Equal Pay (Amendment) Regulations 1983. The draft Regulations of 1983 were presented to Parliament as giving full effect to the decision in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578. The draft Regulations were not subject to the usual Parliamentary process, as a Bill would have been. In those circumstances and in the context of section 2 of the European Communities Act 1972, it was entirely legitimate for the purpose of ascertaining the intention of Parliament to take into account the terms in which the draft Regulations were presented by the responsible Minister and which formed the basis of its acceptance (post, pp. 112A-C, F-G, 121E, 122A-B, G - 123B, 126C-E, 127C, 128C-D, E-F).

Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578, E.C.J. considered.

Decision of the Court of Appeal, post, p. 73G; [1987] 3 W.L.R. 811; [1987] I.C.R. 867; [1987] 3 All E.R. 756 affirmed on different grounds.

The following cases are referred to in their Lordships’ opinions:

The following additional cases were cited in argument in the House of Lords:

The following cases are referred to in the judgments of the Court of Appeal:

The following additional cases were cited in argument in the Court of Appeal:

APPEAL from the Employment Appeal Tribunal.

The applicants, I. Pickstone, A. Hepburn, P. J. Woolner, C. E. Fyffe and R. Roberts, five warehouse operatives, claimed against their employers, Freemans Plc., that they were entitled to equal pay to that of Mr. Phillips, who was employed as a checker warehouse operative, as their work as warehouse operatives was of equal value to his work

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within the meaning of section 1(2)(c) of the Equal Pay Act 1970. The industrial tribunal sitting at Cambridge dismissed their claim on the ground that a claim under paragraph (c) relying on work of "equal value" could only be made if the applicant was unable to rely on the "like work" provision in section 1(2)(a). On the applicants’ appeal, the appeal tribunal [1986] I.C.R. 886 dismissed the appeal on the ground that as they were employed on like work with men they could not claim that they were employed on work of equal value to that of another man under section 1(2)(c).

The applicants appealed on the grounds that (1) the appeal tribunal erred in law in deciding that, on its true construction, section 1(2)(c) of the Equal Pay Act 1970, as amended, prohibited a woman from claiming equal pay for work of equal value by reference to named comparators when she did like work to another man in the same employment; (2) the appeal tribunal erred in law in failing to find that section 1(2)(c), on its true construction, prohibited a woman from claiming that she did work of equal value to a man in the same employment when she did like work to a man. It did not prevent a woman from claiming under the equal value provisions by reference to the work of one man merely because she did like work to another man; (3) the appeal tribunal erred in law in failing to find that article 119 of the E.E.C. Treaty and Council Directive (75/117/E.E.C.) (a) entitled the applicants to claim equal pay to men doing work of equal value in the same employment irrespective of whether there was another man doing like work to that of the applicants and (b) either assisted in the interpretation of section 1(2)(c), to the extent that it was ambiguous, so as to support the grounds advanced in (1) and (2) above or gave rights to the applicants upon which they might directly rely and against the employers in national courts and tribunals.

The facts are stated in the judgment of Nicholls L.J.

David Pannick for the applicants. The five applicants are women employed by the employers as warehouse operatives. They claim to do work of equal value, and therefore to be entitled to equal pay, to a Mr. Phillips, employed by the employers as a checker warehouse operative. The claim is brought under the Equal Pay Act 1970, contained in Part II of Schedule 1 to the Sex Discrimination Act 1975 and amended by the Equal Pay (Amendment) Regulations 1983 (S.I. 1983 No. 1794). The industrial tribunal and the Employment Appeal Tribunal erred in law in concluding that the words in section 1(2)(c) of the Act of 1970 "where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) ... applies" prevent a woman from claiming equal pay for work of equal value with a man if she is employed on like work with another man.

On its ordinary and natural meaning section 1(2)(c) is ambiguous and one of the possible meanings of the word "applies" is applies in the sense that the woman is not employed on like work with, or on work rated as equivalent with that of, a man in the same employment with whom the woman is comparing herself. It is for the applicant to choose the man with whom she wishes to compare herself: Ainsworth v. Class Tubes Components Ltd. [1977] I.C.R. 347, and Parliament, when

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adding paragraph (c) to section 1(2) cannot have intended to go against that principle and compel a woman to compare herself with a man under paragraph (a).

The Equal Pay (Amendment) Regulations 1983 created the right of a woman to claim equal pay for work of equal value by adding paragraph (c) to section 1(2) of the Act of 1970. If an employer adopts a policy or practice which affects a group composed predominantly of women and is unjustified, then that constitutes unlawful sex discrimination even if there are some men in the group which is adversely affected. That concept of indirect sex discrimination is part of the Equal Pay Act 1970 as well as the Sex Discrimination Act 1975: Shields v. E. Coomes (Holdings) Ltd. [1978] 1 W.L.R. 1408 and Rainey v. Greater Glasgow Health Board [1987] A.C. 224. Even if there is a man in like work to the applicants they are still victims of indirect sex discrimination because the employers are operating a pay policy which affects a group composed mainly of women and which is unjustified. That is the mischief which section 1(2)(c) was intended to cure. The interpretation of section 1(2)(c) adopted by the appeal tribunal frustrates the purpose of the Act of 1970 in giving a remedy for discrimination between men and women.

European Community law is an aid to the construction of the Act of 1970: Garland v. British Rail Engineering Ltd. [1983] 2 A.C. 751 and Johnston v. Chief Constable of the Royal Ulster Constabulary (Case 222/84) [1987] Q.B. 129. Section 1(2)(c) was enacted as a result of the judgment of the European Court of Justice in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578. That decision, and the content of the relevant Community law, article 119 of the E.E.C. Treaty (Cmnd. 5179-II) and article 1 of Council Directive (75/117/E.E.C.), give the applicants the right to claim equal pay for work of equal value with Mr. Phillips irrespective of whether there are other men doing the same work as them. The applicants rely on Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180 and Commission of European Communities v. Denmark (Case 143/83) [1986] 1 C.M.L.R. 44. The appeal tribunal erred in their conclusion that Community law was not applicable in the present case.

If the applicants fail in their submission that section 1(2)(c) of the Act of 1970 is ambiguous and that Community law is an aid to its construction, Community law gives the applicants directly enforceable rights to claim equal pay for work of equal value. It is well established that article 119 has direct effect in domestic courts in cases of direct and overt discrimination: Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180 and Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972. Both are decisions of the European Court of Justice with which the Court of Appeal decision in O’Brien v. Sim-Chem Ltd. [1980] 1 W.L.R. 734 (relied on by the appeal tribunal in the present case) cannot stand.

Christopher Carr Q.C. and Patrick Elias for the employers. The central issue in this appeal is what is meant by the words "not being work in relation to which paragraph (a) or (b) ... applies" in section 1(2)(c) of the Equal Pay Act 1970. The phrase is clear and wholly

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unambiguous. It prevents a claim being made under paragraph (c) where the work on which the applicant is employed is either work in relation to which paragraph (a) applies i.e. like work with a man in the same employment, or work in relation to which paragraph (b) applies i.e. work rated as equivalent to that of a man in the same employment. The words "a man" refer to any man, in accordance with the normal principles of statutory construction.

The applicants contend that section 1(2)(c) is excluded only where the woman is employed on like work with the particular man whom she has chosen as her comparator, or where her job is rated as equivalent with the job the man she has chosen as her comparator. Since the applicants in the present case have not chosen as their comparator a man employed on like work, or work rated as equivalent, it is alleged that they can invoke paragraph (c). That is an incorrect construction of paragraph (c). It distorts the language of paragraph (c) and requires additional words to be added e.g. "not being work in relation to which paragraph (a) or (b) applies in relation to the chosen comparator." There is no warrant for importing such words into the provision.

A woman cannot choose to decide whether she will be treated as employed on like work with a man; an equality clause under paragraph (a) is deemed to be included in her contract once objectively she is employed on like work with a man in the same employment. The applicants’ contention is that a woman can in effect deny the applicability of paragraph (a) by the simple expedient of choosing as a comparator someone not employed on like work. Since, on the employers’ construction, section 1(2)(c) is unambiguous there is no need to invoke Community law as an aid to construction.

The employers’ construction is consonant with Community law. They rely upon the following matters: (1) article 1 of Council Directive (75/117/E.E.C.) defines the principle of equal pay as meaning the elimination of discrimination on grounds of sex "for the same work or for work to which equal value is attributed." The disjunctive "or" suggests that that the principle is complied with where discrimination is eliminated in respect of the same work i.e. like work alone.

(2) The employers accept, as the applicants have alleged, that section 1(2)(c) was enacted as a result of the judgment of the European Court of Justice in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578. In that case it was held that English law as it then stood i.e. prior to the enactment of the Equal Pay (Amendment) Regulations 1983, did not fully implement the principle in article 119 of the E.E.C. Treaty and article 1 of Council Directive (75/117/E.E.C.). There has been partial fulfilment only. Certain workers, namely those not employed on like work or covered by a voluntary job evaluation scheme could not take advantage of the principle of equal pay if the law had to provide a remedy for these workers. It is entirely in accordance with that decision for legislation to have been introduced merely to supplement the then existing law by catering for workers not protected by that law. That is why paragraph (c) can be invoked only if paragraphs (a) and (b) are not applicable.

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(3) Once a man is employed on like work with a woman, her equal value claim against another man employed on dissimilar work is a claim of indirect sex discrimination. This is in essence the applicants’ claim in the present case. At the time when the Regulations of 1983 passed the view of the European Court of Justice was that indirect unintentional discrimination did not offend article 119: Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972 as explained by Browne-Wilkinson J. when the case returned to the Employment Appeal Tribunal [1981] 1 W.L.R. 1485. Consequently, even if the applicants are correct to say that there is indirect discrimination in this case, it is denied that the Regulations of 1983 when passed contravened article 119 by failing to provide a remedy for such discrimination. The construction of section 1(2)(c) advanced by the employers is therefore fully in accordance with Community law as it stood in 1983.

Many decisions of the European Court of Justice have emphasised that article 119 has direct effect only in cases where there is overt sex discrimination which can be identified solely with the aid of the criteria of equal work and equal pay, without national or Community measures being required to define them with greater precision in order to permit of their application: Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180; Jenkins v. Kingsgate (Clothing Productions) Ltd. [1981] 1 W.L.R. 972; Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547 and Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578.

The concept of equal value cannot be defined without national measures being necessary to define the concept with greater precision in order to permit of its application. This was the view of the Court of Appeal in O’Brien v. Sim-Chem Ltd. [1980] 1 W.L.R. 734. Furthermore, if an equal value claim of the kind being brought in this case constituted a directly enforceable Community right, effect could be given to it in the English courts by virtue of section 2(1) of the European Communities Act 1972. If such direct enforcement were possible, the U.K. Government enactment of the Equal Pay (Amendment) Regulations 1983, did not fully implement the principle in article 119 of the E.E.C. Treaty and article 1 of Council Directive (75/117/E.E.C.). There has been partial fulfilment only. Certain workers, namely those not employed on like work or covered by a voluntary job evaluation scheme could not take advantage of the principle of equal pay if the law had to provide a remedy for these workers. It is entirely in accordance with that decision for legislation to have been introduced merely to supplement the then existing law by catering for workers not protected by that law. That is why paragraph (c) can be invoked only if paragraphs (a) and (b) are not applicable.

(3) Once a man is employed on like work with a woman, her equal value claim against another man employed on dissimilar work is a claim of indirect sex discrimination. This is in essence the applicants’ claim in the present case. At the time when the Regulations of 1983 were passed the view of the European Court of Justice was that indirect unintentional discrimination did not offend article 119: Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972 as explained by

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Browne-Wilkinson J. when the case returned to the Employment Appeal Tribunal [1981] 1 W.L.R. 1485. Consequently, even if the applicants are correct to say that there is indirect discrimination in this case, it is denied that the Regulations of 1983 when passed contravened article 119 by failing to provide a remedy for such discrimination. The construction of section 1(2)(c) advanced by the employers is therefore fully in accordance with Community law as it stood in 1983.

Many decisions of the European Court of Justice have emphasised that article 119 has direct effect only in cases where there is overt sex discrimination which can be identified solely with the aid of the criteria of equal work and equal pay, without national or Community measures being required to define them with greater precision in order to permit of their application: Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180; Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972; Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547 and Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578.

The concept of equal value cannot be defined without national measures being necessary to define the concept with greater precision in order to permit of its application. This was the view of the Court of Appeal in O’Brien v. Sim-Chem Ltd. [1980] 1 W.L.R. 734. Furthermore, if an equal value claim of the kind being brought in this case constituted a directly enforceable Community right, effect could be given to it in the English courts by virtue of section 2(1) of the European Communities Act 1972. If such direct enforcement were possible, the U.K. Government would not have been in breach of its European obligations imposed by article 119 and the case brought against the U.K. Government by the European Commission [1982] I.C.R. 578 would have been unfounded. It was precisely because there was no remedy in the English courts for equal value claims that the U.K. Government was found to be in breach of her European obligations. There was no remedy because none was provided by the Equal Pay Act 1970, nor did equal value claims constitute directly enforceable Community rights which could be enforced by virtue of section 2(1) of the European Communities Act 1972.

Pannick replied. [Reference was made to Sorbie v. Trust Houses Forte Hotels Ltd. [1977] Q.B. 931.]

Cur. adv. vult.

25 March. The following judgments were handed down.

NICHOLLS L.J.

This appeal concerns equal pay in cases of work of "equal value." Shortly stated, the question raised is whether a woman employed on work which is the same as that of one man but which is also of equal value with the work of another man, can claim equal pay with that other man where she is already being paid as much as the man engaged on the same work as herself. Both the industrial tribunal and the appeal tribunal have said no in answer to that question. We were told that there are many other claims before industrial tribunals awaiting the outcome of this appeal.

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The five applicants, Mrs. Pickstone and four of her female colleagues, are employed by Freemans Plc., a mail order company, as "warehouse operatives." They contend that their work is of equal value to that of a Mr. Phillips, who is employed by the employers as a "checker warehouse operative." They are not paid as much as he is. So they made a complaint to the industrial tribunal, sitting at Cambridge. Before that tribunal the employers contended that men as well as women were employed as warehouse operatives, and paid equally, and that men and women were also employed as checker warehouse operatives. The employers submitted that in those circumstances it was not open to the applicants as warehouse operatives, paid equally with their male colleagues, to claim equality of pay with Mr. Phillips, a checker warehouse operative. Issue was joined before the industrial tribunal on that submission of law, without the facts being investigated and without any formal admission by the applicants that there are male employees doing like work to them. Thus, in effect, the industrial tribunal heard and decided a preliminary question of law on assumed facts.

The applicants base their claims on section 1(2)(c) of the Equal Pay Act 1970 and also on article 119 of the E.E.C. Treaty.

Equal Pay Act 1970 Section 1(1) of the Equal Pay Act 1970 implies an equality clause into every contract of employment of a woman which does not already include such a clause. The nature and effect of an equality clause are set out in section 1(2). An equality clause has a similar effect in each of the three circumstances specified in paragraphs (a), (b) and (c) of section 1(2). Accordingly, for convenience I will omit sub-paragraphs (i) and (ii) from paragraphs (b) and (c) when setting out the material parts of section 1(2), as follows:

"(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) ... and (ii) ... (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) ... and (ii) ..."

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Like work under paragraph (a) means work of the same or of a broadly similar nature where any differences between what the woman does and what the man does are not of practical importance in relation to terms and conditions of employment. Work is only rated as equivalent under paragraph (b) if the woman’s and the man’s jobs have been rated as equivalent on a job evaluation study.

The employers’ argument, which was accepted by the industrial tribunal and the appeal tribunal, is straightforward. Paragraph (c), expressly and unambiguously, does not apply where the woman is employed on work to which either paragraph (a) or paragraph (b) applies. Paragraph (c) applies only where the woman is employed on work "not being work in relation to which paragraph (a) or (b) above applies." Hence, it was submitted, if the woman is in fact employed on like work with a man (meaning any man) in the same employment, paragraph (a) applies to her case whether she likes it or not, and she is thereby excluded from the scope of paragraph (c). Likewise with paragraph (b).

The applicants’ argument is that the exclusionary words in paragraph (c) "not being" are ambiguous, and that one of the possible meanings of the word "applies" is applies in the sense that the woman is not employed on like work with, or on work rated as equivalent with that of, a man in the same employment with whom the woman is comparing herself. It is for the applicant to choose the man with whose work she wishes to compare hers: Ainsworth v. Glass Tubes Components Ltd. [1977] I.C.R. 347, and Parliament, when adding paragraph (c) to section 1(2) in 1983, cannot have intended to go against that principle and compel a woman to compare herself with a man under paragraph (a). In the present case the applicants are doing what traditionally has been "women’s work" and they should be free to have recourse for comparison to other work of equal value to theirs.

In reply Mr. Carr submitted that this construction is untenable. The scheme of the section is to imply an equality clause into the woman’s contract, with immediate effect, viz., with effect from the inception of the woman’s contract. Where a woman is employed on like work with a man, paragraph (a) applies automatically, with the consequential, immediate deemed modification of the relevant term in the woman’s contract. Paragraph (a) applies in this way irrespective of whether any complaint is made to the industrial tribunal. Hence, if a complaint is made and is successful, the woman has a claim not merely for the future: she can claim arrears of remuneration or damages: section 2(1).

But, continued Mr. Carr’s submission, Mr. Pannick’s construction is inconsistent with this, because on Mr. Pannick’s construction paragraph (a) would not apply (and, indeed, none of the paragraphs would apply) unless and until the woman selects a male comparable.

Argument was also addressed to us on the mischief which section 1(2)(c) was intended to cure. This requires a consideration of Community law, because it was in response to a decision of the European Court of Justice that section 1(2)(c) was added to the Equal Pay Act 1970.

Community law: article 119

The United Kingdom became a member of the European Economic Community on 1 January 1973, and the E.E.C. Treaty was introduced

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into English law by section 2 of the European Communities Act 1972.

Article 119 is in these terms:

"Each member state shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. For 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 for 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."

This article had two objects. First, in the economic field, to avoid the situation in which undertakings established in states which had implemented the principle of equal pay would suffer a disadvantage in competition within the Community with undertakings established in states which had not then eliminated pay discrimination against women workers. Secondly, in the social field, "by common action, to ensure social progress and seek the constant improvement of the living and working conditions of [the member states] peoples:" see Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547, 565.

In 1975, concerned at the uneven progress being made by member states in implementation of article 119, the council of the European Communities adopted Council Directive (75/117/E.E.C.), which it will be convenient to call "the equal pay directive." The material parts of that Directive read:

"The Council of the European Communities ... Whereas implementation of the principle that men and women should receive equal pay contained in article 119 of the Treaty is an integral part of the establishment and functioning of the common market;

Whereas it is primarily the responsibility of the member states to ensure the application of this principle by means of appropriate laws, regulations and administrative provisions; ... Whereas differences continue to exist in the various member states despite the efforts made to apply the resolution of the conference of the member states of 30 December 1961 on equal pay for men and women and whereas, therefore, the national provisions should be approximated as regards application of the principle of equal pay has adopted this Directive;

"Article 1.

"The principle of equal pay for men and women outlined in article 119 of the Treaty, hereafter 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, where a job classification 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 on grounds of sex.

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"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."

As authoritatively decided by the European Court of Justice, the first sentence of article 1 of the equal pay directive re-states the principle of equal pay set out in article 119 of the Treaty, but article 1 "in no way alters the content or scope of that principle as defined in the Treaty." The main purpose of article 1 of the Directive was to facilitate the practical application of that principle: see Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972.

Thus, as re-stated in article 1 of the equal pay directive, the principle embodied in article 119 of the Treaty is that men and women should receive equal pay for equal work, viz., for the same work or for work to which equal value is attributed. What, so far, the European Court has not considered (indeed, we were referred to no decision of any court where the point has been considered) is the application of that principle in the case posed by the question stated at the beginning of this judgment. In the present proceedings the appeal tribunal decided, for a different reason to which I shall come, that Community law was not applicable, and did not express a view on what the position would be under Community law if it were applicable. The industrial tribunal were bolder: in their view the equal pay directive envisages that the first matter to be considered is "the same work": "it is only if there is no same work that one goes to the alternative ‘work to which equal value is attributed’."

In this court Mr. Pannick submitted that the principle of equal pay for equal work enunciated in article 119, as re-stated or clarified in article 1 of the equal pay directive, entitles men and women to equal pay for the same work and (likewise) to equal pay for work to which equal value is attributed. They are entitled to equal pay in both those instances, and their entitlement to equal pay for work of equal value is not dependent upon there being no person of the other sex currently engaged in the same work as the person making the claim. If there is a man, or if there are men, doing the same work but being paid no more than the woman, that will be evidence, whose weight will depend upon all the circumstances, that the payment of a higher wage to other men who are doing work which is different but of no greater value is due to a material factor other than the difference in sex.

The argument in favour of the narrower construction of article 119 is that it makes sense for recourse not to be had to the less precise and much more difficult yardstick of work of "equal value" when there is to

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hand the more precise and less controversial one of "same work." The second limb of article 1 of the equal pay directive (work to which equal value is to be attributed), preceded as it is by the disjunctive "or," is applicable only when the first limb (same work) is not in point. If the first limb is applicable, so that there is a man doing the same work as the woman, but the woman is entitled nonetheless to compare herself to another man and his work she would, as the industrial tribunal said in this case, "have wandered into the territory of job evaluation." The principle of equal pay for men and women doing equal work is intended to avoid discrimination on the ground of sex, not to have effect on disputed differentials unrelated to sex. Moreover, the basis of the decision of the European Court in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578, 599, was that the United Kingdom had failed to take steps to provide a remedy in cases other than like work and work covered by voluntary job classification schemes: "equal value" was only needed as a supplement, a fall-back alternative.

In my view Mr. Pannick’s submission, in support of the first of these two interpretations of article 119, is correct. Article 119 enshrines a broad, general principle: equal pay for equal work. The equal pay directive makes clear that in this context equal work embraces work of equal value as well as work which is the same. I can see no justification for implying into this general principle, whereunder equal work includes both these categories, a rigid and inflexible limitation, to the effect that, although a woman is entitled to compare herself with a man doing work of equal value, she is only so entitled if and so long as no man is doing the same work as herself, and that whenever and for so long as there is a man doing the same work the woman cannot make that comparison, even if the difference in pay is attributable solely to grounds of sex. It makes the presence per se of one man doing the same work, which in some cases might be wholly fortuitous or even, possibly, a situation contrived by an unscrupulous employer, a decisive factor, regardless of all the other circumstances of the case.

Although this precise point has not been considered by the European Court, support for the broad approach I have adopted to the interpretation of article 119 can be obtained from the decision of the European Court in Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180. In that case a woman took up a post, after an interval of four months, which had been held by a man. She was paid a lower salary than he had been paid. She claimed to be entitled to the same salary as her predecessor. The European Court held, at p. 198, that the crucial question was whether there was a difference in treatment between a man and a woman performing "equal work" within article 119:

"11 ... The scope of that concept, which is entirely qualitative in character in that it is exclusively concerned with the nature of the services in question, may not be restricted by the introduction of a requirement of contemporaneity. 12. It must be acknowledged, however, that, as the Employment Appeal Tribunal properly recognised, it cannot be ruled out that a difference in pay between two workers occupying the same post but at different periods in

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time may be explained by the operation of factors which are unconnected with any discrimination on grounds of sex. That is a question of fact which it is for the court or tribunal to decide."

Thus "equal work" involves a comparison between the work (the nature of the services) performed by the woman and the work done by the man, and in making that comparison it is not essential that the man is still doing that work or that he was ever doing it at the same time as the woman. Absence of contemporaneity does not prevent the comparison being made, although such absence is material when considering, as a question of fact, whether the reason for the difference in pay is discrimination on grounds of sex. I do not see how this interpretation of article 119 permits of the conclusion that nonetheless contemporaneity is of the essence in relation to work of equal value, in that a woman is entitled to equality of pay with a man whose work is of equal value but only so long as contemporaneously there is no man doing the same work as herself.

Community law: direct applicability

Before us, although he was not prepared to accept Mr. Pannick’s interpretation of article 119 as correct, Mr. Carr concentrated most of his fire in a different direction. He submitted that, even if the applicants’ interpretation of article 119 were correct, the applicants could still not succeed with their alternative claim under article 119, because in equal value cases article 119 is not directly applicable and enforceable in this country. In adopting this approach Mr. Carr was following the same course as the appeal tribunal in the present proceedings, who applied the decision of this court in O’Brien v. Sim-Chem Ltd. [1980] 1 W.L.R. 734. So I turn next to the question of direct applicability.

It is now well established that, where article 119 of the Treaty applies directly to the facts of a case, without the need for more detailed implementing measures on the part of member states or of the Community, the law enacted in that article is binding on the English court, and the individual has the right to apply to the English court for relief: see, for example, O’Brien’s case, per Cumming-Bruce L.J. at p. 740.

Thus the question is: what are the circumstances in which article 119 does, or does not, apply directly? In Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547, 566-568, paragraphs 21-24, and 40, the European Court held that article 119 was directly applicable in cases where men and women receive unequal pay for equal work carried out in the same establishment or service, whether public or private. That was in 1976.

Subsequently, in O’Brien’s case this court held, in short, that equivalent work (in contrast to like work) was only brought within the scope of the equal pay principle in article 119 by article 1 of the equal pay directive, and that, accordingly, article 119 itself had no direct effect in respect of equivalent work. Nor did article 1 of the equal pay directive have direct effect, for it was addressed to the national legislatures for them to implement the equal pay provisions where the work was "equivalent" but not "like."

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O’Brien’s case came before the Court of Appeal in 1979. Since then Community jurisprudence has moved on. The European Court has authoritatively clarified the effect of article 1 of the equal pay directive, and also the position regarding direct enforceability of rights under article 119, and I conceive that on these points of Community law it is the duty of this court to give effect to those later decisions of the European Court. In March 1981, as already mentioned, the European Court held that article 1 of the equal pay directive did not alter the content or scope of the principle of equal pay outlined in article 119:

Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972. Earlier in the same month, in Worringham v. Lloyds Bank Ltd. (Case 69/80) [1981] 1 W.L.R. 950, the European Court had to consider whether article 119 of the Treaty or article 1 of the equal pay directive conferred enforceable Community rights upon individuals where contributions were made by an employer bank to two staff retirement benefit schemes, there being one scheme for men and another for women. The court held that the contributions paid by the employer in the name of the employee were "pay" within the meaning of article 119. Accordingly, no question arose regarding article 1 of the equal pay directive. On direct applicability the court said, at p. 969:

"23. As the court has stated in previous decisions (judgment of 8 April 1976, in Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547 and judgment of 27 March 1980, in Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180, article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question, without national or Community measures being required to define them with greater precision in order to permit of their application. Among the forms of discrimination which may be thus judicially identified, the court mentioned in particular cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private. In such a situation the court is in a position to establish all the facts enabling it to decide whether a woman receives less pay than a man engaged in the same work or work of equal value." (Emphasis added.)

The court concluded, at p. 970:

"27. In this case the fact that contributions are paid by the employer solely in the name of men and not in the name of women engaged in the same work or work of equal value leads to unequal pay for men and women which the national court may directly establish with the aid of the pay components in question and the criteria laid down in article 119 of the Treaty. 28. For those reasons, the reply to the third question should be that article 119 of the Treaty may be relied upon before the national courts and that these courts have a duty to ensure the protection of the rights which this provision vests in individuals ..." (emphasis added).

In my view that decision covers the present case. The five applicants and Mr. Phillips work in the same establishment, and I can see no

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relevant distinction between the banking employees in Worringham’s case and the applicants in the present case with regard to the ability of the court to determine, without further national or Community measures, whether a woman was or was not engaged in work of equal value.

Mr. Carr relied strongly on the decision of the European Court in July 1982 in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578. In deciding that the United Kingdom had failed to introduce into its legal system in implementation of the equal pay directive such measures as were necessary to enable employees to pursue a claim in respect of work of equal value where no job classification scheme existed, the court said, at p. 598:

"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."

Mr. Carr submitted that that is inconsistent with equal value claims being directly enforceable by individuals. I agree that, read literally, this passage supports Mr. Carr’s submission, but I am not persuaded that the court’s conclusion regarding the United Kingdom’s breach of article 1 of the equal pay directive is inconsistent with the same court’s decision in Worringham’s case [1981] 1 W.L.R. 950 regarding the direct application of article 119. Even where the national legislation does no more than reproduce the Community right, explicit national legislation, with appropriate procedural rules and regulations, can have a practical usefulness for claimants and their advisers not possessed by a directly enforceable Community right which lacks that convenient clothing.

Conclusion on section 1(2)(c) of the Equal Pay Act 1970

I broke off from considering the construction of the exclusionary words in section 1(2)(c) "not being work" to look at Community law in order to identify the mischief which the introduction of paragraph (c) into section 1(2) of the Equal Pay Act 1970 was intended to cure. The mischief was the omission, save for the cases covered by paragraph (b), of any provision in the Act for equal pay in cases of work of equal value. The European Court expressed its conclusion in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578, 599:

"14. Accordingly, by failing to introduce into its national legal system in implementation of the provisions of [the equal pay directive] 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 obligation under the Treaty."

Paragraph (c) was added to section 1(2) as Parliament’s legislative response to that decision. Moreover, the amendment to section 1(2) was made by means of a statutory instrument, Equal Pay (Amendment)

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Regulations 1983 (S.I. 1983 No. 1794), under a statutory power enabling provision to be made for the purpose of implementing any Community obligation of the United Kingdom: section 2(2) of the European Communities Act 1972. Thus the link between section 1(2)(c) and article 119 is indeed a close one.

If the view expressed above on the interpretation of article 119 is correct, and if the employers’ argument on the construction of section 1(2)(c) is correct, two consequences would seem to follow inescapably. The first is that section 1(2)(c) of the Equal Pay Act 1970 would, in part, have failed to remedy the mischief which it must be taken to have been intended to cure, in that the Act still would not provide a remedy in all cases of work of equal value: it would provide a remedy only in those cases where currently no man is engaged on the same work. The second consequence, having regard to the reasoning of the European Court in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578, would be that in this respect the United Kingdom would, apparently, have still not wholly fulfilled its obligations under the Treaty and the equal pay directive.

Needless to say, I am extremely reluctant to construe section 1(2)(c) in a way that would have these consequences. Nonetheless I have found the employers’ arguments on the meaning of the exclusionary words in section 1(2)(c) cogent to the extent that, indeed, I have found myself driven to the conclusion that those words are not ambiguous and are not fairly capable of the meaning submitted by Mr. Pannick. It would be incompatible with the scheme of an equality clause introduced by section 1 for the exclusionary words in paragraph (c) to have the meaning or effect submitted by Mr. Pannick. In my judgment, on the assumed facts, the applicants do not fall within section 1(2)(c).

There is one further point I should add here. It concerns section 2(4) of the European Communities Act 1972, the material part of which provides that "any enactment passed or to be passed ... shall be construed and have effect subject to the foregoing provisions of this section." The foregoing provisions of section 2 include a provision, in section 2(1), that all such rights and obligations created or arising by or under the Treaties, and all such remedies provided for by or under the Treaties, as in accordance with the Treaties, are without further enactment to be given legal effect in the United Kingdom shall be recognised and available in law, and be enforced accordingly.

Garland v. British Rail Engineering Ltd. [1983] 2 A.C. 751, 771, Lord Diplock mentioned, and left open, the possibility that,

"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 1 January 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

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language of the provision might be needed in order to achieve consistency."

In the present case no argument was addressed to us on this point, it being common ground in counsel’s submissions that Community law was material on the construction of section 1(2)(c) only if what I have called the exclusionary words in section 1(2)(c) are ambiguous.

Had this section 2(4) point been likely to affect the outcome of the present appeal, I apprehend that it would have been necessary, before delivering judgment, to have invited the parties to consider whether they wished to return to the court to make submissions on this point. However, as at present advised, I do not think this point would assist either party. To construe the exclusionary words in section 1(2)(c) as having the meaning I have stated above does not encroach upon any directly enforceable rights which women (or men) have under article 119. There is nothing in the Equal Pay Act 1970 which expressly or impliedly negatives, or purports to negative, any such Community rights. Those rights remain enforceable in the English court. In that respect this construction of section 1(2)(c) is not in conflict with article 119.

Where, on this construction of section 1(2)(c) of the Equal Pay Act 1970, there is a conflict is that the effect of the exclusionary words is to limit the ambit of section 1(2)(c) in such a way that the section does not cover all the cases which, in accordance with article 119, it should cover. Section 1(2)(c) fails to confer a statutory right on all employees endowed with equal pay rights under article 119. But, given that the exclusionary words are unambiguous and are not reasonably capable of the meaning which would carry out the United Kingdom’s treaty obligations in this field, for my part, as at present advised, I have great difficulty in seeing how the effect of section 2(4) of the European Communities Act 1972 in such a case can be to require the English court, nevertheless, to ascribe some other, artificial meaning to those words.

Overall conclusion

It remains for me to note that Mr. Pannick submitted that if he was wrong on the construction of the Equal Pay Act 1970, so that the appeal falls to be determined according to the meaning and effect of article 119, this court should seek rulings from the European Court on the relevant questions. In my view, in the exercise of its discretion this court should not accede to that submission. The position under Community law on both the material points is sufficiently clear for it to be appropriate for this court to deal with both these points (as it happens, in favour of Mr. Pannick’s clients) without any reference to the European Court.

Accordingly, for the reasons given, for my part I would allow the appeal and direct that these applications proceed in front of the industrial tribunal on the footing that under article 119, although not under section 1(2)(c) of the Equal Pay Act 1970, a woman employed on work which is the same as that of one man but which is also of equal value with the work of another man is not debarred from claiming equal pay with that other man by reason of the fact that she is already being paid as much as the man engaged on the same work as herself. In

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determining whether the work of these applicants is of equal value to that of the checker warehouse operatives, and in determining whether (to adopt and adapt the language of the European Court in Macarthys’ case [1981] Q.B. 180, 198) the difference in pay between the warehouse operatives and the checker warehouse operatives is explicable by the operation of factors which are unconnected with any discrimination on grounds of sex, the industrial tribunal should give such weight to the factor that there is a man, or there are men, doing the same work as the applicants and being paid no more, as is appropriate having regard to all the circumstances. These are determinations of fact.

PURCHAS L.J.

The history of events against which this matter comes before the court and the relevant United Kingdom statutory provisions have been described in the judgment of Nicholls L.J. and need not be repeated in this judgment except where necessary for ease of reference. The Equal Pay Act 1970 received the Royal Assent on 29 May 1970 but did not come into force until 29 December 1975, thus allowing a period of time for employers to bring their contractual arrangements into line.

Section 1 was passed:

"with a view to securing that employers give equal treatment as regards terms and conditions of employment to men and to women ... (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."

These provisions, as enacted, never came into force. The Act of 1970 was amended and re-enacted in Schedule 1 to the Sex Discrimination Act 1975; the terms of the amended Act have already been set out in the judgment of Nicholls L.J. The Act from the outset envisaged two criteria: "like work" and "equivalent work."

There is no clue as to whether the rights in respect of "like work" and "equivalent work" were to be mutually exclusive or accumulative. This may have been because Parliament did not advert to the somewhat sophisticated mischief adumbrated by Mr. Pannick. I am not aware of any evidence of a compliant male actually having been put to "low paid woman’s work" to avoid a claim for "equal pay" for "equivalent work." However, the possibility cannot be ignored. The simple approach might well have been that the presence of a male doing the same or like work would provide the best means of comparison without the necessity of resorting to a more remote comparison with someone doing equivalent work. Nor is any further light thrown on this problem by the amendments to section 1 of the Act of 1970 introduced by the Act of 1975. It was not until an amendment to section 1 of the Act of 1970 effected by the Equal Pay (Amendment) Regulations 1983 added a further paragraph that the concept of mutual exclusivity appeared. I must return to this later.

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To complete the statutory history the European Communities Act 1972 received the Royal Assent on 17 October 1972. Section 2, in its relevant parts, provided:

"(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties ... are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law (2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated minister or department may by regulations, make provision - (a) for the purpose of implementing any Community obligation of the United Kingdom, 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; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above; and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the Communities and to any such obligation or rights as aforesaid. ... (4) The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; ..." (emphasis provided).

Schedule 2 restricted the powers to make orders conferred by section 2(2) in respects which might well be thought to justify full legislative treatment such as imposing or increasing taxation, making orders with retrospective effect or creating by order new criminal offences. The power, therefore, to make statutory orders under section 2(2) was clearly defined and limited.

The Equal Pay Act 1970 as originally amended by the Sex Discrimination Act 1975 contained only provisions in relation to section 1(2) "(a) where the woman is employed on like work with a man in the same employment" and (b) where the woman is employed on work rated as equivalent with that of a man in the same employment." Each paragraph contained sub-paragraphs in precisely equivalent terms providing for the modification of the appropriate term in the woman’s contract or the inclusion of a term otherwise omitted in that contract. It is significant, however, that section 1(2)(b) did not include, and still does not include, any express restriction upon resorting to this paragraph if section 1(2)(a) is also available (contrast section 1(2)(c) below).

It is convenient at this stage to set out again the material parts of article 119 of the E.E.C. Treaty:

"Each member state shall ... maintain the application of the principle that men and women should receive equal pay for equal

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work. For the purposes of this article, ‘pay’ means the ordinary basic or minimum wage ... and any other consideration, whether in cash or in kind ... directly or indirectly ..." (emphasis provided).

and Council Directive (75/117/E.E.C.) which was adopted in 1975 by the Council of European Communities, who were anxious about the inertia being shown by some member countries in implementing article 119:

"Whereas implementation of the principle that men and women should receive equal pay contained in article 119 is an integral part of the establishment and functioning of the common market; ..."

"Article 1

"The principle of equal pay for men and women outlined in article 119 of the Treaty, hereafter called ‘principle of equal pay,’ means, for the same work or for work to which equal value is attributed, the elimination of discrimination ..."

It is now established that the Directive merely explains and defines article 119 and does not have any legislative force of its own: Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972.

In view of the failure (referred to below) of Mr. Pannick to demonstrate a viable alternative construction to the words "not being work ... applies" in section 1(2)(c) of the Act of 1970 to support a submission of ambiguity, it is not necessary to consider article 119 as an aid to construction of the Act of 1970. The matter cannot, however, be concluded without recourse to Community law. It is necessary to consider the question of the direct enforceability of article 119 in the domestic courts of the U.K. in the following respects: (1) What is the statutory status of the amendment effected by the Regulations of 1983? (2) Does article 119 recognise any distinction between equal pay for equal work as defined by the Directive as meaning "the same work" or "work to which equal value is attributed" in the sense that the two concepts are mutually exclusive or are to be given an optional or accumulative effect? (3) Whether and to what extent article 119 is considered to give rise to personal rights enforceable in the courts of the United Kingdom?

Statutory status of section 1(2)(c) of Equal Pay Act 1970 As a result of the reference by the Commission of the European Communities to the European Court in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578, it was held by the court that the Act of 1970, with section 1(2)(a) and (b) as amended by the Act of 1975, did not comply with article 119 in the sense that it did not enable all employees who considered 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 have recourse to the courts: see p. 599. The decision established: (1) that under article 119 the words "equal pay for equal work" meant equal pay "for like work or for work to which equal value is attributed"; and

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(2) that section 1(2)(b) of the Act of 1970 did not satisfy article 119 because a job valuation scheme could only be put into effect if the employer chose to organise one. This did not comply with article 2 of the equal pay directive which provides:

"Member states shall introduce into their national legal system 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 ..."

In the submissions, questions and advice of the Advocate General, no consideration was given to the relationship between the two branches of the definition of equal pay for equal work identified in article 1 of the Directive. Of course, section 1(2)(b) was not said to be mutually exclusive with section 1(2)(a) of the Act of 1970. To comply with the decision of the European Court the Equal Pay (Amendment) Regulations 1983 were made under the powers granted by section 2(2) of the European Communities Act 1972. In order to remedy the defect identified in section 1(2) of the Act of 1970 a further paragraph (c) was added:

"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" (emphasis provided).

Paragraph (c) was clearly modelled on paragraphs (a) and (b), with the additional words specifically providing that the relief under the new paragraph - and the relief afforded by paragraphs (a) and (b) - should be mutually exclusive. These words have, of course, been central to this appeal. The fact that Parliament saw fit to include them in section 1(2)(c) but did not amend the existing section 1(2)(b) by adding similar words of exclusion in line with the new paragraph, must, I would have thought, raise a question to say the least. Moreover, one might be forgiven for wondering what would have been the attitude of the European Court if the words of exclusion had appeared in section 1(2)(b) at the time of their decision in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland in July 1982.

Mr. Pannick, who appears for the applicants, has submitted that, notwithstanding the inclusion of section 1(2)(c) under the statutory order, the United Kingdom legislation does not yet comply with article 119 and the Directive. The critical words are: "not being work in relation to which paragraph (a) or (b) above applies." I agree with Nicholls L.J. that Mr. Pannick’s primary submission, namely, that there is an ambiguity in the application and effect of these words, cannot succeed. I am firmly of the view that paragraph (c), read in its ordinary sense, is plain and contains no ambiguity. The qualification "not being work in relation to which paragraphs (a) and (b) above applies" relates to the work on which the woman is employed and its relationship with

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work falling within (a) or (b) and cannot relate, as Mr. Pannick submits, to the man with whom the woman at her election choses to be compared. There is nothing which I would wish to add to what has fallen from Nicholls L.J. on this aspect of the case. However, as has already been stated, the matter does not end there.

If the expression "equal work" in article 119, as elucidated by article 1 of the Directive, is shown to embrace two separate comparisons, namely, "same work" and "work of equivalent value," there are difficulties in the construction of section 1(2)(c) otherwise demanded by the plain language of the statute. The words excluding paragraphs (a) and (b) included in paragraph (c) would appear to go beyond the delegated powers under which the Regulations of 1983 were made. The powers are restricted generally to "the implementation" of the Treaty as set out in section 2(2) of the European Communities Act 1972 already cited. Moreover, on a strict interpretation, the question may well be asked - Why "work of equivalent value" should not be available for the identification of discrimination merely because there exists the same or similar work available for comparison, when no such restriction applies to "work rated as equivalent" under subsection (b).

To date, so far as I know, consideration of section 1(2) of the Act of 1970 by the European Court has been without any argument that the provisions relating to "like work" and "work rated as equivalent" are mutually exclusive rather than optional or cumulative. By the introduction of the limiting words now included in paragraph (c) and the possibility, however remote, of their incorporation by necessary inference in paragraph (b), the minister in making the Regulations of 1983 may have failed to achieve compliance with article 119 as Mr. Pannick suggests. This submission has, in my judgment, considerable force and is supported by the further possibility that the new paragraph (c) is without the statutory powers granted by section 1(2) of the Act of 1972. However, as the latter point was not argued before us, I approach it with considerable reservation.

Article 119

In considering the true construction of this article in the light of the judgments of the European Court, I bear in mind, on the one hand, the judgment of Lord Denning M.R. in H. P. Bulmer Ltd. v. J. Bollinger S.A. [1974] Ch. 401 to which Mr. Pannick drew our attention and, on the other hand, the discretionary power we have, where necessary, to resolve questions of doubt, to refer the matter to the European Court under article 177 and R.S.C., Ord. 114. Lord Denning M.R. emphasised the importance of avoiding overloading the European Court and gave guidelines to construction for the English courts. As I read the position, it is this. If it is possible to detect a clear general approach to a particular question of construction from the judgments of the European Court, then a domestic court, not being "a final court" within article 177, should not exercise its discretion to refer to the European Court, but should attempt to construe the article in question, within the guidelines in Bulmer’s case.

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Article 119 has been considered in a number of cases by the European Court. A convenient starting point is Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547. The distinction between "like work" and "work of equivalent value" did not arise. The terms of service for the steward and stewardess were the same. The question of direct enforceability did arise, however, and it is convenient to refer to this at this stage. It was part of the United Kingdom Government’s case that article 119 was not directly enforceable, at p. 553:

"(c) The need for legislative action on the part of the member states appears from the formulation of the obligation imposed on them by article 119 in the form of a general statement of principle. Directive (75/117/E.E.C.) acknowledged this need; in article 8 it requires member states to put into force the legislation necessary to comply with the Directive within one year of its notification and thus to ensure the application of the general principle contained in article 119. In the absence of such national implementing legislation an obligation of the kind contained in article 119 is incomplete and cannot properly be completed by interpretative judicial decisions."

In answer to questions posed by the court, at p. 562, there is no suggestion of mutual exclusivity:

"In the private sector the Equal Pay Act 1970 provided for the abolition of all discrimination in collective agreements by the end of 1975. It gives the right to equal pay to women employed on work of the same or a broadly similar nature as men, as well as to women employed on work which, although different from that carried out by men, has been given an ‘equal value’ under a system of classification of duties (‘job evaluation’)."

In the judgment of the court the following paragraphs are relevant, at pp. 566-567, 568:

"18. For the purposes of the implementation of these provisions a distinction must be drawn within the whole area of application of article 119 between, first, direct and overt discrimination which may be identified solely with the aid of the criteria based on equal work and equal pay referred to by the article in question and, secondly, indirect and disguised discrimination which can only be identified by reference to more explicit implementing provisions of a community or national character" (emphasis provided). "19. It is impossible not to recognise that the complete implementation of the aim pursued by article 119, by means of the elimination of all discrimination, direct or indirect, between men and women workers, not only as regards individual undertakings but also entire branches of industry and even of the economic system as a whole, may in certain cases involve the elaboration of criteria whose implementation necessitates the taking of appropriate measures at community and national level.

... 21. Among the forms of direct discrimination which may be identified solely by reference to the criteria laid down by article 119 must be included in particular those which have their origin in legislative provisions or in collective labour agreements and which

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may be detected on the basis of a purely legal analysis of the situation. 22. This applies even more in cases where men and women receive unequal pay for equal work carried out in the same establishment or service, whether public or private. 23. As is shown by the very findings of the judgment making the reference, in such a situation the court is in a position to establish all the facts which enable it to decide whether a woman worker is receiving lower pay than a male worker performing the same tasks. ... 40. The reply to the first question must therefore be that the principle of equal pay contained in article 119 may be relied upon before the national courts and that these courts have a duty to ensure the protection of the rights which this provision vests in individuals, in particular as regards those types of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether private or public."

I have set out Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547 at some length because the European Court referred back to this judgment in a number of subsequent judgments and because it is the fons et origo of the expression "direct and overt discrimination" which formed a main plank of Mr. Carr’s submissions to which I shall return subsequently.

For my part I do not see that the reference to what has been compendiously referred to as "indirect discrimination" in Defrenne v. Sabena is a mandate for distinguishing cases in which it can clearly be established that "unequal pay" is received for "like work" from those cases in which "unequal pay" is received for "work of equivalent value," provided that the "equivalence" of the work can be identified without reference to "more explicit implementing provisions of a community or national character." Applying the decision in Defrenne v. Sabena in the light of the submissions and answers given by the United Kingdom, I would be prepared to construe article 119, as explained by the Directive as affording a relief to a person who is receiving "unequal pay," either for the same work or for work of equivalent value, and that the two concepts are not mutually exclusive but are integral parts of the same concept.

Direct enforceability

In general, therefore, I agree with Mr. Pannick when he submits that article 119 is directly enforceable. Mr. Pannick further submits, however that any distinction which had been based upon the contention that article 1 of the Directive of 1975 was not so enforceable, was misconceived because article 119 was not extended by the Directive which merely explained it. On this basis Mr. Pannick submitted that discrimination described as indirect or hidden was no less within article 119 and, therefore, directly enforceable.

Mr. Carr submitted, on the other hand, that, if article 119 embraced claims based upon work of equal value, as well as like work, then by enacting section 2(1) of the Act of 1972 the United Kingdom would

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have complied with the article and that, therefore, the decision in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578 should not have gone against the United Kingdom. The force of this argument is somewhat diluted because this was not the case proposed on behalf of the United Kingdom at that time. Mr. Pannick said that the decision of the European Court on this aspect must be taken as per incuriam if there is any force in Mr. Carr’s submissions.

It was Mr. Carr’s main submission that, in order to succeed on the direct enforceability point, Mr. Pannick had to allege that his claim fell within what has been described in some of the cases as the "direct discrimination category." He relied on paragraphs 9 and 10 of the decision in Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180, 198:

"9. According to the first paragraph of article 119 the member states are obliged to ensure and maintain ‘the application of the principle that men and women should receive equal pay for equal work.’ 10. As the court indicated in Defrenne v. Sabena [1976] I.C.R. 547, that provision applies directly, and without the need for more detailed implementing measures on the part of the Community or the member states, to all forms of direct and overt discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question. Among the forms of discrimination which may be thus judicially identified, the court mentioned in particular cases where men and women receive unequal pay for equal work carried out in the same establishment or service."

Mr. Carr also relied upon Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972, the judgment delivered by the European Court, at pp. 977, 983:

"Finally, as to the question of the direct effect of article 119 and article 1 of the Council Directive (75/117/E.E.C.), it may be recalled that, as the court held in its decision of 8 April 1976, in Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547, these provisions are directly applicable to all forms of direct and overt discrimination which may be identified solely with the aid of the criteria of equal work and equal pay, including unequal pay for equal work carried out in the same establishment or service. ... Although ‘adverse impact’ is defined in the legislation of the United Kingdom as ‘indirect discrimination,’ it should not be confused with the ‘indirect and disguised discrimination’ which has been described by the court as falling outside the scope of the direct application of article 119. Here, ‘indirect discrimination’ is used in such a manner as to exclude any practice which, although not founded on any discriminatory motives, nevertheless has a discriminatory effect, and not as meaning discrimination which can only be suppressed by national or Community legislative measures more detailed than the provisions referred to above. ...

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"Fourth question

"16. In the fourth and last question, the national court asks whether the provisions of article 119 of the Treaty are directly applicable in the circumstances of this case. 17. As the court has stated in previous decisions (judgment 8 April 1976, in Defrenne v. Sabena [1976] I.C.R. 547; judgment of 27 March 1980, in Macarthys Ltd. v. Smith [1981] Q.B. 180 and judgment of 11 March 1981, in Worringham v. Lloyds Bank Ltd. [1981] 1 W.L.R. 950), article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of criteria of equal work and equal pay referred to by the article in question, without national or Community measures being required to define them with greater precision in order to permit of their application. Among the forms of discrimination which may be thus judicially identified, the court mentioned in particular cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private."

In particular Mr. Carr relied upon the decision of this court in O’Brien v. Sim-Chem Ltd. [1980] 1 W.L.R. 734. Here the court distinguished between equal work and equivalent work: see the judgment of Cumming-Bruce L.J., at pp. 747-748:

"I am satisfied that the Directive is what it professes to be, i.e. a directive to governments to take national measures to approximate their laws in order to give effect to the new criteria expressed in article 1 of the Directive. The discrimination identified by the application of the criterion in that article is not directly applicable in national courts until it is implemented in national legislation. Paragraph 68 of the judgment in the Defrenne case [1976] I.C.R. 547, 571, makes it necessary to make one qualification of that conclusion: ‘Even in the areas in which article 119 has no direct effect, that provision cannot be interpreted as reserving to the national legislature exclusive power to implement the principle of equal pay since, to the extent to which such implementation is necessary, it may be relieved by a combination of Community and national measures.’ In my view this paragraph contemplates the combination of Community and national measures and affirms the jurisdiction to decide whether national measures comply with the Treaty and with relevant Directives, even if such Directives are not directly applicable."

The judgments in O’Brien v. Sim-Chem Ltd. were, of course, delivered before the ruling of the European Court in Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972. In so far as the court’s attention in O’Brien’s case was paid to the direct enforceability of article 1 of the Directive, the judgments have been overtaken by the subsequent decisions of the European Court in 1981:

Jenkin’s case and Worringham v. Lloyds Bank Ltd. (Case 96/80) [1981] 1 W.L.R. 950. In the latter case the applicants contended, inter alia, (a) that the exclusion of retirement benefit schemes from the Acts of 1970

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and 1975 was incompatible with Community law; (b) that the deficiencies in the treatment by the bank of men and women in the bank’s retirement benefit scheme was "a form of direct and overt discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to in article 119:" see p. 956B. The bank’s reply emphasised that the benefits were not considerations paid directly or indirectly by the employer, but were received from the trustees of the pension fund and that the assessment of terms in such a scheme to achieve fairness between men and women was an extremely complex one. On this basis it was submitted that, if there was discrimination, it could not be described as "direct or overt." This argument was repeated by the United Kingdom at p. 963A-B. The judgment of the court, at p. 969 included the following:

"21. Moreover, Directive (75/117/E.E.C.), whose objective is, as follows from the first recital of the preamble thereto, to lay down the conditions necessary for the implementation of the principle that men and women should receive equal pay, is based on the concept of ‘pay’ as defined in the second paragraph of article 119 of the Treaty. Although article 1 of the Directive explains that the concept of ‘same work’ contained in the first paragraph of article 119 of the Treaty includes cases of ‘work to which equal value is attributed,’ it in no way affects the concept of ‘pay’ contained in the second paragraph of article 119 but refers by implication to that concept.

"The third question

"22. The national court asks further in its third question whether, of the answer to question 1 is in the affirmative, ‘article 119 of the E.E.C. Treaty ... [has] direct effect in the member states so as to confer enforceable Community rights upon individuals in the circumstances of the present case.’ 23. As the court has stated in previous decisions (judgment of 8 April 1976, in Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547 and judgment of 27 March 1980, in Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180), article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question, without national or Community measures being required to define them with greater precision in order to permit of their application. Among the forms of discrimination which may be thus judicially identified, the court mentioned in particular cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private. In such a situation the court is in a position to establish all the facts enabling it to decide whether a woman receives less pay than a man engaged in the same work or work of equal value."

Finally, I wish to refer to Garland v. British Rail Engineering Ltd. [1983] 2 A.C. 751. This case involved post-retirement travel concessions which were non-contractual given to railway employees. The concession given to men included their spouses and children. Those given to the

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women were personal to them only. The following questions were asked of the European Court, at p. 920. Was the discrimination:

"1 ... contrary to (a) article 119 of the E.E.C. Treaty? (b) article 1 of the Council Directive (75/117/E.E.C.)? ... 2. If the answer ... is affirmative, is article 119 or either of the said Directives directly applicable ... so as to confer enforceable ... rights ...?

The United Kingdom denied that article 119 would be directly enforceable asserting that national or Community measures would be required to achieve precision and relied upon paragraph 17 of the judgment in Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972. This contention was not supported by the Advocate General. Paragraphs 13, 14 and 15 of the decision read, at pp. 931-932:

"Question 2

"13. Since question 1(a) has been answered in the affirmative the question arises of the direct applicability of article 119 in the member states and of the rights which individuals may invoke on that basis before national courts.

"14. In paragraph 17 of its judgment of 31 March 1981, in Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972 the court stated that article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question, without national or Community measures being required to define them with greater precision in order to permit of their application.

"15. Where a national court is able, using the criteria of equal work and equal pay, without the operation of Community or national measures, to establish that the grant of special transport facilities solely to retired male employees represents discrimination based on difference of sex, the provisions of article 119 of the Treaty apply directly to such a situation."

Some assistance in deciding the approach to be adopted by the domestic court in the presence of an apparent conflict between domestic and Community law is to be found in the speech of Lord Diplock in Garland’s case after it had returned from the European Court, at p. 935:

"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 1 January 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

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consistency. For, in the instant case the words of section 6(4) of the Sex Discrimination Act 1975 that fall to be construed, ‘provision in relation to ... retirement,’ without any undue straining of the ordinary meaning of the language used, are capable of bearing either the narrow meaning accepted by the Employment Appeal Tribunal or the wider meaning preferred by the Court of Appeal but acknowledged by that court to be largely a matter of first impression. Had the attention of the court been drawn to article 119 of the E.E.C. Treaty and the judgment of the European Court of Justice in Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547, I have no doubt that, consistently with statements made by Lord Denning M.R. in previous cases, they would have construed section 6(4) so as not to make it inconsistent with article 119."

In my judgment the decisions of the European Court demonstrate a clear pattern of development as regards the direct enforceability of article 119 as follows. (1) The expression "equal pay for equal work" is to receive a broad interpretation. "Pay" is given a very wide definition in article 119 itself. It would be inconsistent if work were not treated similarly. (2) Article 1 of Council Directive (75/117/E.E.C.) merely confirms that the expression "equal work" shall have an equally wide interpretation that is not only "same work" but also "work to which equal value is attributed." (3) The sense of (1) and (2) cannot be said to support the contention that "same work" must always exclude "work to which equal value is attributed" in choosing the most appropriate route by which to arrive at "equal work." (4) The expression in Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547, 566D, "direct and overt discrimination which may be identified solely with the aid of criteria based on equal work and equal pay" has been followed through the cases and remains the touchstone of direct enforceability. Attempts to limit its range by equating "equal work and equal pay" to "same work and equal pay" have invariably been rejected and in any event ignore the effect of article 1 of the directive in defining "equal work and equal pay." (5) That the words used to describe the second type of discrimination "indirect and disguised" mean what they say, namely, that without reference to more explicit implementing provisions the discrimination cannot be identified. Paragraph 19 of the judgment in Defrenne v. Sabena instances the sort of situation envisaged. (6) That a discrimination which appears on the face of a direct comparison demonstrates unequal pay for one type of work and another type of work to which equal value is attributed at the same place of employment must fall within the first rather than the second type of discrimination and would, therefore, be directly enforceable.

Conclusion

Regrettably, in my judgment Mr. Pannick’s submission that section 1(2)(c), whilst it contains unqualified words excluding section 1(2)(a) and (b), is inconsistent with rights that are directly enforceable in the United Kingdom courts under Community law is made out. There is clear authority that in a case of conflict Community law must prevail.

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Two courses are open to the court: (1) to refer two questions to the European Court asking (a) Does section 1(2)(c) comply with article 119? (b) Is article 119 directly enforceable in the United Kingdom courts in cases where the discrimination arises in cases of unequal pay for work to which an equivalent value is attributed? (2) To construe section 1(2) of the Act of 1970 so as to conform with the principles of article 119 by inserting the words necessary to achieve a result that is not inconsistent with Community law as I understand it. This involves an otherwise unjustifiable qualification of what are in fact clear words. As I understand the effect of Community law, it embraces the requirement that, in order to identify discrimination, the domestic court must be able to call upon the best method of arriving at a standard of "equal work" whether by comparing the work under review with "the same work" or "work to which equal value is attributed." This must be at the election of the domestic court, in this case the industrial tribunal. The choice method of determining "equal work" within the meaning of article 119 cannot, in my judgment, be either at the hands of the employer or the employee since that would encourage "comparison shopping" by either or both. This cannot have been the intention of the article. Although this course has obvious advantages, both from a social and also an industrial point of view, it is more difficult to find a satisfactory statutory justification. There is a possible approach. This is to assume: (a) that the draftsman of the Regulations of 1983 did not exceed the powers under which the regulations were drawn under section 2(2)(a) of the Act of 1972; and (b) to construe and give effect to the regulations in accordance with section 2(4) of that Act and article 119. This could be achieved by amending the relevant part of section 1(2)(c) to read: "... not being work which can more fairly be compared under paragraphs (a) or (b) above."

Since under article 117 reference to the European Court is discretionary so far as this court is concerned, and in view of the firm conclusion I have reached with regard to the state of Community law, I would favour the second of the two courses. Therefore I agree with the order proposed by Nicholls L.J.

SIR ROUALEYN CUMMING-BRUCE.

I have had the advantage of reading in draft the judgments now delivered by Purchas L.J. and Nicholls L.J. and can state my own views very concisely.

As a matter of construction, I reject Mr. Pannick’s submission that the words of section 1(2)(c) of the Act of 1970 are ambiguous. On their ordinary meaning the words "not being work in relation to which paragraph (a) or (b) above applies" are plain and unambiguous, even though for the reasons stated by Purchas L.J. they may appear to go beyond the delegated powers under which the Regulations of 1983 were made. So the applicants’ case fails on the construction of the English legislation.

Article 119 of the Treaty, as explained by Council Directive

(75/117/E.E.C.), gives an applicant the right to claim that he or she is entitled to equal pay when engaged under a contract of employment which imposes on the employee the obligation to do work of equal value

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to the work of any other employee of the opposite sex in the same establishment. It is for the industrial tribunal to decide the questions of fact relevant to the applicant’s claim. Article 119 does not exclude such comparison on the ground that an employee of the opposite sex is engaged on the same or like work on the same remuneration as the applicant. An equal value claim and comparison are not dependent on the situation relevant to persons doing the same or like work, though the facts regarding same work or like work cases may be material evidence for consideration by the industrial tribunal, subject to the usual factors relevant to the weight of such evidence.

The judgments of the European Court, to which Purchas and Nicholls L.JJ. have referred, point clearly enough to the conclusion that the equal pay rights established by article 119 as explained in the directive are directly enforceable in a national court in a case where the national legislation is such as to restrict the rights conferred on employees by article 119. This is sufficiently clear to justify this court so holding even though the particular issue of comparison of section 1(2)(c) of the Act of 1970 with the rights conferred by article 119 has not yet been resolved by the European Court.

The conclusion, which in my view is likely to involve formidable problems of industrial and commercial convenience, must be that the European remedy is available to the applicant to the industrial tribunal even though there can be no remedy available under national legislation.

For those reasons the appeal should be allowed, and the case sent back for determination by the industrial tribunal in the light of this judgment.

Appeal allowed with costs.

Matter remitted to industrial tribunal for further determination.

Leave to appeal. See the Appeal decison here.

Solicitors: W. Douglas Clark, Brookes Co., West Bromwich; Slaughter May.

M. F.

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