BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom House of Lords Decisions


You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Pickstone v Freemans Plc [1988] UKHL 2 (30 June 1988)
URL: http://www.bailii.org/uk/cases/UKHL/1988/2.html
Cite as: [1988] ICR 697, [1988] 3 CMLR 221, [1989] 1 AC 66, [1988] UKHL 2, [1988] IRLR 357, [1988] 3 WLR 265, [1988] 2 All ER 803, [1989] AC 66

[New search] [Printable version] [Buy ICLR report: [1988] ICR 697] [Buy ICLR report: [1989] AC 66] [Buy ICLR report: [1988] 3 WLR 265] [Help]


JISCBAILII_CASE_CONSTITUTIONAL
JISCBAILII_CASE_ENGLISH_LEGAL_SYSTEM
JISCBAILII_CASE_NI_LEGAL_SYSTEM

    Parliamentary Archives,
    HL/PO/JU/18/248

    Pickstone and others (Respondents)

    v.
    Freemans plc (Appellants)

    JUDGMENT

    Die Jovis 30° Junii 1988

    Upon Report from the Appellate Committee to whom was
    referred the Cause Pickstone and others against Freemans plc,
    That the Committee had heard Counsel on Monday the 9th,
    Tuesday the 10th, Wednesday the 11th and Thursday the 12th
    days of May last upon the Petition and Appeal of Freemans plc,
    of 139 Clapham Road, London, SW9 OHR, praying that the matter
    of the Order set forth in the Schedule thereto, namely an
    Order of Her Majesty's Court of Appeal of the 25th day of
    March 1987, might be reviewed before Her Majesty the Queen in
    Her Court of Parliament and that the said Order might be
    reversed, varied or altered or that the Petitioners might have
    such other relief in the premises as to Her Majesty the Queen
    in Her Court of Parliament might seem meet; as upon the Case
    of Mrs. I Pickstone, Mrs. A. Hepburn, Mrs. P. J. Woolner, Mrs.
    C. E. Fyffe and Mrs. R. Roberts lodged in answer to the said
    Appeal; and due consideration had this day of what was offered
    on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal (Civil Division) of the 25th day of March 1987
    complained of in the said Appeal be, and the same is hereby,
    Affirmed and that the said Petition and Appeal be, and the
    same is hereby, dismissed this House: And it is further
    Ordered, That the Appellants do pay or cause to be paid to the
    said Respondents the Costs incurred by them in respect of the
    said Appeal, the amount thereof to be certified by the Clerk
    of the Parliaments if not agreed between the parties.

    Cler: Asst. Parliamentor


    Judgment: 30.6.88

    HOUSE OF LORDS

    PICKSTONE AND OTHERS
    (RESPONDENTS)

    v.

    FREEMANS PLC.
    (APPELLANTS)

    Lord Keith of Kinkel
    Lord Brandon
    of Oakbrook
    Lord Templeman
    Lord Oliver of Aylmerton
    Lord Jounce of Tullichettle


    LORD KEITH OF KINKEL

    My Lords,

    Under the Equal Pay Act 1970, as brought into force with
    amendments on 29 December 1975, a woman employee could claim
    parity of pay with a male employee in the same establishment
    only where she was employed on like work with the man or where
    she was employed on work rated as equivalent with that of the
    man. That was the effect of section 1(1) and (2) of the Act,
    providing:

    "1(1) If the terms of a contract under which a woman is
    employed at an establishment in Great Britain do not
    include (directly or by reference to a collective agreement
    or otherwise) an equality clause they shall be deemed to
    include one. (2) An equality clause is a provision which
    relates to terms (whether concerned with pay or not) of a
    contract under which a woman is employed (the "woman's
    contract"), and has the effect that - (a) where the woman is
    employed on like work with a man in the same employment
    - (i) if (apart from the equality clause) any term of the
    woman's contract is or becomes less favourable to the
    woman than a term of a similar kind in the contract under
    which that man is employed, that term of the woman's
    contract shall be treated as so modified as not to be less
    favourable, and (ii) if (apart from the equality clause) at
    any time the woman's contract does not include a term
    corresponding to a term benefiting that man included in the
    contract under which he is employed, the woman's contract

    shall be treated as including such a term; (b) where the
    woman is employed on work rated as equivalent with that of
    a man in the same employment - (i) if (apart from the
    equality clause) any term of the woman's contract
    determined by the rating of the work is or becomes less
    favourable to the woman than a term of a similar kind in
    the contract under which that man is employed, that term
    of the woman's contract shall be treated as so modified as
    not to be less favourable, and (ii) if (apart from the
    equality clause) at any time the woman's contract does not
    include a term corresponding to a term benefiting that man
    included in the contract under which he is employed and
    determined by the rating of the work, the woman's contract
    shall be treated as including such a term."

    By virtue of section 1(5) a woman's work could only be rated as
    equivalent with that of a man if her job and his job had been
    given an equal value, according to certain criteria, on a job
    evaluation study. A job evaluation study could not be carried out
    otherwise than with the consent of the employer.

    The Commission of the European Community took the view
    that this state of the law did not comply with the obligation of
    the United Kingdom Government to implement Article 119 of the
    Treaty of Rome, enjoining application of the principle that men
    and women should receive equal pay for equal work, together with
    the Equal Pay Directive adopted by the Council of Ministers of
    the Community on 10 February 1975. The Commission accordingly
    applied to the European Court of Justice for a declaration that
    the United Kingdom had failed to obtemper this obligation in
    respect that it had not adopted measures enabling women to obtain
    equal pay for equal work in circumstances where there had been
    no job evaluation study. The European Court of Justice sustained
    the Commission's claim. It made a declaration that:

    "By failing to introduce into its national legal system in
    implementation of the provisions of Council Directive
    (75/117/E.E.C.) of February 10 1975 such measures as are
    necessary to enable all employees who consider themselves
    wronged by failure to apply the principle of equal pay for
    men and women for work to which equal value is attributed
    and for which no system of job classification exists to
    obtain recognition of such equivalence, the United Kingdom
    has failed to fulfil its obligations under the Treaty." See
    Commission v. United Kingdom [1982] (Case 61/81) I.C.R.
    578, 599.

    The United Kingdom Government took steps to correct the
    defect in its equal pay legislation identified in the judgment of the
    European Court. Section 2(2)(a) of the European Communities Act
    1972 provides:

    "Subject to Schedule 2 to this Act, at any time after its
    passing Her Majesty may by Order in Council, or any
    designated Minister or department may by regulations, make
    provision - (a) for the purpose of implementing any
    Community obligation, or enabling any such obligation to be
    implemented, or of enabling any rights enjoyed or to be
    enjoyed by the United Kingdom under or by virtue of the
    Treaties to be exercised; ..."

    - 2 -

    Schedule 2 to the Act contains general provisions as to subordinate
    legislation, including, in paragraph 2(2) a provision making subject
    to annulment by resolution of either House of Parliament any
    statutory instrument containing regulations made without a draft
    having been approved by resolution of each House.

    So the Secretary of State for Employment made a draft
    which was introduced as the Equal Pay (Amendment) Regulations
    1983 (S.I. 1983 No. 1794) in the House of Commons on 20 July
    1983 and in the House of Lords on 5 December 1983. Both
    Houses approved the draft albeit, in the case of the House of
    Lords, subject to a reservation. Quotations from the speech of
    the Under Secretary of State for Employment, initiating the debate
    in the House of Commons, are to be found in the speech of my
    noble and learned friend Lord Templeman. Regulation 2(1)
    provides:

    "In subsection (2) of section 1 of the Equal Pay Act 1970
    (equality clauses to be implied into contracts of
    employment), after paragraph (b) there shall be inserted the
    following paragraph:- (c) where a woman is employed on
    work which, not being work in relation to which paragraph
    (a) or (b) above applies, is, in terms of the demands made
    on her (for instance under such headings as effort, skill and
    decision), of equal value to that of a man in the same
    employment - (i) if (apart from the equality clause) any
    term of the woman's contract is or becomes less favourable
    to the woman than a term of a similar kind in the contract
    under which that man is employed, that term of the
    woman's contract shall be treated as so modified as not to
    be less favourable, and (ii) if (apart from the equality
    clause) at any time the woman's contract does not include a
    term corresponding to a term benefiting that man included
    in the contract under which he is employed, the woman's
    contract shall be treated as including such a term."

    Regulation 3 introduced into the Act of 1970 a new section 2A
    prescribing the procedure to be followed before an industrial
    tribunal where a dispute arises as to whether any work is of equal
    value. The procedure may involve obtaining a report from an
    independent expert who is a member of a panel designated by

    A.C.A.S.

    In the present case the respondent, Mrs. Pickstone, who is
    employed by the appellant employers as a "warehouse operative,"
    claims that her work as such is of equal value with that of a
    man, Mr. Phillips, who is employed in the same establishment as a
    "checker warehouse operative," and who is paid £4.22 per week
    more than she is paid. However, it happens to be the fact that
    one man is employed in the establishment as a warehouse
    operative doing the same work as Mrs. Pickstone. The employers
    maintain that the existence of this fact precludes Mrs. Pickstone
    from claiming equal pay with Mr. Phillips under section l(2)(c) of
    the Act of 1970 as amended, notwithstanding that she may be
    performing work of equal value with his and notwithstanding that
    the difference in pay may be the result of discrimination on
    grounds of sex.

    - 3 -

    This argument is based on the words in paragraph (c) "not
    being work in relation to which paragraph (a) or (b) above applies."
    The employers say that the work on which Mrs. Pickstone is
    employed is work to which paragraph (a) applies because it is like
    work with a man in the same employment, namely the one male
    warehouse operative. So Mrs. Pickstone's work does not qualify
    under paragraph (c).

    The question is whether the exclusionary words in paragraph
    (c) are intended to have effect whenever the employers are able
    to point to some man who is employed by them on like work with
    the woman claimant within the meaning of paragraph (a) or work
    rated as equivalent with hers within the meaning of paragraph (b),
    or whether they are intended to have effect only where the
    particular man with whom she seeks comparison is employed on
    such work. In my opinion the latter is the correct answer. The
    opposite result would leave a large gap in the equal work
    provision, enabling an employer to evade it by employing one token
    man on the same work as a group of potential women claimants
    who were deliberately paid less than a group of men employed on
    work of equal value with that of the women. This would mean
    that the United Kingdom had failed yet again fully to implement
    its obligations under article 119 of the Treaty and the Equal Pay
    Directive, and had not given full effect to the decision of the
    European Court in Commission v. United Kingdom [1982] I.C.R.
    578. It is plain that Parliament cannot possibly have intended
    such a failure. The draft Regulations of 1983 were presented to
    Parliament as giving full effect to the decision in question. The
    draft Regulations were not subject to the Parliamentary process of
    consideration and amendment in Committee, as a Bill would have
    been. In these circumstances and in the context of section 2 of
    the European Communities Act 1972 I consider it to be entirely
    legitimate for the purpose of ascertaining the intention of
    Parliament to take into account the terms in which the draft was
    presented by the responsible Minister and which formed the basis
    of its acceptance. The terms in which it was presented to the
    House of Commons are set out in the speech of my noble and
    learned friend Lord Templeman. Much the same was said before
    the House of Lords. There was no suggestion that the
    exclusionary words in paragraph (c) were intended to apply in any
    other situation than where the man selected by a woman
    complainant for comparison was one in relation to whose work
    paragraph (a) or paragraph (b) applied. It may be that, in order to
    confine the words in question to that situation, some necessary
    implication falls to be made into their literal meaning. The
    precise terms of that implication do not seem to me to matter.
    It is sufficient to say that the words must be construed
    purposively in order to give effect to the manifest broad intention
    of the maker of the Regulations and of Parliament. I would
    therefore reject the appellant's argument.

    In the circumstances it is unnecessary to consider the
    ground upon which the Court of Appeal found in favour of the
    respondents, namely that article 119 was directly enforceable in
    such a way as to enable their claim to be supported irrespective
    of the true construction of the Regulations of 1983.

    My Lords, for these reasons and those given by my noble
    and learned friends Lord Templeman and Lord Oliver of Aylmerton,
    I would dismiss the appeal.

    - 4 -

    LORD BRANDON OF OAKBROOK

    My Lords,

    I have had the advantage of reading in draft the speeches
    prepared by my noble and learned friends, Lord Keith of Kinkel,
    Lord Templeman and Lord Oliver of Aylmerton. I agree with
    them that, in order to give effect to the purpose for which
    section l(2)(c) of the Equal Pay Act 1975 was enacted, it should
    be construed in the manner which they have indicated. I would
    accordingly affirm the decision of the Court of Appeal, though on
    different grounds, and dismiss the appeal.

    LORD TEMPLEMAN

    My Lords,

    The appellants, Freemans Plc. ("the employers") conduct a
    mail order business. The respondents are five women who work
    for the employers as "warehouse operatives;" their basic weekly
    wage is £77.66. Mr. Phillips is a man who works for the
    employers as a "checker warehouse operative;" his basic weekly
    wage is £81.88. The respondents assert that the work carried out
    by the respondents is equal in value to the work of Mr. Phillips in
    terms of the demands, effort, skill and decision-making involved.
    The respondents say that the difference of £4.22 between the
    respondents' pay and the pay of Mr. Phillips is due to the
    difference of sex; the respondents are paid less because they are
    women. The respondents complained to an industrial tribunal that
    they were the victims of sex discrimination, contrary to the
    provisions of the Equal Pay Act 1970 and contrary to Community
    law. When the complaints of the respondents came before the
    tribunal, investigation might have shown that there was no
    discrimination, that the work of Mr. Phillips was of greater value
    than the work of the respondents or that for some other reason
    the difference between the pay of Mr. Phillips and the pay of the
    respondents was not due to the difference of sex. By agreement
    between the parties however, the industrial tribunal was asked to
    decide a preliminary point of law which is the subject of this
    appeal on assumed facts. The assumptions are that the
    respondents are factually correct in their complaint; that the work
    of the respondents is equal in value to the work of Mr. Phillips;
    that the respondents are paid £4.22 less on the grounds of
    difference of sex and for no other reason; that, in short, the
    respondents are the victims of discrimination. It is unlawful under
    British law and under Community law for an employer to
    discriminate against a woman by paying her less than a man if the
    work of the woman is the same as or is equal in value to the
    work of the man. Nevertheless, the employers contend that under
    British law and under Community law, the respondents have no
    right to or, alternatively, no remedy for the discrimination which
    on the assumed facts is practised by the employer against the

    - 5 -

    respondents and in favour of Mr. Phillips. The employers'
    argument is based on the fact that it so happens that one of the
    employer's warehouse operatives is a man, doing the same work as
    the respondents. According to the employers this fact makes all
    the difference. The respondents are entitled to complain if they
    are discriminated against by reason of the fact that they are not
    paid the same as the man who does the same work. Therefore, it
    is argued, the respondents are not entitled to complain if they are
    discriminated against by reason of the fact that they are not paid
    the same as Mr. Phillips who does work of equal value. The
    employers admit that if there were 15 warehouse operators and all
    the warehouse operators were women, paid £77.66, for work equal
    in value to the work of 10 checker warehouse operatives, all men,
    paid £81.88 and the difference was due to difference in sex, the
    respondents would be entitled to an increase in pay of £4.22. But
    the employers claim that if there were 14 women warehouse
    operatives, one male warehouse operative, and 10 checker
    warehouse operatives the respondents would be obliged to rest
    content with £77.66 and would have no remedy for the admitted
    discrimination based on difference in sex. The Industrial Tribunal
    and the Employment Arbitration Tribunal accepted the argument of
    the employers. The Court of Appeal (Purchas and Nicholls L.JJ.
    and Sir Roualeyn Cumming-Bruce) decided that under Community
    law the respondents had an enforceable right on the assumed facts
    to equal pay with Mr. Phillips for work of equal value. The
    employers appeal to this House.

    For the purposes of determining this appeal, it will be
    necessary to consider British law and Community law as they
    interact one upon the other.

    The Equal Pay Act 1970 was enacted on 29 May 1970.
    Section 1 directed that:

    "(1) The provisions of this section shall have effect with a
    view to securing that employers give equal treatment as
    regards Terms and conditions of employment to men and to
    women, that is to say that ... - (a) for men and women
    employed on like work the terms and conditions of one sex
    are not in any respect less favourable than those of the
    other; and (b) for men and women employed on work rated
    as equivalent . . . the terms and conditions of one sex are
    not less favourable than those of the other in any respect in
    which the terms and conditions of both are determined by
    the rating of their work . . . . "

    Under section 1 of the Act of 1970, as originally enacted,
    the fact that a woman and a man were engaged on like work did
    not debar the woman from claiming parity with another man whose
    work was rated as equivalent to the work of the woman.

    On 1 January 1973 the United Kingdom became a Member
    of the European Community. By article 5 of the European
    Community Treaty, the United Kingdom became bound to take all
    appropriate measures to give effect to obligations arising under the
    Treaty or as a result of actions taken by Community institutions.
    At the date when the United Kingdom became a Member of the
    European Economic Community, the Act of 1970 was not in
    operation because the commencement of the Act had been
    postponed until 1975.

    - 6 -

    Article 119 of the European Economic Treaty directs that:

    "Each Member State shall . . . ensure and subsequently
    maintain the application of the principle that men and
    women should receive equal pay for equal work."

    The width of this principle is not susceptible to dissection
    so as to sanction discrimination in pay against women in some
    circumstances but not in others.

    On 10 February 1975 the Council of Ministers of the
    Community, the institution responsible for Community legislation,
    adopted the Equal Pay Directive (75/117/E.E.C.). The Equal Pay
    Directive recited that article 119 of the Treaty is an integral part
    of the establishment and functioning of the Common Market and
    that national provisions should be approximated as regards
    application of the principle of equal pay. The Directive, so far as
    relevant, provided as follows:

    "Article 1. The principle of equal pay for men and women
    outlined in article 119 of the Treaty, hereinafter called
    'principle of equal pay', means, for the same work or for
    work to which equal value is attributed, the elimination of
    all discrimination on grounds of sex with regard to all
    aspects and conditions of remuneration ....

    "Article 2. Member states shall introduce into their
    national legal systems such measures as are necessary to
    enable all employees who consider themselves wronged by
    failure to apply the principle of equal pay to pursue their
    claims by judicial process after possible recourse to other
    competent authorities ....

    "Article 4. Member states shall take the necessary
    measures to ensure that provisions appearing in collective
    agreements, wage scales, wage agreements or individual
    contracts of employment which are contrary to the principle
    of equal pay shall be, or may be declared, null and void or
    may be amended."

    The Equal Pay Directive ordered the elimination of all
    discrimination on grounds of sex with regard to all aspects and
    conditions of remuneration for the same work or for work to
    which equal value is attributed. This Directive also is inconsistent
    with the proposition that in some circumstances discrimination
    which deprives a woman of equal pay with a man for work of
    equal value may be sanctioned by one or more member states.
    The logic of article 119 and of the Equal Pay Directive is that
    one member state cannot permit some forms of discrimination in
    relation to pay in some circumstances while other member states
    forbid all forms of discrimination in all circumstances. In
    Defrenne v. Sabena [1976] ICR 547 the European Court of
    Justice confirmed this logic in the following paragraphs of their
    ruling, at p. 565, dealing with the direct effect of article 119:

    "8. Article 119 pursues a double aim.

    - 7 -

    "9. First, in the light of the different stages of the
    development of social legislation in the various member
    states, the aim of article 119 is to avoid a situation in
    which undertakings established in states which have actually
    implemented the principle of equal pay suffer a competitive
    disadvantage in intra-community competition as compared
    with undertakings established in states which have not yet
    eliminated discrimination against women workers as regards
    pay.

    "10. Secondly, this provision forms part of the social
    objectives of the community, which is not merely an
    economic union, but is at the same time intended, by
    common action, to ensure social progress and seek the
    constant improvement of the living and working conditions
    of their peoples, as is emphasised by the preamble to the
    Treaty."

    In the United Kingdom, the Act of 1970 was amended by
    the Sex Discrimination Act 1975 and came into force on 29
    December 1975. By section 1(1) of the Act of 1970 as amended
    in 1975 by section 8(1) of the Sex Discrimination Act 1975:

    "If the terms of a contract under which a woman is
    employed at an establishment in Great Britain do not
    include ... an equality clause they shall be deemed to
    include one."

    By section 1(2) an equality clause modifies any term in a
    woman's contract which is less favourable than a term of a similar
    kind in the contract of man:

    "(a) where the woman is employed on like work with a man
    in the same employment - . . . ;

    (b) where the woman is employed on work rated as
    equivalent with that of a man in the same employment . . .
    "

    Section l(2)(a) entitles a woman to receive equal pay for
    "like work" and corresponds to Community law which requires
    equal pay "for the same work." Section l(2)(b) entitles a woman
    to receive equal pay for "work rated as equivalent" and was
    thought by the United Kingdom Government to correspond to
    Community law which requires equal pay for "work to which equal
    value is attributed."

    By section 1(3) of the Act of 1970, as amended in 1975, a
    variation between a woman's contract and a man's contract does
    not require to be modified "if the employer proves that the
    variation is genuinely due to a material factor which is not the
    difference of sex." This provision gives effect to Community law
    which applies the principle of equal pay only for the purpose of
    eliminating discrimination on grounds of sex.

    When a claim is made for equal pay for like work under the
    Act of 1970, then by section 1(4) of that Act as amended in 1975:

    - 8 -

    "A woman is to be regarded as employed on like work with
    men if, but only if, her work and theirs is of the same or a
    broadly similar nature, and the differences (if any) between
    the things she does and the things they do are not of
    practical importance in relation to terms and conditions of
    employment; and accordingly in comparing her work with
    theirs regard shall be had to the frequency or otherwise
    with which any such differences occur in practice as well as
    to the nature and extent of the differences."

    Where a claim is made for equal pay for work rated as
    equivalent with that of a man, then, by section 1(5):

    "A woman is to be regarded as employed on work rated as
    equivalent with that of any men if, but only if, her job and
    their job have been given an equal value, in terms of the
    demand made on a worker under various headings (for
    instance effort, skill, decision), on a study undertaken with a
    view to evaluating in those terms the jobs to be done by all
    or any of the employees in an undertaking or group of
    undertakings, or would have been given an equal value but
    for the evaluation being made on a system setting different
    values for men and women on the same demand under any
    heading."

    By section 2(1) of the Act of 1970 as amended in 1975, any claim
    under an equality clause, including a claim for arrears of
    remuneration or damages, may be presented by way of complaint
    to an industrial tribunal.

    Where a woman complains of discrimination, she is entitled
    to compare her pay and work with the pay and work of any man
    in the same employment. In Ainsworth v. Glass Tubes &
    Components Ltd.
    [1977] I.C.R. 347, a woman complained of
    discrimination in favour of a male inspector who worked alongside
    her. The Employment Arbitration Tribunal held that the industrial
    tribunal erred in law by declining to compare the claimant with
    the man who worked beside her and insisting on comparing the
    claimant with some other male inspector.

    Thus the position at the end of 1975 was that in Community
    law the respondents were entitled to equal pay with Mr. Phillips if
    the work of the respondents was work to which equal value was
    attributed. In British law under the Act of 1970 as amended in
    1975, the respondents were entitled to equal pay with Mr. Phillips
    if the work of the respondents was rated as equivalent. The fact
    that the employers did or did not discriminate against the
    respondents in favour of another man engaged on like work did not
    deprive the respondents of a remedy if the respondents were
    entitled to equal pay with Mr. Phillips,

    The United Kingdom Government took the view that sections
    1 and 2 of the Act of 1970, as amended in 1975, complied with
    the obligations of the United Kingdom under the Equal Pay
    Directive. The Commission of the Community as the institution
    entitled to arraign a Member State before the European Court of
    Justice for failure to comply with Community law considered that
    the Act of 1970 as amended in 1975, was defective in one respect.
    By section l(2)(b) and section 1(5) a woman employed on work of

    - 9 -

    equal value to the work of a man could only claim equal pay if a
    job evaluation study were carried out and that job evaluation study
    attributed equal work to the job of the claimant and the job of
    the man. A job evaluation study can only be carried out with the
    consent of the employer. A woman who was not receiving equal
    pay for work of equal value could not therefore pursue a claim for
    parity if her employer refused to consent to a job evaluation study
    being carried out. The Commission considered that the Equal Pay
    Directive required that every woman should be able to obtain
    equal pay for equal work whether there was a job evaluation study
    or not. In Commission of the European Communities v. United
    Kingdom
    [1982] (Case 61/81) I.C.R. 578, the Commission applied to
    the European Court of Justice for a declaration that the United
    Kingdom had failed to fulfil its obligation to adopt laws necessary
    to comply with the Equal Pay Directive. The United Kingdom
    Government defended the proceedings and argued, at p. 590, that
    the Equal Pay Directive did not require:

    " ... member states to adopt measures entitling any
    employee to insist upon some form of job valuation being
    carried out in order to determine whether his or her job is
    equal in value to another."

    The Commission argued at p. 592 that:

    "Article 1 of the Directive obliges the member states to
    adopt the measures needed to enable a female worker to
    argue, for the purpose of combating any discrimination based
    on sex, that two jobs, even though different, may be of
    equal value."

    The European Court of Justice decided at p. 598, para. 9:

    "... a worker must be entitled to claim before an
    appropriate authority that his work has the same value as
    other work and, if that is found to be the case, to have the
    rights under the Treaty and the Directive acknowledged by a
    binding decision. ..."

    It followed, said the European Court of Justice, at p. 598, para.
    11, that the United Kingdom had not adopted the measures
    necessary to comply with the Equal Pay Directive because "there
    is at present no means whereby a worker who considers that his
    post is of equal value to another may pursue his claims if the
    employer refuses to introduce a job classification system."

    The United Kingdom Government took steps to comply with
    the decision of the European Court of Justice in Commission of
    the European Communities v. United Kingdom
    [1982] ICR 578.
    The Secretary of State for Employment further amended the Act
    of 1970 by the Equal Pay (Amendment) Regulations 1983 (S.I. 1983
    No. 1794) made in accordance with a draft approved by a
    resolution of each House of Parliament. These amendments were
    made in exercise of the powers conferred on the Minister under
    section 2(2) and paragraph 2(2) of Schedule 2 to the European
    Communities Act 1972 to make regulations for the purpose of
    implementing any Community obligation of the United Kingdom
    with the approval of a resolution of each House of Parliament.

    - 10 -

    Section l(2)(a) of the Act of 1970 as amended in 1975, was
    not further amended by the Regulations of 1983. Paragraph (a)
    enables any woman to claim equal pay with a man in the same
    employment engaged on like work. By section 1(4) like work is
    work of the same or a broadly similar nature where the
    differences in work are not of practical importance. The issue of
    "like work" is decided by the industrial tribunal.

    Section l(2)(b) of the Act of 1970 as amended in 1975, was
    also not further amended by the Regulations of 1983. Paragraph
    (b) enables a woman to claim equal pay for work rated as
    equivalent to that of a man by a job evaluation study. By section
    1(5) the issue of "equivalent work" is decided by the job evaluation
    study. Such a study can only be carried out with the consent and
    cooperation of the employer.


    In compliance with the ruling of the European Court of
    Justice in Commission of the European Communities v. United
    Kingdom
    [1982] ICR 578, the Regulations of 1983 introduced
    into the Act of 1970 as amended in 1975, a provision which
    enables a woman to claim equal pay for work of equal value
    where the employer refuses to consent to a job evaluation study.
    The Regulations introduced into the Act section l(2)(c) which
    modifies any term in a woman's contract which is less favourable
    than a term of a similar kind in the contract of a man

    "(c) where a woman is employed on work which, not being
    work in relation to which paragraph (a) or (b) above
    applies, is, in terms of the demands made on her (for
    instance under such headings as effort, skill and
    decision), of equal value to that of a man in the
    same employment."

    The Regulations of 1983 also introduced into the Act of
    1970 as amended in 1975, the following direction for dealing with
    claims under section l(2)(c):

    "2A(1) Where on a complaint or reference made to an
    industrial tribunal under section 2 above, a dispute arises as to
    whether any work is of equal value as mentioned in section l(2)(c)
    above the tribunal shall not determine that question unless -

    1. it is satisfied that there are no reasonable
      grounds for determining that the work is of
      equal value as so mentioned; or

    2. It has required a member of the panel of
      independent experts to prepare a report with
      respect to that question and has received that
      report.

    (2) Without prejudice to the generality of paragraph (a) of
    subsection (1) above, there shall be taken, for the purposes
    of that paragraph, to be no reasonable grounds for
    determining that the work of a woman is of equal value as
    mentioned in section l(2)(c) above if -

    (a) that work and the work of the man in question
    have been given different values on a study
    such as is mentioned in section 1(5) above; and

    - 11 -

    (b) there are no reasonable grounds for determining
    that the evaluation contained in the study was
    (within the meaning of subsection (3) below)
    made on a system which discriminates on
    grounds of sex.

    (3) An evaluation contained in a study such as is mentioned
    in section 1(5) above is made on a system which
    discriminates on grounds of sex where a difference, or
    coincidence, between values set by that system on different
    demands under the same or different headings is not
    justifiable irrespective of the sex of the person on whom
    those demands are made.

    (4) In paragraph (b) of subsection (1) above the reference to
    a member of the panel of independent experts is a
    reference to a person who is for the time being designated
    by the Advisory, Conciliation and Arbitration Service for the
    purposes of that paragraph as such a member, being neither
    a member of the Council of that Service nor one of its
    officers or servants."

    Thus by section 2A the issue of "work of equal value" is
    determined by the industrial tribunal if there are no reasonable
    grounds for the complaint, or by a job evaluation study if the
    study is not itself discriminatory and, finally, and only if
    necessary, by the tribunal with the assistance of a report of an
    independent expert appointed by Acas.

    According to the employers in the present appeal, the
    Regulations of 1983 had the additional effect of depriving some
    women of the right to pursue their claims by judicial process or
    otherwise although they considered themselves wronged by failure
    to apply the principle of equal pay. The respondents may have a
    valid complaint in that they are not receiving equal pay with Mr.
    Phillips for work of equal value. But if the respondents seek to
    remedy that discrimination under section l(2)(c) of the Act of 1970
    as amended by the Regulations, they will be debarred because they
    are employed on "work in relation to which paragraph (a) or (b)
    above applies." It is said that paragraph (a) operates, not because
    the respondents are employed on like work with Mr. Phillips but
    because the respondents are employed on like work with some
    other man. Since paragraph (c) is expressed to apply only when a
    woman is employed on work which is not "work in relation to
    which paragraph (a) or (b) above applies," it follows, so it is said,
    that where a woman is employed on like work with any man or
    where a woman is employed on work rated as equivalent with any
    man, no claim can be made under paragraph (c) in respect of some
    other man who is engaged on work of equal value. In my opinion
    paragraphs (a) or (b) only debars a claim under paragraph (c) where
    paragraphs (a) or (b) applies to the man who is the subject of the
    complaint made by the woman. If the tribunal decide that the
    respondents are engaged "on like work" with Mr. Phillips then
    paragraph (a) applies and the respondents are not entitled to
    proceed under paragraph (c) and to obtain the report of an Acas
    expert. If there is a job evaluation study which covers the work
    of the respondents and the work of Mr. Phillips then the
    respondents are debarred from proceeding under paragraph (c)
    unless the job evaluation study itself was discriminatory.

    - 12 -

    Whenever there is a claim for equal pay, the complainant,
    or the complainant's trade union representative supporting the
    claimant, may wish to obtain a report from an Acas expert under
    paragraph (c) to use for the purpose of general pay bargaining and
    in the hope" of finding ammunition which will lead to a general
    increase in wage levels irrespective of discrimination. For this
    purpose the more Acas reports there are the better. It may be
    significant that in the present case a claim is made under
    paragraph (c) and not under paragraph (a) as well, or, in the
    alternative, although it is obvious that work of equal value in
    terms of the demands made on a woman under such headings as
    effort, skill and decision which may amount to discrimination under
    paragraph (c) may also be work of a broadly similar nature with
    differences of no practical importance which found a complaint
    under paragraph (a). If there is discrimination in pay the
    industrial tribunal must be able to grant a remedy. But the
    remedy available under paragraph (c) is not to be applied if the
    complainant has a remedy in respect of the male employee with
    whom she demands parity under paragraph (a) or if paragraph (b)
    applies to the woman and to that male employee. To prevent
    exploitation of paragraph (c) the tribunal must decide in the first
    instance whether the complainant and the man with whom she
    seeks parity are engaged on "like work" under paragraph (a). If
    paragraph (a) applies, no Acas report is required. If paragraph (a)
    does not apply, then the tribunal considers whether paragraph (b)
    applies to the complainant and the man with whom she seeks
    parity; if so, the tribunal can only proceed under paragraph (c) if
    the job evaluation study obtained for the purposes of paragraph (b)
    is itself discriminatory. If paragraph (b) applies then, again, no
    Acas report is necessary. If paragraphs (a) and (b) do not apply,
    the tribunal must next consider whether there are reasonable
    grounds for determining that the work of the complainant and the
    work of the man with whom she seeks parity is of equal value. If
    the tribunal are not so satisfied, then no Acas report is required.
    The words in paragraph (c) on which the employers rely were not
    intended to create a new form of permitted discrimination.
    Paragraph (c) enables a claim to equal pay as against a specified
    man to be made without injustice to an employer. When a woman
    claims equal pay for work of equal value, she specifies the man
    with whom she demands parity. If the work of the woman is work
    in relation to which paragraphs (a) or (b) applies in relation to
    that man, then the woman cannot proceed under paragraph (c) and
    cannot obtain a report from an Acas expert. In my opinion there
    must be implied in paragraph (c) after the word "applies" the
    words "as between the woman and the man with whom she claims
    equality." This construction is consistent with Community law.
    The employer's construction is inconsistent with Community law
    and creates a permitted form of discrimination without rhyme or
    reason.

    Under Community law, a woman is entitled to equal pay for
    work of equal value to that of a man in the same employment.
    That right is not dependent on there being no man who is
    employed on the same work as the woman. Under British law,
    namely the Equal Pay Act 1970 as amended in 1975, a woman was
    entitled to equal pay for work rated as equivalent with that of a
    man in the same employment. That right was not dependent on
    there being no man who was employed on the same work as the

    - 13 -

    woman. Under the ruling of the European Court of Justice in
    Commission of the European Communities v. United Kingdom
    [1982] ICR 578, the Equal Pay Act as amended in 1975 was held
    to be defective because the Act did not entitle every woman to
    claim before a competent authority that her work had the same
    value as other work, but only allowed a claim by a woman who
    succeeded in persuading her employer to consent to a job
    evaluation scheme. The Regulations of 1983 were intended to give
    full effect to Community law and to the ruling of the European
    Court of Justice which directed the United Kingdom Government
    to introduce legislation entitling any woman to equal pay with any
    man for work of equal value if the difference in pay is due to the
    difference in sex and is therefore discriminatory. I am of the
    opinion that the Regulations of 1983, upon their true construction,
    achieve the required result of affording a remedy to any woman
    who is not in receipt of equal pay for work equal in value to the
    work of a man in the same employment.

    In Mary Murphy v. Bord Telecom Eireann [1988] (Case
    157/86) 1 C.M.L.R. 879, 29 women were employed as factory
    workers engaged in such tasks as dismantling, cleaning, oiling and
    reassembling telephones and other equipment; they claimed the
    right to be paid at the same rate as a specified male worker
    employed in the same factory as a stores labourer engaged in
    cleaning, collecting and delivering equipment and components and
    in lending general assistance as required. The European Court of
    Justice in their judgment at p. 887, para. 9, said that the principle
    of equal pay for men and women

    "forbids workers of one sex engaged in work of equal value
    to that of workers of the opposite sex to be paid a lower
    wage than the latter on grounds of sex, it a fortiori
    prohibits such a difference in pay where the lower-paid
    category of workers is engaged in work of higher value."

    I cannot think that in Community law or in British law the result
    would be any different if instead of there being 29 women working
    on telephone maintenance and one male stores labourer, there were
    28 women and one man working on telephone maintenance and one
    male stores labourer.

    The draft of the Regulations of 1983 was not subject to any
    process of amendment by Parliament. In these circumstances the
    explanations of the Government and the criticisms voiced by
    Members of Parliament in the debates which led to approval of
    the draft Regulations provide some indications of the intentions of
    Parliament. The debate on the draft Regulations in the House of
    Commons which led to their approval by Resolution was initiated
    by the Under Secretary of State for Employment who, in the
    reports of the House of Commons for 20 July 1983 at column 479
    et seq, said this:

    "The Equal Pay Act allows a woman to claim equal pay
    with a man ... if she is doing the same or broadly similar
    work, or if her job and his have been rated equal through
    job evaluation in effort, skill and decision. However, if a
    woman is doing different work from a comparable man, or
    if the jobs are not covered by a job evaluation study, the
    woman has at present no right to make a claim for equal

    - 14 -

    pay. This is the gap, identified by the European Court
    which we are closing . . . . "


    In the course of his speech at column 485, the Minister
    outlined the procedure which will apply if a claim is made under
    paragraph (c) in the following words:

    "Under the amending Regulations which are the subject of
    this debate, an employee will be able to bring a claim for
    equal pay with an employee of the opposite sex working in
    the same employment on the ground that the work is of
    equal value. When this happens, conciliation will first be
    attempted, as in all equal pay claims. If conciliation is
    unsuccessful, the industrial tribunal will take the following
    steps. First, it will check that the work is not in fact so
    similar that the case can be heard under the current Act.
    Secondly, it will consider whether the jobs have already
    been covered by a job evaluation scheme and judged not to
    be of equal value. If this is the case, the claim may
    proceed only if the original job evaluation scheme is shown
    to have been sexually discriminatory. Having decided that
    the case should proceed, the tribunal will first invite the
    parties to see if they can settle the claim voluntarily. If
    not, the tribunal will consider whether to commission an
    independent expert to report on the value of the jobs. It
    will not commission an expert's report if it feels that it is
    unreasonable to determine the question of value - for
    example, if the two jobs are quite obviously of unequal
    value. Nor . . . will it commission an expert's report if the
    employer shows at this stage that inequality in pay is due
    to material factors other than sex discrimination . . . . "

    Thus it is clear that the construction which I have placed
    upon the Regulations corresponds to the intentions of the
    Government in introducing the Regulations. In the course of the
    debate in the House of Commons, and in the corresponding debate
    in the House of Lords, no one suggested that a claim for equal
    pay for equal work might be defeated under the Regulations by an
    employer who proved that a man who was not the subject of the
    complaint was employed on the same or on similar work with the
    complainant. The Minister took the view, and Parliament accepted
    the view, that paragraph (c) will only apply if paragraphs (a) and
    (b) are first held by the Tribunal not to apply in respect of the
    work of the woman and the work of the man with whom she seeks
    parity of pay. This is also the only view consistent with
    Community law.

    In von Colson and Kamann v. Land Nordrhein - Westfalen
    (Case 14/83) (1984) ECR 1891, 1910, 1911, the European Court
    of Justice advised that in dealing with national legislation designed
    to give effect to a Directive:

    "3. ... It is for the national court to interpret and apply
    the legislation adopted for the implementation of the
    Directive in conformity with the requirements of Community
    law, in so far as it is given discretion to do so under
    national law."

    - 15 -

    In Duke v. G.E.C. Reliance Systems Ltd. [1988] 2 WLR 359 this
    House declined to distort the construction of an Act of Parliament
    which was not drafted to give effect to a Directive and which was
    not capable of complying with the Directive as subsequently
    construed by the European Court of Justice. In the present case I
    can see no difficulty in construing the Regulations of 1983 in a
    way which gives effect to the declared intention of the
    Government of the United Kingdom responsible for drafting the
    Regulations and is consistent with the objects of the European
    Community Treaty, the provisions of the Equal Pay Directive and
    the rulings of the European Court of Justice. I would dismiss the
    appeal.

    LORD OLIVER OF AYLMERTON

    My Lords,

    The respondents to this appeal are assumed to be engaged
    upon work which is, for all practical purposes, identical with work
    upon which at least one man employed in the same establishment
    is engaged and they are employed upon the same terms as he is.
    They claim, however, that there are other men employed in the
    same establishment whose work, though not the same as theirs, is
    of equal value to theirs and who are remunerated at a higher rate
    and they claim that the difference is due to discrimination against
    them on the grounds of their sex. The appellants have resisted
    the claim for parity with this latter group, from whom the
    respondents selected a Mr. Phillips as the comparator, on the
    preliminary point that, even assuming the discrimination claimed by
    the respondents to be established, they have no remedy. There
    are, they contend, three reasons for this. First, the claim is
    precluded by the terms of the Equal Pay Act 1970 (as amended) so
    that the industrial tribunal has no jurisdiction to entertain the
    claim. Secondly, it is said that even on the construction of
    article 119 of the Treaty of Rome and the Equal Pay Directive
    (75/117/E.E.C.) which clarified it, assuming the article and
    Directive to be directly applicable as a matter of domestic law, a
    claim to parity for work of equal value cannot be made by a
    woman who is employed on the same work as another man.
    Thirdly, it is said that even could such a claim subsist as a matter
    of the construction of article 119, the article is not directly
    enforceable in such a case in domestic law. Your Lordships were
    therefore invited by the appellants to submit both the question of
    construction of the article and the question of direct enforceability
    to the European Court of Justice under the provisions of article
    177 of the Treaty. The Court of Appeal, whilst upholding the
    appellants' contentions as regards the construction of the Act,
    entertained no doubts that the discrimination claimed, if proved,
    contravened the terms of the Treaty and the Directive, and
    referred the matter back to the industrial tribunal to deal with
    the claim on the footing that the respondents' rights were directly
    enforceable as a matter of domestic law.

    My Lords, whilst, like the Court of Appeal, I entertain no
    doubt that the discrimination claimed falls squarely within the
    general principle of equal pay for equal work (or work of equal

    - 16 -

    value) which is enshrined in article 119, I confess to some doubt
    whether, if the appellants' construction of the Act of 1970 is
    correct, the article is directly enforceable in the circumstances of
    the instant case and before reading the draft of the speech of my
    noble and learned friend, Lord Templeman, I should, for my part,
    have been minded to accede to the appellants' request that that
    question at least be submitted to the European Court of Justice.
    Broadly, my doubts arise from this, that the cases in the European
    Court to which your Lordships have been referred clearly establish
    that there is an area within which the article is not directly
    applicable. The bounds of that area are far from clear to me,
    however, but the cases appear to indicate that the article may not
    be directly applicable in an "equal value" claim, at any rate where
    there is no machinery in the domestic law by which the criterion
    of what is work of equal value can be readily ascertained. The
    difficulty in this case arises from the fact that the industrial
    tribunal is a statutory tribunal whose jurisdiction and procedure is
    circumscribed by statutory instrument, so that although machinery
    is provided for the ascertainment of what is "work of equal value,"
    that machinery is confined by definition to a claim falling within
    section l(2)(c) of the Act of 1970 (see Industrial Tribunals (Rules
    of Procedure) Regulations 1985 (S.I. 1985 16), regulation 3(2) and
    the definition of "equal value claim" in Schedule 2 to the
    Regulations). If, therefore, the Act does, as the appellants claim,
    restrict the entertainment of claims by the tribunal to cases in
    which there is no man performing the same work as the claimant,
    the tribunal's machinery for establishing the criterion of what is
    work of equal value is equally restricted.

    The critical question, therefore, is whether the Court of
    Appeal, in common with the industrial tribunal and the
    Employment Appeals Tribunal, were right in concluding that the
    respondents' claim was not one which could be made under the
    provisions of the Act of 1970. I have to confess to sympathising
    with that conclusion which coincided with the very definite opinion
    which I myself had formed at the conclusion of the hearing.
    Indeed, it is only the persuasive speech delivered by my noble and
    learned friend, Lord Templeman, which has enabled me to change
    the opinion which I had formed. It is beyond dispute that the Act
    in its amended form in 1975 was intended to give effect to the
    United Kingdom's obligations under article 119 and the Equal Pay
    Directive and that the amendment introduced in 1983, following
    the ruling of the European Court of Justice in Commission of the
    European Communities v. United Kingdom
    [1982] ICR 578, was
    intended to fill the gap to which that case had drawn attention
    and to complete what was quite obviously intended to be a
    comprehensive code for dealing with sex discrimination in the area
    of pay and conditions at work. What has to be said, if the
    appellants are right, is that Parliament simply failed in its purpose
    and that is a conclusion the court must strive to avoid -
    particularly having regard to the provisions of section 2(4) of the
    European Communities Act 1972 - unless it is compulsively driven
    to it. It has, I think, to be said that if the section falls to be
    construed in isolation apart from the evident purpose of the Act,
    there is very little scope for a construction other than that to
    which the Court of Appeal felt itself driven. In contrast to the
    way in which, for instance, the Belgian legislature complied with
    the Treaty obligation by simply reproducing the terms of the
    article as part of the domestic legislation, the way in which the

    - 17 -

    United Kingdom Act seeks to accomplish its object is by reading
    into every woman's contract of employment a deemed contractual
    term, described as "an equality clause." The terms of the clause
    are not spelled out but the effect of it - broadly that the terms
    of a woman's contract are to be brought into line with those of
    comparable man - is stated and is related to three, and only
    three, prescribed situations, viz.: (a) where the woman is employed
    on like work with a man in the same employment; (b) where the
    woman is employed on work rated as equivalent with that of a
    man in the same employment; and (c) "where a woman is employed
    on work which, not being work in relation to which paragraph (a)
    or (b) above applies, is ... of equal value to that of a man in
    the same employment. Now, on the face of it, where a man is
    employed on the same work as a woman, paragraph (a) applies to
    that work and the equality clause in the woman's contract has the
    effect specified in that paragraph. If she then makes a claim for
    equal pay with someone whose work she claims to be of equal
    value with hers but which is not the same, she does not change
    the nature of her work. It remains work which has the effect
    specified in paragraph (a) and to which, therefore, that paragraph
    "applies." If, therefore, the section is to be read literally and in
    accordance with its terms, paragraph (c) cannot apply to that work
    so long as paragraph (a) applies to it. It can be made to apply in
    only one of two ways. Either there has to be given to the word
    "applies" an artificial meaning which will enable it to be read in
    the sense of "is applied by the claimant as part of her claim" or
    there has to be read into the Act some qualifying words which
    will restrict the word "applies" to a particular comparator selected
    by the claimant. Either way, a construction which permits the
    section to operate as a proper fulfilment of the United Kingdom's
    obligation under the Treaty involves not so much doing violence to
    the language of the section as filling a gap by an implication
    which arises, not from the words used, but from the manifest
    purpose of the Act and the mischief it was intended to remedy.
    The question is whether that can be justified by the necessity -
    indeed the obligation - to apply a purposive construction which will
    implement the United Kingdom's obligations under the Treaty.

    For the reasons given by my noble and learned friend, Lord
    Templeman, I am now persuaded that it can and that paragraph (c)
    is to be construed as if modified in the manner suggested by my
    noble and learned friend or as if it included a parenthetic phrase
    and read "(c) where a woman is employed on work which, not
    being work in relation to which (in respect of the man hereinafter
    mentioned) paragraph (a) or (b) above applies, is ... etc." It
    must, I think, be recognised that so to construe a provision which,
    on its face, is unambiguous involves a departure from a number of
    well-established rules of construction. The intention of Parliament
    has, it is said, to be ascertained from the words which it has used
    and those words are to be construed according to their plain and
    ordinary meaning. The fact that a statute is passed to give effect
    to an international treaty does not, of itself, enable the treaty to
    be referred to in order to construe the words used in other than
    in their plain and unambiguous sense. Moreover, even in the case
    of ambiguity, what is said in Parliament in the course of the
    passage of the Bill, cannot ordinarily be referred to to assist in
    construction. I think, however, that it has also to be recognised
    that a statute which is passed in order to give effect to the
    United Kingdom's obligations under the Treaty of Rome falls into

    -18 -

    a special category and it does so because, unlike other treaty
    obligations, those obligations have, in effect, been incorporated
    into English law by the European Communities Act 1972. Section
    2(1) of that Act provides that:

    "all such . . . obligations . . . from time to time created
    by the Treaties ... as in accordance with the Treaties are
    without further enactment to be given legal effect or used
    in the United Kingdom shall be recognised and available in
    law, and be enforced, allowed and followed accordingly. . .

    Although, at any rate on one construction, this may be said to
    apply only to rights which are clearly directly applicable,
    subsection (2) goes on to provide for a designated Minister to
    make provision by regulation "for the purpose of implementing any
    Community obligations of the United Kingdom" and "for the
    purpose of dealing with matters arising out of or related to any
    such obligations." Subsection (4) provides that a provision made
    under subsection (2) includes such provision as might be made by
    Acts of Parliament, and that "any enactment passed or to be
    passed . . . shall be construed and have effect subject to the
    foregoing provisions of this section." One is thus thrown back to
    the provisions of subsection (1). Subsection l(2)(c) of the Equal
    Pay Act 1970 was inserted into the Act under this power by the
    Equal Pay (Amendment) Regulations 1983, which recited that the
    Secretary of State was the designated Minister "in relation to
    measures to prevent discrimination between men and women as
    regards terms and conditions of employment." The history of the
    legislation up to that point has been fully recited in the speech of
    my noble and learned friend, Lord Templeman, and it is perfectly
    plain that the amendments to the Act were inserted for the
    purpose of completing the compliance by the United Kingdom with
    its Treaty obligations under article 119 and the Equal Pay
    Directive by remedying what was then perceived as the only
    remaining lacuna, namely that a woman was excluded from making
    an equal value claim unless she could persuade her employer to
    initiate a work evaluation study. It is worth noting that the
    explanatory note (which is not, of course, part of the Regulations
    but is of use in identifying the mischief which the Regulations
    were attempting to remedy) states that:

    "Regulation 2 amends section 1 of the Equal Pay Act 1970
    to enable a woman to take advantage of an equality clause
    where she is employed on work of equal value to that of a
    man in the same employment."

    Those Regulations having been passed with the manifest and
    express purpose of producing a full compliance with the United
    Kingdom's obligation, they fall to be construed accordingly and
    that which I have suggested as falling to be implied into section
    l(2)(c) is necessary to achieve that purpose. In Garland v. British
    Rail [1983] 2 AC 751, 771, Lord Diplock observed:

    "My Lords, even if the obligation to observe the
    provisions of article 119 were an obligation assumed by the
    United Kingdom under an ordinary international treaty or
    convention and there were no question of the treaty
    obligation being directly applicable as part of the law to be

    - 19 -

    applied by the courts in this country without need for any
    further enactment, it is a principle of construction of
    United Kingdom statutes, now too well established to call
    for citation of authority, that the words of the statute
    passed after the Treaty has been signed and dealing with
    the subject matter of the international obligation of the
    United Kingdom, are to be construed, if they are reasonably
    capable of bearing such a meaning, as intended to carry out
    the obligation, and not to be inconsistent with it. A
    fortiori is this the case where the Treaty obligation arises
    under one of the Community treaties to which section 2 of
    the European Communities Act 1972 applies.

    "The instant appeal does not present an appropriate
    occasion to consider whether, having regard to the express
    direction as to the construction of enactments 'to be passed'
    which is contained in section 2(4), anything short of an
    express positive statement in an Act of Parliament passed
    after January 1, 1973, that a particular provision is intended
    to be made in breach of an obligation assumed by the
    United Kingdom under a Community treaty, would justify an
    English court in construing that provision in a manner
    inconsistent with a Community treaty obligation of the
    United Kingdom, however wide a departure from the prima
    facie meaning of the language of the provision might be
    needed in order to achieve consistency. ..."

    In the instant case, the strict and literal construction of the
    section does indeed involve the conclusion that the Regulations,
    although purporting to give full effect to the United Kingdom's
    obligations under Article 119, were in fact in breach of those
    obligations. The question, following Lord Diplock's formulation of
    principle, is whether they are reasonably capable of bearing a
    meaning which does in fact comply with the obligations imposed by
    the Treaty. I was, initially, in some doubt whether, if the section
    is to be construed in the way for which the respondents' contend,
    any sensible purpose could be given to the exclusionary words "not
    being work in relation to which paragraphs (a) or (b) above
    applies."

    However, the Regulations which introduced paragraph (c)
    into the Act introduced at the same time the procedural provisions
    in section 2A and the significance of the exclusionary word in the
    context of the industrial tribunals procedure and of the definition
    of "like work" which is contained in section 1(4) is demonstrated in
    the analysis of my noble and learned friend, Lord Templeman.
    That doubt removed, I am satisfied that the words of section
    l(2)(c), whilst on the face of them unequivocal, are reasonably
    capable of bearing a meaning which will not put the United
    Kingdom in breach of its Treaty obligations. This conclusion is
    justified, in my judgment, by the manifest purpose of the
    legislation, by its history, and by the compulsive provision of
    section 2(4) of the Act of 1972. It is comforting indeed to find,
    from the statement made by the Minister to which my noble and
    learned friend has referred, that this construction does in fact
    conform not only with what clearly was the parliamentary
    intention but also with what was stated to be the parliamentary
    intention. I do not, however, think that it is necessary to rely
    upon this, since the conclusion is, in my judgment, amply justified

    - 20 -

    by the other factors which I have mentioned. For these reasons
    and for those given by my noble and learned friend, Lord
    Templeman, I agree that the appeal should be dismissed.

    LORD JAUNCEY OF TULLICHETTLE

    My Lords,

    I have had the advantage of reading in draft the speeches
    prepared by my noble and learned friends Lord Keith of Kinkel,
    Lord Templeman and Lord Oliver of Aylmerton. Like my noble
    and learned friend Lord Oliver I had, at the conclusion of the
    hearing, reached the firm conclusion that the Court of Appeal had
    correctly construed the relevant provisions of the Equal Pay Act
    1970 but I have similarly been persuaded to the contrary view by
    the speeches of my noble and learned friends. For the reasons set
    out in those speeches I too would dismiss the appeal.

    - 21 -



BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKHL/1988/2.html