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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Capper Pass Ltd v Lawton [1976] UKEAT 346_76_1076 (19 October 1976) URL: http://www.bailii.org/uk/cases/UKEAT/1976/346_76_1076.html Cite as: [1977] QB 852, [1976] UKEAT 346_76_1076, [1976] IRLR 366, [1977] 2 All ER 11, (1976) 11 ITR 316, [1977] 2 WLR 26

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Employment Appeals Tribunal

		At the Tribunal On 19 October, 1976

1. Phillips, J., delivered the following judgment of the tribunal: -
2. On the 15th September, 1976, we heard an appeal by the employers, Capper Pass Ltd., from the decision of an industrial tribunal sitting at Anlaby on the 24th May, 1976, which had found in favour of the complainant, Mrs. J. B. Lawton, that she was entitled to an equality clause in her contract giving her hourly pay and staff conditions equal to those of two fellow employees, Mr. Smith and Mr. Brattan. We confirmed that part of the decision of the industrial tribunal, but varied the form of the order in accordance with an agreement made between the parties which we approved. We now give the reasons for our decision.
3. Mrs. Lawton worked as a cook in the kitchen from which the directors of the employers, and their guests, were served. She sought equality of treatment with Mr. Smith and Mr. Brattan, who were employed as assistant chefs in the kitchen serving the canteen at the employers' factory. Mrs. Lawton was the only cook in her kitchen. She had to provide lunch for between ten and twenty persons per day, and the kitchen was of an appropriate semi-domestic sort. Mr. Smith and Mr. Brattan worked as assistant chefs under a head chef and between them provided 350 meals a day in six sittings: two for breakfast, two for lunch, and two for tea. The kitchen in which they worked was on an appropriate non-domestic scale. The facts upon which the complaint had to be decided were not in dispute, and, as the industrial tribunal said, it was a question of how to interpret them.
4. It is not necessary for the purposes of this judgment to set out the whole of the facts and circumstances. During the course of the argument Mr. Bradley, for the employers, summarised the main differences between the work done by Mrs. Lawton and that down by Mr. Smith and Mr. Brattan under five heads, as follows:

(i) Mrs. Lawton was the directors' cook, cooking on a domestic scale. The others were cooks in an industrial canteen.

(ii) Mrs. Lawton worked a 40-hour week. The others worked a 45-hour week, and one Saturday in three.

(iii) Mrs. Lawton did not have to prepare food in advance on a large scale. They did.

(iv) Mrs. Lawton only cooked lunch; they cooked breakfast, lunch and tea in two sittings.

(v) Mrs. Lawton was not answerable to a head chef, and to that extent might be admitted to have greater authority. She was answerable to the catering manager; they were answerable to the head chef. As against this, when the catering manager was on holiday the head chef deputised for him, so that one of the assistant chefs had to take over the head chef's functions, and similarly, when the head chef was on holiday, one of them had to take his place.

5. Weighing the whole matter up the industrial tribunal decided in favour of Mrs. Lawton. In their opinion "the differences outlined to us were not practical differences sufficient to warrant the terms and conditions of the contract, as between the applicant and Mr. Smith and Mr. Brattan, being; any different. The differences in our view were peripheral. They did not amount to material or practical differences. Indeed, so far as we could see, the only reason why Mrs. Lawton's rate of pay was different from Mr. Smith and Mr. Brattan was because she was a woman and they were men. In those circumstances we find that the applicant is entitled to an equality clause . . ."
6. This is the first appeal under the Equal Pay Act, 1970, as amended by the the Sex Discrimination Act, 1975, to come before the appeal tribunal. For this reason, and because the cases, decided by the industrial tribunals, which have been cited to us do not all proceed upon the same footing, we think that it might be useful, before turning to the facts in this appeal, to say something about the construction and application of the Act.
7. Under section 1(1) every contract of employment under which a woman is. employed at an establishment in Great Britain is deemed to include an equality clause. Accordingly, the question is not whether an equality clause-shall be included but what is its effect in a particular case. The answer to that question is provided in section 1(2). There are two distinct types of case:

(i) where there has been an evaluation study (section l(2)(b) and (5)), and

(ii) where there has not been an evaluation study, but the woman is. employed on "like work" with a man in the same employment (as defined in section 1(6)).

8. Most of the cases which have caused difficulties are ones where the question which has to be decided is whether the woman is employed on like work. It is that question which we have under consideration, and we are not here concerned with the case where there has been an evaluation study.
9. Section 1(3^[1] has nothing to do with the question whether a woman is employed on like work with a man, and confusion seems to have been caused in some of the cases cited to us by assuming that it has. Section 1(3) is concerned with the operation of an equality clause which, apart from the provisions of the subsection, would apply. For example, suppose a man and a woman to be engaged on like work but the man to be paid at a higher rate than the woman. Despite the application of the equality clause in such a situation, it is not to operate if the variation in remuneration is genuinely due to a material difference (other than the difference of sex) between her and him. Thus in such circumstances the equality clause will not operate if the variation is due, for example, to the fact that extra remuneration is payable to long service employees, which the man is and the woman is not. The vital provision in determining whether a woman is employed on like work with a man is to be found in section 1(4), and we think that it may be helpful to say something about the proper approach to that provision.
10. It is obviously difficult, in an Act intended to prevent discrimination between men and women in terms and conditions of employment, to define the test which is to be applied in determining whether discrimination exists. It is easy to talk in general terms but very hard to lay down a clear test which can be applied satisfactorily in practice. One can see that it would be possible to prescribe tests of varying degrees of severity. The least favourable from a woman's point of view would be to require equality of treatment when men and women were doing the same work. More favourable would be to require equality where the work done by the man and woman, although different, was of equal value. The Act has chosen a middle course. Equality of treatment is required where the woman is employed on "like work" with the man. And "like work" is work which is of the same nature as, or of a broadly similar nature to, the man's work.
11. In cases of dispute this test, imposed by section 1(4), requires the industrial tribunal to make a comparison between the work done by the woman and the work done by the man. It is clear from the terms of the subsection that the work need not be of the same nature in order to be like work. It is enough if it is of a similar nature. Indeed, it need only be broadly similar. In such cases where the work is of a broadly similar nature (and not of the same nature) there will necessarily be differences between the work done by the woman and the work done by the man. It seems clear to us that the definition requires the industrial tribunal to bring, to the solution of the question whether work is of a broadly similar nature, a broad judgment. Because, in such cases, there will be such differences of one sort or another it would be possible in almost every case, by too pedantic an approach, to say that the work was not of a like nature despite the similarity of what was done and the similar kinds of skill and knowledge required to do it. That would be wrong. The intention, we think, is clearly that the industrial tribunal should not be required to undertake too minute an examination, or be constrained to find that work is not like work merely because of insubstantial differences.
12. It seems to us that in most cases the enquiry will fall into two stages. First, is the work of the same, or, if not, "of a broadly similar" nature? This question can be answered by a general consideration of the type of work involved, and of the skill and knowledge required to do it. It seems to us to be implicit in the words of section 1(4) that it can be answered without a minute examination of the detail of the differences between the work done by the man and the work done by the woman. But, secondly, if on such an examination the answer is that the work is of a broadly similar nature, it is then necessary to go on to consider the detail and to enquire whether the differences between the work being compared are of "practical importance in relation to terms and conditions of employment". In answering that question the industrial tribunal will be guided by the concluding words of the subsection. But again, it seems to us, trivial differences, or differences not likely in the real world to be reflected in the terms and conditions of employment, ought to be disregarded. In other words, once it is determined that work is of a broadly similar nature it should be regarded as being like work unless the differences are plainly of a kind which the industrial tribunal in its experience would expect to find reflected in the terms and conditions of employment. This last point requires to be emphasised. There seems to be a tendency, apparent in some of the decisions of industrial tribunals cited to us, and in some of the arguments upon the hearing of this appeal, to weigh up the differences by reference to such questions as whether one type of work or another is or is not suitable for women, or is the kind of work which women can do, or whether the differences are important, and so on. These are not the tests prescribed by the Act. The only differences which will prevent work which is if a broadly similar nature from being "like work" are differences which in practice will be reflected in the terms and conditions of employment.
13. We turn now to the appeal before us. Mr. Bradley conceded that the work done by Mrs. Lawton was of a nature broadly similar to that done by Mr. Smith and Mr. Brattan. He contended that the differences between the things which she did and things which they did were of practical importance in relation to the terms and conditions of employment. He recognised that that was a question of fact, and that there is only an appeal to this appeal tribunal upon a point of law. He sought to overcome this difficulty by contending that the decision made no reference to important parts of the evidence, that it revealed a misunderstanding of other parts of the evidence, that it was necessary to consider the cumulative effect of these errors, and that the industrial tribunal had incorrectly interpreted the legislation. The omissions concerned:

(i) the amount of overtime which Mr. Smith and Mr. Brattan were required to work;

(ii) the extent to which they had to deputise for the head chef or the catering manager;

(iii) the number of meals which they had to prepare as compared with the number which Mrs. Lawton had to prepare, and

(iv) the need for them (as opposed to Mrs. Lawton) to prepare food in advance.

14. The misunderstandings and errors alleged concerned:

(i) the number of meals which Mrs. Lawton had to prepare;

(ii) the scale of her work as compared with that of Mr. Smith and Mr. Brattan, and

(iii) the relative freedom from supervision of Mrs. Lawton compared with Mr. Smith and Mr. Brattan.

Finally, Mr. Bradley drew attention to the five main heads of differences summarised earlier in this judgment.

15. On a fair reading of the reasons for its decision we cannot find that the industrial tribunal mis-directed itself in law. We accept that there is some justice in the individual points which Mr. Bradley makes, though many of them are of a trivial nature. We also accept his submission that industrial tribunals in cases of this kind ought in the reasons to deal with all the matters raised at the hearing as being relevant to the decision. If they do not, there is always a risk that it will be said that they overlooked the point and that the decision is therefore defective. We also accept that it is necessary to consider the appeal bearing in mind the cumulative effect of the criticisms made.
16. The question, we think, is whether bearing in mind all these criticisms we can say that they indicate a wrong appreciation by the industrial tribunal of the nature of the work of, on the one hand, Mrs. Lawton and, on the other hand, of Mr. Smith and Mr. Brattan. We do not think we can. It is certainly the case that the industrial tribunal somewhat under-stated the difference in hours worked, to some extent the difference in the amount of deputising which was necessary and, in particular, the volume of work done by Mr. Smith and Mr. Brattan compared with that done by Mrs. Lawton, although the amount of assistance enjoyed by Mr. Smith and Mr. Brattan was substantially more than enjoyed by her. But we do not think that we can conclude from these errors that the industrial tribunal misjudged the situation, or that its decision would have been any different had it specifically and correctly dealt with these points.
17. Accordingly, we confirmed the decision as to the effect of the equality clause in Mrs. Lawton's contract, but varied the order in the terms agreed between the parties and approved by us.
18. In reaching this decision we have given special consideration to the difference between the hours worked by Mrs. Lawton and those worked by Mr. Smith and Mr. Brattan, both in relation to the question whether they were employed on like work and to the effect (if they were so employed) of the equality clause.
19. It is not unusual in industry and commerce for employees engaged on work of a broadly similar nature to be employed for different amounts of _... overtime, or with no overtime at all, or employed part-time (i.e., less than the normal basic week). Their pay is neverthless calculated on a common basis, that is to say by reference to, for example, a 40-hour week. Part-timers receive proportionately less and employees who work overtime receive proportionately more, often including premium rates for hours worked in excess of the basic week. In this case it was acknowledged by the employers that the wages of Mrs. Lawton, and the wages of Mr. Smith and Mr. Brattan, were all calculated by reference to a basic 40-hour week. The actual wages of the men were calculated at a basic hourly rate for 40 hours per week, plus 5J hours per week overtime at premium rate.
20. For this reason we have approved the agreed variation of the order of the tribunal, to ensure that Mrs. Lawton's hourly rate for 40 hours is the same as the hourly rate for 40 hours (without the premium overtime payment) of Mr. Smith and Mr. Brattan. If Mrs. Lawton should work in excess of 40 hours she would be entitled to overtime rates equal to those applicable to them.

Appeal dismissed

Note 1   s 1(3) An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material difference (other than the difference of sex) between her case and his.    [Back]