Doreen McNeil and Others v Commissioners for HM Revenue and Customs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Holroyde,Lord Justice Ryder |
| Judgment Date | 03 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1112 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/0962 |
| Date | 03 July 2019 |
[2019] EWCA Civ 1112
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mrs Justice Simler DBE (President)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal, Civil Division))
SENIOR PRESIDENT OF TRIBUNALS
( Lord Justice Ryder)
and
Lord Justice Holroyde
Case No: A2/2018/0962
Mr Ben Cooper QC and Ms Betsan Criddle (instructed by Slater & Gordon (UK) Llp) for the Appellants
Mr Thomas Linden QC and Mr Robert Moretto (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 19 th & 20 th March 2019
Approved Judgment
INTRODUCTION
The Claimants in the proceedings which give rise to this appeal, who are the appellants before us, are a group of female employees of the Commissioners for Her Majesty's Revenue and Customs (“HMRC”), who are the respondents. Jobs in HMRC below Senior Civil Service level are allocated to one of seven grades, each of which attracts its own “pay band” – that is, a range within which the salary of a person in that grade will fall. The Claimants are (or were) employees in grades 6 and 7 (6 being the higher) whose salaries have, over the periods to which their claims relate, been at the lower end of the pay band for their grade. They claim equal pay with male colleagues whose salaries are at or near the top of the relevant band. I shall have to return in due course to how their claim is formulated, but the essence is that statistics show that at the material times women were disproportionately represented at the lower end of the bands and men at the higher – what they describe as “clustering”. It is common ground that the Claimants and their comparators do work rated as equivalent, within the meaning of section 65 (1) (b) of the Equality Act 2010, and accordingly that they are entitled to be paid the same as them unless HMRC can rely on the “material factor defence” under section 69 of the Act, which I set out at para. 9 below.
The Employment Tribunal directed a preliminary hearing on two agreed issues, as follows:
“(i) What is or are the ‘factors’ within s. 69 (1) of the Equality Act 2010 causing the difference in basic pay between any Claimant and comparator who has a higher basic pay?
(This issue will include resolution of the parties' respective positions as to the correct definition of the relevant ‘factors’ and whether, or to what extent, the precise definition has a material bearing on the correct overall analysis under s. 69)
(ii) Whether in light of the proper definition of the factor or factors, that factor or factors put the Claimants and women at a particular disadvantage when compared with men in Grades 6 and/or 7 (respectively) for the purposes of s. 69 (2) of the Equality Act 2010?
(This issue will include resolution of the parties' respective positions as to the appropriate pool(s) of comparison and whether the statistical and/or other evidence demonstrates a relevant particular disadvantage within the appropriate pool(s)).”
By a Judgment with Reasons promulgated on 17 June 2016 the ET (Employment Judge Snelson, sitting alone) held that the factor causing the pay differentials complained of was “length of service” and that it did not put the Claimants, or women generally, at a particular disadvantage. That meant that HMRC's material factor defence was proved, and the claims were dismissed accordingly.
The Claimants appealed to the Employment Appeal Tribunal. By a judgment handed down on 27 February 2018 Simler P dismissed the appeal.
This is an appeal against that decision. The Claimants have been represented by Mr Ben Cooper QC and Ms Betsan Criddle and HMRC by Mr Thomas Linden QC, leading Mr Robert Moretto. All counsel save Ms Criddle appeared also in both the ET and the EAT. Their submissions have been of extremely high quality.
THE BACKGROUND LAW
THE LEGISLATION
The rights formerly conferred by the Equal Pay Act 1970 are now to be found, albeit differently framed, in Chapter 3 of Part 5 of the 2010 Act, under the heading “Equality of Terms”. Chapter 3 contains a distinct regime applying to discrimination in the terms of a contract of employment: it is thus not concerned only with discrimination in pay, but in what follows I will for convenience refer to the “equal pay regime”. The intention is plainly that the underlying principles of the general law of discrimination should apply to the equal pay regime, but its provisions are different in their details from those of Chapter 1, which covers other cases of discrimination in the employment field, and indeed from those of the rest of the Act. There was presumably a good reason for the choice made to maintain in the 2010 Act a distinct regime for equal pay, adopting the essential framework of the 1970 Act, rather than assimilating it to the regime applying generally to discrimination at work; but it has left the law unsatisfactorily complicated.
The structure of Chapter 3 is that it confers rights on an employee (“A”) who is employed on “equal work” with a comparator of the opposite sex (“B”). One of the circumstances in which employees are to be treated as doing equal work is where they are doing work “rated as equivalent”, as the Claimants and their comparators are here. B must not only be doing equal work with A but must also satisfy the criteria for being a comparator in section 79 of the Act: I will refer to someone who satisfies those criteria as “properly comparable”. I will in the following paragraphs assume that the complainant is a woman, and I will for ease of distinction refer to the putative discriminator as “he”.
The principal operative provision of Chapter 3 is section 66, which provides, so far as relevant:
“(1) If the terms of A's work do not (by whatever means) include a sex equality clause, they are to be treated as including one.
(2) A sex equality clause is a provision that has the following effect—
(a) if a term of A's is less favourable to A than a corresponding term of B's is to B, A's term is modified so as not to be less favourable;
(b) if A does not have a term which corresponds to a term of B's that benefits B, A's terms are modified so as to include such a term.
(3)-(4) …”
Section 69 provides for the material factor defence. It reads, so far as relevant:
“(1) The sex equality clause in A's terms has no effect in relation to a difference between A's terms and B's terms if the responsible person shows that the difference is because of a material factor reliance on which –
(a) does not involve treating A less favourably because of A's sex than the responsible person treats B, and
(b) if the factor is within subsection (2), is a proportionate means of achieving a legitimate aim.
(2) A factor is within this subsection if A shows that, as a result of the factor, A and persons of the same sex doing work equal to A's are put at a particular disadvantage when compared with persons of the opposite sex doing work equal to A's.
(3)-(6) …”
The effect is that the defence is available if but only if the differential complained of can be shown to be caused by a “factor” which is neither directly (sub-section (1) (a)) nor indirectly (sub-sections (1) (b) and (2)) discriminatory. In the present case we are concerned only with indirect discrimination.
Sub-sections (1) (b) and (2), taken together, closely mirror the terms of section 19 of the Act, which is headed “indirect discrimination” and which applies to discrimination otherwise than under the equal pay regime. Section 19 reads (so far as material):
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) …”
The phrase “provision, criterion or practice” in section 19 is usually shortened to “PCP”. I should also note that the term “indirect discrimination” is sometimes inaccurately used to refer to a case satisfying only requirements (a)-(c) (or, in the case of section 69, sub-section (2)), i.e. to a case which will constitute indirect discrimination unless justified: I will refer to such a case as one of “ prima facie indirect discrimination”.
The definition in section 19 derives from EU legislation. The Directive currently applying to equal pay between men and women is the Equal Treatment Directive 2006/54/EC, article 2.1 (b) of which defines indirect discrimination as occurring
“… where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary”.
An identical definition is to be found in article 2.2 (b) of the Equality Directive 2000/78/EC (sometimes called “the Framework Directive”), which proscribes discrimination in the employment field on the basis of other protected characteristics. The EU legislation does not have the same distinction as the 2010 Act between discrimination as regards pay, or other contractual terms, and discrimination in the employment field...
To continue reading
Request your trial
-
Mr M Cowie and others v Scottish Fire and Rescue Service: 4105098/2020 and others
...zashtita ot diskriminatsia 2015 IRLR 746 (ECJ) and McNeil v Revenue Case No.: 4105098/2020 & Others Page 58 and Customs Commissioners [2019] EWCA Civ 1112 (CA) the word ‘particular’ in the phrase ‘particular disadvantage’ in s.19(2)(b) EqA 2010 was not intended to connote a disadvantage whi......
-
Mr A Fasano v Reckitt Benckiser Group plc and Reckitt Benckiser Health Ltd: 3306340/2020
...disadvantage, not any special form of disadvantage (McNeil v Revenue and Customs Commissioners Page 30 of 52 Case Number: 3306340/2020 [2019] EWCA Civ 1112). There is no longer the requirement in the former discrimination statutes to show that the proportion of people aged 57 or over who ca......
-
Miss B Norgrove v The Back Up Trust: 2300404/2020
...are more likely to be associated with particular disadvantages. 81. In McNeil and others v Revenue and Customs Commissioners [2019] EWCA Civ 1112, the court said this about particular disadvantage: “In CHEZ Razpredelenie Bulgaria v Komisia za zashtita ot diskriminatsia, case C-83/14, [2016]......
-
Mrs P Omonkhegbe v Transport for London: 2301706/2020
...are more likely to be associated with particular disadvantages. 241. In McNeil and others v Revenue and Customs Commissioners [2019] EWCA Civ 1112, the court said this about particular disadvantage: “In CHEZ Razpredelenie Bulgaria v Komisia za zashtita ot diskriminatsia, case [2016] 1 CMLR ......