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Cite as: 2003 SLT 142, 2003 GWD 1-21, [2003] IRLR 153, [2002] ScotCS 322, 2003 SC 274

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South Ayrshire Council v. Milligan [2002] ScotCS 322 (20 December 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord MacLean

Lord Caplan

XA173/00

OPINION OF THE COURT

delivered by

THE LORD JUSTICE CLERK

APPEAL

under section 37(1) of the Employment Tribunals Act 1996

SOUTH AYRSHIRE COUNCIL

Appellant;

against

WILLIAM MILLIGAN

Respondent:

against

An Order and Judgment of the Employment Appeal Tribunal dated 22 September 2000 and communicated to the Appellant on 29 September 2000

_______

Act: Truscott, QC, Marsh; Simpson & Marwick, WS

Alt: Napier, QC; McGrigor Donald

20 December 2002

Introduction

This is an appeal from a decision of the Employment Appeal Tribunal. It is the latest engagement in a long-running conflict under the Equal Pay Act 1970 in which claims have been made against all 32 education authorities in Scotland by primary school head teachers, both men and women, for equal pay with secondary school head teachers. The essence of the claims is that since 75 percent of primary school head teachers are women and 75 percent of secondary head teachers are men, the lower salary scales for primary school head teachers are discriminatory on the ground that both groups are engaged in like work. We have described the background in South Ayrshire Council v Morton (2002 SLT 656).

The respondent is one of nine male primary head teachers employed by the appellant. The other 36 primary head teachers are female. Three of them have made claims against the appellant for equal pay. They each cite at least one male comparator who is a secondary head teacher employed by the appellant. The respondent too has applied for equal pay with secondary head teachers. He cannot cite as a comparator a female secondary head teacher employed by the appellant, because all secondary school head teachers employed by the appellant are male. Instead, he has cited as a comparator a female primary head teacher who is currently earning the same pay as he, or less. This comparator has herself raised a claim against the appellant, in which she cites as comparators two male secondary head teachers employed by the appellant and a male secondary head teacher employed by Highland Council. If that claim succeeds, the respondent will in turn be entitled under the legislation to equal pay with that of his comparator.

The decision of the Employment Tribunal

The question has arisen as to whether the respondent's claim is competent in respect that it is contingent, the success of it being dependent on the success of the claim by his female comparator. The matter came before the Employment Tribunal on an opposed motion by the respondent for a sist of the proceedings pending the resolution of the comparator's claim. The respondent argued that he should be allowed to present the claim on a contingent basis because if his comparator succeeded, he would be likely to be prejudiced in relation to his entitlement to back pay. If he could make his claim only if and when the comparator's claim had succeeded, the limitation on his entitlement to back pay would put him at a disadvantage to his comparator, and to the other female head teachers, all of whose claims had been made much earlier. The appellant opposed the motion on the ground that, since the respondent had not cited a valid comparator, the claim was incompetent.

The Tribunal granted the motion. It held that the case was indistinguishable in principle from Preston and Others v Wolverhampton Healthcare NHS Trust and Others. That case eventually reached the House of Lords, which remitted it to the European Court of Justice; but, for the purposes of the present case, the later proceedings are of no concern. The determination in Preston that is relevant to this case is that given in the Employment Appeal Tribunal by Mummery J. (as he then was) on a specific objection taken to the contingent nature of one of the claims ([1996] IRLR 484, at paras. 140 - 145). That determination was approved and upheld by the Court of Appeal ([1997] ICR 899).

In Preston, certain occupational pension schemes were not open to part-time workers. Since the majority of those workers were female, such schemes indirectly discriminated against them. Numerous female part-time workers made equal pay claims on that account. A male part-time worker made a similar claim on the basis that if the female part-time workers' claims succeeded, he would suffer direct discrimination.

In that case it was agreed that if a female part-time worker were to succeed in her claim for access to the scheme but a male worker continued to be excluded, there would a breach of the equality clause in the male worker's contract of employment and that the breach would be directly discriminatory.

The argument for the Secretary of State for the Environment in that case was that the male claimant had no cause of action. The women's claims were based on indirect discrimination against women on the ground of sex. There was no such discrimination against male part-time workers. The male claimant could not succeed on the basis of indirect discrimination against women. Furthermore, the claim of the male claimant was groundless. He could suffer no discrimination unless and until the claim of a female worker succeeded.

The Industrial Tribunal and the EAT held that a male part-time worker could bring a claim for equal access to an occupational pension scheme even though no female part-time worker had yet succeeded in her claim. If the benefits were to be awarded to a woman, they would be backdated at least to the date on which her claim was raised. If a male claimant could not raise his claim until that woman's claim succeeded, he would unable to achieve equality of benefit with the female claimant. To strike the claim out, rather than grant a stay, would inflict real injustice on the male claimant. The Court of Appeal upheld the decision of the EAT on this ground ([1996] ICR 899, Otton LJ at p. 923).

Counsel for the appellant argued before the Tribunal that the decision in Preston was distinguishable on the basis that the discrimination in that case consisted of a barrier to access to the schemes by part-time workers arising from the mere fact of their being part-time; whereas in this case there was no barrier to access to employment as a secondary head teacher. It was open to teachers such as the claimants in these cases to obtain the necessary secondary teaching qualifications, regardless of sex.

The Tribunal held that the proposed distinction was one on which nothing turned. They said

"What we are looking at here is not whether there are barriers between one part of the teaching profession and another, but whether there has been a breach of section 1 of the Equal Pay Act, in that a deemed equality clause is allegedly not being implemented as between two groups of employees, one largely female and one largely male, both of which groups are engaged in 'like work'. The applicants in this and other cases, as we understand it, are not seeking to remove the distinction between the primary and secondary sectors, they are merely seeking equal pay for equal (not identical) work. They are not seeking to tear down any barriers".

The decision of the EAT

The submissions for the appellant were renewed before the EAT. The EAT upheld the decision of the Tribunal. In the course of a short judgment, they said of the attempt to distinguish Preston:

" ... we have come to the view that at the end of the day that is a meaningless distinction against the background of a contingent claim which can be identified as dependent upon another claim succeeding. In Preston, the male could not succeed unless the female has established discrimination in terms of pay against her and the position was remedied. In the present case the respondent cannot succeed unless the claim is established successfully by the female comparator whom he is putting forward, which success would admit his claim and which would otherwise fail.

If the matter is one of discretion then we consider that the tribunal were entitled to take into account the potential prejudice to the respondent if the claim is allowed to proceed at this stage and thus inevitably fail. Any potential right to back pay he may eventually establish may be drastically reduced. If the presentation of the respondent's claim has to be delayed until the comparator's success is actually established, he will suffer substantial prejudice. The equities therefore favour a sist in order to protect his position. If discrimination is eventually established the employer will have been shown to have acted unlawfully and thus cannot be said to have suffered prejudice in that situation".

Decision

This case raises a short, though important, point. The essentially comparative nature of a claim of discrimination under section 1(2) of the Equal Pay Act 1970 requires the claimant to cite a case that on the face of it shows an inequality of pay. In the present case, the comparator cited by the claimant is an employee of the appellant who is earning the same as the respondent or less. The short question is therefore whether or not, in a contingent claim of this kind, founded on the case of a comparator whose success in her own claim could result in discrimination against the claimant, the respondent has cited a valid comparator. If that question was correctly decided in the respondent's favour, the question whether the claim should be sisted was a matter for the discretion of the Tribunal. There is no appeal against the exercise of that discretion, and in our view there could not have been.

In reaching our conclusion on this appeal, we have taken into account the fact that, although the submission for the appellant has been presented solely in the context of the Equal Pay Act, the claim is founded not only on the domestic legislation but also on article 141 (formerly article 119) of the EC Treaty and article 6 of the Equal Pay Directive 75/117/EC. The European provisions qualify the domestic law in these respects (Jenkins v Kingsgate, [1981] ECR 91, at p. 927; Hammersmith and Fulham LBC v Jesuthasan, [1998] ICR 640). They oblige the member state to take the necessary measures to ensure that the principle of equal pay is observed in the domestic law.

In our opinion, this appeal is without merit. The essential submission for the appellant is that the respondent's claim is irrelevant because there could be no valid comparator except in the uncertain event of the comparator's succeeding in her own claim. In our opinion, that submission is unsound. It requires the Tribunal to assume that the comparator is not presently the subject of indirect discrimination. In our view, that assumption ought not to be made. The claim is based on the proposition that the comparator is the subject of indirect discrimination here and now. If that should be established, and if nothing further is done by the appellant, the respondent will at once be in a position of being directly discriminated against. Furthermore, if it were held to be incompetent for the respondent to claim on a contingent basis, he would suffer real prejudice in relation to back pay since he could lodge a claim only after the comparator's claim succeeded. The refusal of the application for a sist would result inevitably in the refusal of the claim and potentially in the infliction of a genuine injustice on the respondent in relation to back pay.

Counsel for the appellant accepted that that could be the result of our allowing this appeal. He said that the court had simply to accept that that was how the law operated. We think that that is an unlikely approach to interpretation of the legislation, being contrary to its clearly understood purpose. If a contingent claim made in circumstances such as these were to be excluded as a matter of law, that would make it impossible for the claimant to achieve true equality of pay. That would be a clear breach of article 141 of the Treaty and of the Equal Pay Directive (supra). Like the Court of Appeal, we agree with the reasoning of Mummery J (as he then was) in the decision of the EAT in Preston (cf. [1996] IRLR 484, at para. 143).

We agree with the EAT in this case, in the passage that we have quoted, that the supposed distinction proposed by counsel for the appellant between this and the Preston case is without substance. The essential point established in Preston is that the law recognises the competency of a claim made on a contingent basis in circumstances such as these. The discrimination alleged in this case does not result from the sort of barrier that was considered in Preston; but it is a form of discrimination nonetheless which, like that in Preston, relates to inequalities in pay.

We shall therefore refuse the appeal and return the case to the Tribunal to proceed as accords.