Pickstone v Freemans Plc

Section 1(2)(c) of the Equal Pay Act 1970 permits a woman to compare her work with that of a specified man for the purpose of an equal-value claim. The claim is excluded by paragraphs (a) or (b) only where one of those paragraphs applies between the claimant and that comparator. The presence of another man doing like work does not bar the claim.

Legislation made to implement a Community obligation should, so far as its language reasonably permits, be construed purposively and consistently with that obligation. Necessary words may be implied even where the provision appears unambiguous.

The respondents were female warehouse operatives. On assumed facts, their work was equal in value to that of a higher-paid male checker warehouse operative, and the difference in pay arose solely from sex. Another man, however, performed the same warehouse work as the respondents.

The Industrial Tribunal and Employment Appeal Tribunal accepted the employer's argument that the presence of that man prevented an equal-value claim under section 1(2)(c) of the Equal Pay Act 1970. The Court of Appeal held that Community law nevertheless conferred a directly enforceable right and remitted the claims.

The employer appealed. The central issue was whether the exclusionary words in section 1(2)(c) referred to any man doing like work or only to the particular man selected as comparator.

1. Disposition. The House unanimously dismissed the appeal, affirmed the Court of Appeal's order on different grounds, and ordered the employer to pay the respondents' costs. Lord Templeman gave the principal analysis. Lord Keith and Lord Oliver reached the same construction; Lord Brandon and Lord Jauncey agreed with those speeches.

2. Construction of the equal-value provision. Per Lord Templeman, the words excluding work to which paragraphs (a) or (b) applied had to be read as applying between the woman and the man with whom she claimed equality. Lord Keith and Lord Oliver adopted the same purposive construction. A man doing like work elsewhere in the establishment therefore did not prevent comparison with a different man whose work was alleged to be of equal value. The contrary construction would create an arbitrary gap permitting sex discrimination and would defeat the purpose of the Equal Pay (Amendment) Regulations 1983.

3. Tribunal procedure. Per Lord Templeman, the tribunal should first decide whether the claimant and her chosen comparator perform like work under section 1(2)(a) of the Equal Pay Act 1970. It should then consider whether their work is rated as equivalent under section 1(2)(b). If neither route applies, it should consider the reasonable-grounds and expert-report procedure governing section 1(2)(c). A job-evaluation study bars that route only subject to the statutory qualification for a discriminatory evaluation.

4. Community-conforming construction. The 1983 Regulations were made under the European Communities Act 1972 to remedy the defect identified in Commission of the European Communities v United Kingdom [1982] I.C.R. 578. Per Lord Oliver, section 2(4) of the 1972 Act, the legislation's manifest purpose and its history justified implying the necessary qualification. The provision was reasonably capable of bearing the conforming meaning. This differed from Duke v G.E.C. Reliance Systems Ltd [1988] 2 WLR 359, where the Act was not enacted to implement the Directive and could not bear the proposed construction.

5. Legislative materials and unresolved issue. Lord Keith and Lord Templeman considered it legitimate to use the responsible Minister's explanation as an indication of intention because the draft Regulations were approved without a process of parliamentary amendment. Lord Oliver regarded reliance on that material as unnecessary. Since the claim succeeded on domestic statutory construction, the House did not decide whether article 119 of the Treaty of Rome was directly enforceable in these circumstances.

1. House of Lords: Dismissed the employer's appeal unanimously and affirmed the Court of Appeal's order on the ground that section 1(2)(c) of the Equal Pay Act 1970 permitted the claims.
2. Court of Appeal: Held that the respondents had an enforceable Community-law right to equal pay on the assumed facts and remitted the claims to the Industrial Tribunal.
3. Employment Appeal Tribunal: Accepted the employer's construction that the domestic equal-value provision did not apply.
4. Industrial Tribunal: Determined the agreed preliminary point in the employer's favour.