Court of Appeal rules on equal pay and unsocial hours

Last year, the Employment Appeal Tribunal (EAT) ruled that a tribunal had been wrong to decide that the Equal Pay Act 1970 required West Midlands Police to pay night-work bonuses to two employees whose child-care arrangements prevented them working nights. 

In a succinct (by equal pay standards) judgment, the Court of Appeal has upheld the EAT's decision.

Background

Two women police officers brought claims against the Chief Constable under the Equal Pay Act 1970, arguing that they were being paid less than a male officer doing like work. The reason the male police officer was being paid more was that he worked shifts involving night work for which he received a special payment. The claimants, on the other hand, did not undertake night work because it was incompatible with their child care responsibilities.

The Tribunal's decision

Because the statistics showed that the pay arrangements adversely affected women (as fewer women could work nights), the Chief Constable had to show that the scheme was justified as a proportionate means of achieving a legitimate aim. The Tribunal accepted that it was a legitimate objective to reward night work.

However, it then went on to hold that the scheme was not proportionate to that aim because it would not have cost very much to pay the women officers the same amount, thereby eliminating the discrimination, even though they had not actually done any night work.

On appeal

The EAT had little difficulty overturning the Tribunal's decision. Whilst acknowledging that it is desirable for employers to adopt flexible work practices, the EAT made it clear that it does not follow that they must then pay workers on the basis of the work they would have done if they had not been prevented from doing that work by their child care responsibilities.The Court of Appeal has now upheld the EAT's decision, describing the case as 'straightforward'. 

Comment

The differences in pay in this case were relatively modest: about £750 per annum. Had there been a very significant pay differential, the Chief Constable would have found it harder to show that the special payments were justified.

Nevertheless, after a series of complex equal pay decisions that seemed to bring little cheer for those whose pay systems are coming under scrutiny, this case is one that will be welcomed by many employers.

Blackburn and anor v. The Chief Constable of West Midlands Police (2008)