Rainey v Greater Glasgow Health Board

The House of Lords held that the "material difference" in section 1(3) of the Equal Pay Act 1970 may include objectively justified economic or administrative grounds and need not be confined to personal qualifications or merits.

Where a pay practice affects more men than women but is aimed at a legitimate objective, the employer must show the measures correspond to a real need, are appropriate to achieve the objective and are necessary to that end (the Bilka test).

The appellant, a woman prosthetist employed directly by the National Health Service, claimed equal pay with male prosthetists who had entered NHS employment from private contractors on special terms.

The industrial tribunal dismissed her claim under section 1(3) of the Equal Pay Act 1970. The Employment Appeal Tribunal and the Court of Session (First Division) affirmed. The appellant appealed to the House of Lords.

The central issue was whether the difference in pay between direct entrants and transferees could be a "material difference (other than sex) between her case and his" within section 1(3), and whether such difference could be justified on objective economic or administrative grounds.

1. Disposition: The House of Lords dismissed the appeal. Per Lord Keith of Kinkel, with whom the other Law Lords agreed, the respondent had discharged the onus under section 1(3) of the Equal Pay Act 1970.
2. Construction of section 1(3): Per Lord Keith, the words "material difference (other than the difference of sex) between her case and his" admit consideration of relevant circumstances beyond merely the personal qualifications of the employees. The difference must be significant and relevant. (Per Lord Keith of Kinkel.)
3. Objective justification and Community law: The House accepted the European Court of Justice authority (Jenkins and Bilka) that a pay practice which affects disproportionately one sex may be lawful if objectively justified. The court adopted the Bilka criteria: the measures must correspond to a real need of the undertaking, be appropriate to achieve the objective, and be necessary to that end. These criteria form the proper test for assessing justification under section 1(3). (Per Lord Keith of Kinkel.)
4. Application to the facts: The decision to offer higher terms to prosthetists transferring from private contractors was objectively justified. The prosthetic service could not have been established in reasonable time without attracting the existing privately employed prosthetists. There were sound administrative reasons to place future direct entrants on the Whitley Council scale while allowing transferees to retain their negotiated terms. The employers therefore satisfied section 1(3).
5. Relation to the Sex Discrimination Act 1975: Section 1(1)(b) of the 1975 Act (indirect discrimination) did not add anything material beyond the properly construed section 1(3) for present purposes.
6. Authorities: The decision criticised the narrower approach taken in Clay Cross v Fletcher [1978] 1 W.L.R. 1429 and aligned domestic interpretation with ECJ authority (Jenkins; Bilka). The House refused the appellant's claim and awarded costs to the respondents.

• First Instance: Industrial Tribunal — application dismissed.
• Employment Appeal Tribunal: Appeal dismissed (majority).
• Court of Session, First Division: Appeal to Inner House dismissed (3-1), interlocutor dated 3 July 1985.
• House of Lords: Appeal dismissed, judgment of 27 November 1986 affirming the lower courts.