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: There was no sex discrimination where there were genuine reasons for a pay differential other than sex. There was no further burden on the employer to justify the difference.
Lord Browne-Wilkinson: ‘The Equal Pay Act has to be construed as far as possible to work harmoniously both with the Sex Discrimination Act 1975 and Article 119. All three sources of law are part of a code dealing with unlawful sex discrimination . . It follows that the words ‘not the difference of sex’ where they appear in s.1(3) of the Equal Pay Act 1970 must be construed so as to accord with the Sex Discrimination Act 1975 and article 119 of the Treaty, i.e. an employer will not be able to demonstrate that a factor is ‘not the difference of sex’ if the factor relied upon is sexually discriminatory whether directly or indirectly. Further, a sexually discriminatory practice will not be fatal to a subsection (3) defence if the employer can ‘justify’ it.’
Judges:
Lord Browne-Wilkinson
Citations:
Times 24-Jan-1998, Gazette 18-Feb-1998, [1998] 1 WLR 259, [1998] ICR 205, [1998] UKHL 4, [1998] 1 All ER 394, [1998] IRLR 146
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Enderby 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 . .
Cited by:
Cited – Glasgow 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 . .
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 . .
Cited – South Tyneside Metropolitan Borough Council v Anderson and others EAT 26-Mar-2007
The council appealed a finding that there was no genuine material factor justifying a difference in pay, and in particular the availability of bonus schemes. . .
Cited – Grundy v British Airways Plc CA 23-Oct-2007
The claimant, a cabin crew member of the defendant’s staff sought damages for sex discrimination.
Held: Sedley LJ said that the pool chosen should be that which suitably tests the particular discrimination complained of. . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Employment
Updated: 31 May 2022; Ref: scu.158935