Macarthys Ltd v Smith

Article 119 of the Treaty of Rome confers a right to equal pay for equal work even where the woman and her male comparator were employed successively rather than contemporaneously. That interpretation must be applied by English courts.

Community law forms part of domestic law through the European Communities Act 1972. Where Community law conflicts with the Equal Pay Act 1970, Community law has priority. A litigant cannot avoid the ordinary costs consequences by relying solely upon the inconsistent domestic statute.

The respondent earned £50 a week for work previously performed by a man who had earned £60. She brought proceedings under the Equal Pay Act 1970, as amended by the Sex Discrimination Act 1975. The employers contended that the domestic legislation required the woman and her male comparator to be employed contemporaneously.

On the employers’ appeal from the Employment Appeal Tribunal, a majority of the Court of Appeal initially accepted that construction of the domestic legislation. The court referred to the European Court the question whether Article 119 of the Treaty of Rome also required contemporaneous employment. After receiving the European Court’s ruling, the Court of Appeal determined the appeal and the associated question of costs.

1. Disposition. The employers’ appeal was dismissed unanimously, with the costs incurred in the Court of Appeal payable by the employers. A certificate for two counsel was granted to the respondent.
2. Successive employment. Lord Denning MR held that Article 119 of the Treaty of Rome does not require the woman and her male comparator to be employed at the same time. A woman performing equal work is entitled to equal pay even though she takes the job after the male comparator has left. The respondent was therefore entitled to receive £60 rather than £50 a week.
3. Priority of Community law. Lord Denning MR held that Community law forms part of English law by virtue of the European Communities Act 1972. Article 119 accordingly takes priority over any inconsistent provision of the Equal Pay Act 1970. This does not amount to the displacement of English law by an external system. The priority arises under domestic legislation and requires the inconsistent part of domestic law to yield.
4. Costs. The employers were not entitled to rely upon the domestic equal-pay legislation alone. They should also have considered the Treaty. The conflict was treated analogously to an inconsistency between two domestic Acts, with the unsuccessful party bearing the ordinary costs of the appeal. The respondent did not seek the costs of the reference to the European Court.
5. Construction of domestic legislation. Cumming-Bruce LJ agreed with the disposition and confirmed that European law prevails where the Treaty and the Equal Pay Act 1970 conflict. He added that the Treaty could properly assist in resolving an ambiguity in domestic legislation. In his view, however, the relevant domestic wording was unambiguous, so ordinary English principles of construction did not permit recourse to Article 119 as an interpretative aid. Lawton LJ agreed with Lord Denning MR.

1. Court of Appeal: Following the European Court’s ruling on the referred question, the court unanimously dismissed the employers’ appeal and ordered them to pay the respondent’s costs in the Court of Appeal.
2. European Court: On a reference from the Court of Appeal, the court ruled that Article 119 of the Treaty of Rome did not require contemporaneous employment.
3. Court of Appeal, earlier hearing: A majority construed the Equal Pay Act 1970 as applying only where the man and woman were employed contemporaneously, but referred the Community-law question to the European Court.
4. Employment Appeal Tribunal: The employers appealed from this tribunal. Its citation and the precise terms of its order are not stated in the judgment.