A claim for sex discrimination based on an age requirement was wrongly based. The proportion of mature graduates was irrelevant in the appropriate pool. The Court cautioned tribunals to avoid placing artificial limitations on the scope of the pool and indicated that it should comprise all those persons, male and female, who satisfied, or would satisfy, all the relevant criteria apart from the PCP in question. Identifying the numbers of men and women who could comply with the PCP was insufficient. The correct analysis required the tribunal to look further at the relative proportions of men and women who could comply, in relation to the total numbers of men and women to whom the PCP was or would be applied.
Ralph Gibson LJ said: ‘We have been told that section 1(1) has not before been considered by this court with reference to the concept of the pool. The language of the section has been set out above. In order to compare the proportion of women who can comply with the requirement with the proportion of men who can comply with it, it is necessary to determine the relevant total. In my judgment, the relevant total is the number of men and women referred to in the subsection, i.e., those men and women to whom the person – in this case, the employer – applies or would apply the requirement. In this case, that means all men and women graduates with the relevant experience. I do not accept that the relevant total is all men and women: the employer would have no occasion to apply the requirement to any men or women other than those who are able to comply with the requirements of the advertisement other than the requirement in question . . Further, I do not accept that the relevant total is merely of those men and women who can comply with the requirement. The section refers not to the number of men and the number of women who can comply with the requirement but to the proportion of men and of women. That shows, in my judgment, that those men and those women who can comply with the requirement are to be considered as a proportion of another number, and that that number must be the relevant total of men and women to whom the requirement is or would be applied.’
Judges:
Ralph Gibson LJ
Citations:
Gazette 10-Mar-1993, [1993] ICR 474, [1993] IRLR 21
Statutes:
Sex Discrimination Act 1975 1(1)(b)(I)
Jurisdiction:
England and Wales
Cited by:
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 – London Underground Ltd v Edwards EAT 14-Feb-1995
The Tribunal considered the difficulties arising where one party was not represented, but where the case gave rise to difficult questions of law. In this case the claimant alleged sex discrimination in the context of rostering arrangements making . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 26 October 2022; Ref: scu.82616
