EQUAL PAY

Alabaster v Barclays Bank plc (formerly Woolwich plc): [2005] EWCA Civ 508

CA: Brooke, Latham and Neuberger LJJ: 3 May 2005

In May 1995 the applicant became pregnant, her expected week of confinement commencing on 11 February 1996. On 1 December 1995, after the expiry of the "relevant period" on which the applicant's average weekly earnings for the purpose of calculating earnings-related maternity pay was based, pursuant to regulation 21 of the Statutory Maternity Pay (General) Regulations 1986, she was given a pay increase which was not backdated and which was not reflected in the amount of maternity pay she received after commencing her maternity leave. She complained to an employment tribunal that by failing to include the salary increase her employer, the first respondent, had discriminated against her on the ground of her sex, contrary to the Equal Pay Act 1970 and article 119 of the EC Treaty. She was subsequently given leave to add a complaint of unlawful deduction of wages, contrary to section 13 of the Employment Rights Act 1996; and the Secretary of State for Social Security was joined as second respondent. The tribunal dismissed the complaint under the 1996 Act on the ground that it was out of time and held that, although the applicant's claim that the employer was in breach of article 119 was well-founded, in that regulation 21(7) of the 1986 Regulations did not fully implement Community law, her claim that the breach contravened the provisions of the Equal Pay Act 1970 had to be dismissed for want of jurisdiction. The Employment Appeal Tribunal dismissed an appeal by the applicant. On appeal by the applicant, the Court of Appeal referred certain questions to the European Court of Justice, which held that, to accord with Community law, the pay rise had to be included when calculating the applicant's maternity pay.

The hearing of the applicant's appeal was resumed on the issue of whether her claim to the increased maternity pay was time-barred.

The Court of Appeal held:
Rights conferred on individuals by Community law had to be made fully effective in the member state, and national rules giving effect to such rights had not to be less favourable than those governing similar domestic actions or render excessively difficult the exercise of those rights. The scale of the differences between the regime for enforcing the applicant's claim pursuant to the Employment Rights Act 1996 and the regime available for all other complaints someone might have in respect of unfair treatment in the field of pay, left a woman who claimed maternity pay but received an award of increased salary before she left employment significantly disadvantaged and could not be objectively justified. The appropriate course was to disapply those parts of section 1 of the Equal Pay Act 1970 that imposed the requirement for a male comparator, with which it was not possible to comply in relation to issues concerned with a pay entitlement during maternity leave, so that the applicant would be able to succeed in her sex discrimination claim under the 1970 Act, which was within time, without the need for such a comparator.

The appeal was allowed.

Appearances: Karon Monaghan and Akua Reindorf (Palmer Wade) for the applicant; the employer did not appear and was not represented; Christopher Vajda QC and Rebecca Haynes (Solicitor, Department for Work and Pensions) for the Secretary of State.