Employment Update: Equal pay/indirect discrimination

03 December 2008

Employment Group

Pay differential may be justified where different shifts are worked.

The Court of Appeal in the important case of Blackburn v Chief Constable of West Midlands has upheld the EAT and rejected the employees’ appeal.

Women who worked flexible shifts for family reasons never did the late shift and so did not benefit from a special pay increase that was intended for special priority posts and which the employer chose to give to those who worked a 24/7 shift pattern. They argued that this breached the Equal Pay Act and also amounted to indirect sex discrimination as, by reason of their childcare responsibilities, only women who worked the flexible shift pattern benefitted. They were successful at tribunal but the employer appealed to the EAT. The EAT said that the pay differential was justified even though it meant that men got more than women. The Court of Appeal has now agreed with the EAT. The employer’s wish to reward night-time working was a legitimate aim and so provided a justifiable defence to the claims.

Point to note  -

  • It is good to have a Court of Appeal ruling to guide employers as to where the line may be drawn between their legitimate business aims and the individual employment rights of their staff. The EAT (and the Court of Appeal) thought that the employer’s position was so strong on this point that they did not go on to consider the economic argument put forward successfully by the claimants at the employment tribunal – that it would only have cost the employer £20,000 to give all the workers the same pay increase. However, the message for employers is clear – a strong and legitimate business aim may override the principle of equality of treatment without having to consider the economics of the case.