Chief Constable of West Midlands Police v Blackburn

EAT: Elias J (President), Mrs C Baelz and Mr D Welch: 11 December 2007

Special priority payments were introduced to reward police officers in the respondent’s police force who worked rotating shifts over a 24-hour period seven days a week in demanding and difficult operational roles. The claimants, women police officers, were not rostered for night time shifts because it was incompatible with their child care responsibilities. On their claims under section 1(1) of the Equal Pay Act 1970 for equality of pay with a male comparator doing like work and receiving the special payment for night shifts, an employment tribunal, upholding the claims, found that the pay practice had a disparate impact on women; that, although the 24-hour shift system corresponded to a real need, the same objective could have been achieved by the non-discriminatory means of paying the claimants as if they had worked the full shift pattern; and that the difference in pay could not be objectively justified as genuinely due to a factor other than sex within the meaning of section 1(3) of the 1970 Act.

The chief constable appealed.

The Employment Appeal Tribunal held:
To adopt a scheme of paying women who did not work the 24-hour shift system the same as men who did, as a less discriminatory way of rewarding night time working, would not reward those working nights, which was the purpose of the special payment. More fundamentally, indirect discrimination could be justified if it was in pursuance of a legitimate objective and the means chosen were proportionate to that objective, whereas to say that an employer could afford to eliminate the difference in pay did not engage with the defence at all, since if the special payments had been made to the claimants the issue of justification would not have arisen, because there would have been no pay differential to justify. The Equal Pay Act 1970 provided the right to equal pay unless there was a genuine material factor explaining the difference, but it did not require an employer to deem that women had done what they had not done, nor did it require the payment of money to compensate for the economic disadvantages suffered by those who had child care responsibilities.

The appeal was allowed.

Appearances: Elizabeth Slade QC and Andrew Blake (West Midlands Police Legal Services, Birmingham) for the chief constable; Tess Gill and Corinna Ferguson (Russell Jones & Walker, Cardiff) for the claimants.