Glasgow City Council and Others v Marshall and Others [1999] IDS Brief 656
Enderby v Frenchay Health Authority (No.2)
Evesham v North Hertfordshire Health Authority and another
Hughes v West Berkshire Health Authority and Another [2000] TLR 29/2/00

We report below two disappointing decisions of the higher courts on equal pay. In Glasgow City Council v Marshall, the House of Lords confirms that employers will only have to justify pay differentials in equal pay claims where the material factor relied upon is itself discriminatory.

Ms Marshall and her colleagues were employed as instructors at special needs schools and paid less than the teachers. They claimed equal pay to that of male teachers, but they could not show a gender disparity between the two groups of employees.

The Tribunal found that instructors and teachers carried out "like work" and that the mainly historical reasons relied on by the employer did not establish a "material factor" defence. The Employment Appeal Tribunal refused to allow the employer's appeal, but that was over-turned by the Court of Session.

Drawing on Strathclyde Regional Council v Wallace and others, the House of Lords found that the employer's material factor defence succeeded. Having proved that the reason for the disparities in pay were not due to sex discrimination, the employer did not have to go on to justify the variation in pay further.

In practice, this means that equal pay claims are going to be very difficult to win without 
an apparent taint of discrimination.

Ms Evesham, in her case, succeeded in showing that her work was of equal value to that of her male comparator. She had been in post for five years longer than her comparator. Her contract of employment contained a right to incremental progression on an annual basis. She therefore claimed that the real effect of an equality clause should be to give her a rate of pay equal to what her comparator would get if he had five more years service.

The Court of Appeal disagreed. It found that, if the assessment of Ms Evesham's job as being of equal value to that of her comparator included her years in post as a factor, then to allow her to calculate her pay as she claimed would involve an element of double-counting of her experience. She was therefore only entitled to the same rate of pay as currently paid to her comparator

If the assessment of the applicant's job at the equal value stage had taken into account her years in post and she would not otherwise achieve equality with her comparator, then it may be that the applicant is benefiting twice if she is able to rely on her own incremental progression to achieve a higher rate of pay than her comparator. But the Court of Appeal failed to analyse the equal value assessment of Ms Evesham's job to see if her experience was indeed a relevant factor.

We are still waiting on the European equal pay judgments reported in last month's issue. Hopefully better news is on the horizon.