Case Facts
The five applicants were female warehouse operatives employed by Freemans Plc. They sought equal pay with Mr Phillips, a male checker warehouse operative, on the basis that their work was of equal value to his within the meaning of s 1(2)(c) Equal Pay Act 1970 as amended. The employer also employed male warehouse operatives, with whom the female applicants were in fact employed on like work within the meaning of s 1(2)(a) Equal Pay Act 1970. However, the applicants chose to compare themselves not with those male warehouse operatives but with Mr Phillips, whose role as a checker warehouse operative attracted higher pay.
The Industrial Tribunal sitting at Cambridge dismissed the claim. It held that a claim under s 1(2)(c) — the equal value provision — could only be pursued where the applicant was unable to rely on the like work provision in s 1(2)(a). Because the applicants were employed on like work with other male employees in the same establishment, the tribunal concluded they were precluded from bringing an equal value claim against a different male comparator. The Employment Appeal Tribunal dismissed the appeal on the same ground.
The Court of Appeal allowed the applicants' appeal, holding that in the circumstances they were entitled to pursue equal value claims directly under Article 119 of the EEC Treaty (now Article 157 of the Treaty on the Functioning of the European Union). The employers appealed to the House of Lords.
It is important to note the legislative background. Section 1(2)(c) had been inserted into the Equal Pay Act 1970 by the Equal Pay (Amendment) Regulations 1983 (S.I. 1983 No. 1794), which were enacted to give effect to the ruling of the European Court of Justice in Commission of the European Communities v United Kingdom (Case 61/81) [1982]. In that case the ECJ had held that the United Kingdom had failed properly to implement Council Directive 75/117/EEC (the Equal Pay Directive) by not providing a mechanism for equal value claims. The 1983 Regulations were made under s 2 European Communities Act 1972 and, unlike primary legislation, were not subjected to the full Parliamentary Bill process.
Held
The House of Lords dismissed the employers' appeal but affirmed the Court of Appeal's result on different grounds. Rather than resolving the matter by reference to Article 119 of the EEC Treaty alone, the House of Lords held that, on a purposive construction of s 1(2)(c) Equal Pay Act 1970 as amended, the applicants were entitled to bring an equal value claim against Mr Phillips notwithstanding that the employer could point to other male employees doing like work with them.
The House of Lords did not itself determine whether the applicants' work was in fact of equal value to that of Mr Phillips. Instead, it remitted the matter to the industrial tribunal for determination on the merits.
Ratio Decidendi
The central question was the meaning of the exclusionary words in s 1(2)(c) Equal Pay Act 1970 as amended by the Equal Pay (Amendment) Regulations 1983. Those words provided that an equal value claim could be brought where a woman was employed on work that was not work in relation to which paragraph (a) (like work) or paragraph (b) (work rated as equivalent) applied. The employers argued that the exclusionary words barred any equal value claim so long as the employer could show that the female claimant was employed on like work with any male employee in the same establishment, even if that male employee was not the comparator she had chosen.
The House of Lords rejected that reading. Applying a purposive approach — consistent with the obligation of national courts to interpret domestic legislation so as to give effect to EU law obligations — the House of Lords held that the exclusionary words operated only in relation to the specific male comparator chosen by the female complainant. The exclusion applied only where the comparator she selected was himself engaged in like work with her within the meaning of paragraph (a), or in work rated as equivalent within the meaning of paragraph (b). It did not operate merely because the employer could identify some other male employee doing like work with the female claimant. To construe the provision otherwise would allow employers to defeat equal value claims simply by ensuring that at least one man was employed on the same or similar work, thereby rendering the equal value right introduced by the 1983 Regulations largely nugatory and perpetuating the very breach of EU law that those Regulations were designed to remedy.
Obiter Dicta
The House of Lords made a significant per curiam observation regarding the use of ministerial statements as an aid to statutory construction. Because the Equal Pay (Amendment) Regulations 1983 were not subject to the ordinary Parliamentary process that a Bill would have undergone, and having regard to the context of s 2 European Communities Act 1972, it was entirely legitimate, for the purpose of ascertaining the intention of Parliament, to take into account the terms in which the draft Regulations had been presented by the responsible Minister and which had formed the basis of Parliament's acceptance of them.
This statement represented a notable judicial departure from the then-prevailing rule against consulting Hansard and parliamentary materials as aids to interpretation. The observations in this case foreshadowed the later, more general permission granted to consult Hansard in Pepper v Hart [1993], in which the House of Lords formally relaxed the exclusionary rule. In this case, however, the per curiam remarks were closely connected to the purposive construction adopted as the ratio, being grounded in the specific circumstances of legislation enacted to implement a decision of the European Court of Justice rather than as a free-standing general licence to consult parliamentary debates.