Rainey v Greater Glasgow Health Board
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Griffiths,Lord Mackay of Clashfern,Lord Goff of Chieveley |
| Judgment Date | 27 November 1986 |
| Judgment citation (vLex) | [1986] UKHL J1127-1 |
| Court | House of Lords |
| Docket Number | No. 1. |
| Date | 27 November 1986 |
[1986] UKHL J1127-1
House of Lords
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Griffiths
Lord Mackay of Clashfern
Lord Goff of Chieveley
My Lords,
This appeal from an interlocutor of the First Division of the Inner House, which affirmed the decisions of an industrial tribunal and of the Employment Appeal Tribunal, is concerned with the proper construction of certain provisions of the Equal Pay Act 1970.
The appellant, a woman, has since 1 October 1980 been employed by the respondent board at the Belvidere Hospital, Glasgow, as a prosthetist. A prosthetist is one who is concerned with the fitting of artificial limbs. Before 1980 no prosthetist was directly employed by any health authority in Scotland. The requisite services were provided by private contractors themselves employing qualified prosthetists who worked in a number of hospitals, including Belvidere Hospital. One of these was a Mr. Alan Crumlin. In 1979 the Secretary of State for Scotland decided to establish a prosthetic fitting service within the National Health Service in Scotland, and to discontinue the arrangement under which the service was provided by private contractors. To achieve this object it was necessary that a sufficient number of qualified prosthetists should be recruited to the National Health Service en bloc. The only prosthetists then available were those employed by the private contractors. The remuneration of employees of the National Health Service is determined by negotiation and agreement in the Whitley Councils for the Health Services. It was decided by the Scottish Home and Health Department that, in general, the remuneration of employees in the new prosthetic service should be related to the Whitley Council scale, and that the appropriate scale for them would be that for medical physics technicians. Since, however, it was appreciated this might not be attractive to the prosthetists in the employment of private contractors, whom it was desired to recruit en bloc, it was decided to offer them an option. That option, as set out in a letter from the department to Mr. Crumlin dated 11 January 1980, was either to come into the National Health Service on National Health Service rates of pay and conditions of service or to remain on the rates of pay and conditions of service which he presently received, subject to future changes as negotiated by his trade union, A.S.T.M.S., for the prosthetists employed by contractors. It is to be observed that in England prosthetic services were to continue to be provided through private contractors. Mr. Crumlin and all the other prosthetists who received the offer (about 20 in number who all happened to be men) opted for the second alternative. This meant that they retained their existing salaries, and that future increases were to be negotiated with A.S.T.M.S. and not the Whitley Council. Mr. Crumlin commenced employment with the National Health Service at Belvidere Hospital in July 1980 at the salary of £6,680 per annum, the same as he had been receiving from his former employer. At the time of the hearing before the industrial tribunal, on 23 March 1983, it had increased to £10,085 per annum.
The appellant entered the employment of the National Health Service as a prosthetist working at Belvidere Hospital on 1 October 1980. She did so directly, not having been previously employed by a private contractor. Her qualifications and experience were broadly similar to those of Mr. Crumlin. The rates of pay and conditions of service offered to and accepted by her corresponded to those of a medical physics technician at the appropriate point on the Whitley Council scale. Her starting salary was £4,773, and at the time of the hearing before the industrial tribunal it had increased to £7,295. A male prosthetist, Mr. Davey, was engaged at the same time and on the same conditions. He has since left his employment.
No prosthetists have since 1980 transferred from private employment to National Health Service employment, and no such transfers on special terms will be permitted in the future. Any prosthetists engaged by the respondents in the future, whether male or female, will do so on the National Health Service scale of remuneration. No arrangements have been made for phasing out the disparity between the prosthetists who transferred from the private sector in 1980, such as Mr. Crumlin, and those who entered the National Health Service employment directly, such as the appellant.
In these circumstances, the appellant applied to an industrial tribunal, under the Act of 1970, for a declaration that she was entitled to the same pay as Mr. Crumlin.
The appellant founded upon section 1(1) and (2)( a) of the Act of 1970 which provide (as substituted by section 8(1) of and Schedule 1 to the Sex Discrimination Act 1975):
"(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) … ( 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 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; …"
The board did not dispute that the appellant was employed on like work with Mr. Crumlin, nor that the term of her contract as regards remuneration was less favourable than the corresponding term of Mr. Crumlin's contract. They founded on section 1(3) of the Act and undertook the burden of satisfying its provisions, which at the material time were in these terms:
"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."
The industrial tribunal dismissed the appellant's application. Having narrated the facts of the case as found by them and the contentions of the parties they stated:
"Having considered the evidence the tribunal is satisfied that what has caused the difference in the salary scale of the applicant and Mr. Crumlin is not market forces but is the fact that Mr. Crumlin is paid on a scale negotiated and agreed between his trade union and the Scottish Home and Health Department whereas the applicant is paid according to a different scale. The scale upon which the applicant is paid is an ad hoc scale and not one which has been negotiated between her trade union and the Scottish Home and Health Department. There was clear evidence that any male employees recruited at the same time as or after the recruitment of the applicant would be paid the same rate as the applicant was and subject to the same scale. We had no doubt on the evidence that had any of the prosthetists employed by the private contractors been female they would have been paid the same higher rate of pay as the male prosthetists transferred from the private contractor. The tribunal were therefore forced to the conclusion that the difference had nothing to do with the fact that the applicant was female. We were satisfied that the reason for the difference was because of the different method of entry and had nothing to do with sex. The application must therefore be dismissed."
The appellant appealed to the Employment Appeal Tribunal which, by a majority, dismissed the appeal. A further appeal to the Court of Session was also dismissed by the First Division of the Inner House (Lord President Emslie and Lord Cameron, Lord Grieve dissenting).
The facts found by the industrial tribunal make it clear that the Secretary of State for Scotland decided, as a matter of general policy, that the Whitley Council scale of remuneration and negotiating machinery, which applied throughout the National Health Service in Scotland, was appropriate for employees in the prosthetic service. It was also decided that the appropriate part of the scale for such employees was that applicable to medical physics technicians, presumably because the nature of their work was considered comparable to that of the prosthetists. So all direct entrants to the service, whether male or female, were to be placed on that part of the scale and made subject to Whitley Council negotiations. But it was apparent that the new service would not get off the ground unless a sufficient number of the prosthetists in the employment of the private contractors could be attracted into it. So the further policy decision was taken to offer these prosthetists the option of entering the service at their existing salaries and subject to the A.S.T.M.S. negotiating machinery. As it happened, all the prosthetists privately employed were male. In the result, Mr. Crumlin had the benefit of the offer and so emerged with a higher salary and better prospects for an increase than did the appellant, who did not have that benefit.
The main question at issue in the appeal is whether those circumstances are capable in law of constituting, within the meaning of section 1(3) of the Act of 1970, "a material difference (other than the difference of sex) between her case and his."
Counsel for the appellant argued that nothing can constitute such a difference which is not related to the personal circumstances of the two...
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