DUGDALE & OTHERS (Appellants) vs. KRAFT FOODS LIMITED (Respondents) [1976] UKEAT 277_76_1076

Employment Appeals Tribunal
[1976] UKEAT 277_76_1076Case No Appeal Nos. EAT 277/76 , (T) 1445/76
Between
DUGDALE & OTHERS (Appellants) vs. KRAFT FOODS LIMITED (Respondents)
Before
Phillips, J., PresidentMr. J. G. C. MilliganandMs. P. SmithJ. Hand (instructed by Rowleys & Blewitts, Manchester) for the appellantsJ. A. Hammond (instructed by Walker, Smith & Way, Chester ) for the respondents
[1]Phillips, J., delivered the following judgment of the tribunal: -[2]These are five appeals, heard together by consent, from a decision of an industrial tribunal sitting at Liverpool on the 5th April, 1976, entered on 20th April, 1976, dismissing applications under the Equal Pay Act, 1970 (as amended by the Sex Discrimination Act, 1975). On the 11th October, 1976, we allowed the appeals, set aside the decision of the industrial tribunal and remitted the cases to be re-heard by the same industrial tribunal or as might be directed by the Regional Chairman of Industrial Tribunals. We now give the reasons for our decision.[3]Each of the appellants was employed in the quality control department of Kraft Foods Ltd. and the work which each of them did (which was not identical) was typical of that done by a number of other employees. Mrs. Dugdale was a quality control inspector, grade II, Miss Gray was a senior line-up inspector, grade I, Mrs. Wellens was a weight control assistant, grade III, Mrs. Roache was a finished produce laboratory assistant (or analyst), grade I, and Mrs. Owen was a junior analyst, grade III. For the purpose of their applications the appellants compared the work done by each of them with the work done by the male quality control inspectors, of whom there were six. The industrial tribunal has set out the reasons for its decision fully and clearly.[4]Amongst the exhibits put in at the hearing were various job descriptions,, including Al job description - quality control inspector (female), A2 job description - quality control inspector (male) and A3 job description - quality control inspector (male) - night shift. From these job descriptions, the other exhibits, and the evidence given, it was easy to see what work each of the appellants and the six male quality control inspectors did. It is obvious from the reference in the heading to certain of these job descriptions, which refer to "male" or "female", that they came into existence at a time when it was permissible to discriminate in that way. It might be thought that they thus tend to support the view that the work (and remuneration) was deliberately arranged in a manner to discriminate between men and women. That fact, of course, is not enough to enable the appellants to succeed; in order to do that they must show that they come within the provisions of the Act.[5]Exhibit Al sets out certain wage scales which were in operation at the material time. In some respects the details were difficult to follow, and for this reason we made an exception to our normal practice and received evidence to explain them. Item 4 of the exhibit, headed "laboratory", sets out the basic wage rate for male staff and shows that a man aged over 19, employed for two years, received a basic wage of £42.45p. Included in this scale were the six male quality control inspectors. The male quality control inspectors were employed on a three-shift system, changing weekly so that each would work a night shift once every three weeks. Item 6 sets out under the heading "shift allowances" the remuneration payable in respect of the shift worked. For either the morning or afternoon shift £5.80 would be paid, and for the night shift £11.60p. Thus a male quality control inspector working the morning or afternoon shift would receive £42.45p plus £5.80p. The female staff, including the appellants, employed in the quality control department were employed on a two-shift system, and the details of their remuneration are set out at item 4 under the heading "laboratory - shifts (37½ p.w.)". It will be seen that, unlike the male quality control inspectors, the female workers in this department were graded into three grades, I, II and III. Thus a grade II female worker would be paid £30.80p after one year. She would receive similar shift allowances - i.e. £5.80p per shift worked. The female workers in the quality control department did not work on the night shift. Thus, at this-time, the difference in remuneration between a male quality control inspector and a grade I female worker in the quality control department was £42.45p minus £32.80p, equals £9.65p. The male quality control inspectors, unlike the female workers, in the quality control department also worked a Sunday morning shift once every three weeks. Work by the male quality control inspectors on the night shift was compulsory, but work by them on the Sunday morning shift was voluntary, though they all in fact did work on Sundays. It would have been unlawful for the female workers in the quality control department to have worked on the night shift or upon the Sunday morning shift - see section 93, Factories Act, 1961, etc. Kraft Foods Ltd. had not applied for an exemption from this prohibition.[6]In accordance with the provisions of section l(l) [1] of the Equal Pay Act, 1970 (as amended), the appellants' contracts of employment are deemed to include an equality clause. The question is whether the equality clause in the circumstances of the case "has effect as provided in section 1(2) [2] ." It was not suggested that this case fell within paragraph (b) of that sub-section, for there had been no evaluation study. Accordingly, the question was whether the appellants were employed on "like work" with the male quality control inspectors, being men in the same employment, as defined in subsection (6). The answer turns upon the application of section 1(4) [3] to the facts of the case.[7]The first step is to determine whether the work done by the appellants and that done by the male quality control inspectors was of the same or a broadly similar nature. The industrial tribunal did not answer this question in terms, but it seems to us to be clear that the answer, certainly in the case of Mrs. Dugdale, and very probably in the case of the other appellants, is that her work and the men's work was of at least a broadly similar nature. The question then is whether the differences between the things which she did and the things which they did are of practical importance in relation to terms and conditions of employment. The industrial tribunal found that they were. It is necessary to look a little carefully at the way in which they reached this conclusion.[8]The industrial tribunal, in considering the application of section 1(4), first considered in detail the case of Mrs. Dugdale, being inclined to the view that if she could not succeed nor could the other appellants. In the view of the industrial tribunal the fact that the appellants and the male quality control inspectors worked in different departments was not of much significance, nor did they accept the argument that the work done by the male quality control inspectors required significantly greater versatility. They further regarded as. unimportant the fact that the male quality control inspectors did more and heavier lifting than the appellants, and that on the morning shift the male quality control inspectors took the place of the raw material technician and in his absence were responsible for drawing off and testing samples. However, they took a different view of the fact that on the Sunday morning shift the male quality control inspectors did pre-production overtime, carrying out laboratory analysis tests.[9]It appears, however, from the subsequent paragraphs of the decision that the industrial tribunal were doubtful whether this difference between the work done by the male quality control inspectors and that done by the appellants-was by itself alone sufficient to defeat the appellants' claim. But they did say this (paragraph 12):
"We take the view that if there is a difference between the man's job-and the woman's job which, even if it occurs relatively infrequently^ nevertheless arises from statutory prohibitions, and is in respect of work which is vital to the employer, then it cannot be said to be 'not of practical importance', and therefore it would negative the alleged broad similarity between their jobs."
[10]Nonetheless it appears that the industrial tribunal would not have found! against the appellants - or, at least, might not have done - but for the importance which they attached to the night shift working. They point out in paragraph 13 that the appellants could not do night work. They say-that there is only one relatively small production line operating at that time, but add that the night time is used for the absolutely essential cleaning: operations. And they go on:
"the fact that the female applicants do not, and as things stand, cannot do night work represents a substantial dissimilarity between their respective work and that of the male quality control inspectors whom they put forward as doing broadly similar work."
[11]And later on in the same paragraph they say:
"This night working every third week is, in our view a substantial element of difference which is of practical importance and which, negatives any argument that the work of the female and the male quality control inspectors is broadly similar."
[12]In paragraph 14 they say:
"We find therefore against all the appellants, irrespective of other matters, on the basis that the work of the male quality control inspectors includes, as a normal part of their job, Sunday overtime and night working which are essential to the employers and which the appellants, in the absence of any exemption from statutory prohibitions, cannot do. This of itself is a difference of such practical importance in relation to terms and conditions of employment as to negative any alleged broad similarity between the [appellants'] work and that of the male quality control inspectors."
[13]To summarise: it seems to us on the admitted facts to be clear that the appellants' work (or certainly Mrs. Dugdale's) and that of the male quality control inspectors was of the same or a broadly similar nature, and that the question, then, was whether the differences between the things which the appellants did and the things which they did were of practical importance in relation to terms and conditions of employment. This involves a consideration of two separate matters:(1) the fact that the male quality control inspectors unlike the appellants worked at night and on Sunday morning, and(2) the nature of the work which they did on those occasions. It is not clear to us that the industrial tribunal in reaching its decision distinguished between these two matters.[14]It appears to us to be necessary to decide, as a matter of the construction of section 1(4), whether the first of these matters, i.e., the fact of doing work at a different time, falls within the words "the things she does and the things they do". To simplify the question by an example: take a factory in which a simple repetitive process of assembly takes place, employing men and women engaged upon identical work. Suppose that the men did, but the women did not, work at night and on a Sunday morning doing the same work. Undoubtedly, the women's work and the men's work would be of the same or a broadly similar nature. Prima facie, therefore, they would be employed on "like work". Does the fact that the men work at night and on Sunday morning, and the women do not, constitute a difference between the things which the women do and the things which the men do? It may be that either view is possible. A man, if asked what he does, might reply, "I assemble radio components," or he might reply, "I assemble radio components on the night shift." We have come to the conclusion that, in the context of the Equal Pay Act, 1970 (as amended), the mere time at which the work is performed should be disregarded when considering the differences between the things which the woman does and the things which the man does. Were it not so, the Act could never apply in cases where it must obviously have been intended to apply, where the men doing the same work are engaged on a night shift.[15]Some support for this view is to be obtained from the judgments of the Court of Appeal in Johnson & Another vs. Nottinghamshire Combined Police Authority [4] . That was the case of a claim for a redundancy payment. Women clerks were dismissed because they were, for good reason, unwilling to change from ordinary day work to an alternating shift system. The work which they had done was substantially the same as the work which was done by their replacements. The only difference was in the hours worked. In order to succeed it had to be established that the requirement of the employers for employees to carry out work of a particular kind had diminished. The Court of Appeal held that the change in the hours of working, without any change in the tasks performed, did not effect a change in the particular kind of work. Certainly, that case is not directly applicable, and it is true that it depends in part on the reference in section 1 of the Redundancy Payments Act, 1965, to the place of employment. But it seems to us to be generally in line with our thinking on the subject. In short, in our judgment, in applying section 1(4) no attention should be paid to the fact that the men work at some different time of the day, if that is the only difference between what the women do and they do.[16]It does not seem to us that this interpretation of section 1(4) would lead to any unfairness; rather the reverse. Where the work done is the same, and the only difference is the time at which it is done, the men will be compensated for the extra burden of working at night or on Sundays by the shift payment or premium. There seems to be no reason why the women should not have equality of treatment in respect of the basic wage, or in respect of the day shift payment (if any). In a case in which the men are not paid a shift payment or premium for night working or Sunday working, but are paid at an enhanced basic wage to reflect their readiness to work at nights or on Sundays, there seems to us to be no reason why, in giving effect to the equality clause in accordance with section 1(2) (a) (i) [5] , the terms in the women's contracts as to remuneration should not be so modified as to take account of the fact that the men do, and they do not, work at nights or on Sunday. It should be emphasised that the equality clause is to have effect so as to modify any less favourable term of the women's contracts so as to be not less favourable, i.e., it need not produce equality if, though they are engaged on "like work," the payment to the men includes remuneration for something affecting the men but not the women, such as working at night.[17]Turning to the facts of this case, it is thus necessary, in deciding whether the differences between the things which the appellants do and the things which the male quality control inspectors do are of practical importance in relation to terms and conditions of employment, to disregard the fact that the men do, and the appellants do not, work at nights and on Sunday mornings. In answering the question attention must be confined to the work which they do. It is not clear to us from an examination of the reasons of the industrial tribunal what conclusion they would have reached if they had approached the matter in this way, because they have considered the two matters simultaneously; that is, the fact of the men working at a different time from the women and the nature of the work done by the men on those occasions. Accordingly, in our judgment it is necessary that the case be remitted to the industrial tribunal, or, in the event of difficulty over the availability of the members, to such other industrial tribunal as the Regional Chairman may determine. We think it desirable that there should be a re-hearing.[18]For clarity, we would add that our decision applies in the case of all the appeals. Paragraph 16 of the reasons might be read so as to suggest that the industrial tribunal would have rejected the applications other than that of Mrs. Dugdale even if the male quality control inspectors had not done additional work at night and on Sunday mornings; but this view seems to be contradicted by the terms of paragraph 15. In the circumstances, it seems to us that the fair thing is for all the appeals to be re-heard. It is desirable in decisions upon applications under the Equal Pay Act, 1970, if different verdicts are given in different cases, for the industrial tribunal in its reasons to summarise separately the relevant facts and considerations applicable to each case.[19]It is necessary to note this one final matter. At the end of paragraph 10 of the reasons the industrial tribunal says:
"In this matter, as in many other aspects of our decision, our unanimous view is reinforced by the invaluable shop floor experience of our lady member who works in a similar food manufacturing industry to that of the respondents."
[20]It is suggested that this indicates a wrong approach, and that the decision is based on evidence improperly obtained. The members of industrial tribunals are appointed because of their special knowledge and experience, and we have no doubt that they are entitled to draw upon it in playing their part in assisting the tribunal as a whole to reach a decision. The main use which they will make of this knowledge and experience is for the purpose of explaining and understanding the evidence which they hear. Certainly, they are entitled to use their knowledge and experience to fill gaps in the evidence about matters which will be obvious to them but which might be obscure to a layman. More difficult is the case where evidence is given which is contrary to their knowledge and experience. If such an occasion arises, we think that they ought to draw to the attention of the witnesses the experience which seems to them to suggest that the evidence given is wrong, and ought not to prefer their own knowledge or experience without giving the witnesses an opportunity to deal with it. Provided that this opportunity is given there seems to us to be no reason why they should not draw on their own knowledge and experience in this way also. But it is highly desirable that in any case where particular use is made by an industrial tribunal of the knowledge or experience of one or more of its -nembers in reaching its decision this fact should be stated, and that particulars of the matter taken into account should be fully disclosed. Appeals allowed Cases remitted for re-hearing Note 1 s.l(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one. Note 2 s.l(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the "woman's contract"), and has the effect that - (a) where the woman is employed on like work with a man in the same employment - (i) if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term; (b) ....................... Note 3 s.l (4) A woman is to be regarded as employed on like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences. Note 4 (1974) 9 I.T.R. 164. Note 5 see footnote 2 on page 311, ante.