Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female profession, were appreciably less well paid than members of comparable professions in which at an equivalent professional level there were more men than women. In particular she was comparing herself with two men – a clinical psychologist and pharmacist. The employer sought to justify the difference in pay by showing that the pay rates had resulted from different collective bargaining processes, each of which was free from any sex bias.
Held: Once prima facie discrimination shown, the burden of proof shifts to the employer to show good cause. A difference in treatment is to be justified objectively or assumed to be discriminatory. When statistics were used, it is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant.
ECJ 1. Article 177 of the Treaty provides the framework for close cooperation between national courts and the Court of Justice, based on a division of responsibilities between them. Within that framework, it is solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the question which it submits to the Court.
Consequently, where the Court receives a request for interpretation of Community law which is not manifestly unrelated to the reality or the subject-matter of the main proceedings, it must reply to that request and is not required to consider the validity of a hypothesis which it is for the referring court to verify subsequently if that should prove to be necessary.
2. The burden of proving the existence of sex discrimination, which in principle lies with the worker who, believing himself to be the victim of such discrimination, brings legal proceedings against his employer, may shift when that is necessary to avoid depriving workers who appear to be the victims of discrimination of any effective means of enforcing the principle of equal pay.
Where therefore statistics which the national court considers significant disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex.
3. The fact that the rates of pay for two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, are decided by collective bargaining processes conducted separately for each of the two professional groups concerned, without any discriminatory effect within each group, does not, where the results of those processes show that two groups with the same employer and the same trade union are treated differently, preclude a finding of prima facie discrimination requiring the employer to prove that there is no infringement of Article 119 of the Treaty.
If the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay, he could easily circumvent the principle of equal pay by using separate bargaining processes.
4. It is for the national court, which has sole jurisdiction to make findings of fact, to determine, if necessary by applying the principle of proportionality, whether and to what extent the shortage of candidates for a job and the need to attract them by higher pay constitutes an objectively justified economic ground for the difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men.
Times 12-Nov-1993, Ind Summary 29-Nov-1993, [1993] IRLR 591, C-127/92, [1993] EUECJ C-127/92, [1994] ICR 112, [1994] 1 All ER 495, [1994] 1 CMLR 8, [1993] ECR I-5535
Bailii
European
Citing:
See Also – Enderby v Frenchay Health Authority and Secretary of State for Health etc CA 17-Feb-2000
Once unequal treatment had been established it was necessary to take each clause of the contract of the claimant and the comparator and to remove any lesser treatment. Nevertheless, where pay was to be calculated according to a scale including . .
Cited by:
Cited – Strathclyde Regional Council and others v Wallace and others (Scotland) HL 22-Jan-1998
80% of the men who had been employed since 1 April 1997 had got protection under TUPE whereas only 66.66% of the women had. It was argued that this difference in percentages was sufficient to justify a claim of indirect discrimination.
Held: . .
Cited – Nelson v Carillion Services Ltd CA 15-Apr-2003
The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex . .
See Also – Enderby v Frenchay Health Authority and Secretary of State for Health etc CA 17-Feb-2000
Once unequal treatment had been established it was necessary to take each clause of the contract of the claimant and the comparator and to remove any lesser treatment. Nevertheless, where pay was to be calculated according to a scale including . .
Cited – Home Office v Bailey and others CA 22-Mar-2005
Prison officers claimed awards for sex discrimination. The employer replied that the pools of comparators each contained members of either sex. The appellants sought to establish that any less favourable treatment of them in comparison with the . .
Cited – Secretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
Cited – Cheshire and Wirral Partnership NHS v Abbott and others CA 4-Apr-2006
The employees alleged sex discrimination. As domestics who were mostly women, they were not paid the bonuses which went to porters. In making the claim, they excluded another group, namely caterers who were also mostly female, but also received the . .
Cited – Gibson and Others v Sheffield City Council CA 10-Feb-2010
The employees appealed against dismissal of their claims of sex discrimination, saying that the employer’s explanation of the pay differential was not adequate.
Held: The appeal succeeded. The tribunal had failed to distinguish between what . .
Cited – Quigley v Foyle Health and Social Services Trust and others NIIT 24-Sep-2004
. .
Cited – Tyne and Wear Passenger Transport Executive (T/A Nexus) v Best and others EAT 21-Dec-2006
EAT Sex Discrimination
Equal Pay – Like work
Female train drivers made a claim under S1 of the Equal Pay Act 1970. The Claimants were in a group known as ‘Metro Operators’ and claimed parity of pay for . .
Cited – North Cumbria Acute Hospitals NHS Trust v Potter and others EAT 18-Dec-2008
EAT EQUAL PAY ACT: Article 141/European law
EPA and Article 141 claims. The appeal and cross appeals give rise to various EPA issues; whether, like Article 141, section 1(6) requires a single source, that is . .
Cited – Hamilton v Department Of Finance and Personnel NIIT 29-Jun-2009
NIIT The unanimous decision of the tribunal was that the respondent had established a genuine material factor defence for the purposes of the Equal Pay Act 1970 (as amended) and the claim for equal pay was . .
Cited – McLaughlin v Northern Ireland Association For Mental Health NIIT 19-Nov-2010
. .
Cited – Mclaughlin v University of Ulster NIIT 1-Feb-2011
. .
Cited – Bhudi and others v IMI Refiners Ltd EAT 24-Nov-1993
. .
Cited – Murphy v Northern Ireland Assembly Commission NIIT 11-Mar-2009
NIIT The unanimous decision of the tribunal is that the claimant’s claims in respect of a breach of the Equal Pay Act (Northern Ireland) 1970 and unlawful sex discrimination be dismissed. . .
Cited – The Audit Commission v Haq and Others EAT 18-Mar-2011
EAT EQUAL PAY ACT – Material Factor Defence and Justification
Two roles (‘IIO’ and ‘SIIO’) amalgamated into a new role (‘SIO’), on the basis that affected employees retain their existing points on the . .
Cited – Evesham v North Hertfordshire Health Authority and Another EAT 2-Sep-1998
. .
Cited – Cheshire and Wirral Partnership NHS Trust v S Abbott EAT 13-Sep-2005
EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke. . .
Cited – A Sharp v Caledonia Group Services Ltd EAT 18-Apr-2005
EAT Sex Discrimination – Direct.
EAT Equal Pay Act – Material factor defence. . .
Cited – ABN AMRO Management Services Ltd and Another v Hogben EAT 1-Nov-2009
EAT AGE DISCRIMINATION
PRACTICE AND PROCEDURE – Striking-out
Appeal against refusal of Employment Judge to strike out three heads of an age discrimination claim; cross-appeal against striking-out of . .
Cited – Faulkner v Hampshire Constabulary EAT 2-Mar-2007
EAT Sex Discrimination – Indirect / Justification
A policy preventing police officers in a partnership from working together in a supervisor/subordinate role had an adverse impact on women since men . .
Cited – Cumbria County Council v Dow and others EAT 24-May-2007
EAT Equal Pay – Material Factor Defence.
The Tribunal considered a whole series of GMF defences and rejected most of them. There were numerous appeals and cross appeals and the Council contended that the . .
Cited – Middlesbrough Borough Council v Surtees and others EAT 17-Jul-2007
EAT EQUAL PAY ACT
Material factor defence
European law
Certain employees of the Council claimed equal pay with respect to their chosen comparators. In some cases the claim related to a period . .
Cited – GMB v Allen and others EAT 31-Jul-2007
EAT SEX DISCRIMINATION
Indirect
Victimisation
The Employment Tribunal found that the failure by the union to support certain female members in their claims for equal pay against their employer, and . .
Cited – Sunderland City Council v Brennan and others EAT 20-Jun-2008
EAT PRACTICE AND PROCEDURE:
Preliminary issues
EQUAL PAY ACT
Material factor defence and justification
This case involves complicated equal pay claims against the council in which different . .
Cited – British Airways Plc v Grundy CA 28-Jul-2008
Employer’s appeal against finding of indirect discrimination under implied equality clause. . .
Cited – Redcar and Cleveland Borough Council v Bainbridge and others (‘Bainbridge 1’) CA 29-Jul-2008
Pay protection provisions are commonly adopted, and provided any differential in pay does not continue for too long, they may justify what would otherwise be unlawful indirect discrimination. . .
Cited – Coventry City Council v Nicholls and others (Unison Union Claimants) EAT 27-Feb-2009
EAT EQUAL PAY ACT: Material factor defence and justification
The claimants brought various equal pay claims naming refuse collectors as comparators. The claimants were in predominantly female jobs and the . .
Cited – Dumfries and Galloway Council v North and Others EAT 24-Apr-2009
EAT 244 Equal Pay claims by classroom assistants, support for learning assistants and nursery nurses employed by local authority. They sought to compare themselves with male manual workers based elsewhere, at . .
Cited – LE UTAA 24-Aug-2009
The decision of the appeal tribunal held on 2 November 2007 is erroneous in point of law. I set aside that decision. I re-make that decision pursuant to s.12(2) of the Tribunals, Courts and Enforcement Act 2007. The claimant is not entitled to . .
Cited – Wilson v Health and Safety Executive CA 20-Oct-2009
The employer appealed against a finding that it had acted in an equal pay claim in allowing for length of service.
Held: The employer’s appeal was dismissed. Decisions based on length of service tended to discriminate against women, because . .
Cited – Home Office v Bailey and Others EAT 29-Jul-2005
EAT Equal Pay Act
Work Rated Equivalent; Material Factor Defence
JES (Job Evaluation Study). Work rated as equivalent. GMF (genuine material factor) – pension arrangements. Value of unsocial hours GMF. . .
Cited – British Airways Plc v Grundy EAT 19-Aug-2005
EAT Appeals by Claimants and Respondent against different Employment Tribunal judgments variously upholding claimants’ claims of discrimination arising out of the lack of access to the Respondent’s seniority . .
Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Cited – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
Cited – Villalba v Merrill Lynch and Co Inc and others EAT 31-Mar-2006
EAT Victimisation discrimination. Tribunal found victimisation discrimination to a limited extent. Did the Tribunal apply the right test when determining whether such discrimination had arisen? Did it reach . .
Cited – SK (Proof of Indirect Racial Discrimination) India AIT 5-Sep-2006
AIT 1. The Court of Appeal, House of Lords and Luxemburg authorities on race and sex discrimination in employment are to be used as a guide for the establishment of race discrimination in appeals to this . .
Cited – Sharon Marie Grady v Home Office EAT 4-Mar-2004
EAT Practice and Procedure – Striking-out/dismissal. . .
Cited – The Home Office v A Bailey and others EAT 2-Jul-2004
EAT Equal Pay Act – Material factor defence
The EAT allowed an appeal by the Home Office from a decision of an Employment Tribunal which had determined as a preliminary issue that the Home Office was . .
Cited – Armstrong and others v The Newcastle Upon Tyne NHS Hospital Trust EAT 22-Nov-2004
EAT Equal Pay Act
Equal pay. No common terms of employment between different hospitals in the same Trust. No single source responsible for purposes of Article 141. Equality clause would survive a TUPE . .
Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Cited – Robertson and others v Department for Environment Food and Rural Affairs CA 22-Feb-2005
The claimants argued that civil servants in one government department could establish that civil servants in another department could stand as comparators in their equal pay claim.
Held: It was not necessarily the person with whom the workers . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination, European
Leading Case
Updated: 02 November 2021; Ref: scu.160919