UK Cases Database – Equal Pay:
Case Name
Facts
Strathclyde  The appellants, all of whom are unpromoted women teachers employed by
Regional
the respondents, advance a claim to equal
Council v
pay under the Equal Pay Act 1970. Their
Wallace,
claim is based on the fact that, although
HL
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.
 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 defense
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."
Ruling
Principle
Links
 Both the Sex Discrimination Act 1975 and
article 119 of the European Treaty recognize
two types of sex discrimination. First, there is
direct discrimination, i.e. a detriment suffered
by women which they would not have suffered
but for being women. Second, there is indirect
discrimination, i.e. a detriment suffered by a
class of individuals, men and women alike, but
the class is such that a substantially larger
number of women than men suffer the
detriment. The classic example of indirect
discrimination is a policy under which part-time
workers, whether male or female, are paid less
than full-time workers. There are many more
women than men who are part-time workers.
Accordingly such a policy applied to part-time
workers is indirectly discriminatory against
women.
 Section 1(3) provides a defense if the
employer shows that the variation between
the woman’s contract and the man’s
contract is “genuinely” due to a factor
which is (a) material and (b) not the
difference of sex. The requirement of
genuineness is satisfied if the tribunal
comes to the conclusion that the reason
put forward was not a sham or pretence.
For the matters relied upon to constitute
“material factors”, it has to be shown that
they were in fact casually relevant to the
difference in pay, i.e. that they were
significant factors. This is a test which
looks to the reason why there is a
disparity. Finally, the employer has to
show that the disparity in pay is due to a
factor “which is not the difference of sex”,
i.e. is not directly or indirectly sexually
discriminatory.
http://www.bailii.
org/uk/cases/UK
HL/1998/4.html
 Under the Sex Discrimination Act 1975, direct
sexual discrimination is always unlawful. But,
both under the Sex Discrimination Act 1975 and
under article 119, indirect discrimination is not
unlawful if it is "justified”.
 There was clear and largely uncontradicted
evidence as to why the appellants were not
paid the same rate as the principal teachers.
Glasgow City
Council v
Marshall,
HL
 The case concerns the pay of instructors
and teachers in special schools. The
applicants are eight instructors, seven
women and one man, working in special
schools within the former local government
area of Strathclyde region. Their employer
was Strathclyde Regional Council, the
education authority for the region. That was
the position when the applicants lodged
their claims. After the local government
reorganization of 1996, the applicants were
employed by the council's statutory
successors.
 The teachers are paid much more than the
instructors; they have teaching
qualifications, and the instructors do not.
 In these proceedings the seven women
instructors claimed that, although lacking
formal teaching qualifications, they were
employed on like work with male teachers
working in the same special schools.
Conversely, one male instructor claimed he
was engaged on like work with female
teachers. The applicants claimed that,
accordingly, they were entitled to the same
pay as their respective male and female
teacher comparators.
 Part of the purpose of the Equal Pay Act was to
ensure that discrimination does not arise through
accident or inertia. If an employer fails to rebut
the presumption of sex discrimination because
he is unable to show a proper reason for the
disparity in pay, the case falls within the mischief
the Act was intended to remedy.
 The scheme of the Act is that a rebuttable
presumption of sex discrimination arises once
the gender-based comparison shows that a
woman, doing like work or work rated as
equivalent or work of equal value to that of a
man, is being paid or treated less favorably than
the man. The variation between her contract and
the man's contract is presumed to be due to the
difference of sex. The burden passes to the
employer to show that the explanation for the
variation is not tainted with sex.
 In order to discharge this burden the employer
must satisfy the tribunal on several matters. First,
that the proffered explanation, or reason, is
genuine, and not a sham or pretence. Second,
that the less favorable treatment is due to this
reason. Third, that the reason is not 'the
difference of sex'.
 If there is any evidence of sex discrimination,
such as evidence that the difference in pay has a
disparately adverse impact on women, the
employer will be called upon to satisfy the
tribunal that the difference in pay is objectively
justifiable. But if the employer proves the
absence of sex discrimination he is not obliged to
justify the pay disparity.
 An employer, who proves the absence of
sex discrimination, direct or indirect, is
under no obligation to prove a “good”
reason for the pay disparity.
 If there is any evidence of sex
discrimination, such as evidence that the
difference in pay has a disparately adverse
impact on women, the employer will be
called upon to satisfy the tribunal that the
difference in pay is objectively justifiable.
 In order to discharge the burden of showing
that the explanation for the variation is not
tainted with sex the employer must satisfy
the tribunal on several matters. First, that
the proffered explanation, or reason, is
genuine, and not a sham or pretence.
Second, that the less favorable treatment is
due to this reason. The factor relied upon
must be the cause of the disparity. The
factor must be “material” in a causative
sense, rather than in a justificatory sense.
Third, that the reason is not “the difference
of sex”, which is apt to embrace any form of
sex discrimination, whether direct or
indirect. Fourth, that the factor relied upon is
a “material” difference, that is or, in a case
within s.1(2)(c), may be, a significant and
relevant difference, between the woman’s
case and the man’s case.
http://www.ba
ilii.org/uk/cas
es/UKHL/200
0/5.html
Rainey v
Greater
Glasgow
Health
Board,
HL
 The appellant, a woman, has since
1/10/80 been employed by the
respondent board at the Belvidere
Hospital, Glasgow, as a prosthetist.
 The remuneration of employees of
the National Health Service is
determined by negotiation and
agreement in the Whitley Councils
for the Health Services.
 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.
 The appellant’s 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.
 The difference between the case of
the appellant and that of Mr.
Crumlin is that the former is a
person who entered the National
Health Service at Belvidere Hospital
directly while the latter is a person
who entered it from employment
with a private contractor.
 It is significant that a large part of the difference which has
opened up between the appellant's salary and Mr. Crumlin's is
due to the different negotiating machinery.
 There is no suggestion that it was unreasonable to place them
on the particular point on the Whitley Council scale which was
in fact selected, ascertained by reference to the position of
medical physics technicians and entirely regardless of sex.
 It is in any event the fact that the general scale of
remuneration for prosthetists was" laid down accordingly by
the Secretary of State. It was not a question of the appellant
being paid less than the norm but of Mr. Crumlin being paid
more. He was paid more because of the necessity to attract
him and other privately employed prosthetists into forming the
nucleus of the new service.
 I am therefore of the opinion that the grounds founded on by
the board as constituting the material difference between the
appellant's case and that of Mr. Crumlin were capable in law of
constituting a relevant difference for purposes of section 1(3)
of the Act of 1970, and that on the facts found by the industrial
tribunal they were objectively justified.
 A difference in pay between a female prosthetist and her male
comparator, employed on like work but recruited from the
private sector on his existing terms and conditions when the
prosthetist service was established prior to her employment,
was “genuinely due to a material difference (other then the
difference of sex) between her case and his”, where the fact
that the new service could never have been established within
a reasonable time if the employees of private contractors had
not been offered a scale of remuneration no less favorable
than that which they were then enjoying was a good and
objectively justified ground for offering that scale of
remuneration. There was no suggestion that it was
unreasonable to place the prosthetists on the particular point
on the salary scales which was in fact selected, and it was not
a question of the women being paid less than the norm but of
the comparator being paid more because of the necessity to
attract him.
 Per Lord Keith: there is no material difference
in principle between the need to demonstrate
objectively justified grounds of differenc3e for
the purpose of s.1(3) of the Equal Pay Act
and the need to justify a requirement or
condition under s.1(1)(b)(ii) of the Sex
Discrimination Act.
 Although the European Court in BilkaKaufhaus case referred to “economic”
grounds objectively justified, read as a whole
the ruling of the European Court would not
exclude objectively justified grounds which
are other than economic, such as
administrative efficiency in a concern not
engaged in commerce or business.
 The true meaning and effect of Article 141 in
the context of the employer’s defense is the
same as that correctly attributed to s.1(3) of
the Equal Pay Act by the EAT in Jenkins v
Kingsgate (Clothing) Productions (No. 2).
 A difference between the woman’s case and
the man’s must be “material”, which means
“significant and relevant”.
 A relevant difference for the purpose of s.1(3)
may relate to circumstances other than the
personal qualifications or merits of the male
and female workers who are the subject of
comparison. Consideration of a difference
between “her case and his” must necessary
involve consideration of all the circumstances
of that case. These may go beyond the
personal qualities by way of skill, experience
or training which the individual brings to the
job.
http://www.
bailii.org/u
k/cases/U
KHL/1987/
16.html
Ratcliffe v
North
Yorkshire
County
Council,
HL


 A difference in pay, between the female
school catering assistants and their male
comparators in local government on work
rated as equivalent, which resulted from a
reduction in the woman’s wages from the
local government rate because of the
employer’s need to tender for work at a
commercially competitive rate, was not
genuinely due to a material factor which was
not the difference of sex. To reduce the
women’s wages below that of their male
comparators was the very kind of
discrimination in relation to pay which the Act
sought to remove.
Hayward v
Cammell
Laird
Shipbuilders
Ltd,

HL
 If a contract contains provisions relating to
basic pay, benefits in kind such as the use
of a car, cash bonuses and sickness
benefits, on the natural and ordinary
meaning of the word “term” of the contract,
simply because they can all together be
considered as providing for the total
“remuneration” for the services to be
performed under the contract.
 On the correct construction of s.1(2)(c) of the
Equal Treatment Act as amended, a woman
can point to a term of a similar kind in the
man’s contract is entitled to have that term
made not less favorable irrespective of whether
she is as favorably treated as the man when
the whole of her contract and the whole of his
contract are considered. Therefore, a woman
employee on work of equal value was entitled
to the same basic hourly wage and overtime
rates as her comparator, notwithstanding that
she received additional holidays and better
sickness benefits.
Conducted & Edited by: Arwa Rinawi, Adv.
 Per the Lord Chancellor [Lord Mackay]: Section 1(3)
would not provide a defense to an employer against
whom it was shown that a term in the woman’s
contract was less favorable to her than a
corresponding term in the man’s contract, on the basis
that there was another term in the woman’s contract
which was more favorable to her than the
corresponding term in the man’s contract. At the very
least, for s.1(3) to operate, it would have to be shown
that the unfavorable character of the term in the
woman’s contract was in fact due to the difference in
the opposite sense in the other term and that the
difference was not due to the reason of sex.
 The natural meaning of the word “term” in the context
of s.1(2)(c) is a distinct provision or part of the contract
which has sufficient content to make it possible to
compare it, from the point of view of the benefits it
confers, with a similar provision or part in another
contract. Therefore, on the correct construction of
s.1(2)(c)(i), if in the contract of a woman and the
contract of a man employed on work of equal value
there is “a term of a similar kind” – i.e. a term making a
comparable provision for the same subject- matter –
the two must be compared and if, on that comparison,
the term of the woman’s contract proves to be less
favorable than the term of the man’s contract, then the
term of the woman’s contract is to be treated as
modified so as to make it not less favorable.