EQUAL PAY

Home Office v Bailey and others: [2005] EWCA Civ 327

CA: Peter Gibson, Waller LJJ and Sir Martin Nourse: 22 March 2005

The claimant employees, who worked for the Prison Service in administrative, executive, secretarial and support grades which consisted of men and women in approximately equal numbers, claimed equal pay under the Equal Pay Act 1970 with comparators in other grades in the Prison Service which were predominantly occupied by men, such as prison officers and governors. The claimants claimed that the employer's arrangements were indirectly discriminatory against women, relying on statistics which showed that in a pool of employees in the claimants' and their comparators' grades only 9% of men, as opposed to 51% of women, were in the disadvantaged group. The employment tribunal, finding that the difference between those proportions was "plainly significant", held that a prima facie case of indirect sex discrimination had been raised which the employer was required to justify under section 1(3). The Employment Appeal Tribunal allowed the employer's appeal, holding that, where there was no requirement or condition which prevented women from becoming members of the advantaged group, it could not be said that there was prima facie discrimination on the ground of sex unless the disadvantaged group was predominantly female.

The employees appealed.

The Court of Appeal held:
In determining whether a prima facie case of sex discrimination arose, there was no sensible difference between cases where a condition or requirement was identified and cases where no such condition or requirement was identified. Provided that the employment tribunal was satisfied as to the validity of the statistics and the appropriateness of their use, there was no reason why the statistical approach used by the tribunal should not be employed in cases where there was no condition or requirement but where there was a pay disparity between two occupational groups. Where there was a group of employees containing a significant number, even though not a clear majority, of female workers whose work was evaluated as equal to that of another group of employees of the same employer who were predominantly male and who received greater pay, a tribunal was not precluded by the presence in the disadvantaged group of a significant number of men from holding that that disparity in favour of men required justification by the employer. Accordingly, on the figures, the employment tribunal had been justified in finding that there was a prima facie case of indirect sex discrimination.

Quaere. Whether in a case of indirect sex discrimination the burden of proving disparate adverse impact lay on the complainant.

The appeal was allowed.

Appearances: Tess Gill and Ben Cooper (Thompsons) for the employees; Elizabeth Slade QC, Jennifer Eady and Robert Moretto (Treasury Solicitor) for the employer.