Clay Cross (Quarry Services) Ltd v Fletcher

Mrs Fletcher was paid £35 per week, with three other clerks. A colleague left and was replaced by Mr Tunnicliffe, aged 24. He was the only suitable candidate and was paid £43 per week, which matched his previous salary. Pay was increased by £6 a week, but the disparity stayed. An expert said that clerks’ wages should be set at £43.46, but Mr Tunnicliffe’s wage still remained higher, at £49. Mrs Fletcher spent a while training him, and then when the EPA 1970 came into force in 1975, she complained.

Tribunal held that Ms Fletcher did have an equal pay claim. The EAT reversed this, holding that the man’s previous salary was a genuine material factor. Mrs Fletcher successfully appealed.

Lord Denning MR held that the factor relied on in section 1(3)(a) had to be ‘personal’ to the worker concerned.

The issue depends on whether there is a material difference (other than sex) between her case and his. Take heed to the words “between her case and his.” They show that the tribunal is to have regard to her and to him — to the personal equation of the woman as compared to that of the man — irrespective of any extrinsic forces which led to the variation in pay. As I said in Shields v E Coomes (Holdings) Ltd , ante, p. 1418E, section 1 (3) applies when “the personal equation of the man is such that he deserves to be paid at a higher rate than the woman.” Thus the personal equation of the man may warrant a wage differential if he has much longer length of service, or has superior skill or qualifications; or gives bigger output or productivity; or has been placed, owing to downgrading, in a protected pay category, vividly described as “red-circled”; or to other circumstances personal to him in doing his job.

But the tribunal is not to have regard to any extrinsic forces which have led to the man being paid more. An employer cannot avoid his obligations under the Act by saying: “I paid him more because he asked for more,” or “I paid her less because she was willing to come for less.” If any such excuse were permitted, the Act would be a dead letter. Those are the very reasons why there was unequal pay before the statute. They are the very circumstances in which the statute was intended to operate.

Nor can the employer avoid his obligations by giving the reasons why he submitted to the extrinsic forces. As for instance by saying: “He asked for that sum because it was what he was getting in his previous job,” or, “He was the only applicant for the job, so I had no option.” In such cases the employer may beat his breast, and say: “I did not pay him more because he was a man. I paid it because he was the only suitable person who applied for the job. Man or woman made no difference to me.” Those are reasons personal to the employer. If any such reasons were permitted as an excuse, the door would be wide open. Every employer who wished to avoid the statute would walk straight through it.

Lawton LJ and Browne LJ concurred.

• UK labour law
• UK employment equality law

Macarthys Ltd v Smith in which the court referred the matter to the ECJ; and decided then similarly.