Equal pay 3: defences and remedies
The final part of our series explains how employers may justify, and industrial tribunals may redress, unequal pay for equal work.
"The [EqPA], Article 119 of the Treaty of Rome and the [EC Equal Pay Directive] have as their purpose the elimination of sex discrimination, not that of achieving 'fair wages'."
(per the EAT in Tyldesley v TML Plastics Ltd)
In our second Guidance Note in this series (Equal pay 2: unequal pay for equal work ), we analysed the component parts of sex discrimination in pay. In this article, we consider the defences available to employers against claims made by women solely under the Equal Pay Act 1970 (the EqPA) or relying on Article 119 of the Treaty of Rome. We also look at the remedies available to women under the EqPA should their claims succeed.
DEFENCES
By way of defence to a woman's claim under the EqPA, her employer may simply deny that she is entitled to make the claim (see Equal pay 1: legal framework and preliminary issues). It may also or instead dispute that:
In addition, the employer may plead that it has a "material factor" defence under s.1(3) of the EqPA (see below). If the woman claimed that her work was of equal value to her comparator's, the employer may raise such a defence at the initial hearing of the claim. Alternatively, it may raise at that hearing a "JES" defence under s.2A(2) of the EqPA (see below ).
Where the woman makes a claim under the EqPA invoking Article 119, the employer may rely on the time limit in s.2(4) of the EqPA as a defence to the claim (Fisscher v Voorhuis Hengelo BV and Stichting Bedrijfspensioenfonds voor de Detailhandel). If the woman establishes a prima facie case of discrimination (see Equal pay 2: unequal pay for equal work ), the burden of proof shifts to the employer (Enderby v Frenchay Health Authority and Secretary of State for Health). It must show that the difference in pay "is based on objectively justified factors unrelated to any discrimination on grounds of sex".
Once the woman has shown (or the employer has admitted) that she is employed on like work with her comparator, work rated as equivalent with his, or work of equal value to his but is, for example, being paid less than him, it is presumed that the pay differential is due to sex discrimination (National Vulcan Engineering Insurance Co Ltd v Wade). The employer may rebut that presumption, and prevent the equality clause in the woman's contract from operating, only by making out a "material factor" defence under s.(3) of the EqPA, which provides:
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 [s.1(2)(a) or (b) (like work or work rated as equivalent)], 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 [s.1(2)(c) (work of equal value)], may be such a material difference [emphasis added].
Scope of the defence
The reason why s.1(3)(b) was worded differently from s.1(3)(a) was to enable an employer against which a claim under s.1(2)(c) was made (an "equal value" claim) to rely on a material factor other than the difference of sex which was not "a material difference between the woman's case and the man's." What the Government had in mind were "circumstances where the difference in pay is not due to personal factors between the man and the woman, but rather to skill shortages or other market forces."1
That distinction had been drawn by the Court of Appeal in Fletcher v Clay Cross (Quarry Services) Ltd, in which Lord Denning said: "... the words 'between [the woman's] case and [the man's]' ... show that the tribunal is to have regard to her and to him - to the personal equation of the woman as compared to that of the man - irrespective of any extrinsic forces which led to the variation in pay." Lord Justice Lawton added: "... [the woman's] case embraces what appertains to her in her job ... What does not appertain to her job or to [the man's] are the circumstances in which they came to be employed."
However, in another "like work" case, the House of Lords held that those statements were unduly restrictive of the proper interpretation of s.1(3). A relevant difference for the purposes of s.1(3)(b) and (a) may relate to circumstances other than the personal qualifications or merits of the male and female workers who are the subject of comparison (Rainey v Greater Glasgow Health Board).
In McGregor and others v GMBATU, the EAT saw no reason or necessity for any limitation to be given to the wording of s.1(3)(b), which it read to mean: "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 is a material difference between the woman's case and the man's or is any other material difference."
Purpose of the defence
The equality clause operates to counteract all sex discrimination, whether direct or indirect and whether intentional or unintentional: it looks at the effect of the contractual terms, not at whether they are expressed in overtly discriminatory words or with any particular intention. Section 1(3) then operates by taking out of s.1(2) (see the box in Equal pay 1: legal framework and preliminary issues ) those cases where the variation between the woman's contract and that of her comparator "is genuinely due to a material factor which is not the difference of sex" (Jenkins v Kingsgate (Clothing Productions) Ltd (No.2)). The function of s.1(3) is to enable the employer to show, on what may be called a "merit basis", that the woman's comparator is as one individual entitled to preferential treatment (O'Brien and others v Sim-Chem Ltd).
Burden and standard of proof
The onus of proving that the equality clause does not operate because of s.1(3) lies on the employer, and the standard of proof which it has to achieve in order to discharge that burden is the balance of probabilities (National Vulcan). In other words, the employer has to show that it is more probable than not that "the variation between the woman's contract and the man's contract is genuinely due to a material factor which is not the difference of sex."
Further, s.1(3) unambiguously requires the employer to satisfy the industrial tribunal, on the balance of probabilities, that the variation is genuinely due to a material factor and that this is not due to the difference of sex (Financial Times Ltd v Byrne and others (No.2)).
Correct approach
There are two possible approaches which the tribunal may take when the employer raises a material factor defence. According to the Court of Appeal in Calder and Cizakowsky v Rowntree Mackintosh Confectionery Ltd, following its decision in Methven and Musiolik v Cow Industrial Polymers Ltd, the tribunal must ask itself the following three questions:
According to the EAT in Tyldesley v TML Plastics Ltd, however, only two questions arise for decision, as follows:
In answering the second question, the employer must:
(a) identify the factor (which must not be the difference of sex);
(b) satisfy the tribunal that this is a material factor; and, unless the woman's work is of equal value to that of her comparator,
(c) satisfy the tribunal that the factor is a material difference between her case and his.
The Court of Session has accepted this to be the proper approach (Strathclyde Regional Council v Wallace and others). The construction of s.1(3) in Tyldesley was also acceptable to the EAT in Glasgow City Council and others v Marshall and others. It did not avoid or elide the essential issue of causation, but clearly recognised that there must be a causal connection between the factor that was being identified as material and the variation.
Nature of the variation
The "variation between the woman's contract and the man's contract" referred to in s.1(3) is either:
Identifying the "factor"
It is not for the industrial tribunal to find a factor that qualifies, merely to address and consider whether the factor proffered by the employer meets the tests set out in s.1(3). The employer has to identify a factor which is causatively related to the variation, and which is material and not the difference of sex (Glasgow City Council). The factor must also be "genuine" in the sense that it is not a sham or a subterfuge (Strathclyde Regional Council): it is only by looking to see what happened in practice that it is possible to see whether the employer has really established a material factor defence (National Vulcan). There may be more than one factor to be considered (McGregor), and it is a matter for the tribunal's judgment whether there is one or more than one (Calder).
Question of causation
The question of what the variation "is genuinely due to" is a question of causation and, as such, a question of fact and degree: the words "due to" mean "caused by" (Methven). Therefore, nothing short of logical impossibility would justify a finding that there was an error of law involved in the tribunal's decision (Calder). The word "genuinely" excludes what is merely colourable, or "transparent", and emphasises that it is an objective test which must be satisfied (British Coal Corporation v Smith and others).
The issue of causation depends on whether there is "a material factor which is not the difference of sex". It does not depend on the employer's state of mind or its reasons for paying the woman's comparator more than her (Fletcher). The employer's intention, reasons and purpose are at best a fallible guide (British Coal).
For the variation to be "due to" a material factor apart from the difference of sex, the employer would have to show that there was some other matter which in fact justified the variation. It would not be enough for the employer simply to show that it intended to achieve some other legitimate objective (although this might disprove any intention to discriminate): the employer would have to show that the variation actually achieved that different objective (Jenkins (No.2)).
It is also not sufficient for the employer merely to prove that the cause of the variation was free from sex discrimination. There may well be a "cause" for a variation which is not a material factor other than the difference of sex (Barber and others v NCR (Manufacturing) Ltd). Nor is it sufficient for the employer merely to explain historically how the variation came about, if that explanation does not amount to, or display, a genuine material factor apart from the difference of sex. What is required is proof that the variation is genuinely due to such a factor operating in the present (Young v University of Edinburgh). It is necessary to see not just how the variation arises but also why it arose and, if necessary, why it persisted (British Coal).
It is also important, if the employer seeks to rely on s.1(3), not to invoke a "decayed justification". It may be a good justification at the inception of the variation, but it may cease to be so through a change of circumstances. Accordingly, the employer must take changed circumstances into account when relying on a justification that predates the changes (Montgomery v Lowfield Distribution Ltd).
In Benveniste v University of Southampton, a female lecturer claimed equal pay for like work with three higher-paid male counterparts. She was paid less than them because she was appointed at a time of financial constraint. At that time, her employer could not pay her more. But, since there was no evidence that the financial constraints persisted, the material difference between the woman's case and that of her comparators "evaporated" when these were removed. Once it was accepted that the financial constraints came to an end, the special factors which justified the woman's lower salary disappeared.
Whole or partial cause?
The wording of s.1(3) suggests that the whole of the variation, and not just a part of it, must be genuinely due to a material factor other than the difference of sex. In Calder, the employer paid a shift premium to predominantly male employees working rotating shifts but not to exclusively female employees working an evening shift. Even though an indeterminate part of the premium represented compensation for working unsocial hours, which the women also worked, the whole of the payment was due to the inconvenience of working rotating shifts.
In an appropriate case, the industrial tribunal can legitimately analyse the constituent elements in the woman's and her comparator's pay rates and conclude, where appropriate, that on analysis a part of the variation is due to the difference of sex. But the tribunal does not have to seek to apportion a pay rate between the different factors that go to establish it, either as a matter of historical fact or as a matter of economic justification (National Coal Board v Sherwin and Spruce).
Accordingly, where the employer relies on a number of factors to explain a difference in pay between the woman and her comparator, the woman is not entitled to an order for further particulars requiring the employer to provide a breakdown of the pay differential and to specify what amount or percentage of that difference is attributable to each factor (Byrne and others v Financial Times Ltd).
By contrast, the ECJ has consistently held that it is for the industrial tribunal to determine whether and to what extent the grounds put forward by the employer to explain a difference in pay are "objectively justified" (see below). If the tribunal has been able to determine precisely what proportion of the differential is attributable to market forces, it must necessarily accept that the differential is objectively justified to the extent of that proportion. If that is not the case, the tribunal must assess whether the role of market forces in determining the higher rate of pay was sufficiently significant to provide objective justification for all or part of the differential (Enderby).
A "material" factor
The factor to which the variation is genuinely due must be "material", which means "significant and relevant" (Rainey). The word "significant" is obviously a converse of immaterial, and a factor is not "relevant" unless it bears upon or relates to the variation (Glasgow City Council). A mere executive act is not a "material factor", which must be a reason based on the merits: one must look behind the act to see the reasons for it (R v Secretary of State for Social Services and others, ex parte Clarke and others). What was a material factor may, with the passage of time, cease to be one (that is, it may lose its significance and relevance), and the question of its duration is a matter of fact and degree (Post Office v Page).
Not the difference of sex
A difference in pay explained by a factor not itself a factor of sex, or tainted by sex discrimination, should, in principle, constitute a valid defence (Tyldesley; Strathclyde Regional Council). But the employer must show as a matter of causation that the material factor relied on is "not the difference of sex" (Baker and others v Rochdale Health Authority).
In Baker, 23 female district nurses claimed equal pay for like work with their only male colleague, who was in a higher grade than them. They were responsible for fitting catheters to female patients in the district, while he catheterised the male patients. Because of the greater number of female nurses, the male nurse fitted many more catheters than they did. But there was an extra dimension to the man's job, to which the difference in grading was due. He had developed an expertise in male catheterisation which enabled him to train others. Although his ability to train became available because of his experience in catheterising male patients, this function was independent. There was a distinction between the circumstances in which there was a sexual basis for the man's duties and his training function.
There cannot be a material factor defence in any case where the facts establish direct discrimination within s.1(1) (a) of the Sex Discrimination Act 1975 (the SDA). It is self-evident that an employer which treats a woman less favourably than a man "on the ground of her sex" cannot assert that the difference between their contractual terms is due to a material factor which is "not the difference of sex". Nor does the employer show such a factor if it has adopted a criterion which is itself discriminatory. A material factor defence must fail, therefore, if the employer cannot prove that the factor relied on was not tainted by sex. If market forces are relied on, the employer must show that these are "gender-neutral" if it is to succeed in establishing the defence (British Coal).
A difference in pay which demonstrated unjustified indirect discrimination within s.1(1)(b) of the SDA would also not discharge the onus placed on the employer by s.1(3) (Rainey). But it does not follow that s.1(3) of the EqPA is limited to cases covered by s.1(1)(b) of the SDA. Enderby holds that Article 119 is not so limited, and Rainey that s.1(3) is co-extensive with Article 119 (British Coal).
The words "genuinely" and "not the difference of sex" in s.1(3) plainly prevent an employer which is intentionally discriminating against a woman, whether directly or indirectly, from escaping the effect of the equality clause in her contract (Jenkins (No.2)). Conversely, the employer cannot make out a material factor defence merely by proving that it did not intend to discriminate against the woman. It may not intend to do so by, for example, paying her less than her comparator. But, if that is the effect of what happened, then the employer's conduct is unlawful whether it intended this or not (Fletcher).
Another situation where the employer can never establish a material factor defence is when it can be seen that past sex discrimination has contributed to the variation (Snoxell and Davies v Vauxhall Motors Ltd). For example, in E Coomes (Holdings) Ltd v Shields, a difference between the pay of a female cashier in a betting shop and her higher-paid male counterpart working alongside her was due to the employer's undisguised policy of sex discrimination. The shop was located in an area where trouble was anticipated, and the employer's policy was to employ a man in such shops to deal with trouble if it arose. Entirely different considerations would have arisen, however, had the employer employed persons specially trained as security guards who were recruited from either sex.
In Ratcliffe and others v North Yorkshire County Council, three "dinner ladies" were dismissed and re-engaged on reduced wages by the council's direct service organisation set up for the purpose of tendering for the provision of school dinners. They claimed equal pay with men with whom they had been employed on work rated as equivalent. The council relied on the fact that it had to compete with a rival tenderer which only employed women and, because of that, paid them less than the three "dinner ladies" had received. But it failed to show that the difference in pay was genuinely due to a material factor which was "not the difference of sex".
The fact was that the council had re-engaged the "dinner ladies" on wages lower than those of men employed on work rated as equivalent, and no material difference other than the difference of sex had been found to exist between the two cases. The "dinner ladies" could not have found other work compatible with their family responsibilities, and were obliged to take the wages offered if they were to continue to serve school dinners. To reduce their wages below those of their comparators was the very kind of discrimination in relation to pay which the EqPA sought to remove.
A material "difference"
The factor to which the variation is genuinely due must (or, if the woman's work is of equal value to that of her comparator, may) also be a difference which is both "material" (that is, significant and relevant) and between "the woman's case and the man".
Consideration of a person's case must necessarily involve consideration of all the circumstances of that case, which may well go beyond the personal qualities by way of skill, experience or training which the individual brings to the job. Some differences may on examination prove to be not significant or not relevant, but others may do so, though not relating to the individual's personal qualities. In particular, where there is no question of intentional sex discrimination (whether direct or indirect), a difference which is connected with economic factors affecting the efficient carrying on of the employer's business or other activity may well be relevant (Rainey).
Objective justification
The grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker's sex but in fact affects more women than men may be regarded as "objectively justified economic grounds" if it is found that the measures chosen by the employer "correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objective in question and are necessary to that end" (Bilka-Kaufhaus GmbH v Weber von Hartz).
The state of the labour market, which may lead an employer to increase the pay of a particular job in order to attract candidates, may constitute such an objectively justified economic ground. How it is to be applied in the circumstances of each case depends on the facts (Enderby). Further, read as a whole, the ECJ's ruling in Bilka would not exclude objectively justified grounds which are other than economic, such as administrative efficiency in a concern not engaged in commerce or business (Rainey).
In Rainey, the Secretary of State for Scotland decided to establish a prosthetic fitting service within the NHS in Scotland and to discontinue the arrangement under which this service was provided by private contractors. To achieve this objective, a sufficient number of qualified prosthetists had to be recruited into the NHS en bloc. The only ones then available were employed by the private contractors, and the new service would not get off the ground unless a sufficient number of them could be attracted into it. They were therefore offered the option of coming into the NHS on NHS rates of pay or of remaining on the rates of pay which they presently received. Those who received the offer, who all happened to be men, opted for the second alternative.
A female prosthetist who subsequently entered the employment of the NHS on NHS rates of pay, not having previously been employed by a private contractor, claimed equal pay for like work with one of those men. But her employer showed a material difference between her case and his. She entered the NHS directly, while he came into it from employment with a private contractor, and the fact that one was a woman and the other a man was an accident.
The grounds constituting the material difference were also objectively justified. The new prosthetic service could never have been established within a reasonable time if the woman's comparator and others like him had not been offered a rate of pay no less favourable than that which they were then enjoying. That was a "good and objectively justified ground" for offering him that rate of pay.
There were also "sound objectively justified administrative reasons" for paying the woman less. From an administrative point of view, it would have been highly anomalous if prosthetists alone were to have been subject to a different salary scale and negotiating machinery from other NHS staff. There was also no suggestion that it was unreasonable to place prosthetists in general, men and women alike, on the selected point on the salary scale, which was ascertained entirely regardless of sex. It was not a question of the woman being paid less than "the norm" but of her comparator 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.
In Leverton v Clwyd County Council, Lord Bridge said Rainey expounds the applicable principles relating to "the nature and scope of the burden which an employer must discharge when seeking to justify a pay practice which has the effect, whether directly or indirectly, of differentiating between men and women" (emphasis added). In the opinion of Lord Slynn in Ratcliffe, the EqPA must be interpreted without bringing in the distinction between direct and indirect discrimination.
Without drawing such a distinction, Lord Slynn said in British Coal that the industrial tribunal had to decide whether the "justification" for differences in benefits received by women and their comparators, arising from the existence of separate pay structures, satisfied "objective criteria". Similarly, in Leverton, Lord Bridge said the industrial tribunal had "the appropriate criteria of reasonable necessity and objective justifiability" clearly in mind when it addressed the question of whether the difference in hours of work and holidays between a woman and her comparators established a material factor defence (see below).
It may be, therefore, that an employer can never succeed in establishing such a defence unless it can prove that there were objectively justified grounds for the variation (McPherson v Rathgael Centre for Children and Young People and Northern Ireland Office (Training Schools Branch)). But, according to the EAT in Tyldesley, objective justification must be shown in order to establish a material factor defence only where the factor relied on to explain the variation affects a considerably higher proportion of women than men.
In the absence of evidence or a suggestion that the factor was itself tainted by sex discrimination because it was indirectly discriminatory, or because it adversely impacted on women as a group in the sense indicated in Enderby (see Equal pay 2: unequal pay for equal work ), the EAT held that no requirement of objective justification arises (see Calder and Strathclyde Regional Council). It is sufficient in law that the explanation itself caused the variation, or was a sufficient influence to be significant and relevant, whether or not that explanation was objectively justified.
Material and objectively justified factors
The material difference within s.1(3)(a) of the EqPA will usually be something other than the differences considered under s.1(4) (see Equal pay 2: unequal pay for equal work), and will not be differences between the things the woman and her comparator do in the course of their work (Waddington v Leicester Council for Voluntary Services). Section 1(3)(a) is not primarily concerned with the nature of the work being done because, before it can be brought into play, the tribunal must already have decided that the woman is employed on like work with her comparator in terms of s.1(4) (A R W Transformers Ltd v Cupples).
By contrast, according to the EAT in Davies v McCartneys, there is no limitation on the factors relevant to a consideration of a material factor defence to an equal value claim. Thus, factors relevant in assessing whether work is of equal value may also justify unequal pay for work of equal value. But the employer should not be allowed simply to say that it values one "demand factor" so highly that it pays more, unless its true reason for doing so is reasonable, genuine and not attributable to sex.
Similarly, the ECJ has ruled that it is for the industrial tribunal to decide whether, in the light of the facts relating to the nature of the work carried out and the conditions in which it is carried out, equal value may be attributed to it, or whether those facts may be considered to be objective factors unrelated to any discrimination on grounds of sex which are such as to justify any pay differentials (Specialarbejderforbundet i Danmark v Dansk Industri, acting for Royal Copenhagen A/S).
Material factors may include personal qualities such as experience, qualifications, skills or training, and productivity (Coomes; Fletcher), but not motherhood. The difference between being a man and being a mother is no more than the difference of sex: s.1(3) is not designed for such narrow distinctions as the difference between being a woman and being a mother (Coyne v Exports Credits Guarantee Department). Similarly, objectively justified grounds may include, if they can be attributed to the needs and objectives of the employer's undertaking, different criteria such as the worker's seniority, vocational training or adaptability to variable work schedules and places of work (Handels- og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss).
We now examine those and other potentially material and objectively justified factors in more detail, with reference to case law and recommended good practice.
Experience
A genuine perception, whether reasonable or not, about the need to engage an individual with particular experience, commitment and skills amounts to a material factor defence provided that it caused the variation between his contract and the contract of a woman without his particular experience, or was of sufficient influence to be significant and relevant (Tyldesley).
Seniority
The use of the criterion of seniority may result in less favourable treatment of female workers than male workers, insofar as women have entered the labour market more recently than men or are subject to more frequent interruptions of their careers (Danfoss).
Generalisations concerning the speed with which different categories of employees acquire the skills necessary to their employment cannot, therefore, amount to objective criteria unrelated to any discrimination based on sex. Although seniority goes hand in hand with experience, which generally puts a worker in a better position to perform his or her duties, the objectivity of that criterion depends on all the circumstances in each case, and notably on the relationship between the nature of the duties performed and the experience afforded by the performance of those duties after a certain number of working hours have been worked (Nimz v Freie und Hansestadt Hamburg).
Where women progress more slowly through incremental salary scales than men, and seldom reach higher points, the employer should check whether service pay is linked to ability to do the job rather than length of service. It should also investigate the criteria for progression through the salary scale2. Are these clearly understood? Does any particular criterion, such as length of service, work to the detriment of women more than men? If so, can the use of that criterion, or the extent to which it is relied on, be objectively justified?3
Responsibility
There is a distinction between paying the woman's comparator more than her because of the present exercise of responsibility and paying him more because, in view of his age and experience, he has the potential to exercise responsibility. The former is something that the man does as part of his work and, therefore, is a s.1(4) consideration. The latter is something which the tribunal would be entitled, if it thought fit, to consider to be a material difference between the woman's case and the man's (Edmonds v Computer Services (South-West) Ltd). If, however, the woman is employed on work of equal value to that of her comparator, the variation may genuinely be due to his greater potential and actual responsibilities (McGregor).
Qualifications
Where women are consistently appointed at lower points on a pay scale than men, the employer should examine recruitment and promotion records to see if different treatment is objectively justified. Are qualifications rewarded by allowances necessary for the posts? Is the way qualifications are defined adversely affecting women?2 The employer should also check the criteria which determine promotion or recruitment starting pay. Are these spelt out clearly? Do qualification requirements appear to be disadvantaging women and, if so, can these be objectively justified?3
Skills and training
If the reason put forward by the employer to explain why the woman's comparator is paid more than her is that he has certain skills which she does not have, then the employer would have to show that these skills are necessary for the job, and genuinely applied during the performance of the job, and are not simply rewarded because past pay agreements recognised and rewarded skills which are no longer applicable3.
Where, in practice, only or mainly men receive a pay supplement based on additional skills or training, the employer should investigate the reasons for this. Are "female" skills (such as caring and organisational skills2) not recognised? Do women have the same access to any skills or training modules offered? The employer should also review the training/ skills/qualifications criteria. Do they genuinely reflect enhanced ability to carry out the job duties?3
Vocational training
The use of the criterion of vocational training may act to the detriment of female workers insofar as they have fewer opportunities to obtain training which is as advanced as that of male workers, or they use those opportunities to a lesser extent. But the employer may justify rewarding specific vocational training by showing that it is important for the performance of the specific duties entrusted to the worker (Danfoss).
Flexibility
The use of the criterion of flexibility, if it is understood as referring to adaptability to variable work schedules and places of work, may operate to the disadvantage of female workers who, as a result of household and family duties for which they are often responsible, may have greater difficulty than male workers in organising their working time in a flexible manner. But the employer may justify the use of that criterion, so understood, by demonstrating that such adaptability is important for the performance of the specific duties entrusted to the worker.
If, however, the criterion is understood as relating to the quality of the work done by the worker, the employer cannot justify its use. Where it results in systematic unfairness to female workers, that can only be because the employer has applied it in an abusive manner. It is inconceivable that the work carried out by female workers would be generally of a lower quality (Danfoss).
Productivity
Where female and male manual workers receive the same basic pay but only the men have access to bonus earnings, the employer should check whether this can be objectively justified2. Do the differences in earnings reflect real differences in, for example, productivity?3
Grading system
A difference in the grading of a woman and men employed on like work whose pay is fixed in accordance with nationally, or widely, negotiated wage scales is very likely genuinely due to a material factor other than the difference of sex. But it still all depends on the nature of the grades and scales, and the circumstances in which the woman was graded (Waddington).
A difference in the grading of a woman and men employed on like work which is based on personal assessments of their individual qualities is sufficient for the employer to make out a material factor defence provided only that it can show that it was genuinely operating its grading system. The tribunal must not examine that system with the object of seeing whether it is operating efficiently or even fairly. The only question is whether the system is designed to differentiate between employees on some basis other than sex (National Vulcan). The tribunal is not entitled to judge the fairness or adequacy of the system (Strathclyde Regional Council).
However, where jobs predominantly occupied by women are graded lower than jobs dominated by men, the employer should review the method of grading. Was it devised for the current jobs? Is it adapted from a scheme used in a different organisation? What was the method used to determine job size? Some methods, such as "felt-fair" or "whole-job" comparison, are potentially more discriminatory than others such as "analytical" job evaluation (see Equal pay 2: unequal pay for equal work). Are separate grading schemes used for jobs predominantly occupied by women and those predominantly held by men? If so, why, and is this objectively justified?3
Where there is a pay gap between men and women whose pay is based on an assessment of individual competencies, the employer should review the competencies assessed. Are men and women assessed for the same set of competencies, and are these being interpreted in a consistent way? If potentially discriminatory criteria are being applied, are these objectively justified?3.
Performance rating
Where women consistently receive lower performance ratings than men, the employer should review the criteria for performance rating to identify direct and indirect sex discrimination2. Do employees and managers know what the criteria are? Do any of them disadvantage women, and ethnic minority women in particular? If so, are they objectively justified? The employer should also investigate the rating system. Is it really likely that women would on average perform less well than men? What are the possible reasons for this?3
Where, although women and men receive similar performance ratings, men receive higher performance pay, the employer should investigate the reasons for this. Is it linked to managerial discretion? Are potentially discriminatory criteria being applied in the linking of ratings to pay? Can these be objectively justified?3 Where performance pay is only available to senior posts, full-timers or employees covered by the appraisal system, the employer should check if the scheme's coverage and exclusions are objectively justified2.
Separate pay structures
The simple existence of separate pay structures is not in itself a material factor defence (British Coal). Nor can the employer invoke s.1(3) of the EqPA if the existence of the two relevant pay structures of the woman and her comparator is not causatively linked to the variation (Glasgow City Council), or if there is direct or indirect sex discrimination embedded in them (Hayward v Cammell Laird Shipbuilders Ltd (No.2)).
Further, the fact that the respective rates of pay of two jobs of equal value, one carried out by a significant number or proportion of women and the other predominantly by men, were arrived at by collective bargaining processes which, although carried out by the same parties, are distinct, and, taken separately, have in themselves no discriminatory effect, is not sufficient objective justification for the difference in pay between those two jobs (Enderby; British Road Services Ltd v Loughran and others).
But the tribunal may take into account the fact that the rates of pay have been determined by collective bargaining or local negotiation in its assessment of whether differences between the average pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex (Royal Copenhagen).
Market forces
Where men are paid more than women, by supplement or by a higher grading, because of "recruitment and retention" problems (that is, the need to pay the men more to secure or retain their services), the employer should adopt measures, such as training existing staff, to deal with those problems2. Alternatively, where some jobs done mainly by men are graded higher because of such problems, the employer should check that there is genuine evidence of a current "recruitment and retention" problem. It should also check that the whole of the difference in pay is attributable to market forces and, if not, investigate the reasons for the rest of the difference. Finally, the employer should consider amending the grading/pay structure so that the "labour market" element of pay is "transparent" (see Equal pay 2: unequal pay for equal work)3.
Financial constraints
There may well be cases where the evidence will establish that, although the employer's financial position improved after the woman was appointed at a lower point on a salary scale than her comparator, some financial constraints persisted which made salaries at a lower scale imperative either for certain categories of staff or generally (Benveniste). The fact that the employer might have been able to find the additional sum involved does not mean that the industrial tribunal is entitled to reject financial constraints as a material factor (Strathclyde Regional Council).
Place or time of work
The fact that the woman works at a different place or time from her comparator may explain, for example, the payment to only one of them of London weighting (NAAFI v Varley) or a night-shift premium (National Coal Board).
However, where fewer female full-time employees than male full-timers have access to shiftworking and overtime paid at a premium rate, the employer should check that men and women have equal access to such work and, if not, that the reasons can be objectively justified. Further, where a smaller percentage of female than male employees receive enhanced rates for working at weekends and unsocial hours, the employer should check the eligibility requirements for such work. Do any of these work to the disadvantage of women and, if so, can they be objectively justified?3
Hours of work
Less favourable treatment of part-time workers than full-time workers constitutes indirect discrimination contrary to Article 119 and the EqPA if a much lower proportion of women than of men work full time and, taking into account the difficulties encountered by women in working full time, the difference in treatment cannot be objectively justified (Bilka).
The fact that the woman works part time and her comparator works full time is not, therefore, by itself a material difference between her case and his. Where part-time workers are wholly or mainly women, the employer cannot justify paying less for like work to the woman than to her comparator by simply relying on the fact that she is a part-time worker and he works full time. But such a difference in pay can be justified as being due to a material factor by showing that the pay differential does in fact achieve economic advantages for the employer. It must show that the lower pay for part-time workers is in fact "reasonably necessary" in order to achieve some result or objective unrelated to the woman's sex (Jenkins (No.2)).
There is unequal treatment wherever the overall pay of full-time employees is higher than that of part-time employees for the same number of hours worked, but employers may restrict payment of overtime to hours worked in excess of the normal working hours of full-time employees (Stadt Lengerich and others v Helmig and others).
Where a smaller percentage of female than male employees are covered by the employer's sick-pay, preferential loans, pension, share option or other benefit schemes, the employer should check the eligibility requirements to ensure, in particular, that they are not indirectly discriminatory2. For example, are any of the benefits restricted to employees working over a minimum number of hours? Can these requirements be objectively justified?3
Other contractual terms
In Hayward (No.2), Lord Mackay said: "... s.1(3) would not provide a defence to an employer against whom it was shown that a term in the woman's contract was less favourable 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 favourable 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 unfavourable 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."
In Leverton, a woman working 32.5 hours a week, with 70 days' annual holiday and earning £5,058 a year claimed equal pay for work of equal value with men working 37 hours a week, with 20 days' annual holiday and earning between £6,081 and £8,532 a year. The effect of the differences between the hours worked by the woman and by her comparators was that each of them worked many more hours in the year to earn their annual salaries than she did. Those differences constituted a material factor to which the difference in salaries was genuinely due.
The division of annual salary by hours worked attributed £4.42 for every hour worked by the woman and £4.40 for every hour worked by her highest-paid comparator. Lord Bridge said: "Where a woman's and a man's regular annual working hours, unaffected by any significant additional hours of work, can be translated into a notional hourly rate which yields no significant difference, it is surely a legitimate, if not a necessary, inference that the difference in their annual salaries is both due to and justified by the difference in the hours they work in the course of a year and has nothing to do with the difference in sex."
Red-circling
The employer may succeed in establishing a material factor defence if it can show that the pay of the woman's comparator was "protected" when his job was downgraded for reasons neither directly nor indirectly attributable to a difference of sex (such as ill health), and that male and female employees doing the same work who are not in the "red circle" are treated alike (Snoxell and Davies).
The employer must, however, justify the protection in respect of each employee whom it is claimed is within the red circle. It must prove that at the time when that employee was admitted to the circle his higher pay was related to a consideration other than sex (United Biscuits Ltd v Young). It is relevant for the tribunal to take into account the length of time which has elapsed since the protection was introduced, and whether the employer has acted in accordance with current notions of good industrial practice in its attitude to the continuation of the practice. Prolonged maintenance of a "red circle", especially if contrary to good industrial practice, may well in all the circumstances of the case lead to a doubt whether the employer has made out a material factor defence (Outlook Supplies Ltd v Parry).
Where red-circling is mainly applied to men, the employer should check the criteria to see why they favour male jobs and whether this can be objectively justified. The employer should also investigate whether other, more equitable criteria could be used, and ensure that the difference in pay is phased out as soon as possible3.
Mistake or error
Even if the variation is explained by a careless but genuine mistake, which cannot possibly be objectively justified, that will amount to a defence under s.1(3) and for the purpose of Article 119, provided that the mistake was either the sole reason for the variation or of sufficient influence to be significant or relevant (Tyldesley).
It is also not possible to rule out, in advance, the argument that the occurrence of an administrative error may, in appropriate circumstances, amount to a material factor defence. However, administrative reasons or circumstances should not be permitted to become a cloak for disguised discrimination. In any case, therefore, in which it is said that the explanation for the variation is an administrative error, the circumstances must be scrutinised in order to ensure that the error was genuine, and that it was addressed by the employer with a view to bringing it to an end (Young; contrast McPherson).
Nature of the comparator
The employer will have a material factor defence if the woman's comparator is not representative of the group or class to which he belongs (British Coal). If there is a man or men doing the same work but being paid no more than the woman, that will be evidence, whose weight will depend on all the circumstances, that the payment of a higher wage to the woman's comparators who are doing work which is different but of no greater value is due to a material factor which is not the difference of sex (Pickstone and others v Freemans plc).
A difference between the pay of the woman and her male predecessor in the job may be explained by the operation of factors which are unconnected with any discrimination on grounds of sex (Macarthys Ltd v Smith). For example, a change in the economic circumstances of the business in which the man and the woman are successively employed can, but will not necessarily, constitute a material difference between her case and his (Albion Shipping Agency v Arnold). Where women are paid less than male predecessors in the job, the employer should check if the job duties and responsibilities are the same or, if they have changed, whether the changes justify any pay reduction2.
JES defence
Section 2A of the EqPA provides:
...
(2) Without prejudice to the generality of [s.2A(1) of the EqPA (see Equal pay 2: unequal pay for equal work)], there shall be taken, for the purposes of [s.2A(1)] to be no reasonable grounds for determining that the work of a woman is of equal value as mentioned in [s.1(2)(c) of the EqPA] if -
(a)that work and the work of the man in question have been given different values on a study such as is mentioned in [s.1(5) of the EqPA]; and
(b)there are no reasonable grounds for determining that the evaluation contained in the study was (within the meaning of [s.2A(3)]) made on a system which discriminates on grounds of sex.
(3) An evaluation contained in a study such as is mentioned in [s.1(5)] is made on a system which discriminates on grounds of sex where a difference, or coincidence, between values set by that system on different demands under the same or different headings is not justifiable irrespective of the sex of the person on whom those demands are made.
In other words, an equal value claim will fail if the employer shows that (a) there has been a general JES which satisfies the requirements of s.1(5), and on which the woman's work and that of her comparator were given different values, and that (b) there are no reasonable grounds for determining that the evaluation contained in the JES was tainted by sex discrimination (Bromley and others v H & J Quick Ltd).
Timing of JES
It does not matter that the JES was carried out after the claim was made, provided that it relates to facts and circumstances existing at the time when the woman presented her originating application (IT1) to the tribunal. In other words, the JES must compare the jobs of the woman and her comparator(s) as they were being done at that time, and be careful not to compare a job or jobs which may have changed since then. If the comparison is not with the same job, then it will be more difficult for the employer to make out a defence under s.2A(2). But the employer may still use the JES as evidence at any stage up to the point at which the tribunal determines whether the work is of equal value (Dibro Ltd v Hore and others).
Where the JES has been carried out but not implemented, the tribunal has a discretion to grant or refuse a stay of the claim pending the JES's implementation, according to the weight of arguments for and against a stay (Avon County Council v (1) Foxall and others (2) Webb and others).
JES must not be discriminatory
It is for the employer to show that there are no reasonable grounds for determining that the evaluation contained in the JES was made on a system which discriminated on grounds of sex, within the meaning of s.2A(3) of the EqPA. It must, therefore, explain how the JES worked and what was taken into account at each stage.
In practice, where there has been a general JES and there is evidence from the employer as to how it was carried out, the woman is likely to point to particular matters as indicating, or possibly indicating, that the system involved direct or indirect sex discrimination. The employer must then be given an opportunity of explaining these matters. In some cases, it may be easy for the employer to show that some point taken is based on a misunderstanding of what happened or of how some figures were worked out. In other cases, the point taken may be more difficult or impossible for the employer to surmount. At the end of the hearing, the tribunal must decide whether or not it is satisfied that there are no reasonable grounds for determining that the evaluation made in the JES was tainted by sex discrimination.
If the tribunal is not satisfied on the evidence that there are no such grounds, then it must refer the claim to an independent expert (see Equal pay 2: unequal pay for equal work). The tribunal may not be so satisfied in a particular case if the evidence offers no explanation of the basis on which some apparently wholly subjective decision was made. If, however, the tribunal is satisfied that there are no reasonable grounds, its decision could only be challenged if it were perverse (Bromley).
The system on which the evaluation was made is not discriminatory solely because one of its factors favours workers of one sex. That factor should be considered along with the others which play a part in grading. If, however, the system is not to be discriminatory overall, it must, insofar as the nature of the work permits, take into account factors for which workers of the other sex may show particular aptitude, or use factors which can measure particular aptitude on the part of workers of both sexes. The tribunal must decide whether the system in its entirety allows fair account to be taken of all the factors used (Rummler v Dato-Druck GmbH).
Recommended good practice
Where a JES has resulted in jobs predominantly done by women being graded lower than those mainly done by men, the employer should check that all features of the JES's design and implementation took full account of the need to avoid sex bias. Was the job information collected consistently and accurately? Do the factors and weighting favour characteristics typical of jobs dominated by one sex? If so, is this objectively justified?3
The JES should be capable of measuring the different elements in diverse work by reference to a common standard. Typically male and female jobs should be covered by the same JES, which should be capable of evaluating evenly the work done by different groups of employees. The same or similar jobs done by both men and women should be given the same job titles, and the job descriptions should describe the job content fully, accurately and consistently (irrespective of the jobholder's sex). In particular, they should adequately capture "women's work" and draw attention to its previously unrecognised aspects2.
Further, the jobs to be evaluated should be assessed against factors which capture elements present in both "men's work" and "women's work", and not by reference to formal qualifications and training alone. Those elements should also reasonably reflect the organisation's priorities. Finally, grading should reflect the relativities of actual demands of the work and not "the rate for the job", which may be influenced by traditional sex-based assumptions of worth2.
Where jobs which have been evaluated as the same have widely differing salaries, to the detriment of jobs largely held by women, the employer should investigate the possible causes. For example, how were the jobs assimilated to the evaluated structure? Are different pay scales in use? Could elements like additional skills payments or performance pay awards be responsible? What part do market rate or productivity considerations play? Can the cause of the difference be objectively justified?3
REMEDIES
Two remedies are available to victims of sex discrimination in pay contrary to the EqPA, namely a declaration and an award of backpay or damages.
Declaration
A declaration is an order that the equality clause in the woman's contract shall operate:
If the woman can point to a less favourable or absent term, she is entitled to have that term made not less favourable or included in her contract irrespective of whether she is as favourably treated as her comparator when the whole of their contracts are considered. Section 1(2) of the EqPA refers to the specific term of which complaint is made, and the woman is entitled to redress in respect of that term irrespective of any other terms of her or her comparator's contracts which may have an impact on the overall comparison of their respective contractual positions (Hayward (No.2)).
Similarly, the application of the principle of equal pay enshrined in Article 119 must be ensured in respect of each element of remuneration, and not only on the basis of a comprehensive assessment of the consideration paid to workers (Barber v Guardian Royal Exchange Assurance Group).
The equality clause operates to modify or include any less favourable or absent term of the woman's contract, whether or not she claimed that it would do so (Capper Pass Ltd v Allan). But it need not produce equality if, although she is employed on like work with her comparator, his pay includes remuneration for something affecting him but not her, such as a night-shift premium for working at night (Dugdale and others v Kraft Foods Ltd). Further, under Article 119, the woman may be entitled to pay equal or proportionate to that of her comparator, depending on the extent to which the grounds put forward by the employer to explain the difference in pay are objectively justified (Enderby).
Where the woman is paid at a lower hourly rate than her comparator, the tribunal must strike out the lower rate and substitute the higher one. Once the woman's contract is so modified, it is then a contract providing remuneration at her comparator's hourly rate; and it remains so modified unless and until it is varied again by agreement or by a further operation of the equality clause (Sorbie and others v Trust House Forte Hotels Ltd). It is also perfectly feasible to declare that the woman is entitled to be remunerated in accordance with the salary appropriate to a particular grade, leaving it to the parties to determine by negotiation where within that grade, in accordance with her personal circumstances, the woman is to be placed (O'Brien).
Where the tribunal finds that there has been a breach of an equality clause which relates to membership of, or rights under, an occupational pension scheme, it may declare that the woman has a right:
An industrial tribunal has asked the ECJ to rule on whether the counterpart of s.2(6D) applying in Northern Ireland is incompatible with Community law (Magorrian and Cunningham v Eastern Health & Social Services Board and Department of Health & Social Services). The ECJ has not yet ruled on that question, but the Advocate-General considers that the provision is incompatible (see IRLB 577).
The fact that the woman can claim retroactively to join an occupational pension scheme does not allow her, if her claim succeeds, to avoid paying the contributions (if any) relating to the period of membership concerned (Fisscher).
Backpay or damages
The tribunal will award the woman backpay, or arrears of remuneration, where she is paid less money than her comparator. An award of damages for breach of contract will be made where she is treated less favourably than him as regards a benefit in kind, such as the use of a company car. In either case, the tribunal has a discretion under reg. 3(1) of the Sex Discrimination and Equal Pay (Remedies) Regulations 19935 to include interest on the award (see IRLB 526 ).
But s.2(5) of the EqPA provides:
A woman shall not be entitled, in proceedings brought in respect of a failure to comply with an equality clause ... to be awarded any payment by way of arrears of remuneration or damages in respect of a time earlier than two years before the date on which the proceedings were instituted.
Further, in the case of a claim made in respect of a breach of an equality clause relating to membership of, or rights under, an occupational pension scheme, the woman will not be entitled to be awarded any payment by way of arrears of benefits or damages unless she is a "pensioner member" (within the meaning of s.124(1) of the Pensions Act 1995 and reg. 1(2) of the Regulations) claiming in respect of a breach of an equality clause relating to the terms on which she is treated (regs. 9 and 12 of the Regulations).
The Court of Appeal has held, and the Advocate-General considers (see IRLB 577), that s.2(5) is compatible with Community law (Preston and others v Wolverhampton Healthcare NHS Trust and others; Magorrian), while the EAT has asked the ECJ to rule on whether it is or not ( Levez v TH Jennings (Harlow Pools) Ltd).
References
1 Hansard (HC), 20.7.83, col. 486.
2 The European Commission's "Code of Practice on the implementation of equal pay for work of equal value for women and men", COM(96) 336 final, ISBN 92 78 06073 9, available from the Stationery Office.
3 The Equal Opportunities Commission's "Code of Practice on equal pay", ISBN 1 870358 64 3, available free of charge from the EOC's Marketing and Communications Department, tel: 0161 833 9244.
4 SI 1995/3183.
5 SI 1993/2798.
6 SI 1993/2687.
Equal pay 3: main points to note
Raising a material factor defence to an equal value claim
Rule 9(2E) in Schedule 2 to the Industrial Tribunals (Constitution and Procedure) Regulations 19936 provides:
A tribunal may, on the application of a party, if in the circumstances of the case ... it considers that it is appropriate so to proceed, hear evidence upon and permit the parties to address it upon the issue contained in [s.1(3) of the EqPA] (defence of genuine material factor) before determining whether to require an expert to prepare a report under rule 8A.
The employer may therefore raise a material factor defence to an equal value claim at the initial hearing of the claim (see Equal pay 1: legal framework and preliminary issues). But if the employer does not do so - and if it has not pleaded in the alternative in its Notice of Appearance (IT3) that, even if the work is of equal value, it has a material factor defence - then, at the resumed hearing, the tribunal will refuse the employer leave to amend its IT3 so as to refer specifically to the defence (Hayward v Cammell Laird Shipbuilders Ltd).
The tribunal does not have to consider the employer's material factor defence at the initial hearing, but if it does it must proceed to reach a decision on the evidence as to whether the employer has made out the defence or not. If the employer does make out the defence, the tribunal must dismiss the claim (Reed Packaging Ltd v Boozer and Everhurst). If, however, the employer fails to do so, the tribunal must refer the claim to an independent expert (see Equal pay 2: unequal pay for equal work ) and the employer may not raise the defence again.
CASE LIST
A R W Transformers Ltd v Cupples [1977] IRLR 228
Albion Shipping Agency v Arnold [1981] IRLR 525
Avon County Council v (1) Foxall and others (2) Webb and others [1989] IRLR 435
Baker and others v Rochdale Health Authority 14.1.94 Court of Appeal
Barber v Guardian Royal Exchange Assurance Group [1990] IRLR 240
Barber and others v NCR (Manufacturing) Ltd [1993] IRLR 95
Benveniste v University of Southampton [1989] IRLR 122
Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317
British Coal Corporation v Smith and others [1996] IRLR 404 and [1994] IRLR 342
British Road Services Ltd v Loughran and others [1997] IRLR 92
Bromley and others v H & J Quick Ltd [1988] IRLR 249
Byrne and others v Financial Times Ltd [1991] IRLR 416
Calder and Cizakowsky v Rowntree Mackintosh Confectionery Ltd [1993] IRLR 212 and [1992] IRLR 165
Capper Pass Ltd v Allan [1980] IRLR 236
Coomes (E) (Holdings) Ltd v Shields [1978] IRLR 263
Coyne v Exports Credits Guarantee Department [1981] IRLR 51
Davies v McCartneys [1989] IRLR 439
Dibro Ltd v Hore and others [1990] IRLR 129
Dugdale and others v Kraft Foods Ltd [1976] IRLR 368
Edmonds v Computer Services (South-West) Ltd [1977] IRLR 359
Enderby v Frenchay Health Authority and Secretary of State for Health [1993] IRLR 591
Financial Times Ltd v Byrne and others (No.2) [1992] IRLR 163
Fisscher v Voorhuis Hengelo BV and Stichting Bedrijfspensioenfonds voor de Detailhandel [1994] IRLR 662
Fletcher v Clay Cross (Quarry Services) Ltd [1978] IRLR 361
Glasgow City Council and others v Marshall and others 3.12.96 (S)EAT 669/96
Handels- og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] IRLR 532
Hayward v Cammell Laird Shipbuilders Ltd [1984] IRLR 463
Hayward v Cammell Laird Shipbuilders Ltd (No.2) [1988] IRLR 257
Jenkins v Kingsgate (Clothing Productions) Ltd (No.2) [1981] IRLR 388
Leverton v Clwyd County Council [1989] IRLR 28
Levez v TH Jennings (Harlow Pools) Ltd [1996] IRLR 499
Macarthys Ltd v Smith [1980] IRLR 210 and [1978] IRLR 10
McGregor and others v GMBATU [1987] ICR 505
McPherson v Rathgael Centre for Children and Young People and Northern Ireland Office (Training Schools Branch) [1991] IRLR 206
Magorrian and Cunningham v Eastern Health & Social Services Board and Department of Health & Social Services 10.7.97 Case C-246/96
Methven and Musiolik v Cow Industrial Polymers Ltd [1980] IRLR 289
Montgomery v Lowfield Distribution Ltd 14.5.96 EAT 932/95
NAAFI v Varley [1976] IRLR 408
National Coal Board v Sherwin and Spruce [1978] IRLR 122
National Vulcan Engineering Insurance Group Ltd v Wade [1978] IRLR 225 and [1977] IRLR 109
Nimz v Freie und Hansestadt Hamburg [1991] IRLR 222
O'Brien and others v Sim-Chem Ltd [1980] IRLR 373 and [1978] IRLR 398
Outlook Supplies Ltd v Parry [1978] IRLR 12
Pickstone and others v Freemans plc [1987] IRLR 218
Post Office v Page 30.3.88 EAT 554/87
Preston and others v Wolverhampton Healthcare NHS Trust and others [1997] IRLR 233
R v Secretary of State for Social Services and others, ex parte Clarke and others [1988] IRLR 22
Rainey v Greater Glasgow Health Board [1987] IRLR 26
Ratcliffe and others v North Yorkshire County Council [1995] IRLR 439
Reed Packaging Ltd v Boozer and Everhurst [1988] IRLR 333
Rummler v Dato-Druck GmbH [1987] IRLR 32
Snoxell and Davies v Vauxhall Motors Ltd [1977] IRLR 123
Sorbie and others v Trust House Forte Hotels Ltd [1976] IRLR 371
Specialarbejderforbundet i Danmark v Dansk Industri, acting for Royal Copenhagen A/S [1995] IRLR 648
Stadt Lengerich and others v Helmig and others [1995] IRLR 216
Strathclyde Regional Council v Wallace and others [1996] IRLR 670
Tyldesley v TML Plastics Ltd [1996] IRLR 395
United Biscuits Ltd v Young [1978] IRLR 15
Waddington v Leicester Council for Voluntary Services [1977] IRLR 32
Young v University of Edinburgh 14.6.94 (S)EAT 244/93
