Women police officers in the West Midlands Police did like work to their male comparators but were paid less. The reason was that the men were rostered on a list of those who worked night shifts. Owing to their child care responsibilities, the claimants could not do these shifts (96.6% of men and 91.5% of women could comply with the requirement to work 24/7).
The women claimants brought a tribunal case under the Equal Pay Act, which is is the domestic implementation of Article 141 of the Treaty establishing the European Union, which secures the right to equal pay for equal work or work of equal value.
Section 1(2) provides that the equality clause applies whenever the claimant and the chosen comparator are employed on like work.
The effect of the equality clause is to ensure that contractual terms are no less favourable than those of the comparator. Section 1(3) provides a defence to an equal pay claim where the employer can show that there is a genuine non-sex reason for differences in pay.
Unlike direct sex discrimination which can not be justified, indirect discrimination may be objectively justified (and after London Underground Ltd v Edwards (No.2) [1999] ICR 494, a relatively small adverse impact can constitute prima facie indirect discrimination requiring justification)
"It is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent 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 on economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of article 119."
(judgement by the European Court of Justice in Bilka-Kaufhaus Gmbh v Weber von Hartz [1987] ICR 110)
However the Employment Tribunal quoted from Kutz-Bauer that, were there to be evidence that less discriminatory means could be used to achieve the same objective it would not be possible for the employer to argue that the means used were 'appropriate or necessary'.
(ECJ in Kutz-Bauer v Freie und Hansestadt Hamburg [2003] IRLR 368) .
Despite the tribunal finding that the 24/7 requirement reflected a real need by the force, it found in the claimants favour on the Bauer principle that the same objective could have been achieved by less discriminatory aims in paying the claimants as if they had done the work.
According to Lord Nicholls in Barry v Midland Bank [1999] ICR 859, 870E, "The more serious the disparate impact on women, or men as the case may be, the more cogent must be the objective justification".
The tribunal held that night work could be legitimately rewarded, but that as the amounts of money involved were small, the police force involved could have eliminated the indirect sex discrimination involved by paying the claimants as if they had done the work.
The Chief Constable appealed to the EAT which found that the tribunal had misunderstood the nature of the justification defence. The Equal Pay Act does not require the payment of money to compensate for economic disadvantage following from child care responsibilities. Assessing an employer's ability to pay such sums is not part of the the Equal Pay Act.
The case of Redcar and Cleveland Borough Council v Bainbridge [2007] was quoted, whereby it was found that the right is to equal pay unless there is a genuine material factor explaining the difference. Same pay does not apply where a genuine material factor explains and justifies the difference.
In allowing the appeal the EAT found that the Tribunal was wrong to find that the sums paid were not objectively justified.
© Workrep 15 / 12 / 2007