South Ayrshire Council V. Decision Of The Employment Appeal Tribunal
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk |
| Date | 14 February 2002 |
| Docket Number | XA70/01 |
| Court | Court of Session |
| Published date | 14 February 2002 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord MacLean Lord Caplan
| XA70/01 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL by SOUTH AYRSHIRE COUNCIL against A decision of the Employment Appeal Tribunal dated 21 September 2000 and issued to the Appellant on 12 October 2000 _______ |
Act: Truscott, QC; Simpson & Marwick (Appellants)
Alt: Napier; McGrigor Donald, Solicitors (Respondent)
14 February 2002
Introduction
[1]This is an appeal from the Employment Appeal Tribunal (EAT). The respondent, Stella Helena Govan Morton, is a primary school headteacher employed by the appellant. She has made a claim against the appellant in the Employment Tribunal (the Tribunal) under the Equal Pay Act 1970.
[2]The appellant is one of the 32 education authorities in Scotland. Each of these authorities has received applications from primary school head teachers, both men and women, for equal pay with secondary school head teachers.
[3]These applicants claim that 75% of primary school head teachers are women whereas 75% of secondary school head teachers are men. Since the salary scales for primary school head teachers are lower than those for secondary school head teachers, they contend that there is discrimination against them in contravention of the equal pay legislation.
[4]There have been about 600 of these applications. This is one of three that have been taken as test cases to the Tribunal.
The statutory background
The remuneration of teachers
[5]The Education (Scotland) Act 1980 (the 1980 Act), as amended by the Education (Scotland) Act 1981, provides inter alia as follows:
"91.-(1) There shall be a committee (in this section and in sections 92 and 93 of this Act referred to as 'the committee') the functions of which shall be-
(a)whenever so required by the Secretary of State, or (in the absence of
such requirement) whenever it thinks fit, to consider; and
(b)whenever it thinks fit to formulate a settlement as to what shall be,
the remuneration payable to, and the terms and conditions of employment of, teaching staff employed by education authorities in Scotland in, or in connection with, the provision of school education.
(2) The Secretary of State may by order prescribe the maximum number of persons by whom, respectively, he, teaching staff and education authorities may be represented on the committee.
(3) Any order made under subsection (2) above may be varied or revoked by a subsequent order made by the Secretary of State.
- The committee shall itself determine the name by which it shall be known.
92.-(1) Subject to any order made under section 91(2) of this Act, the Secretary of State may, for the purpose of setting up the committee, invite any body which appears to him to be representative of teaching staff or education authorities to nominate a person, or such number of persons as may be specified in the invitation, to membership of the committee; and the initial members of the committee shall be such persons as are so nominated together with such person or persons as the Secretary of State may first nominate, under subsection (3)(b) below, to represent him ...
[6]The Committee established under these provisions was known as the Scottish Joint Negotiating Committee (SJNC).
[7]Section 97A provides that the SJNC settlement is a national settlement that each individual authority is obliged to implement and that its terms are incorporated into the contract of employment of every teacher. Section 97A provides inter alia as follows:
97A.-(1) A settlement formulated by the committee shall specify the date (which may be a date prior to the said formulation) as from which the settlement shall have effect; and the settlement shall remain in effect unless and until superseded by a subsequent such settlement; ...
(2) In the case of a settlement formulated by the committee established under-
(a)section 91 of this Act, every education authority shall give effect to
the settlement in so far as it relates to any member of the teaching staff employed by the authority in the provision of school education; ...
and without prejudice to subsections (4) and (5) of section 18 of the Trade Union and Labour Relations Act 1974 (which make provision in relation to the right of workers to engage in industrial action), while the settlement is in effect-
(i)the provisions of the settlement shall be deemed to be incorporated in
any contract of employment which that member has or may enter into with the employing authority or body; and
(ii)that contract shall have effect only in so far as consistent with those
provisions."
Equality of pay
[8]Section 1 of the Equal Pay Act 1970 (the 1970 Act) provides inter alia as follows:
"(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 ...
(6) Subject to the following subsections, for the purposes of this section -
- "employed" means employed under a contract of service ...
(c)two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control or if both are companies of which a third person (directly or indirectly) has control
and men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes."
[9]It is agreed that two or more education authorities are not to be treated as "associated employers" for the purposes of section 1(6). That being so, it would not be open to a claimant under that provision to found on the terms and conditions of an employee of another authority.
[10]However, the matter does not end there because the question is affected by Article 141 of the EC Treaty.
Article 141 of the Treaty
[11]When these proceedings began, the relevant provision of the Treaty was article 119. After the case began article 141 of the Treaty superseded article 119, without any substantive change, with effect from 1 May 1999. We shall refer to article 141 in this Opinion. Article 141 provides as follows:
"1.Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
- For the purpose of this Article, 'pay' means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
- that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
- that pay for work at time rates shall be the same for the same job."
[12]We need not quote the associated Council Directive of 10 February 1975 (the Equal Pay Directive - 75/117/EEC). Counsel agree that it has no bearing on the central point in this appeal (cf. Jenkins v Kingsgate (Clothing Products) Ltd, [1981] ECR 911, at p. 927 (ECJ)).
[13]Counsel in this case agree that article 141 over-rides section 1 of the 1970 Act to the extent that its provisions are wider. They also agree that article 141 has direct effect as between individuals in member states (Biggs v. Somerset County Council [1996] ICR 364; Scullard v Knowles, [1996] ICR 399; Macarthys Ltd v. Smith [1980] ECR 1257 (ECJ)) and therefore confers individual rights (Defrenne v Sabena [No 2], [1976] ECR 455, at para. 24).
Procedure to date
[14]Since the assessment of equality under the legislation is an essentially comparative exercise, it was incumbent on the respondent in her application to the Tribunal to give notice of the comparators on which she relied. In this case the applicant cited as comparators three male head teachers of secondary schools who were employed in the public sector of education. Two were head teachers employed by the present appellant. The third was a head teacher employed by Highland Council.
[15]Almost three years have elapsed since the respondent applied to the Tribunal. She has yet to have a hearing on the merits of her claim. The time has been taken up with the efforts of the appellant to exclude the third comparator from the case. These efforts are based on a floodgates argument. Counsel for the appellant has explained to us that the authorities are concerned that if the third comparator were to be admitted, there could be all manner of alarming consequences in the public sector of education and in other branches of local government in both Scotland and England. Counsel for the appellant has also suggested numerous reasons why the third comparator is invalid - different professional training, different local conditions, different size of school roll, and so on. All of these considerations go to the facts; but the attempt to exclude this comparator has been put forward as a matter of law. This is what the appeal is about.
The proceedings before the Employment Tribunal
(1)The first Decision : 11 October 1999
[16]The case came before the Tribunal in June 1999 on the preliminary question whether the respondent should be allowed to cite her third comparator.
[17]The Tribunal heard several days of evidence on the point. The evidence ranged over the history of salary negotiations in the public sector of education in Scotland, the constitution and role of the SJNC, the mechanics of negotiations on national salary scales, and a comparison of those negotiations with salary negotiations in other areas of local government.
[18]The appellant led evidence from Mr Dan Brown, head of Personnel Strategy of the Convention of Scottish Local...
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