Glasgow City Council v Marshall
| Jurisdiction | Scotland |
| Judgment Date | 21 October 1997 |
| Date | 21 October 1997 |
| Docket Number | No 28 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Employment—Equal pay—Respondents each performing duties of comparators—Whether based on material difference other than gender—Equal Pay Act 1970 (cap 41), sec 1(2)(a) and (3)1
Section 1(2)(a) of the Equal Pay Act 1970 enacts that 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 where the woman is employed on like work with a man in the same employment (i) if (apart from the equality clause) any terms 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 is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term.
Section 1(3)(a) enacts that 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 factor which is not the difference of sex and that factor in the case of an equality clause falling under subsec (2)(a) must be a material difference between the woman's case and the man's.
The respondents were eight “instructors” who worked in special schools dealing with children who had a variety of learning and educational difficulties. Seven of the instructors were women and one was a man. Teachers also worked in those special schools and were paid more than the respondents. The respondents brought proceedings before an industrial tribunal under the 1970 Act on the basis that they were performing like work or work of equal value with the teachers. In the case of the female respondents the comparators were male and in the case of the male respondent the comparators were female. The industrial tribunal found that each of the respondents did work which was the same as or broadly similar to that of each of the teachers. The industrial tribunal, however, rejected a defence under sec 1(3) of the Act. The employers unsuccessfully appealed to the Employment Appeal Tribunal and thereafter appealed to the Court of Session and argued that: (a) the variation in the terms of the respective contracts was genuinely due to a material difference between the respondents and the teachers other than sex, which arose from the fact that pay negotiations were conducted on the teachers' behalf by the Scottish Joint Negotiating Committee for teaching staff whereas the respondents' pay was related to the Administrative Pay, Technical and Clerical Scale according to which the respondents were placed at a particular point on a spinal column as a result of negotiations between the local authorities and trade unions, and the level of salary for any point on the column and the point at which the respondents were placed on the column, were matters to be raised in such negotiations; and (b) that different qualifications were necessary for employment as instructors as compared with teachers and different training was undertaken on the basis of the attainment of different educational levels.
Held (1) that the aim of the legislation was to eliminate those differences in pay between employees which were due to differences in their sex but that aim had no more general scope or effect and in particular the Act did not operate so as to establish a system of fair wages so that if an employer could show that the variation in pay between a male and a female employee doing like work was genuinely due to some material difference between their situations (other than difference in sex), the female employee who was paid less had no remedy under the Act even if a tribunal considered that the female employee was being unfairly treated; (2) that an issue under sec 1(3) became a live issue between parties only where an applicant had established that she was employed on like work with a man or on work rated as equivalent with that of a man or in work which was of equal value to that of a man and it was only in one of those situations that the equality clause might come into effect so that it was only in one of those situations that the employer would try to prevent the clause operating by seeking to establish that, despite the fact that the woman and man were employed, say, on like work and the man was paid more, the variation in pay between the two employees was actually due, not to their difference of sex, but to some other material difference between the woman's case and the man's; (3) that in the present proceedings the fact that the respondents were employed on like work with the teachers was, by the stage at which the tribunal had to consider the material factor defence under sec 1 (3), a given factor in the situation and the fact that they were engaged on like work was not of itself a reason for rejecting evidence which might tend to show that there was some material difference (apart from sex) between the cases of the respondents and teachers which was genuinely the reason for the difference in pay between the two groups of employees; (4) that it was possible for the employers to know that like work was being done but that there was, nonetheless, some genuine reason due to a material difference for paying the respondents and the teachers differently; (5) that the difference in the qualifications for the respective posts was not “of no relevance” since, even if not relevant to the work, it might be relevant to the salaries paid to the respondents and the teachers under the respective pay scales; (6) that the employers were entitled to adopt the position that the variation between the respondents' and the teachers' contracts was genuinely due to a material difference without showing that the difference made the variation unavoidable and to demand that the employers showed that the material difference necessitated the variation between the contracts would impose a heavier burden on the employers than was envisaged by sec 1(3); and (7) that the variation in pay resulted from the salaries payable under the respective scales so that the employers had established that the variation in the contracts was genuinely due to the difference in pay scales and qualifications and that that was a significant and relevant difference other than sex in the cases of the teachers and the respondents; and appealallowed.
Mrs Jessica Marshall and Others applied to an industrial tribunal under the Equal Pay Act 1970 in respect of their conditions of their contracts of employment with Glasgow City Council and a number of other education authorities as successors of Strathclyde Regional Council. The facts and circumstances are adequately set forth in the opinion of the court.
The industrial tribunal found that each of the respondents did work which was the same as, or broadly similar to that of each of the comparators but rejected a defence under sec 1(3) of the Act.
The appellants unsuccessfully appealed to the Employment Appeal Tribunal and thereafter appealed to the Court of Session.
Cases referred to:
British Coal Corporation v SmithICR [1996] ICR 515
National Vulcan Engineering Insurance Group v WadeELR[1979] QB 132
North Yorkshire County Council v RatcliffeICR [1995] ICR 833
Pointon v University of SussexUNK [1979] IRLR 119
Rainey v Greater Glasgow Health BoardSC 1987 SC (HL) 1
Reed Packaging Ltd v BoozerICR [1988] ICR 391
Strathclyde Regional Council v WallaceSC 1996 SC 535
Tyldesley v T M L Plastics LtdICR [1996] ICR 356
Watt v Strathclyde Regional Council 1992 SLT 324
Young v University of Edinburgh [not reported] 14 June 1994
The cause called before the First Division, comprising the Lord President (Rodger), Lord Prosser and Lord Cameron of Lochbroom for a hearing on the summar roll.
At advising, on 21 October 1997, the opinion of the court was delivered by the Lord President (Rodger).
Opinion of the Court—In this appeal from a judgment of the Employment Appeal Tribunal the appellants are a number of education authorities who are the successors of Strathclyde Regional Council. The respondents are eight “instructors” who work in special schools dealing with children who have a variety of learning and educational difficulties. Seven of the instructors are women and one is a man. Instructors may be “qualified” or “unqualified”. Teachers also work in these special schools and are paid very considerably more than the instructors, whether qualified or unqualified. The respondents brought proceedings before the industrial tribunal under the Equal Pay Act 1970 (“the Act”) on the basis that they were performing like work or work of equal value with their comparators who were teachers. In the case of the female respondents the comparators were male, while in the case of the male respondent the comparators were female. During the course of the tribunal hearing which lasted 52 days the parties agreed that at that stage only two issues should be considered: the matter of like work and the matter of whether the education authorities could establish a defence in terms of sec 1(3) of the Act. The education authorities contested the like work issue and argued that in any event they had a sec 1(3) defence. In their decision dated 16 May 1996, however, the tribunal found that each of the respondents “does work which is the same as, or broadly similar to that of each of the comparators as they now stand” and rejected the sec 1(3) defence. The authorities appealed to the Employment Appeal Tribunal which dismissed the appeal. The tribunal's decision in favour of the respondents on the matter of like work was not challenged in the hearing before the...
To continue reading
Request your trial
-
Glasgow City Council v Marshall
...76C); and appeal dismissed. Strathclyde Regional Council v WallaceSC 1998 SC (HL) 72 followed. (In the Court of Session, 21 October 1997—1998 SC 274) Mrs Jessica Marshall and Others applied to an industrial tribunal under the Equal Pay Act 1970 in respect of the conditions of their contract......