PEAKE, P. B. v AUTOMOTIVE PRODUCTS LTD [1977] UKEAT 43_76_1702

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1977] UKEAT 43_76_1702

Case No Appeal No. UKEAT/43/76

Between

PEAKE, P. B.APPELLANT

AUTOMOTIVE PRODUCTS LTDRESPONDENT

Before

The Hon. Mr. Justice Phillips (P)

Mrs. A.L.T. Taylor MBE

Mr. T. H. Goff

Date 17 February 1977

[1]MR. JUSTICE PHILLIPS: Mr. Peake has "been employed by Automotive Products Limited since October 1972 as a Shop Floor Worker. On the 25th April, 1976, he applied to an Industrial Tribunal on the following grounds:

"I am discriminated against at 4.25 p.m. on each week day I work. The female sex are allowed to go out of the gates at 4.25 p.m. each day and the male sex are made to wait until 4.30 p.m."

In answer to a questionnaire directed to them by Mr. Peake under Section 74(1)(a) of the Sex Discrimination Act 1975, Automotive Products Limited agreed that the statement by Mr. Peake was factually correct but denied that they had unlawfully discriminated against him. They said:

"... discrimination is not taking place as it is a concession made to women and is not prohibited by the Act. The concession is made not by way of discrimination but to make appropriate provision for the special needs of women."

In the Notice of Appearance dated the 14th May 1976, Automotive Products Limited explained that the special needs referred to were to avoid women being jostled and crushed as some 4,000 employees left the factory at the end of the day shift at 4.30 p.m. An Industrial Tribunal sitting in Birmingham on the 13th July 1976, by a decision given on that day (entered the 21st July 1976) dismissed Mr. Peake's application. Our first impression, unaided by a detailed consideration of the provision of the Sex Discrimination Act 1975, was that Mr. Peake's application was most unreasonable, and it seemed to us to be absurd to say that it was sex discrimination to make a sensible arrangement which enabled the women to leave the factory in comfort and convenience before the men. Further reflection has shown that the question is by no means as simple as that. In the first place, Mr. Peake, who appeared in person, put forward his case with reason and sincerity. In effect, he says that in these days of sex equality, now enjoined "by statute, it is not right that privileges of this kind should "be accorded to women because they are women. No doubt, he says, some women may need special consideration in the rush to the factory gates, but by no means all women. Some men need it just as much. True, the privilege is extended to handicapped or disabled men, but nonetheless the blanket, extension to women makes it quite clear that the privilege is accorded to them, in some cases at least, not because they need it but because they are women. So this application is not, as at one time we thought perhaps it was, a tease or attempt to guy the Sex Discrimination Act. Secondly, one only has to reverse the facts to see the difficulties. Suppose the women were not allowed to leave until five minutes after the last man had left, would not they think, and would not our initial impression have been, that this was blatant sex discrimination? Yet reasoning which would lead to the rejection of Mr. Peake's claim would equally lead to the rejection of theirs; see section 2 - in this field sauce for the goose is sauce for the gander. In truth, no guidance can be got from instinctive feelings; rather the reverse. Such feelings are likely to be the product of ingrained social attitudes, assumed to be permanent but rendered obsolete by changing values and current legislation. Accordingly, we have put on one side our preconceptions, and taken the Sex Discrimination Act 1975 as the only reliable guide. It is a very complicated guide, and certainly no layman who wished to know his rights and duties in this field would obtain a clear answer by reading it. Thus the Industrial Tribunal in the present case approached the questions which they had to decide on entirely the wrong basis. They are not to be much criticised for this because the Act is so complicated, and they did not have, as we have had, the admirable assistance of Mr. Christopher Clarke to lead them through it. Before explaining this it is necessary to note one of Mr. Peake's contentions. The practice which enables the women to leave the factory at the end of the day five minutes "before the men has been enshrined for thirty years or thereabouts in the Works Rules, which provide as follows:

"Ceasing Work The beginning and end of each shift are marked by the ringing of bells. Before the Final Bell rings at the end of the shift, a First (or Warning) Bell rings. 1. 1. All Employees, both male and female, whether or not in possession of an 'Early Leaving Concession,' must continue to work normally right up to the First Bell, except when otherwise specially authorised. 2. 1. After the First Bell sounds. Employees may prepare to leave but must not be outside the area defined by their Department Head before the Final Bell sounds. Exceptions to this rule are as follows:- (a) Those in possession of 'Early Leaving Concessions' must work normally up to the First Bell but may leave the factory at any time during the next five minutes. (b) Women may leave the factory at the end of the day at any time during the five minutes after the sounding of the First Bell but must continue to work normally up to this Bell, 3.Employees must not remain in any part of the Works during meal times or outside working hours unless specially instructed to do so."

The industrial tribunal found that the purpose of this arrangement was to ensure safety and that it was supported by the trade union concerned. Mr. Peake disputed this. He did not accept that the arrangement was made in the interests of safety and contended, and produced a petition to demonstrate it, that the overwhelming majority of the men in the section in which he worked was against it. He drew attention to the fact that a similar arrangement existed at the conclusion of overtime working and pointed out that this could not be on the grounds of safety "because on those occasions the number working, and thus leaving the factory, was very much less. Whatever may be the merits of these points which he raises, there is a clear finding by the industrial tribunal that the arrangements were made in the interests of safety and that the trade union approved them. These findings are binding on us, and we shall proceed upon that basis. However, it should be noted that there was no finding, and no contention on behalf of Automotive Products Limited, that the interests of safety could not have been secured by another arrangement which did not rely on discrimination between the sexes. Returning to the decision of the industrial tribunal, it is clear that they fell into two errors. First, they overlooked the fact that rights under the Equal Pay Act 1970, and rights under the Sex Discrimination Act 1975, are mutually exclusive, and that accordingly it was necessa.ry as a first step in the consideration of Mr. Peake's application to see whether he had good ground on which to make a complaint under the Equal Pay Act. If he had, he could not proceed under the Sex Discrimination Act. This is important because the remedies are different. Secondly, the industrial tribunal wrongly thought that if Mr. Peake had a claim under the Sex Discrimination Act it would be under Section 6(1)(b). But Section 6(1) is concerned only with offers of employment, and Mr. Peake could not complain of the offer of employment which had been made to him and which he had accepted many years ago because that was long before the Sex Discrimination Act was enacted. These failures have caused embarrassment upon the hearing of the appeal because it has resulted in our not having the opinion of the industrial tribunal upon relevant questions,-some of which involve questions of fact. However, we were reluctant to remit the case for further hearing and have decided the matter for ourselves. The effect of Sections 6 and 8 of the Sex Discrimination Act 1975 may be summarised sufficiently accurately for present purposes as follows, in so far as they distinguish "between complaints to be made under the Equal Pay Act 1970 and complaints to be made under the Sex Discrimination Act 1975s (a) If the less favourable treatment relates to the payment of money which is regulated by a contract of employment, only the Equal Pay Act can apply. (b) If the employee is treated less favourably than an employee of the other sex who is doing the same or broadly similar work, or whose work has been given an equal value under job evaluation, and the less favourable treatment relates to some matter which is regulated by the contract of employment of either of them, only the Equal Pay Act can apply. (c) If the less favourable treatment relates to a matter which is not included in a contract (either expressly or by virtue of the Equal Pay Act), only the Sex Discrimination Act can apply. (d) If the less favourable treatment relates to a matter (other than the payment of money) in a contract, and the comparison is with workers who are not doing the same or broadly similar work, or work which has been given an equal value under job evaluation, only the Sex Discrimination Act can apply. (e) If the complaint relates to a matter (other than the payment of money) which is regulated by an employee's contract of employment, but is based on an allegation that an employee of the other sex would be treated more favourably in similar circumstances (i.e. it does not relate to the actual treatment of an existing employee of the other sex), only the Sex Discrimination Act can apply. (See; A Guide to the Sex Discrimination Act 1975) Accordingly, the industrial tribunal should first have considered whether Mr. Peake had a valid claim under the Bqual Pay Act 1970, and it is necessary for us to do so. If the less favourable treatment of which he complained related only to the payment of money he could have no claim under the Sex Discrimination Act 1975. A system of equal pay was in operation, and the men and women worked the same normal hours. But it is still possible to look at the matter either way, and one could say that the women were being paid the same for less work: five minutes a day, or two and a half days a year. But the reality of it seems to us to be that this is not, or should not be regarded as, a matter relating to the payment of money. Even so, Mr. Peake would have a claim under the Equal Pay Act 1970 in respect of the less favourable treatment accorded to him, if he was doing like work with a woman who was permitted to leave five minutes before he was, if that privilege was something regulated by the contract of employment. Thus three questions arise: (i) Was he doing like work with a woman? (ii) Was the privilege of leaving early, or the disadvantage of staying later, a matter which was regulated by the contract of employment? (iii) If those questions are answered in the affirmative, was the equality clause in Mr. Peake's contract (which in those circumstances would ordinarily operate) prevented from doing so by reason of the fact that the case fell within Section 1(3)? Because the industrial tribunal considered none of these matters there are no facts found as to whether Mr. Peake was doing like work with a woman, but Mr. Christopher Clarke has frankly told us that the probability is that he was, and so for present purposes we assume that to be the case. Accordingly, it is necessary to consider whether the privilege of leaving early enjoyed by the women was something which was regulated by the contract of employment. This depends on whether the Works Rules were incorporated in the contract, and this is a matter, in so far as any evidence could have thrown light upon it, about which, the case is silent. Mr. Christopher Clarke submits that they were not, and on the whole we have come to the conclusion that in this respect he is right. The Works Rules contain a very large number of regulations of very varying character, and we do not think that they can all (though some may have been) incorporated in the contract. For the most part they are administrative arrangements for the running of the factory which could be changed from time to time, and we think that the rule in question here is of that character. Accordingly, although with some hesitation, we reach the conclusion that for this reason Mr. Peake could not have brought this complaint under the Equal Pay Act 1970. If we are wrong on the last question, a further question would arise, namely whether Section 1(3) applied in the circumstances of this case. It seems to us very difficult to say that it does. The "variation," i.e. the difference in the rules which enabled the women to leave five minutes earlier, does seem to have been due to the difference of sex. Mr. Christopher Clarke says it was due to the requirements of safety and to the different physical attributes of men and women. But safety was merely the purpose of the rule and the rule itself seems to us to be plainly based on the difference of sex, no doubt as a convenient administrative arrangement, and one at the time when it was originally made thirty years ago was in conformity with generally accepted social ideas. We think it important to note that in a case like the present an employee may very well have a claim under the Equal Pay Act 1970. Thus, if, contrary to the view expressed above, the privilege of leaving early was a matter regulated by the contract of employment, Mr. Peake would have such a claim. The Equal Pay provisions and the Sex Discrimination provisions are all part and parcel of the same code. In a factory in which thousands of men and women are employed it is likely that some will have a remedy under the Equal Pay Act, but others - for example, because they are not employed on like work -will not. It would seem to us surprising if those who for such a reason could not found a claim under the Equal Pay Act could not found one under the Sex Discrimination Act, comparable or complementary to that available to some of their colleagues under the Equal Pay Act. However, for the reasons which we have given we conclude that Mr. Peake's claim, if it is to succeed at all, can only succeed under the Sex Discrimination Act 1975> and that the industrial tribunal were wrong in considering Section 6(1) as being the relevant section. In our judgment the only relevant section could be Section 6(2), which provides as follows:

"(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her - (a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or (b) by dismissing her, or subjecting her to any other detriment."

Before considering that section, upon which in our judgment the success of the application depends, it is necessary to consider Section 1. The scheme of the Act is that Part I defines and describes certain types of discrimination and Part II proscribes and declares unlawful in certain circumstances acts of discrimination as defined in Part I. Accordingly, in any particular case it is necessary to see whether the act complained of is an act of discrimination as defined in Part I, and if so whether it is rendered unlawful in Part II. Section 1 provides as follows:

"1. (1) a person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if - (a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or (b) he applies to her a requirement or condition which he applies or would apply equally to a man "but - (i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and (iii) which is to her detriment because she cannot comply with it. (2) If a person treats or would treat a man differently according to the man's marital status, his treatment of a woman is for the purposes of subsection (1)(a) to be compared to his treatment of a man having the like marital status."

There is no doubt that Automotive Products Ltd. treated Mr. Peake less favourably than they would have treated a female employee similarly situated to him. The question is whether they did so "on the ground of his sex". Mr. Christopher Clarke submits not. He says that the whole purpose of the alleged discrimination was to ensure safety, and that this was a sensible, practical way to go about it wholly free of any intention to discriminate. While admitting that some women might be better able to take care of themselves than some men he contended that this was the best practical way of ensuring safety, and that what was done was not in the least done on the ground of sex. ¥e do not accept this. Such a contention would lead to the Act not applying in many cases in which it must have been intended to apply. It seems to us that Mr. Christopher Clarke is confusing the motive or the purpose of the act complained of with the factual nature of the Act itself. Section 1(1)(a) requires one to look to see what in fact is done amounting to less favourable treatment, and whether it is done to the man or the woman "because he _is a man or a woman. If so, it is of no relevance that it is done with no discriminatory motive. If a woman was made to remain "behind until all the men had gone because such a rule applied to all the women, and to none of the men, although it might be the case that it was done in the interests of safety, nonetheless it would be done in her case because she was a woman and not a man. And so it is, in our judgment, in the case of Mr. Peake. It has to be remembered that Part I is only concerned to define the discrimination to which the Act applies. No penalty attaches to acts of discrimination except to the extent that later on in the Act they are proscribed or rendered unlawful. Mr. Christopher Clarke further contended that if one was to compare the case of Mr. Peake with that of a female employee similarly situated it could not be said the relevant circumstances in the two cases were the same or not materially different. Such a comparison is required for the purpose of applying Section 1(1)(a), and the effect of Section 5(3) is that comparisons of cases which are not the same, or are materially different, is not permitted, We do not accept Mr. Christopher Clarke's contention on this point. It seems to us that in deciding whether the circumstances of the two cases are the same, or not materially different, one must put out of the picture any circumstances which necessarily follow from the fact that one is comparing the case of a man and of a woman. Accordingly we turn to consider whether Mr. Peake can bring his claim within Section 6(2)* The question under Section 6(2) is whether the privilege of leaving five minutes early is a "benefit" or "facility" under (a), or whether to prevent a woman leaving at the same time as a man, or a man at the same time as a woman, is to subject her or him to a "detriment" under (b). Mr. Christopher Clarke submits not, in each case. For there to be a benefit or facility under (a), he submits, there must be an element of bounty on the part of the disposer, in the sense of an intention to provide a benefit or facility as such, whereas the benefit or facility here was merely incidental to the traffic control system introduced in the interests of safety. As to (b), while accepting that a man not allowed to leave at the same time as a woman suffers a detriment, comparing her lot to him, he says that a person who receives his entitlement is no worse off because. another is better off as a result of receiving a privilege or concession (possibly drawing on his recollection of the parable of the Labourers in the Vineyard -not a sure guide in industrial relations). No doubt there is something to be said for these arguments but they seem to us, just as the argument in Section 1 did, to confuse what was done with the purpose for which it was done. Taking the reverse case where all the women were detained, in the interest of safety, until all the men had gone it would be difficult to say that the women had not been refused access to a benefit or facility enjoyed by the men, i.e. of leaving five minutes early, or that by being detained they were not being subjected to a detriment. Furthermore, as in the case of Section 1, it seems to us that a restrictive or technical construction of these words would undoubtedly lead to trouble in other cases, for the words "benefits, facilities or services" are used throughout the Act, and such construction would certainly result in some cases in the Act not applying where it was obviously intended to. In our judgment, it can clearly be said of Automotive Products Ltd. that "on the ground of Mr. Peake's sex" they have "treated him less favourably than they treat a woman" (section 1) whose "relevant circumstances were the same" (section 5(3)) in "refusing him access to the benefit or facility'* (section 6(2) (a)) of leaving at the same time as a woman, and by "subjecting him to the detriment" (section 6(2)(b)) of not being allowed to leave at that time. There may be a doubt about the applicability of "facility 11 , but, in our judgment, not of "benefit," which means no more than "advantage." In our judgment, for the reasons which we have given, Mr. Peake has made good his case under Section 6(2) of the Sex Discrimination Act 1975. Any other conclusion would involve giving the language of the Act a restricted construction out of deference to our preconceived ideas of what, had there been no Act, would be sensible in this field. But in the case of a reforming Act of this kind, deliberately introducing new ideas and policies, preconceived ideas of what is fit are at best an uncertain guide, and the only sure course is to follow the words of the Act in accordance with what appears to be its policy. Occasionally, no doubt, it will produce odd results, but they are the price which will have to be paid for such a sweeping reform, enacted with much detail affecting most departments of life, and with no general escape clause enabling the courts to exclude its operation. We have considered, as Mr. Christopher Clarke suggested we might, whether we could take refuge in the maxim de minimis non curat lex: a useful port in many a storm. The balance which courts should observe when such a matter is under consideration is helpfully put by Sir William Scott in The Reward (1820) 2 Dods Adm. R. 269 where he said:

"This Court cannot take on itself legislative functions: it must administer the law as it stands; certainly, with such qualifications as the law permits. The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim De minimis non curat lex. Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked."

For much the same reasons as we have indicated more than once in this judgment, it seems to us that if we were in reliance upon that maximum to refuse to give Mr. Peake the remedy to which a literal construction of the words of the Act would lead we should be flying in the face of the legislative intent, and that we cannot do. Accordingly, despite our impression when we entered upon this case, it seems to us that Mr. Peake has made out his claim. Guiding ourselves by the ideas implicit in the Sex Discrimination Act 1975, we can see that there is here, in the practice which has been adopted in this factory for so many years, a sort of sex discrimination; for it is a case in which men and women in comparable situations are being treated differently on the ground of sex, and where the interests of safety for which that discrimination was originally introduced many years ago could be achieved otherwise than by arrangements based upon sex. Harmless enough, no doubt, but no longer permitted. We turn to the remedy to which Mr. Peake is entitled. He does not claim compensation. This practice has been in operation for very many years with general satisfaction, and there is no need for any great hurry in bringing it to an end. We hope that a way can be found to cater for the special needs of married women with families which does not fall foul of the Act. The Order which we propose to make is as follows: 1. It is declared that the practice operated by Automotive Products Limited at their factory at Tachbrook Road, Leamington Spa whereby Mr. F. B. Peake is not permitted to leave at the end of the day's work until 4.30 p.m., whereas the women in the same circumstances as himself are allowed to leave at 4.25 p.m., is unlawful being an act of discrimination within Section 6(2) of the Sex Discrimination Act 19755 2. Automotive Products Limited do discontinue the practice within twelve months from the date of this Order; and 3. Automotive Products Limited do consult with any relevant trade union, and with the Equal Opportunities Commission, as soon as possible for the purpose of introducing an agreed alternative practice which does not contravene the provisions of the Sex Discrimination Act 1975. Liberty to apply as to the form of Order. Leave to appeal to the Court of Appeal. P. A. Haswell. 9 Strickland Close, Leeds, LS17 8JY VERBATIM REPORTER AND TAPE TRANSCRIBER MR. JUSTICE PHILLIPS: Mr. Peake has "been employed by Automotive Products Limited since October 1972 as a Shop Floor Worker. On the 25th April, 1976, he applied to an Industrial Tribunal on the following grounds:

"I am discriminated against at 4.25 p.m. on each week day I work. The female sex are allowed to go out of the gates at 4.25 p.m. each day and the male sex are made to wait until 4.30 p.m."

"... discrimination is not taking place as it is a concession made to women and is not prohibited by the Act. The concession is made not by way of discrimination but to make appropriate provision for the special needs of women."

[2]In the Notice of Appearance dated the 14th May 1976, Automotive Products Limited explained that the special needs referred to were to avoid women being jostled and crushed as some 4,000 employees left the factory at the end of the day shift at 4.30 p.m.

[3]An Industrial Tribunal sitting in Birmingham on the 13th July 1976, by a decision given on that day (entered the 21st July 1976) dismissed Mr. Peake's application.

[4]Our first impression, unaided by a detailed consideration of the provision of the Sex Discrimination Act 1975, was that Mr. Peake's application was most unreasonable, and it seemed to us to be absurd to say that it was sex discrimination to make a sensible arrangement which enabled the women to leave the factory in comfort and convenience before the men. Further reflection has shown that the question is by no means as simple as that. In the first place, Mr. Peake, who appeared in person, put forward his case with reason and sincerity. In effect, he says that in these days of sex equality, now enjoined "by statute, it is not right that privileges of this kind should "be accorded to women because they are women. No doubt, he says, some women may need special consideration in the rush to the factory gates, but by no means all women. Some men need it just as much. True, the privilege is extended to handicapped or disabled men, but nonetheless the blanket, extension to women makes it quite clear that the privilege is accorded to them, in some cases at least, not because they need it but because they are women. So this application is not, as at one time we thought perhaps it was, a tease or attempt to guy the Sex Discrimination Act. Secondly, one only has to reverse the facts to see the difficulties. Suppose the women were not allowed to leave until five minutes after the last man had left, would not they think, and would not our initial impression have been, that this was blatant sex discrimination? Yet reasoning which would lead to the rejection of Mr. Peake's claim would equally lead to the rejection of theirs; see section 2 - in this field sauce for the goose is sauce for the gander. In truth, no guidance can be got from instinctive feelings; rather the reverse. Such feelings are likely to be the product of ingrained social attitudes, assumed to be permanent but rendered obsolete by changing values and current legislation. Accordingly, we have put on one side our preconceptions, and taken the Sex Discrimination Act 1975 as the only reliable guide.

[5]It is a very complicated guide, and certainly no layman who wished to know his rights and duties in this field would obtain a clear answer by reading it. Thus the Industrial Tribunal in the present case approached the questions which they had to decide on entirely the wrong basis. They are not to be much criticised for this because the Act is so complicated, and they did not have, as we have had, the admirable assistance of Mr. Christopher Clarke to lead them through it.

[6]Before explaining this it is necessary to note one of Mr. Peake's contentions.

[7]The practice which enables the women to leave the factory at the end of the day five minutes "before the men has been enshrined for thirty years or thereabouts in the Works Rules, which provide as follows:

"Ceasing Work The beginning and end of each shift are marked by the ringing of bells. Before the Final Bell rings at the end of the shift, a First (or Warning) Bell rings. 1. 1. All Employees, both male and female, whether or not in possession of an 'Early Leaving Concession,' must continue to work normally right up to the First Bell, except when otherwise specially authorised. 2. 1. After the First Bell sounds. Employees may prepare to leave but must not be outside the area defined by their Department Head before the Final Bell sounds. Exceptions to this rule are as follows:- (a) Those in possession of 'Early Leaving Concessions' must work normally up to the First Bell but may leave the factory at any time during the next five minutes. (b) Women may leave the factory at the end of the day at any time during the five minutes after the sounding of the First Bell but must continue to work normally up to this Bell, 3.Employees must not remain in any part of the Works during meal times or outside working hours unless specially instructed to do so."

[8]The beginning and end of each shift are marked by the ringing of bells. Before the Final Bell rings at the end of the shift, a First (or Warning) Bell rings.

[9]The industrial tribunal found that the purpose of this arrangement was to ensure safety and that it was supported by the trade union concerned. Mr. Peake disputed this. He did not accept that the arrangement was made in the interests of safety and contended, and produced a petition to demonstrate it, that the overwhelming majority of the men in the section in which he worked was against it. He drew attention to the fact that a similar arrangement existed at the conclusion of overtime working and pointed out that this could not be on the grounds of safety "because on those occasions the number working, and thus leaving the factory, was very much less. Whatever may be the merits of these points which he raises, there is a clear finding by the industrial tribunal that the arrangements were made in the interests of safety and that the trade union approved them. These findings are binding on us, and we shall proceed upon that basis. However, it should be noted that there was no finding, and no contention on behalf of Automotive Products Limited, that the interests of safety could not have been secured by another arrangement which did not rely on discrimination between the sexes.

[10]Returning to the decision of the industrial tribunal, it is clear that they fell into two errors. First, they overlooked the fact that rights under the Equal Pay Act 1970, and rights under the Sex Discrimination Act 1975, are mutually exclusive, and that accordingly it was necessa.ry as a first step in the consideration of Mr. Peake's application to see whether he had good ground on which to make a complaint under the Equal Pay Act. If he had, he could not proceed under the Sex Discrimination Act. This is important because the remedies are different. Secondly, the industrial tribunal wrongly thought that if Mr. Peake had a claim under the Sex Discrimination Act it would be under Section 6(1)(b). But Section 6(1) is concerned only with offers of employment, and Mr. Peake could not complain of the offer of employment which had been made to him and which he had accepted many years ago because that was long before the Sex Discrimination Act was enacted. These failures have caused embarrassment upon the hearing of the appeal because it has resulted in our not having the opinion of the industrial tribunal upon relevant questions,-some of which involve questions of fact. However, we were reluctant to remit the case for further hearing and have decided the matter for ourselves.

[11]The effect of Sections 6 and 8 of the Sex Discrimination Act 1975 may be summarised sufficiently accurately for present purposes as follows, in so far as they distinguish "between complaints to be made under the Equal Pay Act 1970 and complaints to be made under the Sex Discrimination Act 1975s(a) If the less favourable treatment relates to the payment of money which is regulated by a contract of employment, only the Equal Pay Act can apply.

(b) If the employee is treated less favourably than an employee of the other sex who is doing the same or broadly similar work, or whose work has been given an equal value under job evaluation, and the less favourable treatment relates to some matter which is regulated by the contract of employment of either of them, only the Equal Pay Act can apply.

(c) If the less favourable treatment relates to a matter which is not included in a contract (either expressly or by virtue of the Equal Pay Act), only the Sex Discrimination Act can apply.

(d) If the less favourable treatment relates to a matter (other than the payment of money) in a contract, and the comparison is with workers who are not doing the same or broadly similar work, or work which has been given an equal value under job evaluation, only the Sex Discrimination Act can apply.

(e) If the complaint relates to a matter (other than the payment of money) which is regulated by an employee's contract of employment, but is based on an allegation that an employee of the other sex would be treated more favourably in similar circumstances (i.e. it does not relate to the actual treatment of an existing employee of the other sex), only the Sex Discrimination Act can apply. (See; A Guide to the Sex Discrimination Act 1975)

[12]Accordingly, the industrial tribunal should first have considered whether Mr. Peake had a valid claim under the Bqual Pay Act 1970, and it is necessary for us to do so. If the less favourable treatment of which he complained related only to the payment of money he could have no claim under the Sex Discrimination Act 1975. A system of equal pay was in operation, and the men and women worked the same normal hours. But it is still possible to look at the matter either way, and one could say that the women were being paid the same for less work: five minutes a day, or two and a half days a year. But the reality of it seems to us to be that this is not, or should not be regarded as, a matter relating to the payment of money. Even so, Mr. Peake would have a claim under the Equal Pay Act 1970 in respect of the less favourable treatment accorded to him, if he was doing like work with a woman who was permitted to leave five minutes before he was, if that privilege was something regulated by the contract of employment. Thus three questions arise:(i) Was he doing like work with a woman?

(ii) Was the privilege of leaving early, or the disadvantage of staying later, a matter which was regulated by the contract of employment?

(iii) If those questions are answered in the affirmative, was the equality clause in Mr. Peake's contract (which in those circumstances would ordinarily operate) prevented from doing so by reason of the fact that the case fell within Section 1(3)?

[13]Because the industrial tribunal considered none of these matters there are no facts found as to whether Mr. Peake was doing like work with a woman, but Mr. Christopher Clarke has frankly told us that the probability is that he was, and so for present purposes we assume that to be the case. Accordingly, it is necessary to consider whether the privilege of leaving early enjoyed by the women was something which was regulated by the contract of employment. This depends on whether the Works Rules were incorporated in the contract, and this is a matter, in so far as any evidence could have thrown light upon it, about which, the case is silent. Mr. Christopher Clarke submits that they were not, and on the whole we have come to the conclusion that in this respect he is right. The Works Rules contain a very large number of regulations of very varying character, and we do not think that they can all (though some may have been) incorporated in the contract. For the most part they are administrative arrangements for the running of the factory which could be changed from time to time, and we think that the rule in question here is of that character. Accordingly, although with some hesitation, we reach the conclusion that for this reason Mr. Peake could not have brought this complaint under the Equal Pay Act 1970. If we are wrong on the last question, a further question would arise, namely whether Section 1(3) applied in the circumstances of this case. It seems to us very difficult to say that it does. The "variation," i.e. the difference in the rules which enabled the women to leave five minutes earlier, does seem to have been due to the difference of sex. Mr. Christopher Clarke says it was due to the requirements of safety and to the different physical attributes of men and women. But safety was merely the purpose of the rule and the rule itself seems to us to be plainly based on the difference of sex, no doubt as a convenient administrative arrangement, and one at the time when it was originally made thirty years ago was in conformity with generally accepted social ideas.

[14]We think it important to note that in a case like the present an employee may very well have a claim under the Equal Pay Act 1970. Thus, if, contrary to the view expressed above, the privilege of leaving early was a matter regulated by the contract of employment, Mr. Peake would have such a claim. The Equal Pay provisions and the Sex Discrimination provisions are all part and parcel of the same code. In a factory in which thousands of men and women are employed it is likely that some will have a remedy under the Equal Pay Act, but others - for example, because they are not employed on like work -will not. It would seem to us surprising if those who for such a reason could not found a claim under the Equal Pay Act could not found one under the Sex Discrimination Act, comparable or complementary to that available to some of their colleagues under the Equal Pay Act.

[15]However, for the reasons which we have given we conclude that Mr. Peake's claim, if it is to succeed at all, can only succeed under the Sex Discrimination Act 1975> and that the industrial tribunal were wrong in considering Section 6(1) as being the relevant section. In our judgment the only relevant section could be Section 6(2), which provides as follows:

"(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her - (a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or (b) by dismissing her, or subjecting her to any other detriment."

[16]Before considering that section, upon which in our judgment the success of the application depends, it is necessary to consider Section 1. The scheme of the Act is that Part I defines and describes certain types of discrimination and Part II proscribes and declares unlawful in certain circumstances acts of discrimination as defined in Part I. Accordingly, in any particular case it is necessary to see whether the act complained of is an act of discrimination as defined in Part I, and if so whether it is rendered unlawful in Part II.

[17]Section 1 provides as follows:

"1. (1) a person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if - (a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or (b) he applies to her a requirement or condition which he applies or would apply equally to a man "but - (i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and (iii) which is to her detriment because she cannot comply with it. (2) If a person treats or would treat a man differently according to the man's marital status, his treatment of a woman is for the purposes of subsection (1)(a) to be compared to his treatment of a man having the like marital status."

[18]There is no doubt that Automotive Products Ltd. treated Mr. Peake less favourably than they would have treated a female employee similarly situated to him. The question is whether they did so "on the ground of his sex". Mr. Christopher Clarke submits not. He says that the whole purpose of the alleged discrimination was to ensure safety, and that this was a sensible, practical way to go about it wholly free of any intention to discriminate. While admitting that some women might be better able to take care of themselves than some men he contended that this was the best practical way of ensuring safety, and that what was done was not in the least done on the ground of sex. ¥e do not accept this. Such a contention would lead to the Act not applying in many cases in which it must have been intended to apply. It seems to us that Mr. Christopher Clarke is confusing the motive or the purpose of the act complained of with the factual nature of the Act itself. Section 1(1)(a) requires one to look to see what in fact is done amounting to less favourable treatment, and whether it is done to the man or the woman "because he _is a man or a woman. If so, it is of no relevance that it is done with no discriminatory motive. If a woman was made to remain "behind until all the men had gone because such a rule applied to all the women, and to none of the men, although it might be the case that it was done in the interests of safety, nonetheless it would be done in her case because she was a woman and not a man. And so it is, in our judgment, in the case of Mr. Peake. It has to be remembered that Part I is only concerned to define the discrimination to which the Act applies. No penalty attaches to acts of discrimination except to the extent that later on in the Act they are proscribed or rendered unlawful.

[19]Mr. Christopher Clarke further contended that if one was to compare the case of Mr. Peake with that of a female employee similarly situated it could not be said the relevant circumstances in the two cases were the same or not materially different. Such a comparison is required for the purpose of applying Section 1(1)(a), and the effect of Section 5(3) is that comparisons of cases which are not the same, or are materially different, is not permitted, We do not accept Mr. Christopher Clarke's contention on this point. It seems to us that in deciding whether the circumstances of the two cases are the same, or not materially different, one must put out of the picture any circumstances which necessarily follow from the fact that one is comparing the case of a man and of a woman.

[20]Accordingly we turn to consider whether Mr. Peake can bring his claim within Section 6(2)* The question under Section 6(2) is whether the privilege of leaving five minutes early is a "benefit" or "facility" under (a), or whether to prevent a woman leaving at the same time as a man, or a man at the same time as a woman, is to subject her or him to a "detriment" under (b). Mr. Christopher Clarke submits not, in each case. For there to be a benefit or facility under (a), he submits, there must be an element of bounty on the part of the disposer, in the sense of an intention to provide a benefit or facility as such, whereas the benefit or facility here was merely incidental to the traffic control system introduced in the interests of safety. As to (b), while accepting that a man not allowed to leave at the same time as a woman suffers a detriment, comparing her lot to him, he says that a person who receives his entitlement is no worse off because. another is better off as a result of receiving a privilege or concession (possibly drawing on his recollection of the parable of the Labourers in the Vineyard -not a sure guide in industrial relations). No doubt there is something to be said for these arguments but they seem to us, just as the argument in Section 1 did, to confuse what was done with the purpose for which it was done. Taking the reverse case where all the women were detained, in the interest of safety, until all the men had gone it would be difficult to say that the women had not been refused access to a benefit or facility enjoyed by the men, i.e. of leaving five minutes early, or that by being detained they were not being subjected to a detriment. Furthermore, as in the case of Section 1, it seems to us that a restrictive or technical construction of these words would undoubtedly lead to trouble in other cases, for the words "benefits, facilities or services" are used throughout the Act, and such construction would certainly result in some cases in the Act not applying where it was obviously intended to. In our judgment, it can clearly be said of Automotive Products Ltd. that "on the ground of Mr. Peake's sex" they have "treated him less favourably than they treat a woman" (section 1) whose "relevant circumstances were the same" (section 5(3)) in "refusing him access to the benefit or facility'* (section 6(2) (a)) of leaving at the same time as a woman, and by "subjecting him to the detriment" (section 6(2)(b)) of not being allowed to leave at that time. There may be a doubt about the applicability of "facility 11 , but, in our judgment, not of "benefit," which means no more than "advantage."

[21]In our judgment, for the reasons which we have given, Mr. Peake has made good his case under Section 6(2) of the Sex Discrimination Act 1975. Any other conclusion would involve giving the language of the Act a restricted construction out of deference to our preconceived ideas of what, had there been no Act, would be sensible in this field. But in the case of a reforming Act of this kind, deliberately introducing new ideas and policies, preconceived ideas of what is fit are at best an uncertain guide, and the only sure course is to follow the words of the Act in accordance with what appears to be its policy. Occasionally, no doubt, it will produce odd results, but they are the price which will have to be paid for such a sweeping reform, enacted with much detail affecting most departments of life, and with no general escape clause enabling the courts to exclude its operation.

[22]We have considered, as Mr. Christopher Clarke suggested we might, whether we could take refuge in the maxim de minimis non curat lex: a useful port in many a storm. The balance which courts should observe when such a matter is under consideration is helpfully put by Sir William Scott in The Reward (1820) 2 Dods Adm. R. 269 where he said:

"This Court cannot take on itself legislative functions: it must administer the law as it stands; certainly, with such qualifications as the law permits. The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim De minimis non curat lex. Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked."

[23]For much the same reasons as we have indicated more than once in this judgment, it seems to us that if we were in reliance upon that maximum to refuse to give Mr. Peake the remedy to which a literal construction of the words of the Act would lead we should be flying in the face of the legislative intent, and that we cannot do.

[24]Accordingly, despite our impression when we entered upon this case, it seems to us that Mr. Peake has made out his claim. Guiding ourselves by the ideas implicit in the Sex Discrimination Act 1975, we can see that there is here, in the practice which has been adopted in this factory for so many years, a sort of sex discrimination; for it is a case in which men and women in comparable situations are being treated differently on the ground of sex, and where the interests of safety for which that discrimination was originally introduced many years ago could be achieved otherwise than by arrangements based upon sex. Harmless enough, no doubt, but no longer permitted.

[25]We turn to the remedy to which Mr. Peake is entitled. He does not claim compensation. This practice has been in operation for very many years with general satisfaction, and there is no need for any great hurry in bringing it to an end. We hope that a way can be found to cater for the special needs of married women with families which does not fall foul of the Act. The Order which we propose to make is as follows: 1. It is declared that the practice operated by Automotive Products Limited at their factory at Tachbrook Road, Leamington Spa whereby Mr. F. B. Peake is not permitted to leave at the end of the day's work until 4.30 p.m., whereas the women in the same circumstances as himself are allowed to leave at 4.25 p.m., is unlawful being an act of discrimination within Section 6(2) of the Sex Discrimination Act 19755 2. Automotive Products Limited do discontinue the practice within twelve months from the date of this Order; and 3. Automotive Products Limited do consult with any relevant trade union, and with the Equal Opportunities Commission, as soon as possible for the purpose of introducing an agreed alternative practice which does not contravene the provisions of the Sex Discrimination Act 1975. Liberty to apply as to the form of Order. Leave to appeal to the Court of Appeal. P. A. Haswell. 9 Strickland Close, Leeds, LS17 8JY VERBATIM REPORTER AND TAPE TRANSCRIBER