Indirect discrimination; equal pay; objective justification; Article 119 EEC. An occupational pension scheme based on an agreement between employer and staff committee, financed entirely by the employer and forming part of the contracts of employment, is not a statutory social security scheme: benefits under it are pay within Article 119 [20]-[22]. Excluding part-time employees from the scheme infringes Article 119 where the exclusion affects a far greater number of women than men, unless the employer shows that it is based on objectively justified factors unrelated to any discrimination on grounds of sex [31]. Whether the grounds are objectively justified is for the national court: the measures must correspond to a real need on the part of the undertaking, be appropriate with a view to achieving the objective pursued and be necessary to that end [36]-[37]. Article 119 does not require an employer to organise its pension scheme to take account of the difficulties of employees with family responsibilities [42]-[43].
Equal Pay; material factor; market forces can be a material factor justifying a pay difference. [Summary checked against a practitioner text, not the judgment.]
Equal pay; statistics; indirect discrimination. 'Enderby indirect discrimination' arises where significant statistics show an appreciable difference in pay between two jobs of equal value, one of which is carried out mostly by women and the other mostly by men. As the Court of Appeal put it in Bainbridge, the ECJ held that there will be some situations in which prima facie indirect discrimination will be found even though no requirement, barrier or provision, criterion or practice having a disparate adverse impact on women can be identified. Tribunals must be satisfied that the statistics are not merely fortuitous or short term. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Equal Pay; material factor; a genuine reason for the pay disparity that was not tainted by sex (the employer's system of promotion coupled with financial constraints) was a valid defence under s.1(3) Equal Pay Act 1970. Absent any element of sex discrimination the employer does not have to justify the disparity objectively. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Equal Pay; material factor defence; pay protection given to predominantly male groups whose prior higher pay was itself tainted by sex discrimination was no defence — the tribunal must look at the underlying reason for the disparity, not merely the immediate one.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Equal pay; material factor defence; cogency of evidence. The employer relied on three factors: one comparator's promotion, the salary needed to recruit the other, and merit adjustments [9]-[10]. The tribunal held none established; the EAT found its reasons inadequate and remitted for further reasons [2], [4]. The Court of Appeal allowed the claimant's cross-appeal: the reasons were sufficient [8], [17]. A tribunal need not find the employer's explanation a sham. It is enough that the employer has not proved the differential was due to the pleaded factor, the burden being on it to do so by sufficiently cogent and particularised evidence [18]. Obiter, the tribunal was also right: an employer relying on promotion, merit or market forces must explain with particularity what those factors mean, how they were assessed and how they apply [19]. Also obiter, the EAT's order, a final disposal remitting for reasons, was wrong in principle [21].
Equal pay; material factor defence; s.69 EqA 2010. The tribunal's findings that the employer had proved its material factors were permissible: an employer must adduce cogent and convincing evidence of a material factor, but once the tribunal accepts that evidence its findings can be overturned only on the Yeboah v Crofton perversity threshold [67]. On indirect sex taint the tribunal erred by investigating why the pool was mostly male: under Essop the reason why a factor disadvantages women is irrelevant, it is enough that it does, and the burden then passes to the employer to justify reliance on the factor [36]-[37], [52]-[54]. Remitted to a fresh tribunal on whether the two disputed factors were tainted by sex and, if so, justified [79].
“As Lord Nicholls made clear, it is not sufficient for an employer to show that a material factor is not directly discriminatory. If the material factor relied on is indirectly tainted by sex discrimination, then it does not prevent the equality clause taking effect.”Andrew Burns KC, at [29]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.