Coyne v Exports Credits Guarantee Department

Industrial Tribunal (Central London)

[1981] IRLR 51

20 November 1979

CATCHWORDS:
Equal pay -- Exclusions -- provision relating to pregnancy or childbirth -- Terms and conditions of employment less favourable -- sick pay -- Genuine material difference -- Damages -- declaration -- Damages -- arrears of remuneration

Equal Pay Act 1970 (as amended) sections: 1(2)(a)(i), 1(3), 6(1)(b) Sex Discrimination Act 1975 sections: 2(1), 2(2), 6(6)

HEADNOTE:
The facts: Mrs Coyne was granted paid maternity leave from 15.1.78 to 15.4.78. Because of pre-natal complications, her baby was born by Caesarian section on 11.3.78. Mrs Coyne took some time to recover from this operation and was not certified fit to work until 2.5.78. She then applied for and was granted unpaid leave until 29.9.78. On her return to work, she made a claim for a further payment to cover the period from 15 April, when her paid maternity leave expired, to 2 May when she was certified fit for work.

The respondents refused this claim in accordance with their contractual sick pay and maternity provisions. Paragraph 8440 of the relevant regulations provided that women who qualify are allowed up to three months' maternity leave on full pay for a confinement but that the period of maternity leave will count against their normal sick leave allowance of six months' full pay in any period of 12 months. Paragraph 8479 then provided that "Further paid sick leave following maternity leave may be allowed within her normal allowance when a woman produces a doctor's statement which clearly indicates that the absence arises from some illness or condition unconnected with confinement". 

Because Mrs Coyne's absence arose from a condition connected with her confinement, the respondents said that she was not entitled to claim sick pay for the two weeks two days in question even though she had sufficient unexhausted sick leave out of her six months' allowance tocover that period.

Mrs Coyne claimed that because of paragraph 8479, the term in her contract relating to sick pay was less favourable than that applying to a man employed on like work within the meaning of the Equal Pay Act. The employers argued firstly that the provisions in question related to maternity and were thus excluded from the ambit of the Act by virtue of s.6(1)(b). Secondly, they maintained that because the term in question related to maternity, there was no similar term in a man's contract and so s.1(2)(a)(i) could not apply to ensure that the term applying to the woman was no less favourable than that applying to the man. Finally, they said that there was in any event a material difference otherthan the difference of sex between the case of the woman and that of a man employed on like work within the meaning of s.1(3) of the Act, namely that Mrs Conye's illness was caused by pregnancy or confinement which cannot affect a man.

The Industrial Tribunal held: The term in the applicant's contract of employment relating to sick pay was less favourable than the corresponding term in the contract of a man employed on like work.

Whereas a man covered by a medical certificate showing that he was unfit for work was entitled automatically to his full pay for six months, with no restrictions, under paragraph 8479 of the relevant regulations, which were incorporated in the employees' terms and conditions of employment, a woman's right to sick pay following maternity leave was restricted to an absence which arose from some illness or condition unconnected with confinement.

Failure by the respondents to pay the applicant in respect of a period of certified sickness following her three months' paid maternity leave was therefore prima facie less favourable treatment within the meaning of s.1(2)(a)(i) of the Equal Pay Act.

The facts of the present case did not, as the respondents argued, fall within s.6(1)(b) of the Act which nullifies the operation of the Act's equality clause in relation to terms affording special treatment to women in connection with pregnancy or childbirth.

The expression "special treatment" in s.6(1)(b) should be construed as meaning specially favourable treatment rather than in a wider sense as meaning unfavourable as well as favourable treatment. The parallel provision in s.2(2) of the Sex Discrimination Act, clearly applies only to specially favourable treatment accorded to women in connection with pregnancy and childbirth because it appears in the section dealing with discrimination against men and unfavourable treatment of women could not constitute discrimination against men. S.6(1)(b), as the counterpart of s.2(2), should be construed in the same sense.

Moreover, if s.6(1)(b) were construed as excluding from the ambit of the Equal Pay Act unfair treatment of women in connection with pregnancy or childbirth, an employer would be entitled to put a provision in a woman's contract providing that if she became pregnant, her pay would immediately be reduced by 50% and the Act would be powerless to prevent it.

Nor could it be argued that the clause in question was one of the provisions of the contract affording special treatment to the applicant in connection with pregnancy and childbirth and that, taken as a whole, those provisions were in the applicant's favour so that s.6(1)(b) applied. The substantive effect of paragraph 8479 was not in the field of maternity rights but in that of sickness rights. Far from being a provision which afforded women special treatment in connection with maternity, it was a provision which deprived them of their otherwise existing rights to sickness benefit in connection with maternity.

Because paragraph 8479 was concerned with sickness rights and not maternity rights, the respondents' argument that s.1(2)(a)(i) could not apply because there was no similar term in the contract of a man employed on like work could not be accepted.

The difference in treatment regarding sick pay between the applicant and a man employed on like work was not due to a genuine material difference, other than the difference of sex, between her case and his, within the meaning of s.1(3) of the Equal Pay Act.

The respondents' argument that the different treatment afforded to the applicant when she was sick was not merely because she was a woman but because she was a woman who had just become a mother, propounded a distinction without a difference. The difference between being a man who only had to produce a sickness certificate to qualify for benefit and being a mother who had to go further was no more than a difference of sex within the meaning of s.1(3). S.1(3) was not designed for such narrow distinctions as the difference between being a woman and being a mother. If that distinction were a good one, there would be no need in the Act for s.6(1)(b); a man could never complain of maternity benefits afforded to a woman since they would always be due to a material difference other than the difference of sex.

Moreover, the "red circle" authorities showed that in order to succeed under s.1(3), an employer must prove a difference which is neither directly nor indirectly linked with sex. The distinction drawn by the respondents in the present case did not pass that test.

Turley v Allders Department Stores which held that there was a distinction between dismissing a woman on the grounds that she was a woman and dismissing her on the grounds that she was pregnant could be distinguished from the present case because it was concerned not with s.1(3) of the Equal Pay Act but with the discrimination provisions of the Sex Discrimination Act.

A declaration would be made that paragraph 8479 be modified to remove the less favourable treatment and read "Further paid sick leave following maternity leave may be allowed within a woman's normal allowance."

An order for arrears of remuneration would also be made to cover the period of two weeks and two days during which the applicant was certified as sick but denied sick pay.

There was no merit in the respondents' argument that, though certified as unfit for work, the applicant was not really sick during that period and therefore not entitled to sick pay. Two medical certificates, one saying that the applicant would be off work until a normal post partum examination and the other giving the date of that examination, established that the applicant was sick within the period they covered and entitled to sick pay throughout the period.

COUNSEL:
For the Applicant: Miss C ALTON, For the Respondents: Mr C SYMONS.

PANEL: CP Sydenham (Chairman), M George, RA Hughes

JUDGMENTBY-1: The Tribunal

JUDGMENT-1:
The Tribunal: This is a claim under the Equal Pay Act 1970. The applicant claims that by reason of the equality clause deemed to be included in her contract of employment she is entitled to a further two weeks and two days' pay in respect of a period when she was off sick after the birth of a child.
History
The background facts of the case have been the subject of an agreed statement of facts (Exhibit R2). Nevertheless they are simple, and we will summarise them briefly. The applicant is an executive officer who has been employed in the Civil Service since September 1971. She is a married woman, and early in 1978 she was expecting a baby. She was granted maternity leave on full pay from 15.1.78 to 15.4.78. The baby was due on 17 March but there were pre-natal complications and the baby was induced on 11 March, and born by Caesarean section. After that the applicant took some time to recuperate. We know nothing of the details of her condition after the birth, but she was not certified fit for work until 2.5.78, and she applied for, and was granted, unpaid leave until 29 September. On her return to work she had made a claim for further payment from 15 April, when her three months' maternity leave expired, until 2 May, when she was certified fit for work. The department refused that claim. She now claims before this Tribunal that that refusal was in breach of the Equal Pay Act 1970.
Equal Pay Act
We must set out the material parts of ss.1 and 6 of the 1970 Act.
'1(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.

(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed ("the woman's contract") and has the effect that -  (a) Where the woman is employed on like work with a man in the same employment -  (i) If (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man was employed that term of the woman's contract shall be treated as so modified as not to be less favourable...

(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.'   '6(1) Neither an equality clause nor the provisions of s.3(4) above shall operate in relation to terms... (b) affording special treatment to women in connection with pregnancy or child birth.' Those are the principal provisions of the Act with which we have been concerned. 
Common ground
A refreshing number of important points have been common ground between parties, as follows: - (1) The claim is made under the 1970 Act alone, and not under the Sex Discrimination Act 1975, because it relates to the payment of money regulated by the applicant's contract of employment (see the 1975 Act s.6(6)).  (2) The provisions regulating sick pay and maternity leave are incorporated in the applicant's contract of employment.  (3) Apart from the effect of the 1970 Act the department correctly applied those provisions in refusing the applicant the extra pay which she claimed after the expiry of her maternity leave. (4) The applicant was employed on like work with one or more men in the same employment. Sick pay and maternity provisions
It is a general principle of the sick pay provisions affecting civil servants, including the applicant, that they may receive sick leave on full pay for up to six months in any period of 12 months. We have not seen the actual regulations which make this provision but there is in evidence an unchallenged summary of the regulations, which contain that principle in paragraph (a) (see Exhibit R1 page 18). The regulations affecting maternity leave are contained in paragraphs 8444 to 8491 and they are in evidence before us (see Exhibit R1 pages 14 to 17). The leading principle is that women who qualify are allowed up to three months' maternity leave on full pay for a confinement, but that the period of maternity leave will be counted against her normal sick leave allowance (see paragraph 8440). There is however a provision (paragraph 8479) headed, 'Sick leave following maternity leave', which provides as follows: -
'Further paid sick leave following maternity leave may be allowed within her normal allowance when a woman produces a doctor's statement which clearly indicates that the absence arises from some illness or condition unconnected with the confinement...'
It was this provision which entitled the department to refuse the applicant the pay which she claimed. For although she had had her full three months' maternity leave, she still had sufficient unexhausted sick leave (out of her six months' allowance) to cover the two weeks and two days in respect of which she claimed.However paragraph 8479 stood in the way of the claim for sick pay, because the applicant could not produce a doctor's statement indicating that her absence arose from a condition unconnected with her confinement. Indeed it is not in dispute that her absence was connected with her confinement.
Applicant's case 
Posed in the terms of the 1970 Act the applicant's claim is as follows. It is a term of her contract that she shall be entitled to sick leave on full pay for up to six months in any period of 12 months. A similar term, indeed an identical term, is contained in the contract of men doing like work to her. However, she has found that by reason of paragraph 8479 of the maternity leave regulations that term becomes less favourable to her than it is to the men. At the end of her three months' maternity leave she was still sick. She was still covered by a medical certificate saying that she was unfit for work. A man covered by a medical certificate showing that he is unfit for work is entitled automatically to his full pay for six months, but the applicant's entitlement is, by reason of that paragraph, cut off at three months unless she can also show that her sickness was not connected with her confinement. That is a disqualification which can never affect a man wishing to claim sick pay. Indeed there is no comparable regulation requiring men in any circumstances to support medical certificates by establishing the reason for sickness, or that the sickness was or was not connected with any particular circumstance or event. Paragraph 8479 is a provision whose sole effect is to cut down a woman's right to sick pay in circumstances where she is in fact sick. On behalf of the applicant Miss Alton submits that the effect of s.1(2)(a)(i) of the 1970 Act must therefore be that the applicant's contract should be treated as modified by, in effect, striking out paragraph 8479.

Prima facie that appears to us to be a convincing case. It falls squarely within the framework of the 1970 Act, and the mischief which the Act aims to eradicate, namely the unequal treatment of women. Furthermore, quite apart from the words of the statute, one can see no good reason for depriving sick women of their full sick pay allowance, merely because their sickness is connected with confinement. At one stage Mr Symons sought to suggest that such sickness was 'self induced', but he did not press the argument, in our view, rightly. It might carry weight if men were in any circumstances required to show that their illness was not self induced (eg that a broken leg was not caused by rugby), but it is common ground that men are never required to establish anything of this kind. We would emphasise that this case is not about a healthy mother sneaking extra maternity leave, and will not enable healthy mothers to do so legitimately. Healthy mothers cannot claim sick pay. It is about regulations which deny sick pay to sick mothers, but which carry no comparable disadvantage for men. Prima facie we consider that such discrimination is outlawed by the 1970 Act in the way that Miss Alton has submitted. 
Department's case 
On behalf of the department Mr Symons has put forward three arguments which may be summarised as follows: -  (a) The offending paragraph is part of the maternity provisions for employees. Maternity rights are specifically enacted elsewhere in theemployment legislation (see Employment Protection (Consolidation) Act 1978 part III), and s.6(1)(b) excludes all of them, including the offending paragraph, from the ambit of the equality clause.  (b) The term attacked by the applicant is a term relating to maternity, and there is not similar term affecting men employed by the department, and accordingly s.1(2)(a)(i) cannot apply.  (c) There is a material difference between the applicant and the men employed by the department, other than the difference of sex. The difference is that the applicant's illness was caused by pregnancy or confinement, which cannot affect a man. We will consider these arguments in turn.
Section 6(1)(b)
So far as we are aware there is no authority to guide us on the construction of s.6(1)(b). Strictly speaking it is ambiguous. It nullifies the operation of the equality clause in relation to terms 'affording special treatment to women in connection with pregnancy or child-birth'. No doubt the expression 'special treatment' in its ordinary meaning carries connotations of specially favourable treatment (ie terms conferring special rights) but strictly we think it is capable also of including specially unfavourable treatment. Ought we to construe s.6(1)(b) in that wider sense so as to exclude unfavourable terms as well as favourable terms? We have no hesitation in holding that we should not, for two reasons. First we have no doubt that the expression 'special treatment' should be construed in the same sense in the 1970 Act as it is used in s.2(2) of the Sex Discrimination Act 1975. In that context it is perfectly clear that the expression means specially favourable treatment. S.2(2) operates by providing that discrimination is outlawed when it takes place against men just as much when it takes place against women. Subsection (2), however, limits the effect of that general rule by providing that no account is to be taken of the special treatment afforded to women in connection with pregnancy or childbirth. It is clear that only favourable treatment to women is meant, because unfavourable treatment to whomen could not constitute discrimination against men. The result of the provision is that men have no right to complain of positive discrimination in favour of women in connection with maternity. In the 1970 Act the equivalent provision to s.2(1) of the 1975 Act is s.1(13)
which provides that equality clauses operate as much in favour of men as in favour of women. S.6(1)(b) is the counterpart of s.2(2) of the 1975 Act, and in our view should be construed in the same sense. It makes clear that men are not, for example, entitled to claim payments for paternity, but on the other hand it leaves it open to women to complain that terms relating to maternity are unfavourable to them. Our second reason is a powerful consideration urged on us by Miss Alton. She pointed out that if we were to construe 'special treatment' in the wider sense, the result would be that an employer would be entitled to put a provision in a woman's constract providing that if she became pregnant her pay would immediately be reduced by, say, 50%, and the 1970 Act would be powerless to prevent that. That is a result from which this Tribunal recoils. We have no doubt whatever that it is entirely contrary to the intention behind the 1970 Act, and we should not construe the words in that sense unless they would not bear any other meaning, which is not the case.

Nevertheless Mr Symons put his argument on s.6(1)(b) on a broader ground. He said that the offending paragraph is one of the provision in the contract affording special treatment to the applicant in connection with pregnancy or childbirth, and that taken as a whole those provisions are in her favour, and that accordingly s.6(1)(b) forbids us to interfere with them. He submitted that the provision in the 1978 Act conferring rights on women in relation to maternity were an exhaustive statutory code which it was not our business to extend, and he cited authorities to us suggesting that it is our duty to construe the 1970 Act harmoniously with the rest of the employment legislation. He pointed out also (correctly) that the applicant's rights in relation to maternity under her contract are better than the rights conferred on her by the 1978 Act. It is central to Mr Symons' submission on this point that paragraph 8479 is a maternity provision. However, we reject that analysis. While it is true that the paragraph appears in the bundle of paragraphs headed, 'Maternity leave', and is itself headed 'Sick leave following maternity leave', the fact remains that the sole substantive effect of the paragraph is not to confer any rights in relation to maternity upon a woman, but on the contrary to deprive her of rights to sickness benefit to which she would otherwise be entitled, on the ground that her sickness is connected with her
confinement. Far from being a provision which affords women special treatment, or special rights, in connection with maternity, it is a provision which deprives them of their otherwise existing rights to sickness benefit in connection with maternity. Its substantive effect is not in the field of maternity rights but in the field of sickness rights.For these reasons we reject this submission. Mr Symons submitted that our construction of the subsection would in some way undermine the effect of the 1978 Act. That we cannot understand. On the contrary, it appears to us that Mr Symons' construction would offend against the 'harmonious construction' principle (which we accept), by leading to a conflict between s.6(1)(b) of the 1970 Act and s.2(2) of the 1975 Act.  Section 1(2)(a)(i)  Mr Symons' submission on s.1(2)(a)(i) was based on the same analysis of paragraph 8479 as his submission under s.6(1)(b). That is to say he submitted that it was part of a number of maternity provisions which were, taken as a whole, favourable to the women who were affected. Thus he said that it was not unfavourable to the applicant. He also said that there was no 'term of a similar kind' in the men's contract with which it would be compared under the subsection, because men are not affected by the maternity provisions. We reject that analysis in this context as much as in the previous context, and we treat paragraph 8479 not as a term conferring maternity rights, but as a term cutting down sickness rights. Thus in terms of the subsection, the 'term of a similar kind' in the men's contract is the term which entitles them to up to six months' full sick pay in any period of 12 months. That term also applies to women, but in the case of women, though not in the case of men, that term becomes less favourable after confinement, because they are then disqualified from sickness benefit in respect of sickness connected with the confinement. We hold that paragraph 8479 does fall within that subsection.   Section 1(3)  Finally Mr Symons submitted that the equality clause did not operate in this case because there was a material difference between the applicant and male employees, other than the difference of sex. Putting his argument succinctly, he said that the different treatment afforded to the applicant when she was sick was not merely because she was a woman (which would be a difference of sex alone) but because she was a woman who had just become a mother (which, he said, is an additional difference). In our view this argument propunds a distinction without a difference, and we reject it for a number of reasons. First we consider that the difference between being a man, who only has to produce a sick certificate to qualify for benefit, and being a mother, who has to go further, is in our view clearly no more than a difference of sex within the meaning of s.1(3). The section is not designed for such narrow distinctions as the difference between being a woman and being a mother. This, we think, is demonstrated by the very existence of s.6(1)(b), for if the distinction drawn by Mr Symons was a good one, that section would be unnecessary: a man could never complain of maternity benefits to a woman since they would be always be due to a material difference other than difference of sex. Secondly the 'red circle' authorities show that in order to succeed under s.1(3) an employer must prove a difference which is neither directly nor indirectly linked with sex (see Snoxell v Vauxhall Motors [1977] IRLR. 123). Clearly Mr Symons' distinction does not pass that test. Mr Symons drew our attention to a recent decision of a London South Tribunal (Turley v Alders Department Stores Ltd [1980] IRLR 4) where the Tribunal drew a distinction between dismissal of a woman on the ground that she was a woman, and dismissal on the ground that she was pregant. All we need say about that decision is that it was not concerned with s.1(3) of the 1970 Act but with different provisions of the 1975 Act, and we do not find it of any assistance in the present context. 
Modification
We therefore accept the applicant's case, and reject the department's. The result is that the applicant succeeds in establishing the point of principle. Paragraph 8479 must be treated as so modified that the provisions relating to sick pay are not less favourable to the applicant than they are to male employees. Under s.2(1)(a) we have power to declare the rights of the employer and the employee in relation to the matter. The applicant asks us to make such a declaration, and the department has not disputed that we ought to do so. Since we have held the sole effect of paragraph 8479 is to cut down a woman's right to sick pay in the circumstances to which it refers, the simple modification would be to delete that paragraph altogether. But to put the matter with complete accuracy we consider that the first line of the paragraph should be allowed to remain without modification, so that paragraph 8479 should in future be treated as if it read simply as follows: -   'Further paid sick leave following maternity leave may be allowed within a woman's normal allowance.'
Arrears of remuneration
In addition under s.2(1) of the Act we have power to make an order for arrears of remuneration, and the applicant asked us to make an order for two weeks and two days' remuneration, which was the period during which she was certified sick, but was denied sick pay. The department has opposed this application in any event, on the basis that although the applicant was certified unfit for work, and admittedly so certified, she was not really sick. We view the department's opposition to this claim with some distaste. In paragraph 4 of the agreed statement of facts it is admitted that the applicant sent a 'sick certificate' to her personnel section for the period down to 2.5.78. We think that if the department had intended to question the applicant's sickness down to that date, they should have made it clear at an earlier stage. Nevertheless we have looked behind the agreed statement of facts at the two certificates supporting the applicant's claim. The first is a doctor's certificate dated 13.1.78 saying that the applicant should refrain from work for the period of this pregnancy until a normal post partum examination. The second certificate is in the form of a letter written retrospectively on 29.9.78 addressed 'to whom it may concern', saying that the applicant had her baby on 11 March by Caesarean section, and going on as follows: 
'Mrs Coyne made a normal post-operative recovery and was noted to be fully recovered at her post-natal check on 2.5.78'.
Mr Symons was prepared to admit that those two certificates taken together showed that the applicant was unfit for work until 2 May but he claims that the reference to 'normal post-operative recovery' showed that she was not in the ordinary sense of the word sick during the period covered by her claim. Under pressure from the Tribunal Mr Symons did go further and admit the otherwise unproved fact that during that period the applicant was in receipt of sickness benefit from the Department of Health and Social Security. We find the logic-chopping distinction between unfitness and sickness unattractive. We accept Miss Alton's submission that the two certificates raise a prima facie case that the applicant was sick throughout the period which they cover. The first certificate said that she would be off work until a normal post partum examination and the second certificate gave the date of that examination as a May. Those are unchallenged certificates given by medical men referring to the patient under their care. Prima facie we consider they establish the case that the applicant was sick within the period they cover and entitled to sick pay throughout the period. No contrary evidence has been offered by the department. Accordingly we hold that the applicant is entitled to the two weeks and two days' sick pay which she claimed. Since we have no evidence about her remuneration we cannot name any figure, but the award will be subject to any proper deductions. If the amount cannot be agreed, either party may restore the matter
for assessment by the Tribunal.

DISPOSITION:
(i) That by virtue of the equality clause deemed to be included in the applicant's contract by virtue of the Equal Pay Act 1970, paragraph 8479 of the maternity leave provisions incorporated in her contract takes effect as if it read as follows:
"Further paid sick leave following maternity leave may be allowed within a woman's normal allowance."

(ii) That the applicant is entitled to two weeks two days' sick pay.

SOLICITORS:


F Crowther; F Croft.