INDIRECT DISCRIMINATION

Cheshire and Wirral Partnership NHS Trust v Abbott: [2006] EWCA Civ 523

CA: Auld and Keene LJJ and Sir Christopher Staughton: 4 April 2006

The claimants were members of domestic staff employed at two hospitals operated by the employer, an NHS trust. At the hospitals there were 146 domestic staff, of whom 131 were women and 14 were men; 20 porters, all male; and 17 catering staff, 13 women and three men. The claimants brought proceedings under the Equal Pay Act 1970 claiming equal pay for work of equal value, in relation to the payment of a bonus. Only one member of the domestic staff, a male, received a bonus, whereas 17 porters and 13 of the catering staff, including the three men, received a bonus. The claimants compared themselves with the porters, but the employer maintained at the employment tribunal that the appropriate comparison was with the porters and caterers taken together. The tribunal, in determining preliminary issues, held that the claimants had the right to choose their comparator group and rejected the employer's further argument that the porters were too small a pool to provide a statistically significant comparison. On appeal by the employer, the Employment Appeal Tribunal upheld the tribunal's decision as to the comparators but remitted an issue as to objective justification for reconsideration.

The employer appealed.

The Court of Appeal held:
While it was for the claimants to identify their comparator group, the tribunal had to ensure that the chosen group was not an artificial or arbitrary one. As a matter of logic, it was not appropriate to confine the comparator pool to one consisting solely of the porters, rather than of porters and caterers, who also received a bonus, since in principle the comparison should be made between the disadvantaged group and the advantaged group. As a matter of statistics comparison with a larger group was likely to produce a more reliable result, so long as the group shared the relevant characteristics and could be seen to be doing work of equal value, though large numbers were less important where there was an identified difference in pay or benefits, such as the existence or absence of a bonus. Although the employment tribunal had not used the appropriate comparator group, no tribunal could have regarded the relevant comparator group, which was 65% male, as other than predominantly male, and, accordingly, as the domestics were almost exclusively female and did not get a bonus, a prima facie case of indirect sex discrimination was established.

The appeal was dismissed.

Appearances: Nicholas Grundy (Hill Dickinson, Liverpool) for the employer; Timothy Grace (Walker Smith Way, Chester) for the claimants.