Glasgow City Council v Marshall
Where there is no evidence of sex discrimination in a pay difference, the employer need only show that the difference is genuinely due to a material factor other than sex, and need not justify it.
Facts
Instructors employed in special schools, who were mostly women, claimed that they were doing like work with teachers in the same schools, who were mostly men, but were paid less. The employer argued that the difference was due to the fact that the teachers and instructors were paid under separate pay structures, negotiated through different bodies. There was no evidence that the difference in pay was related to sex, because the instructors included men and the teachers included women.
Legal principle
The House of Lords held that the employer had made out the defence. Lord Nicholls said that, to establish the material factor defence under section 1(3) of the Equal Pay Act 1970, the employer must show that the explanation for the difference is genuine, that the difference is due to that reason, that the reason is not the difference of sex, and that the factor relied on is a significant and relevant difference between the woman's case and the man's. If there is no evidence of sex discrimination, direct or indirect, the employer does not have to justify the difference objectively. The defence now appears in section 69 of the Equality Act 2010.
Related cases on equal pay
- Allonby v Accrington and Rossendale College Case C-256/01, [2004] ECR I-873
- Asda Stores Ltd v Brierley [2021] UKSC 10
- Barber v Guardian Royal Exchange Assurance Group Case C-262/88, [1990] ECR I-1889
- Bilka-Kaufhaus GmbH v Weber von Hartz Case 170/84, [1986] ECR 1607
- Birmingham City Council v Abdulla [2012] UKSC 47, [2013] 1 AC 504
- Defrenne v Sabena (No 2) Case 43/75, [1976] ECR 455
- Enderby v Frenchay Health Authority Case C-127/92, [1993] ECR I-5535
- Hayward v Cammell Laird Shipbuilders Ltd [1988] AC 894
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