Benveniste v University of Southampton
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE NEILL,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 23 November 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1123-1 |
| Docket Number | 88/0986 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 1988 |
[1988] EWCA Civ J1123-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE POPPLEWELL)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Neill
Lord Justice Butler-Sloss
88/0986
MR. IAN LEE (instructed by Messrs. Pattinson & Brewer) appeared for the Appellant (Plaintiff).
MR. ALAN WILKIE (instructed by Messrs. Hephard Winstanley & Pugh, Southampton) appeared for the Respondent (Defendant).
I will ask Lord Justice Neill to deliver the first judgment.
This is an appeal by leave of a single Lord Justice from part of the order of the Employment Appeal Tribunal dated 28th July 1987 dismissing an appeal from the decision of an Industrial Tribunal dated 3rd April 1986. By its decision the Employment Appeal Tribunal dismissed claims brought by the appellant, Dr. Regina Benveniste, against her former employers, the University of Southampton, under the Equal Pay Act 1970 and the Sex Discrimination Act 1975. These decisions were unanimous. In addition, the Industrial Tribunal by a majority dismissed the further claim by the appellant that she had been unfairly dismissed by the university.
In this appeal we are concerned only with the claim brought under the Equal Pay Act.
In March 1981 the university invited applications for the post of lecturer in mathematics with a special interest and skill in operational research. On 12th June 1981 three candidates, including the appellant, were interviewed for the post. The appellant was selected. At the time, however, the university was subject to severe financial constraints (see paragraph 5 of the decision of the Industrial Tribunal). Because of these constraints the Joint Policy Committee of the university had agreed that the lecturer in operational research, as well as a number of other lecturers, would be paid a maximum of £9,800 gross per annum, including the cost of superannuation and national insurance. This meant a maximum salary of £8,515. It is common ground that the salary of £8,515 which was offered to the appellant was the maximum salary which could be paid to her in 1981 within the financial constraints then operating.
It is also common ground, however, that this salary was below that which would have been offered to her had there been no financial constraints at that time. This aspect of the matter is reflected in the minute of the meeting at which it was resolved to appoint the appellant. I read the sentence from that minute which is in these terms:
"The appointing Committee requested that it be noted that Dr. Benveniste had been appointed below the salary level normal for her age and qualifications."
Six days later, on 18th June, the appellant was sent a formal letter offering her the appointment. It is only necessary to read paragraphs 2 and 3 of that letter (at page 112 of the bundle):
"2. The appointment will take effect from a date to be arranged in September and will be subject to a probationary period of three years.
3. Your salary will be £8515 per annum on the salary scale shown on the attached sheet. There is a merit bar in the scale which operates after five years of post-probationary service. Your first increment will be due on 1 October 1982."
The attached sheet, which we have now seen, showed the salary scales for academic (non-clinical) lecturers for the years 1979 to 1984. The salary of £8,515 was just under half way up the 1981 scale.
The appellant joined the staff in September 1981. About a year later, in the autumn of 1982, she wrote to Professor Griffiths, who was a professor of pure mathematics in the faculty of mathematical studies, about her salary. The letter is at page 121 and I should read part of it:
"I am writing to you regarding the possible increase of my salary.
It has been agreed that when I was recruited I was offered a salary lower than what I should be getting."
Then she set out what she understood to be the reason for that and went on in the next paragraph:
"It seems to me that this faculty has now the funds to bring up my salary to the level it should have been. The amount involved would be small enough so as not to seriously disturb any plans the faculty makes for the allocation of its resources."
She asked Professor Griffiths to look into the matter. The note at the bottom of the page indicates, if one compares it to the salary scales which were attached to the letter of appointment, that the appellant was stating that she should have been some six points higher up the scale than she was because she said that her present salary was£8,940 p.a. and she thought it ought to have been £11,550.
In December 1982 Professor Smith, who was the head of the department, recommended that the appellant should be considered for a double increment in salary, and in a memorandum at page 120 he wrote the following:
"Regina Benveniste has successfully taken on far more than we would expect a new lecturer to take on. To a large extent this is due to her maturity. Regina is grossly underpaid. It will take several years of double increments to remove this anomaly. I hope that the Professors of Mathematics will recommend that a start should be made in 1982."
The university agreed that she should have an extra increment as from 1st October 1983, that is to say an increment additional to that which she would get by way of annual increment on her existing scale.
In August 1983, before that increase took effect, the appellant had a discussion with Professor Griffiths. As a result of that discussion Professor Griffiths discussed the appellant's position with Mr. Small, the staffing secretary of the university. On 12th August 1983 Professor Griffiths wrote to the appellant, setting out his recollection of their discussion and the results of his talk with Mr. Small. It will be convenient to refer briefly to part of the letter at page 122. He said this:
"First, let me summarise the points made in our discussion. (I made no written notes, so I hope I am summarizing fairly the gist of what was said.)
(i) You agreed that you had announced that you would not perform any duties other than to give lectures, and in particular that you did not wish to have undergraduate tutees, nor to help supervising M.Sc. projects, and that you were ceasing your present joint supervision of a Ph.D. student.
(ii) You agreed that your contract bound you to carry out the duties assigned to you by the Head of Department; and you stated that it was in effect an empty requirement relative to the ones mentioned above, since you could always carry them out in a 'token, fashion. Consequently you were taking an honourable course of applying for a post elsewhere.
(iii) You gave as a reason for your statements in (i) that you believe that
(a) you are grossly underpaid relative to your age and qualifications;
(b) you were given to understand, at your interview, that while you were being appointed at a low point on the salary scale, the University would eventually try to rectify the anomaly;
(c) the double increment awarded to you from 1 October 1983 is totally inadequate as rectification; and that you feel exploited and oppressed;
(d) the only way in which you can protest is to adopt the policy outlined in (i)."
There was then some correspondence between the appellant and Mr. Small to which it is unnecessary to refer. It is plain, however, that the appellant remained dissatisfied about her salary. In May 1984 it was proposed by the university that in the following October the appellant should receive two additional increments. When she heard about this the appellant wrote to Mr. Small. I should read part of the letter she wrote on 18th May 1984 which is at page 129. She said:
"Thank you for informing me that a proposal has been made that my salary is increased by two increments as of October 1984 (additional to the one increment due on the beginning of the academic year).
Although I admit that is a step in the right direction I believe it is not enough. I will still have a salary that is too low for my age and qualifications. Nothing is done for the fact that I have been grossly underpaid for three years.
Let me remind you that I accepted to work for the University of Southampton with the understanding that my initial salary would be as advertised (six points on the lecturers' salary scale below what would correspond to my age and qualifications) but the University would do their best to give me a fair salary. Since then, because of lack of concern on the part of the professors of mathematics, very little has been done to honour this promise."
Then she set out in a table what she said her position was as compared with what it should have been, and the extent of the under payment of salary over the years which she calculated at some £9,000. Then she went on:
"The least I would have expected this university to do is to have gradually increased my salary as shown in Table 2."
Then she set out in tabular form what she said would have been, although not satisfactory, nevertheless something that she would have been prepared to accept as increased increments.
On 27th June 1984 Mr. Small replied, saying in effect that nothing more could be done but that she would get the two extra increments as from 1st October 1984.
The appellant remained dissatisfied with this response. There then occurred a series of incidents which were later investigated by a committee appointed by the university. The report of this committee was considered by the Council of...
To continue reading
Request your trial
- Secretary of State for Justice (Sued as National Offenders Management Service) v Bowling
- Kenyir Outdoor Leadership Academy (KOLA) v Mohd Shaharuddin Wan Muhamad
-
Miss J Dowling v KPMG UK Ltd: 4107832/2020
...no longer operates the explanation (and the s 69 defence) falls away - 4107832/2020 Page 38 see Benveniste -v- University of Southampton [1989] ICR 617, where the appointment of a woman to a particular point on a pay scale was attributable to the financial difficulties which the employer wa......
-
West Dunbartonshire Council v Wallace
...so that the employers had succeeded in discharging the onus upon them; and appeal allowed. Benveniste v University of SouthamptonICR [1989] ICR 617; and Calder v Rowntree MacKintoshICR [1992] ICR 372applied. Mrs K M Wallace and others applied to the Industrial Tribunal under the Equal Pay A......
-
Disparate Effects and Objective Justifications in Sex Discrimination Law
...to attract the males away from the private sector,and experienced prosthesists were needed;Benveniste v University ofSouthampton[1989] IRLR 122, in which appointing a woman lecturerat a lower pay point than a similarly situated male was justified by theinstitution's serious financial constr......