West Dunbartonshire Council v Wallace
| Jurisdiction | Scotland |
| Judgment Date | 31 July 1996 |
| Docket Number | No 59 |
| Date | 31 July 1996 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
Employment—Equal pay—Appellants each performing duties of male comparator—Whether material difference based on difference other than gender—Equal Pay Act 1970 (cap 41), sec 1(3)
Section 1(3) of the Equal Pay Act 1970 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—(a) in the case of an equality clause following under subsec (2)(a) or (b) above must be a material difference between the woman's case and the man's; and (b) in the case of an equality clause following under subsec (2)(c) above, may be such a material difference.”
Nine female teachers had each performed the duties of a principal teacher at some time but none had received an appropriate salary for the holder of such an appointment and none had been formally appointed. They applied to an industrial tribunal for a finding of an equality clause within the terms and conditions of their contracts of employment. The tribunal found that each applicant had been performing like work to a male comparator and, accordingly, ought to be given the same pay. The employers appealed to the Employment Appeal Tribunal, who dismissed the appeal. The employers thereafter appealed to the Court of Session and argued that the variation in treatment between the applicants and the comparator was due to a material difference between them based on difference other than gender which applied in terms of sec 1(3)(a). Out of a list of 134 unpromoted teachers who claimed to be carrying out the principal teacher's duties, eight of them were men and 53 were women. The employers had a promotion structure established by statute and posts were filled only on merit after competition; financial constraints prevented a full reaction to curriculum change; a standard circular had been issued to assist the pay and promotion process. The interaction of constraints and the terms of that circular prevented principal teacher appointments being made in schools where such appointments might have seemed appropriate.
Held (1) that the tribunal had not been justified in rejecting the employers' argument on the financial restraint as while the employers might have been able to find additional money to pay the applicants, such an argument on several occasions would involve considerable spending over a budget; (2) that financial constraints were relevant in a determination of the issue and the circular was also a relevant consideration; and (3) that the tribunal had made the mistake of examining the employers' system for objective justification whereas they required only to consider whether the employers' system was directly discriminatory so that the employers had succeeded in discharging the onus upon them; and appeal allowed.
Benveniste v University of SouthamptonICR [1989] ICR 617; and Calder v Rowntree MacKintoshICR [1992] ICR 372applied.
Mrs K M Wallace and others applied to the Industrial Tribunal under the Equal Pay Act 1970 for a finding of an equality clause within the terms and conditions of their contract of employment with Strathclyde Regional Council. The facts and circumstances are adequately set forth in the opinion of the the Lord Justice-Clerk (Ross).
The Industrial Tribunal found in favour of nine of the applicants but rejected the application of a tenth.
The employers appealed to the Employment Appeal Tribunal who refused the appeal.
The employers thereafter appealed to the Court of Session.
Cases referred to:
Barber v NCR (Manufacturing) Ltd [1993] IRCR 55
Benveniste v University of SouthamptonICR [1989] ICR 617
Calder v Rowntree Mackintosh Confectionery LtdICR [1992] ICR 372
National Vulcan Insurance v WadeICR [1978] ICR 800
North Yorks CC v RatcliffeICR [1995] ICR 833
Rainey v Greater Glasgow Health BoardSC 1987 SC (HL) 1
Tyldesley v TMK Plastics LtdICR [1996] ICR 356
Young v University of Edinburgh, not reported, 14 June 1994, EAT
The cause called before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord Weir and Lord Cowie for a hearing.
At advising, on 31 July 1996—
LORD JUSTICE-CLERK (Ross)—On 12 April 1995 an industrial tribunal made a decision on ten applications under the Equal Pay Act 1970. The applicants in these applications included the present respondents. The ten applicants were all employed by the appellants, and in nine of the ten cases the industrial tribunal held that the applicants were entitled to a finding of an equality clause within the terms and conditions of their contracts of employment, with effect from 24 April 1989 or, if later, the date they commenced carrying out the duties of principal teacher. In the tenth case, the application was dismissed. The appellants appealed against that decision in relation to the respondents who were the nine applicants whose cases had been successful. Their appeal was dismissed by the Employment Appeal Tribunal, and the appellants have now appealed to this court under sec 136(4) of the Employment Protection (Consolidation) Act 1978.
Before 1 April 1996, Strathclyde Regional Council were the education authority for Strathclyde Region, and they employed the respondents. In terms of sec 1(3) of the Local Government etc. (Scotland) Act 1994, Strathclyde Regional Council ceased to exist on 1 April 1996, and with effect from that date their responsibilities as employers of the respondents passed to new local authorities. In terms of a minute of sist, West Dunbartonshire Council, North Lanarkshire Council, City of Glasgow Council, East Dunbartonshire Council and Renfrewshire Council have been sisted as appellants in this process in place of Strathclyde Regional Council. For convenience, however, and for ease in understanding the decision of the industrial tribunal, the expressions “Strathclyde Regional Council” and “Strathclyde Region” will be retained.
As is clear from the decision of the industrial tribunal and the judgment of the Employment Appeal Tribunal, there is no material distinction between the situations of the nine respondents, and the relevant facts can be treated as identical in each case. Each of them performed, for some part of the relevant period, the duties of a principal teacher. None of them had, however, been appointed to the position of a principal teacher, and none of them received the salary appropriate for the holder of an appointment as principal teacher. Each of them identified at least one male comparator who had been appointed as a principal teacher and was receiving a salary appropriate to that responsibility. Before the industrial tribunal, there was dispute as to whether the respondents were in fact performing like work with that of their comparators. The industrial tribunal held, in the cases of the nine respondents, that they were indeed performing like work with that of their comparators. No challenge was made to that finding in the appeal to the Employment Appeal Tribunal, and counsel for the appellants confirmed that this matter was no longer in issue, and that this court should proceed upon the basis that it had been established that the respondents were performing like work with that of their comparators.
What is raised in this appeal is whether the industrial tribunal ought to have held that an equality clause did not operate in the case of these respondents by virtue of sec 1(3) of the Equal Pay Act 1970. At the start of their judgment, the Employment Appeal Tribunal have set forth the general background which has given rise to the present dispute between the parties. There is no need to repeat that general background in this opinion.
In their decision, the industrial tribunal have set forth the relevant provisions of sec 1 of the Equal Pay Act 1970. Again it is unnecessary to repeat all these provisions in this opinion. However, as most of the submissions related to sec 1(3) of the Act of 1970, its provisions which are as follows should be noted: “(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 proves 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 under subsec (2)(a) or (b) above, must be a material difference between the woman's case and the man's; and (b) in the case of an equality clause falling under subsec (2)(c)...
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Strathclyde Regional Council v Wallace
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