Pickstone v Freemans Plc [1988] UKHL 2

Female warehouse operatives claimed equal pay with a male checker warehouse operative whose work was of equal value to theirs. The employer argued the claim was barred because a man did the same work as the women. The House of Lords held that section 1(2)(c) of the Equal Pay Act 1970 must be construed purposively to comply with European Community law obligations.

Facts

The respondents were five women employed by Freemans plc as ‘warehouse operatives’ earning £77.66 per week. They claimed their work was of equal value to that of Mr Phillips, a ‘checker warehouse operative’ earning £81.88 per week. The employer argued that because one man was employed as a warehouse operative doing the same work as the women, the claim under section 1(2)(c) of the Equal Pay Act 1970 (as amended by the Equal Pay (Amendment) Regulations 1983) was precluded. The case proceeded on the assumed facts that the respondents’ work was of equal value to Mr Phillips’ work and the pay difference was due to sex discrimination.

Issues

Principal Issue

Whether section 1(2)(c) of the Equal Pay Act 1970, which applies to work ‘not being work in relation to which paragraph (a) or (b) above applies’, precluded an equal value claim where the claimant happened to work alongside a man doing the same work, even though she sought comparison with a different man doing work of equal value.

Secondary Issues

Whether Article 119 of the Treaty of Rome and the Equal Pay Directive (75/117/EEC) were directly enforceable in domestic law, and whether the regulations fulfilled the United Kingdom’s Community law obligations.

Judgment

The House of Lords unanimously dismissed the appeal, holding that the respondents were entitled to pursue their equal value claim.

Purposive Construction

Lord Keith of Kinkel held that the exclusionary words in paragraph (c) were intended to have effect only where the particular man with whom the woman seeks comparison is employed on ‘like work’ or ‘work rated as equivalent’, not merely where any man happens to do the same work as the claimant:

“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.”

Lord Templeman explained the proper construction:

“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.”

Parliamentary Intention and Community Law

The House of Lords considered it legitimate to refer to the ministerial statement introducing the draft regulations to Parliament, given the context of section 2 of the European Communities Act 1972. Lord Keith stated:

“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.”

Lord Oliver of Aylmerton, though initially inclined to accept the literal construction, was persuaded by Lord Templeman’s analysis. He referred to Lord Diplock’s statement in Garland v British Rail:

“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.”

Implications

This case is of major constitutional significance for establishing the principle that domestic legislation enacted to implement European Community obligations must be construed purposively to give effect to those obligations. The House of Lords demonstrated willingness to depart from literal construction and to refer to parliamentary statements (ministerial explanations) when construing regulations made under section 2(2) of the European Communities Act 1972. The decision confirmed that section 2(4) of the 1972 Act requires all subsequent enactments to be construed consistently with Community law where reasonably possible. The case also reinforced the substantive principle that equal pay for work of equal value cannot be defeated by an employer strategically employing a ‘token man’ on the same work as female claimants.

Verdict: Appeal dismissed. The Court of Appeal’s decision was affirmed, and the respondents were entitled to pursue their equal pay claim under section 1(2)(c) of the Equal Pay Act 1970 as amended. The exclusionary words in paragraph (c) applied only in relation to the particular man with whom comparison was sought, not to any man employed on like work with the claimant.

Source: Pickstone v Freemans Plc [1988] UKHL 2