Law Report: No sex bias in Sunday trading ban: Chisholm and others v Kirklees Metropolitan Borough Council. Kirklees MBC v B & Q plc. Chancery Division (Mr Justice Ferris), 26 May 1993

The enforcement of the Sunday trading provisions of the Shops Act 1950 did not infringe the European Equal Treatment Directive or the Sex Discrimination Act 1976, even though it affected many more women than men because women were more likely to be employed in retail outlets on Sundays.

Mr Justice Ferris granted applications by Kirklees Metropolitan Borough Council and the Attorney General, to strike out, as disclosing no cause of action, an claim by Mandy Chisholm, Annette Layden, Ann Tuck and Francesca West, four employees of B & Q plc at its Dewsbury store who worked on Sundays only, who had sought a declaration that the Sunday trading provisions of the Shops Act 1950 were unlawful and unreasonable as a matter of European Community law, and an injunction to restrain Kirklees from enforcing them.

His Lordship also granted an application by Kirklees for an interlocutory injunction to restrain B & Q from opening the Dewsbury store on Sundays except as permitted by the Act.

Stuart Isaacs QC, Neil Calver and Clive Lewis (Sharpe Pritchard, for the Borough Solicitor) for Kirklees; Genevra Caws QC and Nicholas Paines (Treasury Solicitor) for the Attorney General; Gerald Barling QC and David Anderson (Hepherd Winstanley & Pugh, Southampton) for the employees; David Vaughan QC and Nicholas Davidson (Hepherd Winstanley & Pugh) for B & Q.

MR JUSTICE FERRIS said that under section 47 of the 1950 Act, shops had to remain closed on Sundays, except for the purpose of transactions mentioned in Schedule 5. The list of permitted transactions was notoriously anomalous. Parliamentary action was long overdue but in the meantime the court's duty was to apply the law as it existed.

It was argued by the four employees in their action, and by B &Q in its defence, that women substantially outnumbered men among those who were able to be, and were in fact, employed in retail outlets on Sundays, and that if an outlet was required to shut on Sundays, many more women than men would be deprived of employment.

The enforcement of s 47 of the Shops Act was therefore said to be in contravention of EC Council Directive 76/207 (the Equal Treatment Directive), in that it was liable to have the effect of introducing a condition or selection criterion for jobs at the store that was indirectly discriminatory on grounds of sex. Moreover, such discrimination was not objectively justifiable on grounds unconnected with sex and was disproportionate. It was also said to be contrary to s 6 of the Sex Discrimination Act 1975.

In his Lordship's judgment, however, to argue that the disparity which the enforcement of section 47 would have, as between men and women, amounted to discrimination within the Directive was to equate two fundamentally different things.

Moreover, the effect of section 47 in prohibiting the employment of staff on Sunday was not a requirement that staff be dismissed or subjected to some other detriment, within the meaning of section 6. Section 47 of the 1950 Act was not a new provision which, for the first time, made unlawful something which had previously been lawful. The provision had been law since 1936. Its clear impact was to make unlawful from the outset the Sunday opening of the Dewsbury store which began in 1986 and had, with comparatively short interruptions, continued ever since. Its practical effect in relation to employment had not been to require dismissals or to subject of employees to detriment, but to prohibit B &Q from lawfully offering job opportunities on Sundays.

In his Lordship's judgment, B &Q was in clear breach of a valid and enforceable law whose interpretation was not in doubt. Under section 222 of the Local Government Act 1972, local authorities were empowered to bring civil proceedings for injunctions to restrain breaches of section 47. There was an obvious public interest in the enforcement of the law and his Lordship would accede to the strong case in favour of granting Kirklees an injunction to do so.

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