Macarthys Ltd v Smith [1979] 3 All ER 325
LORD DENNING MR: Macarthys Ltd are wholesale dealers in pharmaceutical products. They have warehouses in which they keep the goods and send them out to retailers. Each warehouse is divided into four departments. One of these is the stockroom. In 1974 the manager of the stockroom was a man named McCullough. He left on 20 October 1975. For four months the post was not filled. But on 1 March 1976 a woman [Mrs Smith] was appointed to be manageress of the stockroom.... Her duties were not quite the same as those of Mr McCullough. For instance she did not know anything about the maintenance of vehicles whereas he did: but he had assistants to help him whereas she did not. The tribunal found that her work was of equal value to his. They said: "whilst it cannot be said that [Mrs Smith's] work was the same as that of Mr McCullough, it was of a broadly similar nature and we do not think that the differences between the work of [Mrs Smith] and Mr McCullough were practical differences to warrant the terms and conditions of the contract being any different. We accordingly find that [Mrs Smith] was employed on like work with her immediate predecessor Mr McCullough".
Nevertheless, although they were employed on like work, the employers paid Mrs Smith only £50 a week whereas they had paid Mr McCullough £60 a week. The tribunal found that this difference was not due to any material difference other than the difference of sex....In these circumstances the industrial tribunal held unanimously that she was entitled to be paid at the same rate as Mr McCullough. She remained in the employment as manageress from 1 March 1976 to 9 March 1977. The industrial tribunal awarded her extra remuneration accordingly. The Employment Appeal Tribunal affirmed that decision. The employers appeal to this court.
The employers say that this case is not within the Equal Pay Act 1970. In order to be covered by that Act, the employers say that the woman and the man must be employed by the same employer on like work at the same time: whereas here Mrs Smith was employed on like work in succession to Mr McCullough and not at the same time as he.
To solve this problem I propose to turn first to the principle of equal pay contained in the EEC Treaty, for that takes priority even over our own statute.
The EEC Treaty
Article 119 of the EEC Treaty says:
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.
That principle is part of our English law. It is directly applicable in England. So much so that, even if we had not passed any legislation on the point, our courts would have been bound to give effect to art 119. If a woman had complained to an industrial tribunal or to the High Court and proved that she was not receiving equal pay with a man for equal work, both the industrial tribunal and the court would have been bound to give her redress: see Defrenne (Gabrielle) v Société Anonyme Belge de Navigation Aérienne (SABENA) and Shields v E Coomes (Holdings) Ltd.
In point of fact, however, the United Kingdom has passed legislation with the intention of giving effect to the principle of equal pay. It has done it by the Sex Discrimination Act 1975 and in particular by s 8 of that Act amending s 1 of the Equal Pay Act 1970. No doubt the Parliament of the United Kingdom thinks that it has fulfilled its obligations under the Treaty. But the European Commission take a different view. They think that our statutes do not go far enough.
What then is the position? Suppose that England passes legislation which contravenes the principle contained in the Treaty, or which is inconsistent with it, or fails properly to implement it. There is no doubt that the European Commission can report the United Kingdom to the European Court of Justice; and that court can require the United Kingdom to take the necessary measures to implement art 119. That is shown by arts 169 and 171 of the Treaty....
It is unnecessary, however, for these courts to wait until all that procedure has been gone through. Under s 2(1) and (4) of the European Communities Act 1972 the principles laid down in the Treaty are 'without further enactment' to be given legal effect in the United Kingdom; and have priority over 'any enactment passed or to be passed' by our Parliament. So we are entitled and I think bound to look at art 119 of the EEC Treaty because it is directly applicable here; and also any directive which is directly applicable here: see Van Duyn v Home Office (No 2). We should, I think, look to see what those provisions require about equal pay for men and women. Then we should look at our own legislation on the point, giving it, of course, full faith and credit, assuming that it does fully comply with the obligations under the Treaty. In construing our statute, we are entitled to look to the Treaty as an aid to its construction; but not only as an aid but as an overriding force. If on close investigation it should appear that our legislation is deficient or is inconsistent with Community law by some oversight of our draftsmen then it is our bounden duty to give priority to Community law. Such is the result of s 2(1) and (4) of the European Communities Act 1972.
I pause here, however, to make one observation on a constitutional point. Thus far I have assumed that our Parliament, whenever it passes legislation, intends to fulfill its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament. I do not however envisage any such situation. As I said in Blackburn v Attorney General....: "But if Parliament should do so, then I say we will consider that event when it happens". Unless there is such an intentional and express repudiation of the Treaty, it is our duty to give priority to the Treaty. In the present case I assume that the United Kingdom intended to fulfill its obligations under art 119. Has it done so?
Article 119
Article 119 is framed in European fashion. It enunciates a broad general principle and leaves the judges to work out the details. In contrast the Equal Pay Act is framed in English fashion. It states no general principle but lays down detailed specific rules for the courts to apply (which, so some hold, the courts must interpret according to the actual language used) without resort to considerations of policy or principle....
In my opinion....art 119 is reasonably clear on the point; it applies not only to cases where the woman is employed on like work at the same time with a man in the same employment, but also when she is employed on like work in succession to a man, that is, in such close succession that it is just and reasonable to make a comparison between them. So much for art 119.
The Equal Pay Act 1970
Now I turn to our Act to see if that principle has been carried forward into our legislation. The relevant part of this Act was passed not in 1970 but in 1975 by s 8 of the Sex Discrimination Act 1975.
Section 1(2)(a)(i) of the Equal Pay Act 1970 introduces an 'equality clause' so as to put a woman on an equality with a man 'where the woman is employed on like work with a man in the same employment. The question is whether the words 'at the same time' are to be read into that subsection so that it is confined to cases where the woman and the man are employed at the same time in the same employment.
Reading that subsection as it stands, it would appear that the draftsman had only in mind cases where the woman was employed at the same time as a man.....
Section 1(2)(a)(i) does not however carry the same connotation. It introduces an equality clause: 'where the woman is employed on work rated as equivalent with that of a man in the same employment'. That subsection looks at the value of the work done in the job. If the job is rated as equivalent in value, the woman should get the rate for the job, no matter whether she is employed at the same time as the man or in succession to him.
Some light is thrown on the problem by reference to the Sex Discrimination Act 1975. It applies to all cases of discrimination against a woman in the employment field: see ss 1 and 6(1) and (2) except where she is paid less money than the man: see s 6(6). Now take a case where a man leaves his job and the employer discriminates against an incoming woman by offering her (not less money) but less benefits than he would offer a man for the same job: for instance, less holidays or less traveling facilities or the like. And she accepts them. That would be discrimination against her on the ground of her sex. It would be unlawful under ss 1 and 6(1) and (2). In such a case you would think that there should be an 'equality clause' introduced under s 1(2) of the Equal Pay Act: so that, in regard to her holidays or her travel facilities, she would be put on equal terms with the man. But in order to achieve that just result, it is necessary to extend s 1(2)(a), so that it extends not only to employment 'at the same time' as the man but also to employment in succession to a man.
Now stand back and look at the statutes as a single code intended to eliminate discrimination against women. They should be a harmonious whole. To achieve this harmony s 1(2)(a)(i) of the Equal Pay Act should not be read as if it included the words 'at the same time'. It should be interpreted so as to apply to cases where a woman is employed at the same job doing the same work 'in succession' to a man....
By so construing the Treaty and the statutes together we reach this very desirable result: it means that there is no conflict between art 119 of the Treaty and s 1(2) of the Equal Pay Act; and that this country will have fulfilled its obligations under the Treaty.
Now my colleagues take a different view. They are of opinion that s 1(2)(a)(i) of the Equal Pay Act should be given its natural and ordinary meaning, and that is, they think, that it is confined to cases where the woman is employed at the same time as a man.
So on our statute, taken alone, they would allow the appeal and reject Mrs Smith's claim. My colleagues realise, however, that in this interpretation there may be a conflict between our statute and the EEC Treaty. As I understand their judgments, they would hold that if art 119 was clearly in favour of Mrs Smith it should be given priority over our own statute and Mrs Smith should succeed. But they feel that art 119 is not clear, and, being not clear, it is necessary to refer it to the European Court at Luxembourg for determination under art 177 of the Treaty. If I had had any real doubt about the true interpretation of art 119, I would have been disposed to agree with my colleagues, and refer it to the European Court at Luxembourg....
For myself I would be in favour of dismissing the appeal, because I agree with the decision of the Employment Appeal Tribunal. I have no doubt about the true interpretation of art 119.
