bury_hamiltonEAT11
EAT EQUAL PAY – Material factor defence and justification
BONUS CLAIMS (both appeals)
Equal pay claims by female local authority employees to the benefit of bonus paid to male colleagues under purported productivity bonus schemes – Councils’ section 1 (3) defences in both cases dismissed by the employment tribunal on the basis that by the relevant dates any link between the receipt of bonus and productivity on the part of the comparators had been lost and that accordingly the Councils’ explanation of the differential was a ‘sham’
Held, dismissing the appeals (save in respect of particular groups of claimants), that the Tribunal had been wrong to characterise the Council’s explanation as a sham but that the underlying finding that the link between productivity and receipt of bonus had been lost meant that the non-payment of bonus to the claimants could not be justified and that since the difference in gender break-down between the groups of employees who did and did not receive bonus gave rise (save in those groups) to Enderby-type prima facie indirect discrimination the Councils’ defences under section 1 (3) failed – Specific points:
(1) Discussion of meaning of ‘genuinely’ in section 1 (3) and of the effect of the case-law relating to ‘sham’ – Dicta in Hartlepool Borough Council v Dolphin [2009] IRLR 168 disapproved.
(2) Showing that the link between productivity and bonus had been lost did not mean that the Councils had failed in limine to discharge the burden of proof under section 1 (3) – They had sufficiently identified a ‘factor’ explaining the differential by referring to the existence of the bonus schemes – The loss of the link with productivity was a matter going to justification
(3) Showing that the schemes had in their inception been non-discriminatory did not mean that the Councils had shown that the differential during the period complained of was due to a non-discriminatory factor
(4) Observations on the ‘structured analysis of equal pay claims’ in the light of the criticisms of Arden LJ’s formulation in Armstrong v Newcastle upon Tyne NHS Hospitals Trust [2006] IRLR 124
PAY PROTECTION CLAIMS (Bury only)
Equal pay claims by female local authority employees to the benefit of payments made to male colleagues by way of pay protection following discontinuance of productivity bonus – Council’s section 1 (3) defence upheld by tribunal on the basis (a) that it was impossible to know in advance of the tribunal’s conclusion on the bonus claims what amounts might be payable to Claimants by way of pay protection and (b) that extending pay protection to the Claimants would in any event have been unaffordable
Held, allowing Claimants’ appeal:
(a) that the practical impossibility of knowing at the moment that the claimed cause of action arose whether any sums were payable, and if so in what amount, could not give rise to a defence under section 1(3)
(b) that the Council had adduced no sufficiently particularised evidence of unaffordability to found a defence under section 1 (3).
Redcar and Cleveland Borough Council v Bainbridge [2009] ICR 133 and Pulham v London Borough of Barking and Dagenham [2010] ICR 333 considered (and error in Pulham corrected).
Underhill P J
[2011] UKEAT 0413-5 – 09 – 2801, [2011] IRLR 358, [2011] ICR 655
Bailii
Cited by:
Cited – Sunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 01 November 2021; Ref: scu.428376