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 discrimination lies initially on the employee. The burden of proof in indirect discrimination cases should be approached in the same way irrespective of whether they are brought under article 119 (141), under the 1975 Act, or under the 1970 Act. ‘It is for the claimant to provide the necessary statistics, to show on the balance of probabilities a disproportionate adverse impact and thereby establish a prima facie case that she had suffered indirect discrimination, and that she had failed to do so.’


Lord Justice Simon Brown, (Vice-President Of The Court Of Appeal Civil Division), Lord Justice Dyson and Lord Justice Scott Baker


Times 02-May-2003, Gazette 03-Jul-2003, [2003] EWCA Civ 544, [2002] ICR 1256




Equal Pay Act 1970 1, Council Directive 75/117EC (the Equal Pay Directive).


England and Wales


CitedEnderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
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 . .
CitedStrathclyde 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: . .
CitedGlasgow City Council and Others v Marshall and Others HL 8-Feb-2000
Although instructors in special schools, carried out work of a broadly similar nature to qualified teachers, and the majority were women, they were not entitled to an equality of pay clause, since there was no evidence of sex discrimination, and the . .
CitedSpecialarbejderforbundet i Danmark v Dansk Industri ECJ 31-May-1995
Equal pay provisions apply to piece rate work- Employer to justify differences. where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the . .
CitedBarry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
CitedBarry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .
Appeal fromM Nelson v Carillion Services Ltd EAT 26-Jun-2002
EAT Equal Pay Act – . .

Cited by:

Appealed toM Nelson v Carillion Services Ltd EAT 26-Jun-2002
EAT Equal Pay Act – . .
CitedHome 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 . .
CitedArmstrong 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 . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 16 August 2022; Ref: scu.180744