Glasgow City Council v Marshall
| Jurisdiction | England & Wales |
| Judge | LORD SLYNN OF HADLEY,LORD MACKAY OF CLASHFERN,LORD NICHOLLS OF BIRKENHEAD,LORD HOPE OF CRAIGHEAD,LORD HUTTON |
| Judgment Date | 03 February 2000 |
| Judgment citation (vLex) | [2000] UKHL J0203-1 |
| Court | House of Lords |
| Docket Number | No 3 |
| Date | 03 February 2000 |
[2000] UKHL J0203-1
HOUSE OF LORDS
Lord Slynn of Hadley
Lord Nicholls of Birkenhead
Lord Mackay of Clashfern
Lord Hope of Craighead
Lord Hutton
And Others
And Others
(Scotland)
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Nicholls of Birkenhead. For the reasons he gives, I, too, would dismiss the appeal. This is plainly in essence a claim that the pay is not fair: and not a claim that the pay is unequal because of discrimination between the sexes. As such it does not fall within the Equal Pay Act 1970.
My Lords,
I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Nicholls of Birkenhead. I agree with it, and for the reasons which he has given I too would dismiss the appeal.
My Lords,
Section 1(3) of the Equal Pay Act 1970 provides a so-called 'material factor' or 'material difference' defence to an equal pay claim. This defence avails an employer if he proves that the difference in pay is genuinely due to a material factor which is not the difference of sex and that factor is a material difference between the woman's case and the man's case. This appeal raises, once more, the much-discussed question of the proper interpretation of this subsection.
The case concerns the pay of instructors and teachers in special schools. The applicants are eight instructors, seven women and one man, working in special schools within the former local government area of Strathclyde region. Their employer was Strathclyde Regional Council, the education authority for the region. That was the position when the applicants lodged their claims. After the local government reorganisation of 1996, the applicants were employed by the council's statutory successors.
The staff at special schools includes teachers as well as instructors. The teachers are paid much more than the instructors; they have teaching qualifications, and the instructors do not. Some instructors are qualified, but the minimum qualifications required of teachers are higher than those required of qualified instructors. In these proceedings the seven women instructors claimed that, although lacking formal teaching qualifications, they were employed on like work with male teachers working in the same special schools. Conversely, one male instructor claimed he was engaged on like work with female teachers. The applicants claimed that, accordingly, they were entitled to the same pay as their respective male and female teacher comparators.
The instructors' claims succeeded before an industrial tribunal. The hearing was protracted, occupying 52 days over a period of 15 months from September 1994 to November 1995. The tribunal investigated two issues: the 'like work' issue, and the section 1(3) defence. In a painstakingly careful and thorough decision given on 15 May 1996, the tribunal found in favour of the applicants on both issues. The tribunal heard extensive evidence on the like work issue. The tribunal held that in general no distinction was to be drawn between the work of each female applicant and her comparators. The circumstance that an instructor had no qualifications was not important. In the schools of the female applicants and their male comparators, there was no distinction of substance regarding the work required to be done, the work in fact done, or the skill and knowledge required to do it. For the same reason, the male applicant performed the same or broadly similar work to that of his female comparators. I shall come to the tribunal's decision on the section 1(3) defence at a later stage. A claim by a ninth instructor was dismissed. The tribunal found he was not engaged on like work.
The education authorities appealed against the tribunal's decision. The appeal was confined to the second of the two issues decided by the industrial tribunal, namely, the section 1(3) defence. The authorities did not challenge the tribunal's finding that the instructors and their teacher comparators performed like work. The Employment Appeal Tribunal, presided over by Lord Johnston, dismissed the appeal. The education authorities appealed further, to the Court of Session. Again, the sole issue was the section 1(3) defence. The Court of Session (the Lord President, Lord Prosser and Lord Cameron of Lochbroom) allowed the appeal.
Instructors and teachers
The disparity in pay of which the instructors complained had its genesis in the evolution of special schools. It is unnecessary to go further back than 1945. The Education (Scotland) Act 1945 imposed on education authorities a duty to make provision, at junior occupational centres, for 'trainable mental defectives' of school age. Stated broadly and in more modern language, these were children suffering from severe learning difficulties. Children with an even greater handicap, who were suffering from profound learning disabilities, were excluded from this provision. Initially they were the responsibility of health authorities. In 1968, by virtue of the Social Work (Scotland) Act 1968, this responsibility passed to the newly created social work departments of local authorities. Their duty was to provide day care centres for these children. The Education (Mentally Handicapped Children)(Scotland) Act 1974 deemed all children to be educable. Junior occupational centres and day care centres were renamed as schools, and they became the responsibility of education authorities. The daily care required by the children did not diminish. Nor did the devoted care given to them. But there was more emphasis on education than had been the case. Only teachers registered with the General Teaching Council for Scotland, and qualified accordingly, may teach in establishments designated as schools. So, from 1975 onwards the staff in special schools began to include teachers as well as instructors.
The remuneration paid to teachers in Scotland, including teachers in special schools, is fixed by a statutory procedure. One of the functions of the body known as the SJNC is to formulate a settlement of the remuneration payable to teaching staff employed by education authorities in Scotland. The full name of this body is the Scottish Joint Negotiating Committee for Teaching Staff in School Education. Education authorities are bound to give effect to such a pay settlement. The provisions of the settlement are deemed to be incorporated in teachers' contracts of employment: see sections 91 and 97A of the Education (Scotland) Act 1980, as amended.
Instructors, whether qualified or not, are paid according to their position on a scale known as the APT&C scale. This scale applies to administrative, professional, technical and clerical staff employed in local government throughout the United Kingdom. The value attributable to the spinal column points on this scale is negotiated annually by the National Joint Councils for Local Authorities' Services. This is a Whitley style council. The National Joint Councils only set the pay attached to particular spinal column points. It is for the local authority itself to accord a number of points on the spinal column to a particular job. In practice, instructors are employed with a salary placement on a point within the scale range which takes into account whether they are qualified or unqualified and whether they are employed at a school catering for pupils with profound learning disabilities or severe learning difficulties. The industrial tribunal stated that instructors had received the same spinal column points for 15 or so years, and that the historical basis for their position on the scale was not entirely clear. In contrast with local authorities' statutory obligation to pay teachers in accordance with the SJNC scale, the amount of remuneration payable by local authorities to instructors in special schools is not subject to any overriding statutory obligation. Alterations in the pay of instructors would impact on the pay of other groups of workers paid according to the APT&C scale. But there is no statutory impediment preventing authorities paying instructors in Scotland whatever remuneration they may decide.
The section 1(3) defence and the decision of the industrial tribunal
Given that instructors are engaged on like work with their teacher comparators, and given also that instructors are paid far less than the teachers, the onus was on the education authorities to establish a defence under section 1(3). The education authorities' case was founded on the different collective bargaining structures for APT&C staff and SJNC staff and the placing of the instructors and their comparators on their respective pay scales according to the posts to which they were appointed. The education authorities also referred to statistics showing the breakdown by sex of instructors and teachers, and relied on the absence of sex discrimination. The applicant instructors did not challenge the absence of sex discrimination.
The industrial tribunal held that the education authorities had failed to establish a section 1(3) defence. All they had done was to point to a historical basis for the disparity in pay. That was not sufficient. Nor was a factor which reflected inertia on the part of the employers. The employers did not suggest that the teacher comparators were overpaid. This meant that the applicant instructors were in the wrong place on the APT&C spinal column. But the education authorities had not undertaken any reassessment of the instructors' duties and responsibilities. It was nothing to the point that the APT&C conditions and the SJNC conditions were created and applied without reference to gender....
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