The Court of Appeal has confirmed that an employer was justified in limiting payment of a night shift premium to police officers who had actually worked the night shifts in question and that the bonus scheme under which the payments were made therefore did not unlawfully discriminate against women.

In the case of Blackburn v Chief Constable of West Midlands Police, two female officers brought claims under the Equal Pay Act on the grounds that they were paid less than male officers doing like work. The reason for the discrepancy in pay was that the male officers worked night shifts, for which they received a night shift premium. The women succeeded with their claim in the employment tribunal.

The Court of Appeal has upheld the EAT's decision that that the scheme did indirectly discriminate against the female officers, who were less likely to be able to work nights because of childcare responsibilities. However the employer was able to justify the discrimination. The scheme had a legitimate aim of rewarding work, in this case night work, where officers had "particularly demanding working conditions or working environments". This aim could not be achieved if officers who did not work nights also received the premium. The scheme was held to be a proportionate means of achieving a legitimate aim and the payment of nightshift premiums did not amount to discrimination.

Impact on employers

Employers will be relieved at this sensible decision. The Court of Appeal upheld the EAT's reasoning that employers do not have to pay workers on the basis of work they would have done if they had not been prevented from doing it due to childcare responsibilities. Nor are employers required to compensate employees for the economic disadvantages suffered as a result of their childcare responsibilities.

It is, however, worth noting that the premium payable for working the nightshift in this case was not large; it amounted to about £750 per annum. Had the differential been larger, the Chief Constable might have found it harder to justify. Employers should remember that if they are to show that an element of a pay package represents proportionate means of achieving legitimate aim, it is necessary to consider whether there are other less discriminatory ways of achieving the aim.