Equal pay – Justification – Remuneration – Sex discrimination – Shift workers

Blackburn and anor v Chief Constable of West Midlands Police: CA (Civ Div) (Lords Justice Scott Baker, Maurice Kay, Wilson): 6 November 2008

The appellant female police officers (B) appealed against a decision of the Employment Appeal Tribunal (EAT) that the respondent chief constable had not breached the Equal Pay Act 1970 by failing to pay them certain enhanced payments.

B had been excused from working a 24-hour rotating shift pattern by reason of their childcare responsibilities but did not receive enhanced payments, which were received by those who worked during the night. B complained that the enhanced payment scheme had a disparate impact on women and that there was indirect discrimination. The employment tribunal held that the legitimate objective of the scheme, which was to reward those who worked during the night, could have been achieved by less-­discriminatory means and it referred to a matrix scheme that did not simply reward night-time working. The EAT, reversing the tribunal’s decision, held that the objective could not be achieved if those who did not work during the night were also paid the same amount. The EAT held that an enhanced payment could be justified if it was in pursuance of an objective which was legitimate and where the means chosen were proportionate to that objective. The issue in the instant proceedings related to objective justification. B argued that the employment tribunal had correctly analysed the context within which the issue of proportionality arose by reference to the purposes of the national scheme for enhanced payments to officers over and above their normal wages, and that the EAT had erred in failing to consider the whole context within which the issue arose.

Held: The focus had to be on the aim of the employer. The view of the chief constable was that night-time working should be rewarded. That was both rational and within the parameters of the national structure. The fact that some other police forces may have adopted schemes that had no or less disparate impact was nothing to the point. It was other means of achieving the legitimate aim which were relevant, not the means of achieving different aims, Kutz-Bauer v Freie und Hansestadt Hamburg (C187/00) [2003] ECR I-2741 ECJ (Sixth Chamber) considered. Thus, the use of a scoring matrix which did not give special recognition to night working or providing enhancement payments to those who were excused from 24-hour rotating shift patterns for childcare reasons was not a means of achieving the chief constable’s legitimate aim. As the EAT had observed, if the legitimate aim was to reward night-time working, it was difficult to see how that objective would be furthered if those who did not work during the night were also paid the same amount. The analysis of objective justification, aims and means, in the judgment of the EAT, was correct.

Appeal dismissed.

Robin Allen QC, Rachel Crasnow (instructed by Russell Jones & Walker) for the appellants; Elizabeth Slade QC, Andrew Blake (instructed by in-house solicitor) for the respondent.