The Court of Appeal has upheld a decision of the Employment Appeal Tribunal that the payment of a premium to night-shift workers did not unlawfully indirectly discriminate against women and therefore did not contravene the Equal Pay Act.

In accordance with a nationally agreed framework relating to such matters, Police Forces operated an additional allowance scheme scheme whereby "special priority payments" were paid to recognise high levels of responsibility, address particular recruitment/retention problems and/or recognise particularly demanding working conditions/environments, to be targeted at frontline/operational officers.

West Midlands Police Force, in common with other Police Forces, had some flexibility in how the special priority payments scheme would be be implemented in their particular Force, although the national agreement imposed some general restrictions.

Under the West Midlands Police Force scheme, one of the categories of officer to benefit from the special priority payment scheme were "Sector Officers ... covering the full 24/7 shift pattern." This effectively meant those Sector Officers who were routinely required to work antisocial night time hours.

Sector Officers are normally required to work the full 24/7 shift although some officers were excused, for example women officers with childcare responsibilities and other officers with medical restrictions.

Two women Sector Officers at West Midlands Police who were so excused from night work due to childcare responsibilities were not paid the special priority payments and they pursued employment tribunal claims. They contended that the special priority payment scheme was indirectly discriminatory towards women because of the statistically lower ability of women than men to work anti-social hours due to greater childcare responsibilities and, on that basis, the restriction of the scheme to those who worked the full 24/7 shift contravened the implied equality clause in the Equal Pay Act.

The women succeeded on their claims at the original employment tribunal hearing. The employment tribunal found that the women did 'like work' to their male comparators who did work the full 24/7 shift and did receive the payment, and that the requirement to work the full 24/7 shift was indirectly discriminatory to women. The key issue was justification; the employment tribunal accepted that the Chief Constable of the West Midlands Police Force was particularly keen to recognise 24/7 shift working and the tribunal also also accepted that the desire to reward night-time working was a legitimate aim of the 24/7 shift requirement under the special priority payment scheme. However, the employment tribunal concluded that the Force should have adopted a less discriminatory means of achieving that aim than requiring full 24/7 shift working in order to receive the additional sum. The tribunal considered that the additional cost to the Force in simply paying the allowance to those who were excused from the night-time work due to childcare commitments would not have significantly added to the wages bill, and so cost was not sufficient justification, and alluded to the fact that other Forces had implemented the national special priority payments scheme in different ways that had not involved the 24/7 shift requirement.

However, the Employment Appeal Tribunal robustly overturned the employment tribunal's original decision. The EAT were not backward in coming forward and some of their comments are worth reciting:

"The purpose of the scheme adopted by the Chief Constable is to single out and reward those working nights; we find it difficult to see how that objective is achieved if those who do not work nights are also paid the same amount. Those doing the work are not then being marked out for special treatment, which is the very purpose of the payment."

"To say that the employer can afford to eliminate the difference in pay simply fails to engage with the [justification] defence at all."

"The tribunal's conclusion is that the employer cannot justify because they can secure equalisation by deeming the women to have done what they have, in fact, not done. This is in truth a conclusion of quite staggering consequence."

"Nothing in the Equal Pay Act 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 childcare responsibilities is not what the Equal Pay Act 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."

"... it is highly desirable that employers adopt flexible work practices which will enable women to work part-time or at hours compatible with their childcare, even if that involves incurring some cost in achieving that. But it does not follow at all that they should then pay the women on the basis of the work they would have done if they had not had the childcare responsibilities."

On further appeal to the Court of Appeal, the EAT's decision was firmly upheld.

The Court of Appeal emphasised the fact that the employment tribunal's finding that the desire to reward night-time working was a legitimate aim had not been challenged at the appeal stages of the litigation and, that being the case, it was irrelevant that other Forces had implemented different special priority payment schemes that did not give special attention to night working. The correct issue on justification was whether the means of achieving the legitimate aim of rewarding night working was proportionate, not whether the Force should have had other legitimate aims which could have involved a different form of scheme.

As regards the notion that those excused from night-working should simply be paid the additional amount in any event because such might be affordable to the employer, the Court of Appeal agreed with the EAT's position and commented that "... if the legitimate aim was to reward 24/7 working, it is difficult to see how that objective would be furthered if those who do not work 24/7 are also paid the same amount."

This case serves as a useful reminder to clients as to the correct approach to objective justification in indirect discrimination matters (Blackburn & Another -v- Chief Constable of West Midlands Police).