Macarthys Ltd v Smith: ECJ 27 Mar 1980

The first paragraph of article 119 of the EEC Treaty applies directly, and without the need for more detailed implementing measures on the part of the community or the member states, to all forms of direct and overt discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question. Cases where men and women receive unequal pay for equal work carried out in the same establishment or service are among the forms of discrimination which may be thus judicially identified. In such a situation the decisive test lies in establishing whether there is a difference in treatment between a man and a woman performing ‘equal work’ within the meaning of article 119. That concept is entirely qualitative in character in that it is exclusively concerned with the nature of the services in question. Its scope may not therefore be restricted by its being confined to situations in which men and women are contemporaneously doing equal work for the same employer. It cannot, however, be ruled out that a difference in pay between two workers occupying the same post but at different periods in time may be explained by the operation of factors which are unconnected with any discrimination on grounds of sex. That is a question of fact which it is for the court or tribunal to decide. In cases of actual discrimination falling within the scope of the direct application of article 119 comparisons are confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same establishment or service. The principle of equal pay enshrined in article 119 therefore applies to the case where it is established that, having regard to the nature of her services, a woman has received less pay than a man who was employed prior to the woman ‘ s period of employment and who did equal work for the employer.


C-129/79, [1981] QB 180, [1980] 3 WLR 929, [1980] ICR 672, [1981] 1 All ER 111, R-129/79, [1980] EUECJ R-129/79




Council Directive 75/117/EEC


Reference FromMacarthys Ltd v Smith CA 1980
The employee had taken on a job substantially similar to that of a previous male employee, but had been paid less. She succeeded in a claim under the 1971 Act before the industrial tribunal and Employment Appeal Tribunal. The employer appealed . .
At EATSmith v Macarthys Ltd EAT 14-Dec-1977
Mrs Smith was employed by the respondents, wholesale dealers in pharmaceutical products, as a warehouse manageress at a weekly salary of andpound;50. She complained of discrimination in pay because her male predecessor whose post she took up after . .

Cited by:

CitedPickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
CitedSharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
CitedSodexo Ltd v Gutridge and others EAT 31-Jul-2008
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The claimants alleged that their employer had been in breach of their rights under the Equal Pay Act 1970. They . .
At ECJMacarthys Ltd v Smith (No.2) CA 17-Apr-1980
The parties had disputed a difference in payment between the woman applicant and men doing similar work. After a lengthy dispute the parties now disputed the costs.
Held: The company had correctly been ordered to pay the costs. . .
Lists of cited by and citing cases may be incomplete.

European, Discrimination, Employment

Updated: 21 May 2022; Ref: scu.132902