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Key Topics
Requirement
Comment on the legal importance of Rainey v Greater Glasgow Health Board [1987] IRLR 26.
Solution
The legal provisions that were applicable in this case:
Equal Pay Act 1970
This act prevents discrimination, as regards terms and conditions of employment, between men and women.
The appellant in this case was founded upon section 1(1) and (2)(a) of Equal Pay Act of 1970. So, the provisions according to the merit of the case are:
1(1): The law enforces this provision in terms of disputes on unequal treatment “if the terms of a contract under which a woman is employed in an organization, establishment or institution in UK do not include (directly or by reference to a collective agreement or otherwise) an equality clause that they shall be deemed to include one.
(2) This provision further extends the equality clause of the Act of 1970 that talks about the terms (whether concerned with pay or not) of a contract that allows a woman to be employed (the contract of the woman), having an effect that:
(a) Where the woman is employed just like a man in the same employment –
(i) If in case (apart from what equality clause says) any term of the woman’s contract is or becomes any less favorable to the woman herself then a term of a similar kind in the contract under which that man is employed, so that term of the woman’s contract shall be treated as so modified as not be less favorable, and
(ii) If (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term (Legislation.gov.uk, n.d.).
Moreover, in view of the dispute, the tribunal board did not contest that the appellant (Rainey) was employed on like work with a man (Mr. Crumlin) and also her term of contract was less favorable than that of Mr. Crumlin’s. Therefore, it becomes relevant to include section 1 (3) of the Act on the part of the board to satisfy the provisions, which is:
(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 within subsection (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 within subsection (2)(c) above, may be such a material difference (Legislation.gov.uk, n.d.).
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Interpretation of the provision by the House of Lords
The interpretation of the above mentioned provisions with regards of the case: Rainey v Greater Glasgow Health Board [1987], was reflected in the judgment as read by Lord Keith of Kinkel. The House also considered the scope of the ‘genuine material factor’ defense in section 1(3) of the Act where prima facie indirect discrimination exists and objective justification needs to be established. The judgment that he gave is summarized as follows:
The difference was considered to be material whose meaning was construed as significant and relevant as well as it must be between “her case and his”. It is a necessary premise that all the circumstances of the case must necessarily be involved. This case goes beyond the condition of personal equation, i.e, it essentially denotes personal qualities by way of skill, experience or training which a person brings to the job. On the basis of examination, some circumstances often prove to be not significant or not relevant, but others may do so without relating to the personal qualities of the employer. Particularly, this case doesn’t involve the question of intentional sex discrimination whether direct or direct. It is more of a difference that is connected with economic factors that affect the efficiency of carrying the employer’s business or other activity may well be relevant (Bailii.org, n.d.). Also, it was affirmed by the House of Lords that the said petition and appeal was to be dismissed. It further ordered that the Appellant do pay or cause to be paid to the said respondents the cost incurred by them in respect of the said appeal, the amount thereof after being certified by the clerk of the parliament in case the parties were not agreed. Not only that, the court further ordered that unless the costs certified as aforementioned shall be paid to the respondents would be entitled to the same within one calendar month from the date of the certificate. The cost shall be remitted back to the Court of Session in Scotland or the judge acting as Vacation Judge to issue such summary process or diligence because the recovery of such shall be lawful and necessary (Anon, 2004).
The House of Lords declared its judgment on the lines of the observations of the industrial tribunal. The industrial tribunal, on account of the facts of the case gave the following observations at its end:
“By looking at each and every perspective of the case in view of the evidence, the tribunal is satisfied that what has caused the difference in the salary scale of the applicant and Mr. Crumlin was not based on the market forces but because of the fact that Crumlin was getting paid on a scale that was negotiated and agreed between his trade union and the Scottish Home and Health Department. While, on the other hand, the applicant was paid on the basis of ad hoc scale, that is, not the one that has been negotiated between her trade union and the Scottish Home and Health Department. The Tribunal was, therefore, forced to conclude that the difference had nothing to do with the fact that the applicant was a female. Her application must, therefore, be dismissed.
Importance of this interpretation
The case after being heard, discussed and argued in different sessions of the court opened doors for more relevant interpretations with significant perspectives. So, with regards to the present case, the following conclusions were drawn on the basis of interpretation and judgment:
The facts being found in this case provide a clarity that the Secretary of State for Scotland decided, in terms of general policy, that the Whitley Council scale that was applied throughout the National Health Service in Scotland, was completely appropriate for the employees working in the prosthetic service. The interpretation also made way for the decision that the appropriate part of the scale for such employees was as that applicable to medical physics technicians, presumably because the work that they were involved in was considered comparable to that of the prosthetists. Therefore, all the entrants who come directly to the service, no matter male or female, were to be placed on the same scale as well as made subject to Whitley Council negotiations. However, it was evident that the new service would not be started unless a sufficient number of the prosthetists could be inducted into it (Steele, 2010). The further policy decision, therefore, was taken to offer these prosthetists the option either to enter the service at their existing salaries or being subjected to the ASTMS negotiations.
The present case makes it abundantly clear that the difference between the case of the appellant (Rainey) and that of Mr. Crumlin is that the former entered the National Health Service at the Belvidere Hospital directly whereas the latter entered the employment from a private contractor. Therefore, it is a matter of co-incidence or accident that one is a man and the other is a woman. The findings of the case were also suggestive in clarifying that the new prosthetic service could never have been established within a reasonable time if Mr. Crumlin and others like him had not been offered a scale of remuneration no less favorable than that which they were then enjoying. So, by looking at it, the scale of remuneration of Mr. Crumlin seemed to be based on objectively justified grounds. But it was argued for the appellant that it did not constitute a good and objectively justified reason for paying the appellant and other direct entrants a lower scale of remuneration.
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.
Before the case, the position in 1980 was that all the National Health Service employees were paid according to the Whitley Council scale because the Whitney Council negotiating machinery was applicable to them. While, the prosthetic service was intended to be a branch of the National Health Service. Therefore, it is clearly evident from the administrative point of view that it would have been extremely anomalous and inconvenient if the prosthetists alone, for a particular duration of time in the future for which the prosthetic services would endure, were to have been subject to a different salary scale along with a different negotiating machinery. Therefore, it is important that a significant part of the difference which has opened up between the appellant’s (Rainey) salary as well as that of Mr. Crumlin’s was because of different negotiating machinery. Also, the administrative reasons were objectively justified accordingly as it can be concluded that placing prosthetists in general, men and women are alike. Therefore, they can be subjected to Whitney Council scale negotiating machinery. Further, no suggestions were made whatsoever, that it was unreasonable to place them on a particular point on the Whitley Council scale that was in fact selected, ascertained by reference to the position of the medical physics technicians and completely regardless of the sex (EQUAL PAY ACT 1970, 1970). The fact in any event, therefore, will remain that the general scale of remuneration for the prosthetists was laid down accordingly by the Secretary of State. We can conclude that it was not a question of the appellant being paid less than what was according to norm, but that Mr. Crumlin was being paid more. The fact that he was getting paid more was because of the necessity to attract him and other privately employed prosthetists in order to work for the new service.
Other cases that referred to ‘Rainey v Greater Glasgow Health Board’
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Place Your OrderStrathclyde Regional Council v Wallis (1996)
Facts of the Case: The nine Respondent women teachers performed the duties of a principal teacher. But, none of them was appointed as a principle teacher as well as none of them received the salary which is appropriate for the holder of an appointment as a principal teacher. These women were among a group of 134 un-promoted teachers who were dispensing principal’s duties. Out of these, 81 were men and 53 were women. The nine women had identified a male counterpart who was receiving salary as according to the responsibility. However, the employers argued that the variation in pay between the applicants and their male comparators was due to a combination of material factors.
On April 12, 1995, an industrial tribunal made a decision on ten applications under Equal Pay Act 1970. The tribunal found that the ten applicants were employed by the appellants and in nine of these ten cases, the industrial tribunal maintained 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 April 24, 1989.
As per the observations of the Judge, he recognized that in Rainey v Greater Glasgow Health Board (1987), Lord Keith of Kinkel referred on several occasions that whether there were good and objectively justified reasons for what the employers had done (People.exeter.ac.uk, n.d.). He said, it was clear, however, that the case was concerned with indirect discrimination, where in the present case, the discrimination complained of is direct discrimination in nature.
References
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Anon, (2004). CASE STUDIES ON EQUAL PAY. [online] Available at: http://www.equalityni.org/ECNI/media/ECNI/Publications/Employers%20and%20Service%20Providers/EqualPayCasestudies2004.pdf?ext=.pdf [Accessed 19 Apr. 2016].
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Bailii.org. (n.d.). Rainey v Greater Glasgow Health Board (Scotland) [1987] UKHL 16 (27 November 1986). [online] Available at: http://www.bailii.org/uk/cases/UKHL/1987/16.html [Accessed 19 Apr. 2016].
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EQUAL PAY ACT 1970. (1970). Managerial Law, 8(5), pp.1048-1057.
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Legislation.gov.uk. (n.d.). Equal Pay Act 1970. [online] Available at: http://www.legislation.gov.uk/ukpga/1970/41 [Accessed 19 Apr. 2016].
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People.exeter.ac.uk. (n.d.). STRATHCLYDE REGIONAL COUNCIL (appellants) v. WALLACE and others (respondents). [online] Available at: http://people.exeter.ac.uk/rburnley/empdis/1996IRLR670.html [Accessed 19 Apr. 2016].
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Steele, I. (2010). Sex Discrimination and the Material Factor Defence under the Equal Pay Act 1970 and the Equality Act 2010. Industrial Law Journal, 39(3), pp.264-274.
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