Court of Appeal's decision of indirect gender discrimination

14 November 2008

The Court of Appeal’s decision, last week, in Blackburn and anor v Chief Constable of West Midlands Police, confirmed that a bonus scheme, limiting payment of a night shift premium to those officers who worked night shifts, did amount to indirect sex discrimination but its discriminatory effect was objectively justified.

West Midlands Police operated a 24/7 rotating shift pattern for which a special priority payment was awarded.  The Claimants were excused from working in this way because of their childcare responsibilities.  They argued that their exclusion from the bonus scheme put them at a disadvantage compared with men and, therefore, constituted indirect sex discrimination under the Equal Pay Act 1970.

Such payments were made in accordance with a 2002 national agreement of the Police Negotiating Board (PNB) that allowed individual police forces to introduce special priority payments to officers for various purposes, including that they had 'specially demanding working conditions or working environments'. 

The Employment Tribunal found that the wish to reward nighttime working was a legitimate aim and the 24/7 requirements corresponded with that aim but there was insufficient justification for derogating from the principle of equal pay between the sexes.  The Chief Constable successfully appealed to the Employment Appeal Tribunal.  The starting point was that the ET had found that the wish to reward nighttime working was a legitimate aim and that the 24/7 requirement corresponded with that aim.  The EAT stated that it found it difficult to see how that objective is achieved if those who do not work nights are also paid the same amount. This would not reward those who do. 

More fundamentally, it considered whether the Police force was justified in making that payment. It can be justified if it is in pursuance of an objective which is legitimate and where the means chosen are proportionate to that objective.  The EAT confirmed that there is nothing in the Equal Pay Act that requires an employer to 'deem that women have done what they have not done' or to make payments to compensate for the economic disadvantages suffered by those who have childcare responsibilities.

The two officers appealed to the Court of Appeal.  The Court of Appeal dismissed the appeal.  The Court agreed with the EAT that if the objective of the scheme was to reward '24/7 working' it was difficult to see how that objective would be achieved if those who did not work it were also paid the same amount.

This is a good authority for the proposition that it is possible to adopt pay arrangements that may be considered to discriminate indirectly, if they can be objectively justified.  It does not follow that women should be paid on the basis of the work that they would have done if they had not, as a result of childcare responsibilities, been able to do it.  It is worth noting that each decision made in this matter paid close attention to the terms of the payment and the reasons for it.  It does not, necessarily, follow that all similar bonuses will be justifiable.  In adopting any such policies, it is essential that the rationale is clear and capable of objective justification.