Alabaster v Barclays Bank Plc and Another: CA 3 May 2005

The claimant sought increased maternity pay. Before beginning her maternity leave she had been awarded a pay increase, but it was not backdated so as to affect the period upon which the calculation of her average pay was based. The court made a detailed comparison of the regimes for protection under the Employment Rights Act and under the Equal Pay Act.
Held: ‘whatever may be the case in relation to individual items, differences on this scale, which leave a woman in Mrs Alabaster’s position significantly disadvantaged in comparison with anyone else with an equal pay complaint, cannot be objectively justified.’ The disapplication of the time limit on the claim under EPA woul not be enough to restore the righst under European Law. The solution was to take the approach in Webb, and disapply the parts of the EPA whch required her to provide a comparator, and thus allow a claim for the pay increase element.

Judges:

Lord Justice Brooke, Lord Justice Latham And Lord Justice Neuberger

Citations:

[2005] EWCA Civ 508, Times 27-May-2005, [2005] Eu LR 824, [2005] ICR 1246, [2005] IRLR 576, [2005] 2 CMLR 19

Links:

Bailii

Statutes:

Equal Pay Act 1970 1, Social Security Contributions and Benefits Act 1992

Jurisdiction:

England and Wales

Citing:

At EATM K Alabaster v Woolwich Plc, the Secretary of State for Social Security EAT 7-Apr-2000
The regulations did not properly implement the decision of the European Court which they intended to reflect. When a woman was on maternity leave, and there was a salary award, she should have been entitled to the benefit of that award whether or . .
At ECJMichelle K Alabaster v Woolwich plc,and Secretary of State for Social Security ECJ 30-Mar-2004
Europa Social policy – Men and women – Equal pay – Pay during maternity leave – Calculation of amount – Whether to include a pay rise.
The claimant had been awarded a pay rise before taking maternity leave. . .
CitedGillespie and Others v Northern Health and Social Services Board and Others ECJ 13-Feb-1996
Benefits payable in maternity leave must make allowance for a pay increase which applied to other workers whilst employee on leave. . .
CitedM H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching) ECJ 26-Feb-1986
ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that . .
CitedLevez v T H Jennings (Harlow Pools) Ltd ECJ 1-Dec-1998
Regulations debarred a claim after a certain time even where the delay had been because of a deliberate concealment of information by an employer.
Held: Availability of other means of redress was not sufficient to displace this rule.
CitedA v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
CitedCommission v France (Judgment) ECJ 26-Jun-2003
The court articulated the EC principles of transparency and legal certainty: ‘While it is therefore essential that the legal situation resulting from national implementing measures is sufficiently precise and clear to enable the individuals . .
CitedCommission v Netherlands C-144/99 ECJ 10-May-2001
ECJ Failure by a Member State to fulfil its obligations – Directive 93/13/EEC – Unfair terms in consumer contracts – Incomplete transposition of the directive into national law. As to the applicable principles in . .
CitedElliniki Radiophonia Tileorass-AE v Plisofatissis and Kouvelas ECJ 18-Jun-1991
ellinikiECJ1991
National measures adopted in order to give effect to Community rights must themselves comply with the fundamental principles of Community law: ‘With regard to Article 10 of the European Convention on Human Rights, referred to in the ninth and tenth . .
CitedWebb v EMO Air Cargo (UK) Ltd (No 2) HL 20-Oct-1995
The applicant complained that she was dismissed when her employers learned that she was pregnant.
Held: 1(1) (a) and 5(3) of the 1975 Act were to be interpreted as meaning that where a woman had been engaged for an indefinite period, the fact . .
CitedMarshall v Southampton and South West Hampshire Area Health Authority (No 2) ECJ 2-Aug-1993
The UK law limiting awards of damages in sex discrimination cases is unlawful, and fails to implement European directive fully. Financial compensation must be at a level adequate to achieve equality between the workers identified. . .

Cited by:

Post ReferenceMichelle K Alabaster v Woolwich plc,and Secretary of State for Social Security ECJ 30-Mar-2004
Europa Social policy – Men and women – Equal pay – Pay during maternity leave – Calculation of amount – Whether to include a pay rise.
The claimant had been awarded a pay rise before taking maternity leave. . .
See AlsoAlabaster v Woolwich Plc, Secretary of State for Social Security CA 26-Feb-2002
The applicant had left on maternity leave. Before leaving, her salary had been increased, but the increase was not back-dated to any part of the period over which the regulations required her average earnings to be calculated for statutory maternity . .
See AlsoM K Alabaster v Woolwich Plc, the Secretary of State for Social Security EAT 7-Apr-2000
The regulations did not properly implement the decision of the European Court which they intended to reflect. When a woman was on maternity leave, and there was a salary award, she should have been entitled to the benefit of that award whether or . .
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 18 June 2022; Ref: scu.224513