Villalba v Merrill Lynch & Co Inc and others

EAT: Elias J (President), Ms K Bilgan and Mr T Motture: 31 March 2006

The claimant had enjoyed a successful career with the respondent employers since 1985, when in May 2002 she took on a new post. By November 2002 she was feeling isolated and unsupported and confided in the head of human resources, contrasting her treatment with that of another executive and making a tentative allegation of sex discrimination. By mid-January 2003 the executive to whom she reported had become increasingly critical of her and their working relationship broke down. In February it was decided that she could not continue in her post and she was offered other posts, which she rejected, and following a period of paid leave she was dismissed. The employment tribunal dismissed the claimant's claims of sex discrimination, on the ground that none of the conduct complained of was on the grounds of sex, but upheld some of her complaints of victimisation, resulting from her complaint to human resources, and found that she had been unfairly dismissed. It also dismissed a claim for equal pay, which related to the payment of bonuses, finding that, albeit the method of fixing bonuses was opaque, the differential between the claimant's bonuses and those of her selected comparators had nothing to do with sex and no question of objective justification arose.

The claimant appealed against the tribunal's rejection of some of her claims of victimisation and of her equal pay claim.

The Employment Appeal Tribunal held:
(1) The employment tribunal plainly considered that the claimant's colleague had formed a view of her performance which was not tainted by any form of discrimination, conscious or unconscious, but, even if there were unconscious discrimination, on the facts, it was unrealistic to think that it could have been other than wholly trivial. When considering whether or not victimisation had influenced the decision to remove the claimant from her post, the tribunal could not have been applying the "no influence whatsoever" approach because it found that victimisation was "a very small factor, not a significant influence" in the decision, but it could not be said that the tribunal had thought that any relevant influence had to be important, rather that such victimisation as there was did not amount to anything more than trivial.

(2) Under the Equal Pay Act 1970, once a woman demonstrated that her job was either like work or work of equal value to that of her chosen male comparator, there was a presumption of discrimination on the grounds of sex, and it was for the employer to rebut that presumption. If the claim was one of indirect discrimination, the claimant had to establish a prima facie case, which could be done either from the relevant statistics or in some other way, perhaps because the criterion involved plainly discriminated against women, but it was only once indirect discrimination was established that the employer had to go on to show objective justification, and neither European Community nor domestic law required an employer objectively to justify a difference in pay merely because the claimant was a woman and the comparator a man employed on equal work. There was no justification for extending the reach of the equal pay principle, which currently required that sex should be the cause of the difference in pay either directly or indirectly, to areas where direct sex discrimination had been rebutted and there was no evidence of any adverse impact on women at all.

The appeal was dismissed.

Appearances: Dinah Rose and Brian Kennelly (Lewis Silkin) for the claimant; Thomas Linden (Lovells) for the employers.