In a recent appeal case the EAT ruled that the Tribunal had been mistaken in its understanding of the nature of the justification defence when determining whether there had been indirect discrimination on the ground of sex, contrary to the Equal Pay Act 1970.

The claimants, both female police officers, were excused from working night shifts due to their child care responsibilities. Those employees (including the male comparator) who did work these shifts were paid additional payments to reflect the fact that they were operating ‘in the most demanding and difficult front line operational roles’. The claimants contended that as they received less pay than their male comparator for doing similar work, this amounted to indirect sex discrimination contrary to the EPA.

The Tribunal ruled that the additional payments did amount to indirect sex discrimination as the pay practice had a disparate impact on women compared to men. The Tribunal further ruled that rewarding night work was a legitimate objective but concluded that the pay differential was not reasonably justifiable. The Chief Constable could have afforded to pay the claimants as though they had done the night work, even though they had not, and this would have succeeded in eliminating the discrimination.

The EAT upheld the Chief Constable’s appeal and held that the Tribunal had been mistaken in finding that the modest pay rewards were not objectively justified. In his summing up, the judge, said that “nothing in the EPA requires an employer to deem that women have done what they have not done. The payment of money to compensate for the economic disadvantages suffered by those who have child care responsibilities is not what the EPA requires. Nor is the assessment of the employer’s ability to pay sums of this kind, a task which Parliament could conceivably have expected Tribunals to do”.

Blackburn and another v Chief Constable of West Midlands Police