Tyne and Wear Passenger Transport Executive (trading as Nexus) v Best and others

EAT: Judge Serota QC, Mr B R Gibbs and Mr M Worthington: 21 December 2006

In 1998 an agreement was reached between trade unions and the respondent employers, operators of a light railway, whereby drivers' pay was increased and protected but no further drivers were recruited and a new grade of metro operators was established. In 2004, of a total of 84 metro operators, 13 were women, representing 15.48%. The claimants were female metro operators, some of whom worked exclusively as drivers on the main link, while the remainder, who worked on the metro link, both drove and collected money. They made claims, under section 1 of the Equal Pay Act 1970, for equality of pay with a group of 98 drivers, of whom five were women, representing 5.1%, contending that in a pool comprising the metro operators and the train drivers the proportion of women who were disadvantaged was higher than the corresponding proportion of men and that the pay differential had a disparate adverse effect on women and amounted to indirect discrimination on the ground of sex. At the employment tribunal the employers conceded that the metro operators on the main link, but not those on the metro link, were engaged in like work with the drivers. The tribunal, upholding the claims by those on the main link, decided that, while there was no provision, criterion or practice that prevented women from becoming members of the advantaged group, because the proportion of women in the disadvantaged group was higher, there was a prima facie case that the pay disparity was tainted by sex, even though numerically the majority of those in the disadvantaged group were male, and that the employers had failed to show objective justification for the disparity.

The employers appealed.

The Employment Appeal Tribunal held:
(1) Where, as in the present case, there was no provision, criterion or practice that adversely impacted on women but it was claimed that statistics pointed to a disparate adverse effect that could be inferred to be tainted by sex, considerable care needed to be taken when examining those statistics and it had to be borne in mind that small numbers could easily lead to distortions. It was difficult to envisage a situation where there could be said to be indirect discrimination against women solely by reason of a pay differential between two groups of workers doing like work when both the group said to be advantaged and the group said to be disadvantaged were mainly male, all the more so when the percentage of women in the disadvantaged group was as small as it was in the present case, and the figures in the present case could not support a finding of even a prima facie case of indirect discrimination.

(2) The burden of proving disparate adverse impact rested on the claimants, but such an inference could not be raised where the pay differential was said to be the result of indirect discrimination simply by having a woman point to a male comparator doing like work with enhanced pay, and it was necessary to show disparate impact on women as being part of the disadvantaged group. Since the evidence failed to show that the pay differential was tainted by sex, the employment tribunal erred in going straight to objective justification simply because it found that a higher percentage of women overall as compared to men were in the disadvantaged group.

(3) Further, the correct pool of those disadvantaged consisted only of those found to be engaged in like work with the comparators, and, having found that only the operators on the main link were engaged in like work with the drivers, the employment tribunal erred in including the metro link operators in the disadvantaged pool for the purpose of comparison.

(4) On the issue of objective justification also the decision of the employment tribunal was flawed, since the tribunal had failed to address material evidence and to give adequate consideration to the fact that the agreements between the employers and the unions, which had given rise to the pay discrepancy, were not discriminatory when negotiated in 1998, and, had the tribunal considered those matters, it would have been bound to find that the employers had objectively justified the pay differential.

The appeal was allowed.

Appearances: John Cavanagh QC and Paul Cape (Eversheds, Newcastle upon Tyne) for the employers; Stefan Cross, solicitor (Stefan Cross, Newcastle upon Tyne) for four claimants; Jane Woodwark (Thompsons, Newcastle upon Tyne) for the other claimant.