The Court of Appeal has upheld the decision of the Employment Appeal Tribunal that anti-social hours bonuses although having disparate impact were justified where the bonus payments scheme had the legitimate aim of specifically rewarding those employees who worked nights, and that aim could not be achieved by paying female employees the same amount (Blackburn & Anor v Chief Constable of West Midlands Police).
This is generally good news for employers and highlights that:
- differences in pay can be appropriate for justifiable reasons provided the methods chosen are appropriate and proportionate;
- additional payments for extra duties can be legitimate, but employers need to consider the issues and options thoroughly to be able to show that less discriminatory means cannot achieve the same result.
Police officers who worked night shifts were eligible for a relatively modest special bonus payment. Female employees who could not work night shifts due to their childcare responsibilities claimed that they were indirectly discriminated against and they should also be eligible for those bonuses and paid them even if they did not carry out the work.
The female employees brought claims under the Equal Pay Act 1970. The Tribunal found that the female employees did “like work” as their male comparators so the issue arose as to whether the difference in pay was due to a genuine material factor which had nothing to do with the difference in sex. Any such genuine material factor defence will not be upheld if it is tainted by unlawful indirect sex discrimination, i.e.:
- the genuine material factor corresponds to a real need or legitimate aim on behalf of the employer;
- it is appropriate with a view to achieving those objectives; and
- it is necessary and the means chosen are proportionate to achieving those objectives.
If less discriminatory means can achieve the same objective then the chosen methods will not be considered appropriate and proportionate.
The Tribunal found that rewarding night work was a legitimate aim, but that the same objective could be achieved by paying the women (29 in all) the bonus payment.
The Court of Appeal has upheld the EAT’s decision to overturn the Tribunal’s finding on the basis that the Tribunal had erred by assuming the employer should do its upmost to ensure men and women are paid the same. There was no right to be paid for work that was not done. There was a legitimate aim in rewarding those who worked unsocial hours and the relatively modest bonus payments were a proportionate means of achieving that. If the women had been paid this bonus it would be difficult to see how these payments achieved the legitimate aim of rewarding night work.