Glasgow City Council v Marshall

Under section 1(3) of the Equal Pay Act 1970, less favourable treatment of an opposite-sex employee performing like work raises a rebuttable presumption of sex discrimination. The employer must prove a genuine and causally relevant explanation, free from direct or indirect sex discrimination, which constitutes a material difference between the cases.

If the employer proves the absence of sex discrimination, the employer need not establish a good reason or objective justification for the disparity. Different genuine pay structures may provide the material factor even though the employer could have paid the claimant more. Objective justification becomes necessary where the factor is sexually discriminatory, including where the disparity has a disproportionately adverse effect on women.

Glasgow City Council v Marshall concerned seven female instructors and one male instructor employed in special schools. They were paid substantially less than opposite-sex teacher comparators although an industrial tribunal found that they performed like work. Teachers and instructors were appointed to different posts and paid under separate nationally negotiated pay structures.

The industrial tribunal upheld the claims, holding that the employers had not provided a sufficient reason for the disparity. The Employment Appeal Tribunal dismissed the employers’ appeal. The Court of Session allowed a further appeal.

The instructors appealed to the House of Lords. The finding of like work was no longer challenged. The central issue was whether section 1(3) of the Equal Pay Act 1970 required the employers to justify the disparity despite the accepted absence of sex discrimination.

Appeal dismissed unanimously. Lord Nicholls of Birkenhead delivered the leading speech. Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Hope of Craighead and Lord Hutton agreed.

1. Per Lord Nicholls, the scheme of section 1 of the Equal Pay Act 1970 creates a rebuttable presumption of sex discrimination when an opposite-sex comparison demonstrates less favourable treatment for like work, work rated as equivalent or work of equal value. To establish the section 1(3) defence, the employer must prove that the explanation is genuine, that it caused the disparity, that it is free from direct or indirect sex discrimination, and that it is a significant and relevant difference between the cases.

2. Per Lord Nicholls, an employer who proves the absence of direct and indirect sex discrimination need not establish a good reason for the disparity. Objective justification is required where there is evidence that the factor is sexually discriminatory, including evidence of a disproportionately adverse impact on women.

3. Per Lord Nicholls, “material” is primarily causative rather than justificatory. The factor must be significant and relevant because it caused the disparity. The House followed Strathclyde Regional Council v Wallace [1998] S.C. 72, which established that justification arises only where the factor relied upon is sexually discriminatory.

4. Per Lord Nicholls, the different nationally negotiated pay scales for teachers and instructors genuinely caused the disparity. The causal connection remained intact although the authorities chose the instructors’ positions on their scale and could have paid them more. No one disputed the genuineness of the explanation or alleged that the established disparity was tainted by sex discrimination. The authorities therefore established the section 1(3) defence.

5. Per Lord Nicholls, the instructors could not introduce for the first time in the House an allegation that the disparity had a disproportionately adverse impact on women. That factual issue had not been raised before the industrial tribunal, and the House lacked the evidence needed to decide it. A remittal would effectively have restarted prolonged proceedings and would have been unjust to the authorities. The issue remained available in other suspended applications.

6. Per Lord Nicholls, the House also declined to reopen the unchallenged finding of like work by reference to Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse Case C-309/97. The qualification-related issues had not been considered by the fact-finding tribunal, and their determination was unnecessary to the appeal. The House expressed no view on them.

1. House of Lords: In Glasgow City Council v Marshall [2000] UKHL 5; [2000] 1 WLR 333, the instructors’ appeal was dismissed unanimously, leaving the Court of Session’s decision undisturbed.
2. Court of Session: Allowed the education authorities’ appeal on the section 1(3) defence.
3. Employment Appeal Tribunal: Dismissed the education authorities’ appeal from the industrial tribunal.
4. Industrial tribunal: Found that eight instructors performed like work with their teacher comparators and rejected the employers’ section 1(3) defence. A ninth instructor’s claim was dismissed because he did not perform like work.