Blackburn (and Another) v Chief Constable of West Midlands Police – Court of Appeal
West Midlands Police introduced a scheme where police officers were awarded a "special priority payment" if they worked rotating shifts on a "24/7" shift pattern, which included night work. The Claimants did not work this shift pattern due to their childcare commitments, and were not eligible to receive the additional payment.
They asserted that the scheme put women at a disadvantage when compared to men, as a smaller amount of women were eligible to receive the payment due to their childcare obligations. This, they alleged, amounted to indirect sex discrimination.
The Employment Tribunal upheld their claims. It held that although rewarding the "24/7" shift pattern was a legitimate aim, that this could have been achieved by less discriminatory measures. The effect of this decision therefore was that employees would be eligible to receive the night shift bonus without having to work night shifts.
The employer appealed to the Employment Appeal Tribunal ("EAT"), and the appeal was upheld. They found that the Equal Pay Act 1970 does not require employers to pay women for work that they had not completed, even if the reason for not doing so was due to their childcare responsibilities. On a subsequent appeal lodged by the employees the Court of Appeal agreed, finding that it was difficult to see how the employer's objective of rewarding staff who worked the "24/7" shift pattern could be achieved, if those that did not perform it received the same remuneration.
What does it mean for you?
Employers should always take steps to ensure that they are able to potentially justify any provision, criterion or practice that may adversely affect one group of employees when compared to another. To do so, they must typically show that their actions are a proportionate means of achieving a legitimate aim. When dealing with litigation, evidence of the employer's thought process in this regard is paramount. It should be noted that, in this case, the amount of the extra payment was a "relatively modest sum", which impacted with the proportionality test leading to the finding that the scheme could be justified. Interestingly, West Midlands Police accepted that had the special priority payment been a greater sum, then the scheme may have been held to be disproportionate.