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England and Wales Court of Appeal (Civil Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Macarthys Ltd v Smith (No.2) [1980] EWCA Civ 7 (17 April 1980)
Cite as: [1981] QB 180, [1980] 3 WLR 929, [1981] 1 All ER 111, [1980] ICR 672, [1980] EWCA Civ 7, [1980] 2 CMLR 217, [1980] IRLR 210

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Neutral Citation Number: [1980] EWCA Civ 7


Royal Courts of Justice.
17th April 1980.

B e f o r e :






(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, W.C.2).


MR. R. TURNER (instructed by Messrs. Baileys Shaw & Gillett) appeared on behalf of the Appellants.
MR. A. LESTER, Q.C. and MR. C. McCONMELL (instructed by John L. Williams, Esq.) appeared on behalf of the Respondent.



Crown Copyright ©


    THE MASTER OF THE ROLLS: Although this application is only about costs, I will say a word about it: because it is of public importance.

    Mrs. Wendy Smith was employed by wholesale dealers in pharmaceutical products. She was paid a salary of 50 a week. She discovered that a man (who had left) had previously been performing her task. He had been paid 60 a week. She took proceedings under our English statute the Equal Pay Act 1970 (as amended by the Sex Discrimination Act 1975). She claimed that her pay should be equal to his. An objection was taken that her application was bad in point of law: because our English statute did not apply in the case of successive employment: and that it only applied when the man and the woman were employed together at the same time contemporaneously.

    That point was argued before this court. The majority of the court held that the objection was well-founded. They interpreted it as meaning that the equal pay provisions only applied when the man and the woman were employed at the same time contemporaneously. But then the point arose: that was the position under Community law? We were referred to Article 119 of the Treaty of Rome. The European Court sitting at Luxembourg had decided that Article 119 of the Treaty was directly applicable in the national courts of each country. It was submitted that under Article 119 of the Treaty of Rome there was no requirement that the man and the woman should be employed contemporaneously at the same time: and that, under that Article, the woman was entitled to equal pay even though the man had left before she joined and the woman had taken his job afterwards.

    The majority of this court felt that Article 119 was uncertain. So this court referred the problem to the European Court at Luxembourg. We have now been provided with the decision of that court. It is important now to declare - and it must be made plain - that the provisions of Article 119 of the Treaty of Rome take priority over anything in our English statute on equal pay which is inconsistent with Article 119. That priority is given by our own law. It is given by the European Communities Act 1972 itself. Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it. I turn therefore to the decision given by the European Court. The answer they gave was that the man and the woman need not be employed at the same time. The woman is entitled to equal pay for equal work, even when the woman is employed after the man has left. That interpretation must now be given by all the courts in England. It will apply in this case and in any such case hereafter.

    Applying it in this case, Mrs. Wendy Smith was right. Although she was employed subsequently to the man, she was entitled to be paid the same as the man. She was entitled to be paid not 50, but 60. That is the result of the Community law as applied to our present law. So that must be the decision.

    The appeal that the employers 'brought to this court must therefore be dismissed.

    The argument before us to-day was as to costs. It was argued before us that at the hearing before the tribunals - and indeed before this court - Macarthys Limited were entitled to look solely to our English statute on equal pay. It was said that, in that statute, our Parliamentary draftsmen thought they were carrying out - and intended to carry out - the provisions of the Treaty. So much so that, before the European Court at Luxembourg, the British government argued that, in order for the woman to be entitled to equal pay, her employment has to be contemporaneous. Accordingly Macarthys said that they were entitled to go by the English statute, and not the Treaty of Rome: and so the costs should not fall upon them of the appeal to this court.

    The answer is this: Macarthys had no right to look at our English statute alone. They ought throughout to have looked at the Treaty as well. Community law is part of our law by our own statute, the European Communities Act 1972. In applying it, we should regard it in the same way as if we found an inconsistency between two English Acts of Parliament: and the court had to decide which had to be given priority. In such a case the party who loses has to pay the costs. So it seems to me right that Macarthys should pay all the costs of the appeal to this court. I may say that Mrs. Wendy Smith - or those behind her - do not ask for the costs of the reference to Luxembourg. That is a special arrangement which applies in this particular case: although it may not apply in other cases. All we are concerned with to-day are the costs in this court. In my judgment, the appeal should be dismissed with the costs in this court to be paid by the unsuccessful appellants Macarthys.


    LORD JUSTICE CUMMING-BRUCE: I agree. I would only add a word in view of the fact that Mr. Lester has drawn the attention of this court to the existence of a note by Professor Wood-Phillips in the Law Quarterly Review of January 1980 which apparently expressed the view that the decision of this court has created a doubt about the constitutional position arising from a conflict between an English statute and European law. In my view there is no real room for doubt, and, if anything that I said in my judgment has given rise to doubt which is based on misunderstanding, I repeat what I said on the last occasion, that, "if the terms of the Treaty are adjudged in Luxembourg to be inconsistent with the provisions of the Equal Pay Act 1970, European law will prevail over that municipal legislation". I went on to say this: "But such a judgment in Luxembourg cannot affect the meaning of the English statute".

    Perhaps I expressed myself a little too widely there. The majority in this court took the view that there was no ambiguity about the words of the Equal Pay Act 1970 which, we had to construe; and, as there was no ambiguity, the majority took the view that it was not appropriate, according to English canons of construction, to look outside the statute at Article 119 as an aid to construction. In my view that was clearly right, but I would make it clear that had I been of the view that there was an ambiguity in the English statute, I would have taken the view that it was appropriate to look at Article 119 in order to assist in resolving the ambiguity.

    I only add those words because of the doubt which has arisen in the article in the Law Quarterly Review.

    MR. LESTER: I am obliged, my Lords. I must apologise to your Lordships and to Mr. Post for any burdens created by a wrong estimate of time.

    THE MASTER OF THE ROLLS: It is an important point, and ought to be made clear.

    MR. McCONMELL: I would ask for a certificate for two counsel, my Lord.

    THE MASTER OR THE ROLLS: Me have had a great deal of help. Yes; certificate for two counsel.

    (Order: Appeal dismissed with costs in this court. Certificate for two counsel granted to respondent).

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