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 like work with another group of train drivers. The majority of both groups were overwhelmingly male. The claims were based on indirect discrimination. It was said that because the proportion of those women in both groups together who were in the disadvantaged group was higher than the corresponding proportion of men, the pay differential had a disparate adverse effect on women and was thus ‘tainted by sex’. Accordingly the Respondent was bound to provide objective justification for the disparity under S1(3). The Employment Tribunal accepted this case, although it could find no provision criterion or practice that led to the disparity. It went on to reject the Respondent’s defence of objective justification.
The EAT allowed the appeal on several grounds. The principal ground was that the ET had misdirected itself as a matter of law in finding that there was a prima facie case that the pay disparity was tainted by sex regardless of the fact that the overwhelming majority of those in the disadvantaged group were male. The EAT held that in an equal pay claim by women based upon indirect discrimination, in the absence of some provision criterion or practice that might lead to a disparate impact on women, it was necessary for there to be at least a bare majority of women in the disadvantaged group. Even if a bare majority was not required the proportion of women in the disadvantaged group had to be substantial and approaching a majority; a percentage as in the present case of 15% or 8%, depending on how one constructed the pool, was quite insufficient.
Secondly the EAT held that the ET fell into error in constructing a pool of the disadvantaged that included women who were not found to be doing equal work with the comparators in the advantaged pool. The disadvantaged pool should only comprise those employees who were found to be doing like work with the better paid comparators.
Thirdly the EAT found that the ET had failed to have regard to material evidence which pointed conclusively in favour of objective justification for the pay disparity.
Judges:
Serota QC J
Citations:
[2006] UKEAT 0627 – 05 – 2112
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
See Also – Tyne and Wear Passenger Transport Executive (Trading As Nexus) v Ms M Best and others, Ms A Fulton EAT 11-Jul-2006
EAT Sex Discrimination – (no sub-topic). . .
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 . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 02 June 2022; Ref: scu.247877