Pickstone v Freemans Plc

Factual and Procedural Background

Several female warehouse operatives (the “Respondents”) employed by Company A brought proceedings under the Equal Pay Act 1970 (as amended) claiming that their work was of equal value to that of a male “checker warehouse operative” (the “Male Comparator”) who earned a higher weekly wage. Although one man performed the same warehouse-operative tasks as the Respondents, they sought comparison with the more highly paid Male Comparator. An industrial tribunal and the Employment Appeal Tribunal upheld Company A’s preliminary argument that section 1(2)(c) of the Act excluded the claim wherever any man performed the same work as the claimant women. The Court of Appeal reversed that conclusion on European Community grounds. Company A (the “Appellants”) appealed to the House of Lords, which heard argument over four days and delivered judgment affirming the Court of Appeal and dismissing the appeal with costs.

Legal Issues Presented

1. Whether the exclusionary phrase in section 1(2)(c) of the Equal Pay Act 1970 (“not being work in relation to which paragraph (a) or (b) above applies”) bars a woman’s equal-value claim whenever any man in the establishment performs like work, or only when the particular male comparator performs like or equivalent work.
2. Whether, if the domestic statute is construed as the Appellants contended, that construction would place the United Kingdom in breach of Article 119 of the Treaty of Rome and the Equal Pay Directive 75/117/EEC.
3. Whether Article 119 and the Directive are directly enforceable in domestic tribunals if national legislation fails to give full effect to the principle of equal pay.

Arguments of the Parties

Appellants’ Arguments

• Section 1(2)(c) is excluded if any man does the same work as the claimant women; therefore the Respondents must use section 1(2)(a) (“like work”), not section 1(2)(c) (“equal value”), and their claim for comparison with the Male Comparator cannot proceed.
• The legislative wording is unambiguous; purposive construction cannot override the plain text.
• Even under Community law, Article 119 does not compel an equal-value comparison where the claimant already has a male colleague doing the same work.
• If the domestic statute does exclude the claim, Article 119 is not directly enforceable because domestic machinery for assessing “equal value” would not be available in such circumstances.

Respondents’ Arguments

• The exclusion in section 1(2)(c) applies only where the chosen male comparator is doing like or equivalent work; otherwise employers could defeat equal-value claims by employing a single “token” man on the women’s duties.
• A contrary reading would leave a legislative gap, flout Article 119, the Equal Pay Directive and the decision in Commission v. United Kingdom, and thus could not have been intended by Parliament.
• The parliamentary debates and ministerial statements show that the 1983 amending regulations were introduced to close, not create, loopholes.
• European law requires national courts to interpret domestic provisions, so far as possible, consistently with Community obligations (von Colson principle).

Table of Precedents Cited

Court's Reasoning and Analysis

Five judges—Judge Keith, Judge Brandon, Judge Templeman, Judge Oliver and Judge Jauncey—delivered concurring opinions.

• The legislative history shows that section 1(2)(c) was added in 1983 precisely to close the “job-evaluation consent” gap highlighted in Commission v. United Kingdom.
• Reading the exclusionary words literally would revive that gap: an employer could immunise itself by employing one man on the women’s job, thereby nullifying equal-value claims—an outcome “Parliament cannot possibly have intended.”
• Applying the von Colson and Garland principles, a purposive interpretation is obligatory because (a) the provision was enacted under European Communities Act 1972 powers, and (b) section 2(4) of that Act requires later legislation to be construed consistently with EU obligations.
• The court therefore implied qualifying words so that paragraphs (a) and (b) exclude paragraph (c) only when they apply as between the claimant and the selected male comparator.
• Judge Templeman further explained the procedural logic: tribunals must first test whether the claimant and chosen comparator are on “like work” (paragraph (a)) or work “rated as equivalent” (paragraph (b)); only if not, does paragraph (c) trigger an independent expert report. This avoids unnecessary job evaluations while safeguarding the EU right to equal pay.
• Because the domestic statute can be construed compatibly, the court found it unnecessary to rely on direct effect or to refer questions to the European Court of Justice.

Holding and Implications

The House of Lords affirmed the Court of Appeal and dismissed the appeal with costs.

Implications: The decision confirms that women may pursue an “equal value” claim even where a man performs the same work, provided the claim targets a different, higher-paid comparator. It closes a potential loophole that would have allowed token male appointments to defeat equal-pay litigation, thereby aligning United Kingdom law with Article 119 and the Equal Pay Directive. No new precedent was set on direct enforceability, but the judgment reinforces the duty of UK courts to construe implementing legislation purposively to meet European obligations.