HOUSE OF LORDS

PICKSTONE AND OTHERS, RESPONDENTS

AND

FREEMANS PLC., APPELLANTS

See annotated Law Reports version at [1989] A.C. 66

COUNSEL: David Pannick for the applicants. (Court of Appeal)

Christopher Carr Q.C. and Patrick Elias for the employers.

Anthony Lester Q.C. and David Pannick for the applicants. (House of Lords)

SOLICITORS: Solicitors: Slaughter and May; Sharpe Pritchard & Co., for W. Douglas Clark, Brookes & Co., West Bromwich.

JUDGES: Purchas and Nicholls L.JJ.

Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Templeman, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle

DATES: 1987 Jan 26, 27; March 25

1988 May 9, 10, 11, 12; June 30

Appeal from the Employment Appeal Tribunal.

Cur. adv. vult.

25 March. The following judgments were handed down.

NICHOLLS L.J. This appeal concerns equal pay in cases of work of “equal value.” Shortly stated, the question raised is whether a woman employed on work which is the same as that of one man but which is also of equal value with the work of another man, can claim equal pay with that other man where she is already being paid as much as the man engaged on the same work as herself. Both the industrial tribunal and the appeal tribunal have said no in answer to that question. We were told that there are many other claims before industrial tribunals awaiting the outcome of this appeal. [*74]

The five applicants, Mrs. Pickstone and four of her female colleagues, are employed by Freemans Plc., a mail order company, as “warehouse operatives.” They contend that their work is of equal value to that of a Mr. Phillips, who is employed by the employers as a “checker warehouse operative.” They are not paid as much as he is. So they made a complaint to the industrial tribunal, sitting at Cambridge. Before that tribunal the employers contended that men as well as women were employed as warehouse operatives, and paid equally, and that men and women were also employed as checker warehouse operatives. The employers submitted that in those circumstances it was not open to the applicants as warehouse operatives, paid equally with their male colleagues, to claim equality of pay with Mr. Phillips, a checker warehouse operative. Issue was joined before the industrial tribunal on that submission of law, without the facts being investigated and without any formal admission by the applicants that there are male employees doing like work to them. Thus, in effect, the industrial tribunal heard and decided a preliminary question of law on assumed facts.

The applicants base their claims on section 1(2)(c) of the Equal Pay Act 1970 and also on article 119 of the E.E.C. Treaty.

Equal Pay Act 1970

Section 1(1) of the Equal Pay Act 1970 implies an equality clause into every contract of employment of a woman which does not already include such a clause. The nature and effect of an equality clause are set out in section 1(2). An equality clause has a similar effect in each of the three circumstances specified in paragraphs (a), (b) and (c) of section 1(2). Accordingly, for convenience I will omit sub-paragraphs (i) and (ii) from paragraphs (b) and (c) when setting out the material parts of section 1(2), as follows:

“(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) … and (ii) … (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) … and (ii) …” [*75]

Like work under paragraph (a) means work of the same or of a broadly similar nature where any differences between what the woman does and what the man does are not of practical importance in relation to terms and conditions of employment. Work is only rated as equivalent under paragraph (b) if the woman’s and the man’s jobs have been rated as equivalent on a job evaluation study.

The employers’ argument, which was accepted by the industrial tribunal and the appeal tribunal, is straightforward. Paragraph (c), expressly and unambiguously, does not apply where the woman is employed on work to which either paragraph (a) or paragraph (b) applies. Paragraph (c) applies only where the woman is employed on work “not being work in relation to which paragraph (a) or (b) above applies.” Hence, it was submitted, if the woman is in fact employed on like work with a man (meaning any man) in the same employment, paragraph (a) applies to her case whether she likes it or not, and she is thereby excluded from the scope of paragraph (c). Likewise with paragraph (b).

The applicants’ argument is that the exclusionary words in paragraph (c) “not being” are ambiguous, and that one of the possible meanings of the word “applies” is applies in the sense that the woman is not employed on like work with, or on work rated as equivalent with that of, a man in the same employment with whom the woman is comparing herself. It is for the applicant to choose the man with whose work she wishes to compare hers: Ainsworth v. Glass Tubes & Components Ltd. [1977] I.C.R. 347, and Parliament, when adding paragraph (c) to section 1(2) in 1983, cannot have intended to go against that principle and compel a woman to compare herself with a man under paragraph (a). In the present case the applicants are doing what traditionally has been “women’s work” and they should be free to have recourse for comparison to other work of equal value to theirs.

In reply Mr. Carr submitted that this construction is untenable. The scheme of the section is to imply an equality clause into the woman’s contract, with immediate effect, viz., with effect from the inception of the woman’s contract. Where a woman is employed on like work with a man, paragraph (a) applies automatically, with the consequential, immediate deemed modification of the relevant term in the woman’s contract. Paragraph (a) applies in this way irrespective of whether any complaint is made to the industrial tribunal. Hence, if a complaint is made and is successful, the woman has a claim not merely for the future: she can claim arrears of remuneration or damages: section 2(1). But, continued Mr. Carr’s submission, Mr. Pannick’s construction is inconsistent with this, because on Mr. Pannick’s construction paragraph (a) would not apply (and, indeed, none of the paragraphs would apply) unless and until the woman selects a male comparable.

Argument was also addressed to us on the mischief which section 1(2)(c) was intended to cure. This requires a consideration of Community law, because it was in response to a decision of the European Court of Justice that section 1(2)(c) was added to the Equal Pay Act 1970.

Community law: article 119

The United Kingdom became a member of the European Economic Community on 1 January 1973, and the E.E.C. Treaty was introduced [*76] into English law by section 2 of the European Communities Act 1972. Article 119 is in these terms:

“Each member state shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. For the purpose of this article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment for his employer. Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job.”

This article had two objects. First, in the economic field, to avoid the situation in which undertakings established in states which had implemented the principle of equal pay would suffer a disadvantage in competition within the Community with undertakings established in states which had not then eliminated pay discrimination against women workers. Secondly, in the social field, “by common action, to ensure social progress and seek the constant improvement of the living and working conditions of [the member states] peoples:” see Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547, 565.

In 1975, concerned at the uneven progress being made by member states in implementation of article 119, the council of the European Communities adopted Council Directive (75/117/E.E.C.), which it will be convenient to call “the equal pay directive.” The material parts of that Directive read:

“The Council of the European Communities … Whereas implementation of the principle that men and women should receive equal pay contained in article 119 of the Treaty is an integral part of the establishment and functioning of the common market; Whereas it is primarily the responsibility of the member states to ensure the application of this principle by means of appropriate laws, regulations and administrative provisions; … Whereas differences continue to exist in the various member states despite the efforts made to apply the resolution of the conference of the member states of 30 December 1961 on equal pay for men and women and whereas, therefore, the national provisions should be approximated as regards application of the principle of equal pay has adopted this Directive;

“Article 1.

“The principle of equal pay for men and women outlined in article 119 of the Treaty, hereafter 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. In particular, where a job classification is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex. [*77]

“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.”

As authoritatively decided by the European Court of Justice, the first sentence of article 1 of the equal pay directive re-states the principle of equal pay set out in article 119 of the Treaty, but article 1 “in no way alters the content or scope of that principle as defined in the Treaty.” The main purpose of article 1 of the Directive was to facilitate the practical application of that principle: see Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972.

Thus, as re-stated in article 1 of the equal pay directive, the principle embodied in article 119 of the Treaty is that men and women should receive equal pay for equal work, viz., for the same work or for work to which equal value is attributed. What, so far, the European Court has not considered (indeed, we were referred to no decision of any court where the point has been considered) is the application of that principle in the case posed by the question stated at the beginning of this judgment. In the present proceedings the appeal tribunal decided, for a different reason to which I shall come, that Community law was not applicable, and did not express a view on what the position would be under Community law if it were applicable. The industrial tribunal were bolder: in their view the equal pay directive envisages that the first matter to be considered is “the same work”: “it is only if there is no same work that one goes to the alternative ‘work to which equal value is attributed’.”

In this court Mr. Pannick submitted that the principle of equal pay for equal work enunciated in article 119, as re-stated or clarified in article 1 of the equal pay directive, entitles men and women to equal pay for the same work and (likewise) to equal pay for work to which equal value is attributed. They are entitled to equal pay in both those instances, and their entitlement to equal pay for work of equal value is not dependent upon there being no person of the other sex currently engaged in the same work as the person making the claim. If there is a man, or if there are men, doing the same work but being paid no more than the woman, that will be evidence, whose weight will depend upon all the circumstances, that the payment of a higher wage to other men who are doing work which is different but of no greater value is due to a material factor other than the difference in sex.

The argument in favour of the narrower construction of article 119 is that it makes sense for recourse not to be had to the less precise and much more difficult yardstick of work of “equal value” when there is to [*78] hand the more precise and less controversial one of “same work.” The second limb of article 1 of the equal pay directive (work to which equal value is to be attributed), preceded as it is by the disjunctive “or,” is applicable only when the first limb (same work) is not in point. If the first limb is applicable, so that there is a man doing the same work as the woman, but the woman is entitled nonetheless to compare herself to another man and his work she would, as the industrial tribunal said in this case, “have wandered into the territory of job evaluation.” The principle of equal pay for men and women doing equal work is intended to avoid discrimination on the ground of sex, not to have effect on disputed differentials unrelated to sex. Moreover, the basis of the decision of the European Court in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578, 599, was that the United Kingdom had failed to take steps to provide a remedy in cases other than like work and work covered by voluntary job classification schemes: “equal value” was only needed as a supplement, a fall-back alternative.

In my view Mr. Pannick’s submission, in support of the first of these two interpretations of article 119, is correct. Article 119 enshrines a broad, general principle: equal pay for equal work. The equal pay directive makes clear that in this context equal work embraces work of equal value as well as work which is the same. I can see no justification for implying into this general principle, whereunder equal work includes both these categories, a rigid and inflexible limitation, to the effect that, although a woman is entitled to compare herself with a man doing work of equal value, she is only so entitled if and so long as no man is doing the same work as herself, and that whenever and for so long as there is a man doing the same work the woman cannot make that comparison, even if the difference in pay is attributable solely to grounds of sex. It makes the presence per se of one man doing the same work, which in some cases might be wholly fortuitous or even, possibly, a situation contrived by an unscrupulous employer, a decisive factor, regardless of all the other circumstances of the case.

Although this precise point has not been considered by the European Court, support for the broad approach I have adopted to the interpretation of article 119 can be obtained from the decision of the European Court in Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180. In that case a woman took up a post, after an interval of four months, which had been held by a man. She was paid a lower salary than he had been paid. She claimed to be entitled to the same salary as her predecessor. The European Court held, at p. 198, that the crucial question was whether there was a difference in treatment between a man and a woman performing “equal work” within article 119:

“11 … The scope of that concept, which is entirely qualitative in character in that it is exclusively concerned with the nature of the services in question, may not be restricted by the introduction of a requirement of contemporaneity. 12. It must be acknowledged, however, that, as the Employment Appeal Tribunal properly recognised, it cannot be ruled out that a difference in pay between two workers occupying the same post but at different periods in [*79] time may be explained by the operation of factors which are unconnected with any discrimination on grounds of sex. That is a question of fact which it is for the court or tribunal to decide.”

Thus “equal work” involves a comparison between the work (the nature of the services) performed by the woman and the work done by the man, and in making that comparison it is not essential that the man is still doing that work or that he was ever doing it at the same time as the woman. Absence of contemporaneity does not prevent the comparison being made, although such absence is material when considering, as a question of fact, whether the reason for the difference in pay is discrimination on grounds of sex. I do not see how this interpretation of article 119 permits of the conclusion that nonetheless contemporaneity is of the essence in relation to work of equal value, in that a woman is entitled to equality of pay with a man whose work is of equal value but only so long as contemporaneously there is no man doing the same work as herself.

Community law: direct applicability

Before us, although he was not prepared to accept Mr. Pannick’s interpretation of article 119 as correct, Mr. Carr concentrated most of his fire in a different direction. He submitted that, even if the applicants’ interpretation of article 119 were correct, the applicants could still not succeed with their alternative claim under article 119, because in equal value cases article 119 is not directly applicable and enforceable in this country. In adopting this approach Mr. Carr was following the same course as the appeal tribunal in the present proceedings, who applied the decision of this court in O’Brien v. Sim-Chem Ltd. [1980] 1 W.L.R. 734. So I turn next to the question of direct applicability.

It is now well established that, where article 119 of the Treaty applies directly to the facts of a case, without the need for more detailed implementing measures on the part of member states or of the Community, the law enacted in that article is binding on the English court, and the individual has the right to apply to the English court for relief: see, for example, O’Brien’s case, per Cumming-Bruce L.J. at p. 740.

Thus the question is: what are the circumstances in which article 119 does, or does not, apply directly? In Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547, 566-568, paragraphs 21-24, and 40, the European Court held that article 119 was directly applicable in cases where men and women receive unequal pay for equal work carried out in the same establishment or service, whether public or private. That was in 1976.

Subsequently, in O’Brien’s case this court held, in short, that equivalent work (in contrast to like work) was only brought within the scope of the equal pay principle in article 119 by article 1 of the equal pay directive, and that, accordingly, article 119 itself had no direct effect in respect of equivalent work. Nor did article 1 of the equal pay directive have direct effect, for it was addressed to the national legislatures for them to implement the equal pay provisions where the work was “equivalent” but not “like.” [*80] O’Brien’s case came before the Court of Appeal in 1979. Since then Community jurisprudence has moved on. The European Court has authoritatively clarified the effect of article 1 of the equal pay directive, and also the position regarding direct enforceability of rights under article 119, and I conceive that on these points of Community law it is the duty of this court to give effect to those later decisions of the European Court. In March 1981, as already mentioned, the European Court held that article 1 of the equal pay directive did not alter the content or scope of the principle of equal pay outlined in article 119: Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972. Earlier in the same month, in Worringham v. Lloyds Bank Ltd. (Case 69/80) [1981] 1 W.L.R. 950, the European Court had to consider whether article 119 of the Treaty or article 1 of the equal pay directive conferred enforceable Community rights upon individuals where contributions were made by an employer bank to two staff retirement benefit schemes, there being one scheme for men and another for women. The court held that the contributions paid by the employer in the name of the employee were “pay” within the meaning of article 119. Accordingly, no question arose regarding article 1 of the equal pay directive. On direct applicability the court said, at p. 969:

“23. As the court has stated in previous decisions (judgment of 8 April 1976, in Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547 and judgment of 27 March 1980, in Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180, article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question, without national or Community measures being required to define them with greater precision in order to permit of their application. Among the forms of discrimination which may be thus judicially identified, the court mentioned in particular cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private. In such a situation the court is in a position to establish all the facts enabling it to decide whether a woman receives less pay than a man engaged in the same work or work of equal value.” (Emphasis added.)

The court concluded, at p. 970:

“27. In this case the fact that contributions are paid by the employer solely in the name of men and not in the name of women engaged in the same work or work of equal value leads to unequal pay for men and women which the national court may directly establish with the aid of the pay components in question and the criteria laid down in article 119 of the Treaty. 28. For those reasons, the reply to the third question should be that article 119 of the Treaty may be relied upon before the national courts and that these courts have a duty to ensure the protection of the rights which this provision vests in individuals …” (emphasis added).

In my view that decision covers the present case. The five applicants and Mr. Phillips work in the same establishment, and I can see no [*81] relevant distinction between the banking employees in Worringham’s case and the applicants in the present case with regard to the ability of the court to determine, without further national or Community measures, whether a woman was or was not engaged in work of equal value.

Mr. Carr relied strongly on the decision of the European Court in July 1982 in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578. In deciding that the United Kingdom had failed to introduce into its legal system in implementation of the equal pay directive such measures as were necessary to enable employees to pursue a claim in respect of work of equal value where no job classification scheme existed, the court said, at p. 598:

“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.”

Mr. Carr submitted that that is inconsistent with equal value claims being directly enforceable by individuals. I agree that, read literally, this passage supports Mr. Carr’s submission, but I am not persuaded that the court’s conclusion regarding the United Kingdom’s breach of article 1 of the equal pay directive is inconsistent with the same court’s decision in Worringham’s case [1981] 1 W.L.R. 950 regarding the direct application of article 119. Even where the national legislation does no more than reproduce the Community right, explicit national legislation, with appropriate procedural rules and regulations, can have a practical usefulness for claimants and their advisers not possessed by a directly enforceable Community right which lacks that convenient clothing.

Conclusion on section 1(2)(c) of the Equal Pay Act 1970

I broke off from considering the construction of the exclusionary words in section 1(2)(c) “not being work” to look at Community law in order to identify the mischief which the introduction of paragraph (c) into section 1(2) of the Equal Pay Act 1970 was intended to cure. The mischief was the omission, save for the cases covered by paragraph (b), of any provision in the Act for equal pay in cases of work of equal value. The European Court expressed its conclusion in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578, 599:

“14. Accordingly, by failing to introduce into its national legal system in implementation of the provisions of [the equal pay directive] 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 obligation under the Treaty.”

Paragraph (c) was added to section 1(2) as Parliament’s legislative response to that decision. Moreover, the amendment to section 1(2) was made by means of a statutory instrument, Equal Pay (Amendment) [*82] Regulations 1983 (S.I. 1983 No. 1794), under a statutory power enabling provision to be made for the purpose of implementing any Community obligation of the United Kingdom: section 2(2) of the European Communities Act 1972. Thus the link between section 1(2)(c) and article 119 is indeed a close one.

If the view expressed above on the interpretation of article 119 is correct, and if the employers’ argument on the construction of section 1(2)(c) is correct, two consequences would seem to follow inescapably. The first is that section 1(2)(c) of the Equal Pay Act 1970 would, in part, have failed to remedy the mischief which it must be taken to have been intended to cure, in that the Act still would not provide a remedy in all cases of work of equal value: it would provide a remedy only in those cases where currently no man is engaged on the same work. The second consequence, having regard to the reasoning of the European Court in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578, would be that in this respect the United Kingdom would, apparently, have still not wholly fulfilled its obligations under the Treaty and the equal pay directive.

Needless to say, I am extremely reluctant to construe section 1(2)(c) in a way that would have these consequences. Nonetheless I have found the employers’ arguments on the meaning of the exclusionary words in section 1(2)(c) cogent to the extent that, indeed, I have found myself driven to the conclusion that those words are not ambiguous and are not fairly capable of the meaning submitted by Mr. Pannick. It would be incompatible with the scheme of an equality clause introduced by section 1 for the exclusionary words in paragraph (c) to have the meaning or effect submitted by Mr. Pannick. In my judgment, on the assumed facts, the applicants do not fall within section 1(2)(c).

There is one further point I should add here. It concerns section 2(4) of the European Communities Act 1972, the material part of which provides that “any enactment passed or to be passed … shall be construed and have effect subject to the foregoing provisions of this section.” The foregoing provisions of section 2 include a provision, in section 2(1), that all such rights and obligations created or arising by or under the Treaties, and all such remedies provided for by or under the Treaties, as in accordance with the Treaties, are without further enactment to be given legal effect in the United Kingdom shall be recognised and available in law, and be enforced accordingly.

Garland v. British Rail Engineering Ltd. [1983] 2 A.C. 751, 771, Lord Diplock mentioned, and left open, the possibility that,

“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 1 January 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 [*83] language of the provision might be needed in order to achieve consistency.”

In the present case no argument was addressed to us on this point, it being common ground in counsel’s submissions that Community law was material on the construction of section 1(2)(c) only if what I have called the exclusionary words in section 1(2)(c) are ambiguous.

Had this section 2(4) point been likely to affect the outcome of the present appeal, I apprehend that it would have been necessary, before delivering judgment, to have invited the parties to consider whether they wished to return to the court to make submissions on this point. However, as at present advised, I do not think this point would assist either party. To construe the exclusionary words in section 1(2)(c) as having the meaning I have stated above does not encroach upon any directly enforceable rights which women (or men) have under article 119. There is nothing in the Equal Pay Act 1970 which expressly or impliedly negatives, or purports to negative, any such Community rights. Those rights remain enforceable in the English court. In that respect this construction of section 1(2)(c) is not in conflict with article 119.

Where, on this construction of section 1(2)(c) of the Equal Pay Act 1970, there is a conflict is that the effect of the exclusionary words is to limit the ambit of section 1(2)(c) in such a way that the section does not cover all the cases which, in accordance with article 119, it should cover. Section 1(2)(c) fails to confer a statutory right on all employees endowed with equal pay rights under article 119. But, given that the exclusionary words are unambiguous and are not reasonably capable of the meaning which would carry out the United Kingdom’s treaty obligations in this field, for my part, as at present advised, I have great difficulty in seeing how the effect of section 2(4) of the European Communities Act 1972 in such a case can be to require the English court, nevertheless, to ascribe some other, artificial meaning to those words.

Overall conclusion

It remains for me to note that Mr. Pannick submitted that if he was wrong on the construction of the Equal Pay Act 1970, so that the appeal falls to be determined according to the meaning and effect of article 119, this court should seek rulings from the European Court on the relevant questions. In my view, in the exercise of its discretion this court should not accede to that submission. The position under Community law on both the material points is sufficiently clear for it to be appropriate for this court to deal with both these points (as it happens, in favour of Mr. Pannick’s clients) without any reference to the European Court.

Accordingly, for the reasons given, for my part I would allow the appeal and direct that these applications proceed in front of the industrial tribunal on the footing that under article 119, although not under section 1(2)(c) of the Equal Pay Act 1970, a woman employed on work which is the same as that of one man but which is also of equal value with the work of another man is not debarred from claiming equal pay with that other man by reason of the fact that she is already being paid as much as the man engaged on the same work as herself. In [*84] determining whether the work of these applicants is of equal value to that of the checker warehouse operatives, and in determining whether (to adopt and adapt the language of the European Court in Macarthys’ case [1981] Q.B. 180, 198) the difference in pay between the warehouse operatives and the checker warehouse operatives is explicable by the operation of factors which are unconnected with any discrimination on grounds of sex, the industrial tribunal should give such weight to the factor that there is a man, or there are men, doing the same work as the applicants and being paid no more, as is appropriate having regard to all the circumstances. These are determinations of fact.

PURCHAS L.J. The history of events against which this matter comes before the court and the relevant United Kingdom statutory provisions have been described in the judgment of Nicholls L.J. and need not be repeated in this judgment except where necessary for ease of reference. The Equal Pay Act 1970 received the Royal Assent on 29 May 1970 but did not come into force until 29 December 1975, thus allowing a period of time for employers to bring their contractual arrangements into line. Section 1 was passed:

“with a view to securing that employers give equal treatment as regards terms and conditions of employment to men and to women … (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.”

These provisions, as enacted, never came into force. The Act of 1970 was amended and re-enacted in Schedule 1 to the Sex Discrimination Act 1975; the terms of the amended Act have already been set out in the judgment of Nicholls L.J. The Act from the outset envisaged two criteria: “like work” and “equivalent work.”

There is no clue as to whether the rights in respect of “like work” and “equivalent work” were to be mutually exclusive or accumulative. This may have been because Parliament did not advert to the somewhat sophisticated mischief adumbrated by Mr. Pannick. I am not aware of any evidence of a compliant male actually having been put to “low paid woman’s work” to avoid a claim for “equal pay” for “equivalent work.” However, the possibility cannot be ignored. The simple approach might well have been that the presence of a male doing the same or like work would provide the best means of comparison without the necessity of resorting to a more remote comparison with someone doing equivalent work. Nor is any further light thrown on this problem by the amendments to section 1 of the Act of 1970 introduced by the Act of 1975. It was not until an amendment to section 1 of the Act of 1970 effected by the Equal Pay (Amendment) Regulations 1983 added a further paragraph that the concept of mutual exclusivity appeared. I must return to this later. [*85] To complete the statutory history the European Communities Act 1972 received the Royal Assent on 17 October 1972. Section 2, in its relevant parts, provided:

“(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties … are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law (2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated minister or department may by regulations, make provision – (a) for the purpose of implementing any Community obligation of the United Kingdom, 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; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above; and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the Communities and to any such obligation or rights as aforesaid. … (4) The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; …” (emphasis provided).

Schedule 2 restricted the powers to make orders conferred by section 2(2) in respects which might well be thought to justify full legislative treatment such as imposing or increasing taxation, making orders with retrospective effect or creating by order new criminal offences. The power, therefore, to make statutory orders under section 2(2) was clearly defined and limited.

The Equal Pay Act 1970 as originally amended by the Sex Discrimination Act 1975 contained only provisions in relation to section 1(2) “(a) where the woman is employed on like work with a man in the same employment” and (b) where the woman is employed on work rated as equivalent with that of a man in the same employment.” Each paragraph contained sub-paragraphs in precisely equivalent terms providing for the modification of the appropriate term in the woman’s contract or the inclusion of a term otherwise omitted in that contract. It is significant, however, that section 1(2)(b) did not include, and still does not include, any express restriction upon resorting to this paragraph if section 1(2)(a) is also available (contrast section 1(2)(c) below).

It is convenient at this stage to set out again the material parts of article 119 of the E.E.C. Treaty:

“Each member state shall … maintain the application of the principle that men and women should receive equal pay for equal [*86] work. For the purposes of this article, ‘pay’ means the ordinary basic or minimum wage … and any other consideration, whether in cash or in kind … directly or indirectly …” (emphasis provided).

and Council Directive (75/117/E.E.C.) which was adopted in 1975 by the Council of European Communities, who were anxious about the inertia being shown by some member countries in implementing article 119:

“Whereas implementation of the principle that men and women should receive equal pay contained in article 119 is an integral part of the establishment and functioning of the common market; …”

“Article 1

“The principle of equal pay for men and women outlined in article 119 of the Treaty, hereafter called ‘principle of equal pay,’ means, for the same work or for work to which equal value is attributed, the elimination of discrimination …”

It is now established that the Directive merely explains and defines article 119 and does not have any legislative force of its own: Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972.

In view of the failure (referred to below) of Mr. Pannick to demonstrate a viable alternative construction to the words “not being work … applies” in section 1(2)(c) of the Act of 1970 to support a submission of ambiguity, it is not necessary to consider article 119 as an aid to construction of the Act of 1970. The matter cannot, however, be concluded without recourse to Community law. It is necessary to consider the question of the direct enforceability of article 119 in the domestic courts of the U.K. in the following respects: (1) What is the statutory status of the amendment effected by the Regulations of 1983? (2) Does article 119 recognise any distinction between equal pay for equal work as defined by the Directive as meaning “the same work” or “work to which equal value is attributed” in the sense that the two concepts are mutually exclusive or are to be given an optional or accumulative effect? (3) Whether and to what extent article 119 is considered to give rise to personal rights enforceable in the courts of the United Kingdom?

Statutory status of section 1(2)(c) of Equal Pay Act 1970

As a result of the reference by the Commission of the European Communities to the European Court in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578, it was held by the court that the Act of 1970, with section 1(2)(a) and (b) as amended by the Act of 1975, did not comply with article 119 in the sense that it did not enable all employees who considered 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 have recourse to the courts: see p. 599. The decision established: (1) that under article 119 the words “equal pay for equal work” meant equal pay “for like work or for work to which equal value is attributed”; and [*87] (2) that section 1(2)(b) of the Act of 1970 did not satisfy article 119 because a job valuation scheme could only be put into effect if the employer chose to organise one. This did not comply with article 2 of the equal pay directive which provides:

“Member states shall introduce into their national legal system 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 …”

In the submissions, questions and advice of the Advocate General, no consideration was given to the relationship between the two branches of the definition of equal pay for equal work identified in article 1 of the Directive. Of course, section 1(2)(b) was not said to be mutually exclusive with section 1(2)(a) of the Act of 1970. To comply with the decision of the European Court the Equal Pay (Amendment) Regulations 1983 were made under the powers granted by section 2(2) of the European Communities Act 1972. In order to remedy the defect identified in section 1(2) of the Act of 1970 a further paragraph (c) was added:

“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” (emphasis provided).

Paragraph (c) was clearly modelled on paragraphs (a) and (b), with the additional words specifically providing that the relief under the new paragraph – and the relief afforded by paragraphs (a) and (b) – should be mutually exclusive. These words have, of course, been central to this appeal. The fact that Parliament saw fit to include them in section 1(2)(c) but did not amend the existing section 1(2)(b) by adding similar words of exclusion in line with the new paragraph, must, I would have thought, raise a question to say the least. Moreover, one might be forgiven for wondering what would have been the attitude of the European Court if the words of exclusion had appeared in section 1(2)(b) at the time of their decision in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland in July 1982.

Mr. Pannick, who appears for the applicants, has submitted that, notwithstanding the inclusion of section 1(2)(c) under the statutory order, the United Kingdom legislation does not yet comply with article 119 and the Directive. The critical words are: “not being work in relation to which paragraph (a) or (b) above applies.” I agree with Nicholls L.J. that Mr. Pannick’s primary submission, namely, that there is an ambiguity in the application and effect of these words, cannot succeed. I am firmly of the view that paragraph (c), read in its ordinary sense, is plain and contains no ambiguity. The qualification “not being work in relation to which paragraphs (a) and (b) above applies” relates to the work on which the woman is employed and its relationship with [*88] work falling within (a) or (b) and cannot relate, as Mr. Pannick submits, to the man with whom the woman at her election choses to be compared. There is nothing which I would wish to add to what has fallen from Nicholls L.J. on this aspect of the case. However, as has already been stated, the matter does not end there.

If the expression “equal work” in article 119, as elucidated by article 1 of the Directive, is shown to embrace two separate comparisons, namely, “same work” and “work of equivalent value,” there are difficulties in the construction of section 1(2)(c) otherwise demanded by the plain language of the statute. The words excluding paragraphs (a) and (b) included in paragraph (c) would appear to go beyond the delegated powers under which the Regulations of 1983 were made. The powers are restricted generally to “the implementation” of the Treaty as set out in section 2(2) of the European Communities Act 1972 already cited. Moreover, on a strict interpretation, the question may well be asked – Why “work of equivalent value” should not be available for the identification of discrimination merely because there exists the same or similar work available for comparison, when no such restriction applies to “work rated as equivalent” under subsection (b).

To date, so far as I know, consideration of section 1(2) of the Act of 1970 by the European Court has been without any argument that the provisions relating to “like work” and “work rated as equivalent” are mutually exclusive rather than optional or cumulative. By the introduction of the limiting words now included in paragraph (c) and the possibility, however remote, of their incorporation by necessary inference in paragraph (b), the minister in making the Regulations of 1983 may have failed to achieve compliance with article 119 as Mr. Pannick suggests. This submission has, in my judgment, considerable force and is supported by the further possibility that the new paragraph (c) is without the statutory powers granted by section 1(2) of the Act of 1972. However, as the latter point was not argued before us, I approach it with considerable reservation.

Article 119

In considering the true construction of this article in the light of the judgments of the European Court, I bear in mind, on the one hand, the judgment of Lord Denning M.R. in H. P. Bulmer Ltd. v. J. Bollinger S.A. [1974] Ch. 401 to which Mr. Pannick drew our attention and, on the other hand, the discretionary power we have, where necessary, to resolve questions of doubt, to refer the matter to the European Court under article 177 and R.S.C., Ord. 114. Lord Denning M.R. emphasised the importance of avoiding overloading the European Court and gave guidelines to construction for the English courts. As I read the position, it is this. If it is possible to detect a clear general approach to a particular question of construction from the judgments of the European Court, then a domestic court, not being “a final court” within article 177, should not exercise its discretion to refer to the European Court, but should attempt to construe the article in question, within the guidelines in Bulmer’s case. [*89] Article 119 has been considered in a number of cases by the European Court. A convenient starting point is Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547. The distinction between “like work” and “work of equivalent value” did not arise. The terms of service for the steward and stewardess were the same. The question of direct enforceability did arise, however, and it is convenient to refer to this at this stage. It was part of the United Kingdom Government’s case that article 119 was not directly enforceable, at p. 553:

“(c) The need for legislative action on the part of the member states appears from the formulation of the obligation imposed on them by article 119 in the form of a general statement of principle. Directive (75/117/E.E.C.) acknowledged this need; in article 8 it requires member states to put into force the legislation necessary to comply with the Directive within one year of its notification and thus to ensure the application of the general principle contained in article 119. In the absence of such national implementing legislation an obligation of the kind contained in article 119 is incomplete and cannot properly be completed by interpretative judicial decisions.”

In answer to questions posed by the court, at p. 562, there is no suggestion of mutual exclusivity:

“In the private sector the Equal Pay Act 1970 provided for the abolition of all discrimination in collective agreements by the end of 1975. It gives the right to equal pay to women employed on work of the same or a broadly similar nature as men, as well as to women employed on work which, although different from that carried out by men, has been given an ‘equal value’ under a system of classification of duties (‘job evaluation’).”

In the judgment of the court the following paragraphs are relevant, at pp. 566-567, 568:

“18. For the purposes of the implementation of these provisions a distinction must be drawn within the whole area of application of article 119 between, first, direct and overt discrimination which may be identified solely with the aid of the criteria based on equal work and equal pay referred to by the article in question and, secondly, indirect and disguised discrimination which can only be identified by reference to more explicit implementing provisions of a community or national character” (emphasis provided). “19. It is impossible not to recognise that the complete implementation of the aim pursued by article 119, by means of the elimination of all discrimination, direct or indirect, between men and women workers, not only as regards individual undertakings but also entire branches of industry and even of the economic system as a whole, may in certain cases involve the elaboration of criteria whose implementation necessitates the taking of appropriate measures at community and national level. … 21. Among the forms of direct discrimination which may be identified solely by reference to the criteria laid down by article 119 must be included in particular those which have their origin in legislative provisions or in collective labour agreements and which [*90] may be detected on the basis of a purely legal analysis of the situation. 22. This applies even more in cases where men and women receive unequal pay for equal work carried out in the same establishment or service, whether public or private. 23. As is shown by the very findings of the judgment making the reference, in such a situation the court is in a position to establish all the facts which enable it to decide whether a woman worker is receiving lower pay than a male worker performing the same tasks. … 40. The reply to the first question must therefore be that the principle of equal pay contained in article 119 may be relied upon before the national courts and that these courts have a duty to ensure the protection of the rights which this provision vests in individuals, in particular as regards those types of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether private or public.”

I have set out Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547 at some length because the European Court referred back to this judgment in a number of subsequent judgments and because it is the fons et origo of the expression “direct and overt discrimination” which formed a main plank of Mr. Carr’s submissions to which I shall return subsequently.

For my part I do not see that the reference to what has been compendiously referred to as “indirect discrimination” in Defrenne v. Sabena is a mandate for distinguishing cases in which it can clearly be established that “unequal pay” is received for “like work” from those cases in which “unequal pay” is received for “work of equivalent value,” provided that the “equivalence” of the work can be identified without reference to “more explicit implementing provisions of a community or national character.” Applying the decision in Defrenne v. Sabena in the light of the submissions and answers given by the United Kingdom, I would be prepared to construe article 119, as explained by the Directive as affording a relief to a person who is receiving “unequal pay,” either for the same work or for work of equivalent value, and that the two concepts are not mutually exclusive but are integral parts of the same concept.

Direct enforceability

In general, therefore, I agree with Mr. Pannick when he submits that article 119 is directly enforceable. Mr. Pannick further submits, however that any distinction which had been based upon the contention that article 1 of the Directive of 1975 was not so enforceable, was misconceived because article 119 was not extended by the Directive which merely explained it. On this basis Mr. Pannick submitted that discrimination described as indirect or hidden was no less within article 119 and, therefore, directly enforceable.

Mr. Carr submitted, on the other hand, that, if article 119 embraced claims based upon work of equal value, as well as like work, then by enacting section 2(1) of the Act of 1972 the United Kingdom would [*91] have complied with the article and that, therefore, the decision in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578 should not have gone against the United Kingdom. The force of this argument is somewhat diluted because this was not the case proposed on behalf of the United Kingdom at that time. Mr. Pannick said that the decision of the European Court on this aspect must be taken as per incuriam if there is any force in Mr. Carr’s submissions.

It was Mr. Carr’s main submission that, in order to succeed on the direct enforceability point, Mr. Pannick had to allege that his claim fell within what has been described in some of the cases as the “direct discrimination category.” He relied on paragraphs 9 and 10 of the decision in Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180, 198:

“9. According to the first paragraph of article 119 the member states are obliged to ensure and maintain ‘the application of the principle that men and women should receive equal pay for equal work.’ 10. As the court indicated in Defrenne v. Sabena [1976] I.C.R. 547, that provision applies directly, and without the need for more detailed implementing measures on the part of the Community or the member states, to all forms of direct and overt discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question. Among the forms of discrimination which may be thus judicially identified, the court mentioned in particular cases where men and women receive unequal pay for equal work carried out in the same establishment or service.”

Mr. Carr also relied upon Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972, the judgment delivered by the European Court, at pp. 977, 983:

“Finally, as to the question of the direct effect of article 119 and article 1 of the Council Directive (75/117/E.E.C.), it may be recalled that, as the court held in its decision of 8 April 1976, in Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547, these provisions are directly applicable to all forms of direct and overt discrimination which may be identified solely with the aid of the criteria of equal work and equal pay, including unequal pay for equal work carried out in the same establishment or service. … Although ‘adverse impact’ is defined in the legislation of the United Kingdom as ‘indirect discrimination,’ it should not be confused with the ‘indirect and disguised discrimination’ which has been described by the court as falling outside the scope of the direct application of article 119. Here, ‘indirect discrimination’ is used in such a manner as to exclude any practice which, although not founded on any discriminatory motives, nevertheless has a discriminatory effect, and not as meaning discrimination which can only be suppressed by national or Community legislative measures more detailed than the provisions referred to above. … [*92]

“Fourth question

“16. In the fourth and last question, the national court asks whether the provisions of article 119 of the Treaty are directly applicable in the circumstances of this case. 17. As the court has stated in previous decisions (judgment 8 April 1976, in Defrenne v. Sabena [1976] I.C.R. 547; judgment of 27 March 1980, in Macarthys Ltd. v. Smith [1981] Q.B. 180 and judgment of 11 March 1981, in Worringham v. Lloyds Bank Ltd. [1981] 1 W.L.R. 950), article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of criteria of equal work and equal pay referred to by the article in question, without national or Community measures being required to define them with greater precision in order to permit of their application. Among the forms of discrimination which may be thus judicially identified, the court mentioned in particular cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private.”

In particular Mr. Carr relied upon the decision of this court in O’Brien v. Sim-Chem Ltd. [1980] 1 W.L.R. 734. Here the court distinguished between equal work and equivalent work: see the judgment of Cumming-Bruce L.J., at pp. 747-748:

“I am satisfied that the Directive is what it professes to be, i.e. a directive to governments to take national measures to approximate their laws in order to give effect to the new criteria expressed in article 1 of the Directive. The discrimination identified by the application of the criterion in that article is not directly applicable in national courts until it is implemented in national legislation. Paragraph 68 of the judgment in the Defrenne case [1976] I.C.R. 547, 571, makes it necessary to make one qualification of that conclusion: ‘Even in the areas in which article 119 has no direct effect, that provision cannot be interpreted as reserving to the national legislature exclusive power to implement the principle of equal pay since, to the extent to which such implementation is necessary, it may be relieved by a combination of Community and national measures.’ In my view this paragraph contemplates the combination of Community and national measures and affirms the jurisdiction to decide whether national measures comply with the Treaty and with relevant Directives, even if such Directives are not directly applicable.”

The judgments in O’Brien v. Sim-Chem Ltd. were, of course, delivered before the ruling of the European Court in Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972. In so far as the court’s attention in O’Brien’s case was paid to the direct enforceability of article 1 of the Directive, the judgments have been overtaken by the subsequent decisions of the European Court in 1981: Jenkin’s case and Worringham v. Lloyds Bank Ltd. (Case 96/80) [1981] 1 W.L.R. 950. In the latter case the applicants contended, inter alia, (a) that the exclusion of retirement benefit schemes from the Acts of 1970 [*93] and 1975 was incompatible with Community law; (b) that the deficiencies in the treatment by the bank of men and women in the bank’s retirement benefit scheme was “a form of direct and overt discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to in article 119:” see p. 956B. The bank’s reply emphasised that the benefits were not considerations paid directly or indirectly by the employer, but were received from the trustees of the pension fund and that the assessment of terms in such a scheme to achieve fairness between men and women was an extremely complex one. On this basis it was submitted that, if there was discrimination, it could not be described as “direct or overt.” This argument was repeated by the United Kingdom at p. 963A-B. The judgment of the court, at p. 969 included the following:

“21. Moreover, Directive (75/117/E.E.C.), whose objective is, as follows from the first recital of the preamble thereto, to lay down the conditions necessary for the implementation of the principle that men and women should receive equal pay, is based on the concept of ‘pay’ as defined in the second paragraph of article 119 of the Treaty. Although article 1 of the Directive explains that the concept of ‘same work’ contained in the first paragraph of article 119 of the Treaty includes cases of ‘work to which equal value is attributed,’ it in no way affects the concept of ‘pay’ contained in the second paragraph of article 119 but refers by implication to that concept.

“The third question

“22. The national court asks further in its third question whether, of the answer to question 1 is in the affirmative, ‘article 119 of the E.E.C. Treaty … [has] direct effect in the member states so as to confer enforceable Community rights upon individuals in the circumstances of the present case.’ 23. As the court has stated in previous decisions (judgment of 8 April 1976, in Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547 and judgment of 27 March 1980, in Macarthys Ltd. v. Smith (Case 129/79) [1981] Q.B. 180), article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question, without national or Community measures being required to define them with greater precision in order to permit of their application. Among the forms of discrimination which may be thus judicially identified, the court mentioned in particular cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private. In such a situation the court is in a position to establish all the facts enabling it to decide whether a woman receives less pay than a man engaged in the same work or work of equal value.”

Finally, I wish to refer to Garland v. British Rail Engineering Ltd. [1983] 2 A.C. 751. This case involved post-retirement travel concessions which were non-contractual given to railway employees. The concession given to men included their spouses and children. Those given to the [*94] women were personal to them only. The following questions were asked of the European Court, at p. 920. Was the discrimination:

“1 … contrary to (a) article 119 of the E.E.C. Treaty? (b) article 1 of the Council Directive (75/117/E.E.C.)? … 2. If the answer … is affirmative, is article 119 or either of the said Directives directly applicable … so as to confer enforceable … rights …?

The United Kingdom denied that article 119 would be directly enforceable asserting that national or Community measures would be required to achieve precision and relied upon paragraph 17 of the judgment in Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972. This contention was not supported by the Advocate General. Paragraphs 13, 14 and 15 of the decision read, at pp. 931-932:

“Question 2

“13. Since question 1(a) has been answered in the affirmative the question arises of the direct applicability of article 119 in the member states and of the rights which individuals may invoke on that basis before national courts.

“14. In paragraph 17 of its judgment of 31 March 1981, in Jenkins v. Kingsgate (Clothing Productions) Ltd. (Case 96/80) [1981] 1 W.L.R. 972 the court stated that article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question, without national or Community measures being required to define them with greater precision in order to permit of their application.

“15. Where a national court is able, using the criteria of equal work and equal pay, without the operation of Community or national measures, to establish that the grant of special transport facilities solely to retired male employees represents discrimination based on difference of sex, the provisions of article 119 of the Treaty apply directly to such a situation.”

Some assistance in deciding the approach to be adopted by the domestic court in the presence of an apparent conflict between domestic and Community law is to be found in the speech of Lord Diplock in Garland’s case after it had returned from the European Court, at p. 935:

“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 1 January 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 [*95] consistency. For, in the instant case the words of section 6(4) of the Sex Discrimination Act 1975 that fall to be construed, ‘provision in relation to … retirement,’ without any undue straining of the ordinary meaning of the language used, are capable of bearing either the narrow meaning accepted by the Employment Appeal Tribunal or the wider meaning preferred by the Court of Appeal but acknowledged by that court to be largely a matter of first impression. Had the attention of the court been drawn to article 119 of the E.E.C. Treaty and the judgment of the European Court of Justice in Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547, I have no doubt that, consistently with statements made by Lord Denning M.R. in previous cases, they would have construed section 6(4) so as not to make it inconsistent with article 119.”

In my judgment the decisions of the European Court demonstrate a clear pattern of development as regards the direct enforceability of article 119 as follows. (1) The expression “equal pay for equal work” is to receive a broad interpretation. “Pay” is given a very wide definition in article 119 itself. It would be inconsistent if work were not treated similarly. (2) Article 1 of Council Directive (75/117/E.E.C.) merely confirms that the expression “equal work” shall have an equally wide interpretation that is not only “same work” but also “work to which equal value is attributed.” (3) The sense of (1) and (2) cannot be said to support the contention that “same work” must always exclude “work to which equal value is attributed” in choosing the most appropriate route by which to arrive at “equal work.” (4) The expression in Defrenne v. Sabena (Case 43/75) [1976] I.C.R. 547, 566D, “direct and overt discrimination which may be identified solely with the aid of criteria based on equal work and equal pay” has been followed through the cases and remains the touchstone of direct enforceability. Attempts to limit its range by equating “equal work and equal pay” to “same work and equal pay” have invariably been rejected and in any event ignore the effect of article 1 of the directive in defining “equal work and equal pay.” (5) That the words used to describe the second type of discrimination “indirect and disguised” mean what they say, namely, that without reference to more explicit implementing provisions the discrimination cannot be identified. Paragraph 19 of the judgment in Defrenne v. Sabena instances the sort of situation envisaged. (6) That a discrimination which appears on the face of a direct comparison demonstrates unequal pay for one type of work and another type of work to which equal value is attributed at the same place of employment must fall within the first rather than the second type of discrimination and would, therefore, be directly enforceable.

Conclusion

Regrettably, in my judgment Mr. Pannick’s submission that section 1(2)(c), whilst it contains unqualified words excluding section 1(2)(a) and (b), is inconsistent with rights that are directly enforceable in the United Kingdom courts under Community law is made out. There is clear authority that in a case of conflict Community law must prevail. [*96]

Two courses are open to the court: (1) to refer two questions to the European Court asking (a) Does section 1(2)(c) comply with article 119? (b) Is article 119 directly enforceable in the United Kingdom courts in cases where the discrimination arises in cases of unequal pay for work to which an equivalent value is attributed? (2) To construe section 1(2) of the Act of 1970 so as to conform with the principles of article 119 by inserting the words necessary to achieve a result that is not inconsistent with Community law as I understand it. This involves an otherwise unjustifiable qualification of what are in fact clear words. As I understand the effect of Community law, it embraces the requirement that, in order to identify discrimination, the domestic court must be able to call upon the best method of arriving at a standard of “equal work” whether by comparing the work under review with “the same work” or “work to which equal value is attributed.” This must be at the election of the domestic court, in this case the industrial tribunal. The choice method of determining “equal work” within the meaning of article 119 cannot, in my judgment, be either at the hands of the employer or the employee since that would encourage “comparison shopping” by either or both. This cannot have been the intention of the article. Although this course has obvious advantages, both from a social and also an industrial point of view, it is more difficult to find a satisfactory statutory justification. There is a possible approach. This is to assume: (a) that the draftsman of the Regulations of 1983 did not exceed the powers under which the regulations were drawn under section 2(2)(a) of the Act of 1972; and (b) to construe and give effect to the regulations in accordance with section 2(4) of that Act and article 119. This could be achieved by amending the relevant part of section 1(2)(c) to read: “… not being work which can more fairly be compared under paragraphs (a) or (b) above.”

Since under article 117 reference to the European Court is discretionary so far as this court is concerned, and in view of the firm conclusion I have reached with regard to the state of Community law, I would favour the second of the two courses. Therefore I agree with the order proposed by Nicholls L.J.

SIR ROUALEYN CUMMING-BRUCE. I have had the advantage of reading in draft the judgments now delivered by Purchas L.J. and Nicholls L.J. and can state my own views very concisely.

As a matter of construction, I reject Mr. Pannick’s submission that the words of section 1(2)(c) of the Act of 1970 are ambiguous. On their ordinary meaning the words “not being work in relation to which paragraph (a) or (b) above applies” are plain and unambiguous, even though for the reasons stated by Purchas L.J. they may appear to go beyond the delegated powers under which the Regulations of 1983 were made. So the applicants’ case fails on the construction of the English legislation.

Article 119 of the Treaty, as explained by Council Directive (75/117/E.E.C.), gives an applicant the right to claim that he or she is entitled to equal pay when engaged under a contract of employment which imposes on the employee the obligation to do work of equal value [*97] to the work of any other employee of the opposite sex in the same establishment. It is for the industrial tribunal to decide the questions of fact relevant to the applicant’s claim. Article 119 does not exclude such comparison on the ground that an employee of the opposite sex is engaged on the same or like work on the same remuneration as the applicant. An equal value claim and comparison are not dependent on the situation relevant to persons doing the same or like work, though the facts regarding same work or like work cases may be material evidence for consideration by the industrial tribunal, subject to the usual factors relevant to the weight of such evidence.

The judgments of the European Court, to which Purchas and Nicholls L.JJ. have referred, point clearly enough to the conclusion that the equal pay rights established by article 119 as explained in the directive are directly enforceable in a national court in a case where the national legislation is such as to restrict the rights conferred on employees by article 119. This is sufficiently clear to justify this court so holding even though the particular issue of comparison of section 1(2)(c) of the Act of 1970 with the rights conferred by article 119 has not yet been resolved by the European Court.

The conclusion, which in my view is likely to involve formidable problems of industrial and commercial convenience, must be that the European remedy is available to the applicant to the industrial tribunal even though there can be no remedy available under national legislation.

For those reasons the appeal should be allowed, and the case sent back for determination by the industrial tribunal in the light of this judgment.

Appeal allowed with costs.

Matter remitted to industrial tribunal for further determination.

Leave to appeal.

Appeal from the Court of Appeal.

[*109] Their Lordships took time for consideration.

30 June. 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) 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 [*110] Kingdom Government to implement article 119 of the E.E.C. Treaty, 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 10 February 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 of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] 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) 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, and any designated Minister or department may by regulations, make provision – (a) for the purpose of implementing any Community obligation of the United Kingdom, 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; …”

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 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 [*111] 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 Acas.

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 1(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.

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, [*112] and had not given full effect to the decision of the European Court in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [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 employers’ 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.

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 1(2)(c) of the Equal Pay Act 1970 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 [*113 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 respondents and in favour of Mr. Phillips. The employers’ argument is based on the fact that it so happens that one of the employers’ 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 Appeal 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. [*114] 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:

“(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 E.E.C. 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.

Article 119 of the E.E.C. Treaty directs:

“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 [*115] 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 (Case 43/75) [1976] I.C.R. 547 the European Court of Justice confirmed this logic in the following paragraphs of their ruling, dealing with the direct effect of article 119, at p. 565:

“8. Article 119 pursues a double aim. 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 a 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 …” [*116]

Section 1(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 1(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 difference other than 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:

“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 Appeal 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 [*117] 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 1(2)(b) and section 1(5) a woman employed on work of 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 of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578, the Commission applied to the European Court of Justice for a declaration that the United Kingdom had failed to fulfill 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 evaluation 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, paragraph 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, paragraph 11, that the United Kingdom had not adopted the measures necessary to comply with the Equal Pay Directive because “there is at present no [*118] 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 of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578. The Secretary of State for Employment further amended the Act of 1970 by the Equal Pay (Amendment) Regulations 1983 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.

Section 1(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 1(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 of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 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 1(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 1(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 1(2)(c) above the tribunal shall not determine that question unless – (a) it is satisfied [*119] that there are no reasonable grounds for determining that the work is of equal value as so mentioned; or (b) 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 1(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 (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 1(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 paragraph (a) or (b) only debars a claim [*120] under paragraph (c) where paragraph (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.

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 paragraph (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 [*121] with whom she claims equality.” This construction is consistent with Community law. The employers’ 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 woman. Under the ruling of the European Court of Justice in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] I.C.R. 578, the Equal Pay Act 1970 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 Murphy v. Bord Telecom Eireann (Case 157/86) [1988] I.C.R. 445, 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. 449, paragraph 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 [*122] 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 Hansard, column 479 et seq. said:

“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 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 [*123] 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] E.C.R. 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.”

In Duke v. Reliance Systems Ltd. [1988] A.C. 618 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 E.E.C. 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 E.E.C. Treaty 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 [*124] 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 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 are 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 1(2)(c) of the Act of 1970 (see Industrial Tribunals (Rules of Procedure) Regulations 1985, 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 Appeal 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 of Great Britain and [*125] Northern Ireland (Case 61/81) [1982] I.C.R. 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 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 a 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. [*126]

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 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 E.E.C. Treaty falls into 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 obligation of the United Kingdom” and “for the purpose of dealing with matters arising out of or related to any such obligation.” 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 1(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 [*127] 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 1(2)(c) is necessary to achieve that purpose. In Garland v. British Rail Engineering Ltd. [1983] 2 A.C. 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 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 a 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 [*128] 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 paragraph (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 1(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 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.

Appeal dismissed with costs.