United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W EMERSON (Of Counsel) Messrs Trethowan Woodford Solicitors The Director General's House Rockstone Place Southampton SO15 2EP


 


JUDGE CLARK: The Applicant, Mrs Chowns, brought a claim under the Equal Pay Act 1970 and the Sex Discrimination Act 1975 against her employer, the College.

She was employed as a part-time lecturer in social science. For the purpose of the equal pay claim she selected as her comparator a male full-time lecturer in engineering.

Before the Industrial Tribunal sitting at Southampton she abandoned her claim of indirect sex discrimination and proceeded on the equal pay claim only.

The College raised the material difference defence under Section 1(3) of the Equal Pay Act. They argued that the difference in pay between the Applicant and her comparator was due not to the difference of sex, but because they needed to pay a premium to attract engineering lecturers away from non-academic employment. Such a premium was not required, said the College, to be paid in order to attract social science lecturers.

The Tribunal directed themselves as to the law by reference in their Extended Reasons to the House of Lords decision in Rainey v Greater Glasgow Health Board [1987] IRLR 26, that an onus lay on the employer to show objectively justified grounds for the difference in pay.

By a majority, the Chairman dissenting, the Tribunal found that the College had failed to discharge that onus.

The point which Mr Emerson, who appeared for the College below and now before us, wishes to take in this appeal is that the Tribunal mis-directed themselves in law by applying the approach in Rainey which, he submits, is limited to cases in which the factor relied upon has a disproportionate impact on one sex rather than the other. In this case no such finding was made by the Tribunal and the claim of indirect sex discrimination was abandoned by the Applicant. He relies in support of this submission on the decision of the Employment Appeal Tribunal in Tyldesley v TML Plastics Ltd [1996] IRLR 395; approved and followed by the Court of Session in Strathclyde Regional Council v Wallace [1996] IRLR 670. Mr Emerson informs us that he cited both cases to the Tribunal below, but they are not referred to in the Tribunal's reasons.

We think that that point is arguable and the College should be allowed to proceed to a full appeal hearing. We shall not strike out the alternative ground raised in the Notice of Appeal. As to directions, we direct that this case be listed for a half day; Category B; Skeleton Arguments to be exchanged between the parties not less than fourteen days before the date fixed for the full appeal hearing; at the same time copies of each sides Skeleton Argument should be lodged with this Appeal Tribunal.