Chief Constable of West Midlands Police v Blackburn and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Scott Baker |
| Judgment Date | 06 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1208 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2008 |
| Docket Number | Case No: A2/2007/2915 |
[2008] EWCA Civ 1208
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(ELIAS J, MRS C BAELZ, MR D WELCH)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Scott Baker
Lord Justice Maurice Kay
and LORD JUSTICE WILSON
Case No: A2/2007/2915
Ref No: UKEAT000707MAA
Mr Robin Allen QC and Ms Rachel Crasnow (instructed by Russell Jones & Walker) for the Appellants
Ms Elizabeth Slade QC and Mr Andrew Blake (instructed by West Midlands Police Legal Services Department) for the Respondent
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 section 1 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 (Mr Justice Elias, Mrs C Baelz and Mr D Welch) reversed that decision. The appellants now appeal to this Court, permission to appeal having been granted by Lord Justice Mummery.
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 section 1(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 IRC [2006] 1 AC 118, paragraphs16–17, 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 section 1 of the Equal Pay Act, justification being a “genuinely due to a material factor” defence pursuant to section 1(3): see Rainey v Greater Glasgow Health Board [1987] 1 AC 224.
6. It is common ground that the approach to objective justification is that described by the European Court of Justice in Bilka-Kaufhaus GMBH v Weber von Hartz [1987] ICR 110 (at paragraph 36):
“It is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker's sex but in fact affects more women than men may be regarded as objectively justified economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119 [the predecessor of Article 141].”
7. To see how these legal principles apply in the present case, it is necessary to describe the factual background in more detail.
Factual background
8. The payment of allowances to police officers is governed by Regulation 34 of the Police Regulations 2003 which provides:
“1. … the Secretary of State shall determine the entitlement of members of a police force to any allowance, and in making such a determination the Secretary of State may confer on –
(a) the police authority;
(b) the chief officer,
such functions –
(i) in relation to the calculation of an allowance,
(ii) where the payment of an allowance is subject to such conditions as may be specified in the determination, in relation to those conditions,
as he thinks fit.
2. No allowances shall be paid to a member of a police force except as provided by or under these Regulations or approved by the Secretary of State, and the amounts and conditions of payment of such allowances shall be as so provided or approved.”
9. In May 2002 a national agreement was reached as a result of discussion in the Police Negotiating Board. It referred to a scheme for special priority payments “targeted on frontline/operational officers in particular”. It provided for payments of not less than £500 a year or (save in exceptional cases) more than £3,000 a year to be paid as a lump sum each December. It stated:
“The PNB expects that no less than 20% of force strength will benefit from this scheme and no more than 30%, save in exceptional circumstances.”
10. More detail was provided in Annex C which included these provisions:
“Posts may qualify for payment where they:
• carry a significantly higher responsibility level than the norm for the rank; or
• present particular difficulties in recruitment and retention; or
• have specially demanding working conditions or working environments.
This scheme will be targeted on frontline/operational officers in particular.”
11. Effect was given to the PNB agreement by a determination under Regulation 34. By Annex U, paragraph 7, of the determination it was provided:
“(f) In agreeing the qualifying posts for the force's special priority payment scheme, the chief officer and police authority shall have regard to the following criteria in respect of any post, that it:
• Carries a significantly higher responsibility level than the norm for the rank; or
• Presents particular difficulties in recruitment and retention; or
• Has specially demanding working conditions or working environments.
(g) The personal criteria are that the member has demonstrated that he is fully competent in and highly committed to his duties and responsibilities.”
12. Yet further guidance was provided to Chief Constables by the PNB on 8 November 2002. Much of it repeated the earlier formulations but, under the heading “Developing Local Schemes”, it stated:
“It is for each chief constable and police authority to determine locally the posts that should attract payment under this scheme, and the level of payment to be made to each qualifying post. In doing so, they should have regard and give due weight to the following factors:
• the importance of individual posts to national and local policing priorities;
• the relative importance of continuity in the post; and
• whether the posts meet one or more of the national criteria specified in the PNB agreement.”
13. Chief Constables and Police Authorities were required to consult local staff...
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