Blackburn and another v Chief Constable of West Midlands Police

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date06 Nov 2008
Neutral Citation:

[2008] EWCA Civ 1208

Court and Reference:

Court of Appeal, A2/2007/2915

Judges:

Scott Baker, Maurice Kay and Wilson LJJ

Blackburn and another
and
Chief Constable of West Midlands Police
Appearances:

R Allen QC and R Crasnow (instructed by Russell Jones &Walker) for B; E Slade QC and A Blake (instructed by West Midlands Police Legal Services Department) for the Chief Constable

Issue:

Whether a system of making extra payments to those officers who worked nights (which had a disparate impact on men and women) was justified under the Equal Pay Act 1970

Facts:

B was a female "sector" or "front line" police officer in the West Midlands Police. Although such officers are generally required to work a 24/7 rotating shift pattern, B was excused from that by reason of her childcare responsibilities. Sector officers who work the 24/7 rotating shift pattern receive a "special priority payment". B brought proceedings in the Employment Tribunal under s1 Equal Pay Act 1970, complaining that she and a male comparator (who worked 24/7) were employed on like work and that, as he received a special priority payment, so should she. The Chief Constable contended that the difference in pay was genuinely due to a material factor (namely the fact that the comparator worked 24/7) and was therefore justified. The Employment Tribunal found that the limitation of special priority payments to those who worked 24/7 had a disparate impact upon women and men because it operated to the disadvantage of considerably more women than men and that although the Chief Constable wished to reward night-time working, the limitation was not justified. Accordingly, B succeeded before the Employment Tribunal. The Employment Appeal Tribunal reversed that decision. B appealed to the Court of Appeal.

Judgment:

Maurice Kay LJ:

1. The appellants are female police officers in the West Midlands Police. They are "sector" or "front line" officers. Although such officers are generally required to work a 24/7 rotating shift pattern, the appellants are excused from that by reason of their childcare responsibilities. Sector officers who work the 24/7 rotating shift pattern receive a special priority payment. The appellants brought proceedings in the Employment Tribunal under s1 of the Equal Pay Act 1970, complaining that they and a male comparator were employed on like work and that, as he received a special priority payment, so should they. He worked 24/7. The appellants succeeded before the Employment Tribunal but the Employment Appeal Tribunal (Elias J, Mrs C Baelz and Mr D Welch) reversed that decision. The appellants now appeal to this Court, permission to appeal having been granted by Mummery LJ.

The legal framework

2. Section 1(1) of the Equal Pay Act provides:

"If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one."

3. Section 1(2)(a) provides that the equality clause applies whenever the woman and her male comparator are employed on like work. The effect of the equality clause is to ensure that the contractual terms under which the woman is employed are no less favourable than those under which the man is

employed. Section 1(3) provides a defence to an equal pay claim where the employer establishes that there is a genuine non-sex reason for a difference in pay. The material parts of s1(3) state:

"An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor

(a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman's case and the man's ... "

4. These domestic provisions are the means whereby our legislation gives effect to Article 141 of the Treaty establishing the European Union which secures the right to equal pay for equal work or work of equal value. It is well established that we are obliged to interpret the Equal Pay Act consistently with EU law: see Autologic Holdings plc v IRCELR[2006] 1 AC 118, paras16-17, per Lord Nicholls of Birkenhead.

5. The complaint in the present case is one of indirect discrimination. The appellants do not say that they were paid less simply because they are women. They contend that the special priority payment scheme has a disparate impact on women and puts them at a particular disadvantage when compared with men. Such indirect discrimination, along with a defence of justification, are now established aspects of s1 of the Equal Pay Act, justification being a "genuinely due to a material factor" defence pursuant to s1(3): see Rainey v Greater Glasgow Health BoardELR[1987] 1 AC 224.

6. It is common ground that the approach to objective justification is...

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