§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Mather.]10.48 pm
§ Mr. Michael Spicer (Worcestershire, South)
I am grateful for the opportunity to bring before the House the facts behind what would appear to be a serious, not to say unusual and ironic, defect in the application of the Sex Discrimination Act 1975. The Act, for better or worse, states simply that, save for exceptional circumstances, a man and a woman who do the same job should be paid the same salary or wage.
The problem that I bring before the House is equally straight-forward. In my constituency there exists the Royal Signals and Radar Establishment, which employs male and female drivers—I hasten to say not "drives" as the House magazine states with Freudian charm. These chauffeurs and chauffeuses have the job of driving all the military and scientific staff at the RSRE, and no distinction is made between the job of the women and the job of the men, except, perhaps—this is a contentious matter—that there is a tendency for the men to get the very late jobs or the very long-distance jobs.
For doing precisely the same work—that is all that they are claiming—the men are paid, taking into account overtime, on average, £5 less a week than the women. The story that lies behind that astonishing and ironic situation goes back to a time before July 1975, when male drivers were paid on the basis of what was then called male band 4 and the women were paid on what was then called female band 6.
The net result of the complicated arrangements—I shall not trouble the House by going into why the arrangements existed—was that females were paid 80p a week less than the men on the basic rate, but—the "but" is crucial in view of the judgment given earlier this year by Lord Denning—the women were employed on very different terms and conditions from their male counterparts. For instance, whereas the men started work at 1252 8 o'clock in the morning, the women began at 8.30. Whereas the women were paid for the whole of their lunch breaks, the men drivers were given only half of their pay for their lunch breaks if they were on long journeys. The overtime implications of these arrangements meant that before July 1975 women were about £4.50 a week better off than the men. This is crucial in view of the later judgment given by Lord Denning, to which shall return.
With the implementation in early 1976 of the terms of the 1975 Act, the distinction between male and female bands was abolished and the so-called, charmingly termed, unisex band was introduced. This gave the women drivers an additional 80p on their basic rate. However, it removed from them all the other perks. For six months they were employed on precisely the same terms as their male counterparts.
Needless to say, the women were not particularly happy with that arrangement. They did not like being employed on the same terms as the men. They managed to persuade their union, the Transport and General Workers Union, to fight for rather different terms. At the end of 1976 the management, in my view rather weakly, gave way. The effect of the new terms was to place the women on a new unisex band 6, as opposed to the men who are on unisex band 4, which meant that they received £1.25 more in basic pay than the men for doing precisely the same word. Overtime made the differential considerably higher.
That is the position that still exists, except that the differential has now risen to £2.30 per week, with the men being paid £68.90 basic and the women £71.20 for doing precisely the same job. With overtime the differential rises to an average of £5 a week. As wage rates rise, so the gap between the men and the women will grow. One of the results is that the women chauffeuses are now paid on the same band as the class 3 heavy goods drivers, who do much of the long distance and very rough work at RSRE in testing, for example, scientific equipment. Clearly, that cannot be right.
The story of the frustrated attempts made by the men to correct such an obvious absurdity has disturbed me as much as has the injustice of the situation. In 1976 they failed to get any assistance 1253 from their union. As a result, the male drivers applied to the Equal Opportunities Commission, which was set up under the 1975 Act. In 1977 the men received the wholehearted support of the commission, which agreed to pay all the costs of any application that they made to the industrial tribunal.
After much delay, caused by the Government of the day—which, needless to say, was not a Conservative Government—their case was heard on 25th September 1978. The industrial tribunal decided that the anomaly should be corrected, and that decision was unanimous. The Ministry was given six weeks in which to make an appeal. It did so on the last possible day. The employment appeals tribunal—the next step—heard its case on 29 March 1979, and an immediate decision was given in favour of the men.
On 23 June 1980 the Ministry's appeal against the judgment of the appeals tribunal went before Lord Denning in the High Court. Lord Denning's judgment against the men was, in the view of many, extraordinary. Having appeared to lay great stress on the reasonableness of the men's case and the unreasonableness of the union's pressure on behalf of the women, Lord Denning found against the men. He said that he had done so on the ground that the discrimination that had existed against the women before 1975 constituted a material reason, other than that of sex, why there should be continued discrimination against the men. I hope that that does not sound too Irish.
Two points struck me. First, in practice the discrimination before 1975 was against the men rather than the women. Secondly, the material reasons that Lord Denning gave were based on sex. The men had seven days from the date of Lord Denning's judgment to appeal to the House of Lords. However, it was not until the seventh day that they heard to their horror that the Equal Opportunities Commission felt that it could no longer allocate funds from its budget to take the men's case to the House of Lords. That occurred despite the fact that the Equal Opportunities Commission felt that they had been extremely hard done by. They heard about that decision on the seventh day, and there was no longer any time to take remedial action.
1254 They could not afford the cost of taking the case to the House of Lords.
Perhaps my hon. Friend the Under-Secretary will base his response on Lord Denning's judgment. Perhaps nothing can be done in this case. Nevertheless, I hope that he will indicate the Government's view about this application of the Sex Discrimination Act. Does my hon. Friend think that the men have been treated fairly? Does he think that the will of Parliament, as expressed in that Act, has been properly reflected by the courts? In particular, does he think that because some women were discriminated against at some time in the past, men doing precisely the same job should be paid at a lower rate? Is it right that the prospect should exist of this differential widening unless something is done about it?
§ The Under-Secretary of State for Defence for the Army (Mr. Barney Hayhoe)
My hon. Friend the Member for Worcestershire. South (Mr. Spicer) has made a powerful case on behalf of some of his constituents, as he is entitled to do, but I suspect that some of his constituents are female drivers at the establishment in Malvern, and that they take a different view.
The male drivers felt that they had a grievance. They sought redress at the industrial tribunal in September 1978 and won their case. They may then have felt that that was the end of the matter, but the Ministry of Defence felt that that judgment was not in accordance with legislation passed by the House and appealed to the employment appeals tribunal in April 1979. That appeal was dismissed. My hon. Friend's consituents may again have felt that that was an end of the matter. I can therefore imagine their concern when they learnt that the Ministry proposed to take the matter to the Court of Appeal, as it was entitled to do. It was not the High Court, as my hon. Friend suggested. Lord Denning was sitting with two other judges, and he allowed the appeal.
When that appeal was contemplated, I imagine that my hon. Friend's constituents would have agreed with the view expressed by Lord Denning that, at first sight, it sounded like a good case. That was so much so that the industrial tri- 1255 bunal and the employment appeals tribunal found in favour of the male car drivers. However, Lord Denning's judgment went on to spell out clearly that the case that was deployed on behalf of the male drivers did not stand up when tested against legislation passed by the House. That was not only the judgment of Lord Denning; it was the unanimous decision of the three judges.
The grievance of the male drivers was their claim that there was discrimination against them on grounds of sex. The paradox is that the problem has arisen for the reverse reason. There had been no discrimination against men or women drivers employed by the Ministry of Defence and its predecessors since the end of the Second World War. Perhaps uniquely among that type of employee in Government service, there were not different rates of pay for men and women. Because of that history, some of the difficulties have occurred.
I reject my hon. Friend's paraphrase of Lord Denning's judgment. Those interested in the case should read the whole judgment. I shall quote only two parts. Lord Denning said:I do not think it is nearly as simple as that. If one inquires into the reason for this variation, one finds that it came about because of a curious and exceptional situation. The Ministry of Defence introduced the system to prevent discrimination because of sex.It seems to me that the variation came about—not because of a difference of sex—but because of the system which had been adopted to eliminate the difference in pay between the men and the women.
§ Mr. Hayhoe
After the end of the war there was no discrimination on pay between male and female drivers. The Ministry later introduced scales of pay that applied over a wide range of employment in which there were different rates of pay for males and females. In order to retain the position of no difference in pay, some people were allocated different bands.
As a result of the passing of legislation and the movement within the Civil Service to no discrimination between men and women across the whole field, the arrangement that had been made to avoid discrimination in this area began to run 1256 into difficulties. Some of the women drivers were being paid more than men doing a similar job. It was proposed that those women be put in the same band as the men, but the women saw themselves being disadvantaged.
Not all the women were involved. My hon. Friend did not differentiate between the women who had been in post and were carrying forward the higher level of remuneration and the general body of women, many of whom were paid at the same rate as men. At present, some women are getting different rates of pay, which are dependent upon their history. That was the point of the discussions with the trade unions and the agreement that 51 women of the 1,000 or so drivers covered by the arrangements carried forward a personal rate of pay so long as they remained in continuous employment as car drivers. The trade union side accepted that arrangement and did not support the male drivers, who pressed their grievance through the industrial tribunal and on through the employment appeal tribunal and the Court of Appeal.
In essence, we have a small and diminishing number of female car drivers who were in employment before 1 July 1975 at a number of Ministry establishments who had been given pay band 6 rates on a personal basis, and the decision to do that has been upheld by the Court of Appeal. Not all the women drivers are on that pay band. The latest figures that I have from Malvern are that eight women are getting that personal rate on band 6 and seven women are on band 4—the band that is applicable across the generality of drivers.
There is no doubt that the male drivers at Malvern and other establishments are receiving the correct rate for the job which applies to the rest of the 1,000 or so men and women drivers. There is a small group of women who have been allowed to retain their pre-1975 pay banding on a personal basis. The question was whether that personal basis fell within the 1970 Act, which was taken on board in the Sex Discrimination Act 1975, and constituted a condition that fell in with section 1(3) of the original measure.
That section states:An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the 1257 employer proves that the variation is genuinely due to a material difference (other than the difference of sex) between her case and his.The judgment by the Court of Appeal rested on that. If my hon. Friend reads that judgment again, it will be difficult for him to conclude that the matter has not been addressed in a highly responsible and sensible fashion by Lord Denning, Lord Justice Waller and Lord Justice Dunn, who concurred in the judgment.
No discrimination because of sex has taken place against the men or the women drivers. Indeed, the reverse is true. The problems arose because the Ministry of Defence was determined not to introduce discrimination between men and women drivers and because it was removing discrimination in other trades and jobs. A small group of women felt that they were being disadvantaged as a result. They took their case, via their trade union, to the employers, and discussed it. An arrangement was made that was fair to them. As a result, an anomaly exists which is the subject of much misunderstanding.
Lord Justice Waller said:As a result, those women drivers who were employed before 1975 were not only different from men drivers but different from women drivers appointed after 1975.In other words, the key to the distinction was not the sex of the drivers but the time at which they were employed. Lord Justice Waller continued:These 51 women, as my Lord has quoted,"—that is, Lord Denning—are receiving band 6 payment on a personal basis as long as they remain in continuous employment as car drivers; and they are on that personal basis because of the peculiar circumstances in which the Ministry over the years before 1975—from 1970 to 1975—were endeavouring to remove the discrimination between men and women. Because of that, when the change was made in 1975, these women were aggrieved.Although one understands the grievance, there is not the slightest justification for saying that the Ministry acted with other than the highest of motives. Because of the difficulties of the history of the case, the Ministry has made the best of the difficult decisions open to it in consultation with the small group of women involved.
§ Mr. Spicer
My hon. Friend has made much play of his argument that there was 1258 no discrimination before 1975. Quite blatantly there was, and it was based on sex. What other basis was there for the discrimination? It so happens that the discrimination, in practice, though not in terms of basic rates, was against the men. Does my hon. Friend feel that the present arrangements, whereby people who are doing precisely the same job and are paid differentially, is fair?
§ Mr. Hayhoe
In so far as the men and women who were employed after 1975 and are working in precisely the same conditions are paid the same rates, that is correct. My hon. Friend says that this applies to the women generally, but it concerns a small and diminishing band of women. They are 51 strong, and the number could have been reduced by retirement in the past few days since the figures came to me. Those women are retaining a higher rate on a personal basis and as an act of justice, taking account the history of the position. This matter, quite properly, went through the courts. The people with a grievance took it to the industrial tribunal, then, on appeal by my Department, to the employment appeal tribunal and, subsequently, to the Court of Appeal.
The anomaly referred to by my hon. Friend, and upon which he rests his whole case—that a small group of women, about half the drivers, are getting more pay than the majority of women drivers and all the male drivers—is, he says, contrary to the law. He is saying, effectively, that he disagrees with the judgment of the Court of Appeal. It is his privilege to make such an observation. Having read the report of the proceedings, I feel that the court arrived at a sensible conclusion to the matter.
As I read the text of what happened before the industrial tribunal, the employment appeal tribunal and the Court of Appeal, it seemed that, more and more, the commonsense point of view was being expressed by the courts, and less and less the pedantic legalistic view.
My hon. Friend asked whether I believed that what had now happened was in accordance with the decision of the House in the primary legislation. The answer is "Yes". That is why the House put in the phrase to which I referred in section 1(3) of the Act.
§ Mr. Hayhoe
My hon. Friend may think that it is, but he is in a minority against the Court of Appeal, and he would also be in a minority, I think, if the issue were put to a wider forum. There is no ground for suggesting that the difference of pay between this small group of women and the other women and the men is, on a basis that goes back into the past, discriminatory in respect of one side or the other. It is a payment that reverts to the history of the matter. This 1260 is a situation in which whatever was done would cause some distress and sense of grievance by some of the people involved. Against that background, the decision that was come to first of all—
§ The Question having been proposed after Ten o'clock and the debate having continued for half an hour, Mr. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.
§ Adjourned at eighteen minutes past Eleven o'clock.