Strathclyde Regional Council v Wallace
| Jurisdiction | England & Wales |
| Judge | LORD BROWNE-WILKINSON,LORD STEYN,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD CLYDE |
| Judgment Date | 28 January 1998 |
| Judgment citation (vLex) | [1998] UKHL J0122-4 |
| Court | House of Lords |
| Docket Number | No 6 |
| Date | 28 January 1998 |
[1998] UKHL J0122-4
HOUSE OF LORDS
Lord Browne-Wilkinson
Lord Steyn
Lord Hoffmann
Lord Hope of Craighead
Lord Clyde
And Others
And Others
My Lords,
In this case the appellants, all of whom are unpromoted women teachers employed by the respondents, advance a claim to equal pay under the Equal Pay Act 1970. Their claim is based on the fact that, although they do the same work as a "principal teacher," they are paid at a lower rate. Each of the female applicants has selected a male comparator who is a principal teacher employed by the respondent and claims equality of pay with such comparator.
Section 1 of the Act of 1970 (as amended) provides, so far as relevant:
"1(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)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 -
(a) where the woman is employed in 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 a 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 should be treated as including such a term;"–paragraph
(b) deals with the case where the woman's work is rated as equivalent and paragraph
(c) deals with the case where the woman's work is of equal value with that of the man -
"(3)An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proved that the variation is genuinely due to a material factor which is not the difference of sex and that factor–
(a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman's case and the man's; …"
The appellants claim that they were doing "like work" to that done by the male comparators and are therefore entitled to the benefit of an equality clause giving them equal pay with their comparators. The respondents now concede that the appellants' work is like work. It follows that the appellants will be entitled to equal pay with principal teachers unless the respondents can establish a defence under subsection (3) of section 1, i.e. prove that the differences in pay are "genuinely due to a material factor which is not the difference of sex." The industrial tribunal and the Employment Appeal Tribunal held that the respondent employers had failed to establish a defence under subsection (3). The Second Division of the Court of Session (Lord Justice Clerk, Lord Weir and Lord Cowie) held, 1997 S.L.T. 315 that the respondents had established a subsection (3) defence. The whole appeal therefore depends on the circumstances relied on by the respondents as giving rise to a subsection (3) defence. I gratefully take the following account of the circumstances from the judgment of the Employment Appeal Tribunal.
The employers were originally the Strathclyde Regional Council as the education authority for the Strathclyde Region. Since the decision of the case in the industrial tribunal the functions of the Regional Council have been distributed amongst other authorities. However, for convenience, I will refer to the relevant authorities for the time being as "the respondents." As education authority the respondents are under a statutory duty to secure the adequate and sufficient provision of school education in Strathclyde Region and to have regard, in doing so, not only to the statutory provisions governing education in Scotland but to directions which they receive from the Scottish Office Education Department, and to national agreements with unions such as those contained in circulars issued by the Scottish Joint Negotiating Committee ("S.J.N.C.").
The structure of what are known as promoted posts in schools was laid down originally in the Schools (Scotland) Code 1956, and revised by a Scottish Office Education Department circular in 1972 and S.E.D. Staffing Standard in 1987. That structure permits the appointment of one head teacher in each school, with a number of lower grades of promoted posts, the number in each school depending upon a number of factors. The possible grades are deputy head teacher, assistant head teacher, principal teacher, assistant principal teacher, and senior teacher.
Equal pay for male and female teachers was established long before 1970 and teachers' conditions of service prohibit sex discrimination in employment. The method of appointment of teachers to promoted posts is subject to certain controls. The pay and conditions of service of teachers and promoted teachers are dealt with by the S.J.N.C., who issue circulars which, generally speaking and subject to a few exceptions, are binding on local authorities. The pay and conditions are subject to annual review. There is a common scale of remuneration for unpromoted teachers, the only reason for variation in the pay between unpromoted teachers being the point which they have reached on their scale, which depends upon length of service. There is no doubt that a principal teacher receives higher remuneration than an unpromoted teacher. The duties of teachers and principal teachers respectively are laid down in S.J.N.C. circulars.
Over the years there have been changes in the demand for certain subjects such as computing, for which demand has increased, or Latin, for which the demand has decreased. However, in terms of the relevant conditions of employment, the respondents were obliged to preserve the existing structure of promoted posts, with the result that if a principal teacher of Latin had been appointed then, even if the number of pupils taking Latin fell to a fraction of what it had been, the principal teacher was entitled to continue to hold that appointment and to receive the appropriate salary. On the other hand, the respondents were not free simply to create new promoted posts to meet the demand for new subjects because they were restrained by the S.E.D. circulars relating to staffing standards. Attempts have been made to provide flexibility within these standards but, as the industrial tribunal found, the degree of flexibility was in practice restricted by financial considerations. The respondents' expenditure is met from resources raised by normal local and central government taxation. Any S.N.J.C. salary award has to be financed in such a way irrespective of any budget difficulties. At the time when the appellants launched these applications the educational budget amounted to about £1 billion per annum representing about half the total regional budget. There was a further difficulty in that there has been a significant drop in school rolls over the period 1980-1990 of approximately one-third.
The particular circumstances which obtain within each school determine the number of promoted posts to which appointment can be made in that school: i.e. the number of vacancies for promoted appointment. In a significant number of schools in the region (in particular, those in which the nine appellants were employed) conditions were such that there was a requirement for the work of a principal teacher to be done, but the application of the relevant rules to the school did not permit the appointment of a principal teacher to do such work. In other words, there was no available vacancy. In that situation the appellants and doubtless other teachers found themselves in the position of doing the work of a principal teacher without having been promoted to that grade and without receiving the salary. The fact that the appellants did such work even though not paid at the appropriate rate is largely attributable to their sense of professional obligation to their students and their schools.
The industrial tribunal summarised the respondents' case as follows. They said that the difference in pay between the appellants and their comparators was due to a combination of five material factors, namely:
(1)there was a promotion structure established by statute;
(2)promoted posts were filled only on merit after competition;
(3)the respondents' financial circumstances have always prevented them from fully reacting to curriculum change;
(4)they introduced Standard Circular 65 to assist that process;
(5)the interaction of financial constraints and that circular prevents them making principal teacher appointments in schools where such appointments would be appropriate.
Finally, I must state an agreed fact of the greatest importance. The disparity in pay between the appellants and principal teachers has nothing to do with gender. Of the 134 unpromoted teachers who claimed to be carrying out the duties of principal teachers, 81 were men and 53 women. The selection by the appellants in this case of male principal teachers as comparators was purely the result of a tactical selection by these appellants: there are male and female principal teachers employed by the respondents without discrimination. Therefore the objective sought by the appellants is to achieve equal pay...
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