Where a woman claimed equal pay with a male comparator working for the same employer, it was not necessary for the woman to work at the same establishment as the man, or for their terms and conditions of employment to be identical, in order to show they were in the "same employment" for the purposes of section 1(6) of the Equal Pay Act 1970.
The House of Lords dismissed an appeal by the employer, British Coal Corporation, and allowed a cross-appeal by the claimants, Mrs Evelyn Ann Smith and 1,285 other women employees, from the decision of the Court of Appeal ( ICR 810) on an appeal from the Employment Appeal Tribunal ( ICR 529). The House of Lords restored the original decision of the industrial tribunal.
Nicholas Underhill QC and Bankim Thanki (Nabarro Nathanson, Sheffield) for British Coal; Michael Beloff QC, Jeremy McMullen QC and Jennifer Eady (Gregory Rowcliffe & Milners) for the claimants.
Lord Browne-Wilkinson said 20 of the claimants were employed as cleaners and the rest, save one, as canteen workers. They were employed at 47 different establishments. They claimed equal pay with a substantial number of male comparators at 14 different establishments, mostly surface mineworkers but some clerical workers, on the basis that their work was of "equal value" under section 1(2)(c) of the Equal Pay Act 1970 (as amended).
The tribunal identified four broad categories of worker:
canteen workers, predominant-
cleaners, mainly women
clerical workers, about half men
surface mineworkers, all men
It was not disputed that the male comparators were better paid than the claimants who named them.
Two preliminary issues were raised. First, whether the applicants whose comparators did not work at the same establishment were in the "same employment" as those comparators under section 1(6) of the Act. The tribunal, directing itself that what was required was a "broad comparison", found that they were.
The second issue was whether British Coal could succeed at the preliminary stage with the defence under section 1(3) that "the variation [in pay] is genuinely due to a material factor which is not the difference of sex". The tribunal emphasised that the mere existence of separate pay structures could not itself amount to a defence; it still had to be asked whether the pay structures themselves arose because of differences of sex.
In his Lordship's opinion, it was plain that, although the woman had to show that a male comparator was employed by her employer or by an associated employer and that she could not point to higher wages being paid by other employers, she was not limited to selecting male workers from the place where she herself worked. But the establishment where the comparator worked must be one at which common terms and conditions of employment were observed generally or for employees of the relevant classes.
Subject to a misdirection of law, it was for the industrial tribunal to decide on the evidence what was or were the relevant class or classes. Having regard to the nature of the work and the different ways in which their pay structures were established the tribunal was perfectly entitled to take the various categories of worker separately, and not to treat all the claimants as belonging to one class, "ancillary workers", as British Coal had urged.
Whether any differences in pay were justified would depend on the next stage of the examination under section 1(3). That inquiry, where the onus was on the employer, was not intended to be excluded unless the terms and conditions of the men at the various establishments were identical. That would be far too restrictive a test.
The tribunal had not erred in law, and there had clearly been material on which it could base its finding that the claimants and their comparators were in the same employment.
In the absence of a misdirection in law, the question under section 1(3) was also essentially one of fact for the tribunal, which had been entitled to accept that the differentiation was based on sex.