“138. Before determining the remaining issues, it is worth taking stock. The effect of our findings so far is that the difference in pay between the claimant and her comparators was entirely because of the combination of the following factors, none of which were directly discriminatory: 138.1. Competition and expectation (a partial factor) 138.2. Market forces (the most influential factor) 138.3. Recruitment and (to a lesser extent) retention of EAs” 138.1. Competition and expectation (a partial factor) 138.2. Market forces (the most influential factor) 138.3. Recruitment and (to a lesser extent) retention of EAs”
“Factor (a) - Competition and expectation 112. We found that the difference between the claimant’s pay and the REMs’/DEDs’ pay was partly because of the commercial pressures that existed under the national contracts. 113. There was a material difference here between the claimant’s circumstances and those of her comparators. In some respects, the commercial environments were the same: the HoELT and REM/DED were all responsible for ensuring delivery against KPIs, which were monitored and performance data shared with competitors, with the potential to affect work allocation. But the KPIs for the REMs/DEDs were more pressing. A target of achieving a defined number of PIFs within 90 days or 12 months is different in nature to a target of maintaining an average payover, with collection periods of up to 3 years being tolerated. 114. This factor was relevant to pay. As Mr Lynch later found in the grievance appeal outcome, the added pressure under the national contracts demanded an increased level of skill, effort and decision-making. 115. Relying on this factor did not involve treating the claimant less favourably than the comparators because she is a woman. 116. Had this been the only factor, the claimant’s case would have succeeded in part, because the difference in pay was not wholly because of this factor. … Factor (d) – Retention of EAs 124. We found that the difference in pay was partly because of the ability of an REM and DED to maintain relationships with EAs. Mr Burton believed that this ability was acquired through the REMs/DEDs having themselves gained experience of front-line EA work. By itself, this factor could only explain part of the difference. We have in mind here the greater responsibility of AEMs for maintaining personal contact with the EAs. 125. There was a material difference in circumstances between the claimant and her comparators. The labour market for EAs was more competitive than the labour market for EOs doing local authority work. Turnover was higher amongst EAs. This meant that Mr Burton gave greater recognition to the ability to retain agents than Mrs Alessi did. 126. The difference was relevant to pay. In an environment of high agent turnover, the ability to retain EAs had an obvious economic value. 127. Reliance on experience as an asset in retaining EAs did not involve treating the claimant less favourably than the REMs/DEDs because she is a woman. … Factor (f) – Market forces 130. The difference in pay was because of market forces. This was the single most influential factor. It fully explained the difference, to the extent that it was not already explained by the other factors. Mr Burton was genuinely concerned that, if he did not pay his REMs and DEDs highly enough, he might lose them to a competitor. It also weighed on his mind that a DED compared his salary to what he could be earning as an EA. 131. By comparison with Mr Burton, Mrs Alessi was not as concerned that the claimant would leave to work for a competitor. Her main consideration was to “benchmark” the claimant’s salary with the other “Head of…” roles. This made the claimant’s circumstances materially different from those of her comparators. 132. The difference was relevant to pay. Salaries are one of the main levers that an employer can pull in order to retain their staff in a competitive job market. 133. Allowing salaries to be dictated by the market did not, in itself, involve treating the claimant less favourably than the respondent treated the REMs and DEDs because she is a woman.”
“Can discrimination be inferred from statistics? 135. The difference in terms was therefore because of material factors that were not directly discriminatory. We must now decide whether the respondent is required to justify its reliance on those factors objectively. 136. First, we considered whether there was statistical evidence from which we could infer that the disparate pay arrangements must have resulted from some kind of sex discrimination. 137. The claimant has not, in our view, proved that the disparity by itself supports that inference. This is for three reasons: 137.1. The claimant has not proved how many men and how many women occupied “Head of…” roles at Rossendales, or did work equal to hers. All we know is that there was at least one man (Head of Decision Support) and two women (the claimant and Head of Client) occupying those roles at Rossendales. We cannot find, on the evidence before us, that the sex balance of people was “considerably” different, in the meaning of Seymour-Smith, to that within Mr Burton’s team during the relevant period. 137.2. The sample size is very small, meaning that the numbers are less likely to be statistically significant. Although the DEDs were all men, there were only four of them. There was only one person in the claimant’s role (and we do not know how many other people did work equal to hers). 137.3. When looking at the sex breakdown amongst the comparator group, it is artificial to concentrate on the DEDs and ignore the earlier REMs. With the exception of Mr Hayes, the change in role title from REM to DED did not have any effect at all on their pay. Once the REMs were included, the men still outnumbered the sole woman, but, significantly, she was the highest-paid of all of all the REMs.”
“We therefore need to consider any disadvantage caused by the remaining factors.”
“141. The two basic market forces are supply and demand. Supply of potential REMs and DEDs was limited because the respondent selected them exclusively from a pool of successful EAs. Demand across the industry for the respondent’s REMs and DEDs was increased, partly because of the perceived potential of people with their experience and contacts to recruit and retain EAs. This made them targets for poaching by competitors. 142. Underlying both these market forces was the fact that REMs and DEDs all had a background of being successful EAs. If the effect of an EA background on the labour market put women (including the claimant) at a disadvantage, the respondent would be required to justify its reliance on that factor. 143. The claimant says that reliance on these market forces put her, and other women doing work equal to hers, at a particular disadvantage. Her argument is based on the demographic of EAs in the industry. EAs are 90% men. 144. We assumed, for the purposes of this argument, that the EA labour market is male-dominated because of a widely-held belief that the work carries the risk of physical confrontation. We also assumed (without making a finding) that this constituted a particular disadvantage to women. 145. In our view, this is not enough to require the respondent to justify its reliance on the factor objectively. This is because the claimant did not share the disadvantage with the group. Whilst the claimant was statistically less likely than a man to have been an EA, she (unlike the disadvantaged group) had not been deterred from being an EA for any reason. If there was a group of female would-be REMs and DEDs who missed out on eligibility because they had been put off being an enforcement agent, the claimant was not one of them. Her route to being a senior operational enforcement manager was not shaped by any real or perceived barrier to working as an EA. Her management career at Rossendales naturally evolved from a deskbased, analytical role. 146. The respondent is not, therefore, required to show that reliance on market forces, or ability to recruit and retain EAs, was a proportionate means of achieving a legitimate aim. 147. This means that the material factor defence succeeds. The equality clause in the claimant’s contract had no effect on the difference between her pay and that of her comparators. 148. The complaint of breach of the equality clause therefore fails.”
“157. We must therefore decide whether reliance on market forces was proportionate. We must balance the group disadvantage against the respondent’s needs and the importance of the aim. 158. On one side of the scales is the group disadvantage caused by reliance, as a determinant of pay, on the supply of and demand for people with a successful EA background. The scale of the group disadvantage is hard to assess. We put aside, for a moment, the need for the disadvantage to be shared by the claimant with the group. We would, at least, need to assess the degree to which reliance on these market forces adversely affected women doing work equal to the claimant’s work. One of the difficulties in this case is that we know very little about how many women were adversely affected in this way. This is because we do not know the breakdown of people who held “Head of” roles, or did any other work that was equal to that of the claimant. 159. Nevertheless, we have concluded that the respondent has failed to prove that reliance on market forces was proportionate. It could have achieved the aims of recruitment, retention and business efficiency relatively easily without the need for such a large gap in pay between the claimant and the REMs and DEDs. All Mr Burton needed to do was to recruit REMs and DEDs from a wider pool. The facts did not demonstrate to us, objectively, that it was reasonably necessary for an REM or DED to have been an EA at all. From our outsider’s perspective, what we think Mr Burton needed was somebody, from whatever background, who could learn and understand the legal and commercial environment in which EAs worked, command the confidence of EAs, sell the organisation to new recruits, build a rapport with them, line-manage the AEMs, supervise EAs occasionally on house visits, and provide operational information to the Client Account Managers as and when necessary. The claimant demonstrated that she had those skills, despite not having been an EA herself. 160. It therefore follows that, had the respondent been required to satisfy section 69(1)(b) of EqA, the respondent would have failed to discharge that burden.”
“The scheme of the Act is that a rebuttable presumption of sex discrimination arises once the gender-based comparison shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man. The variation between her contract and the man's contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex. In order to discharge this burden the employer must satisfy the tribunal on several matters. First, that the proffered explanation, or reason, is genuine, and not a sham or pretence. Second, that the less favourable treatment is due to this reason. The factor relied upon must be the cause of the disparity. In this regard, and in this sense, the factor must be a “material” factor, that is, a significant and relevant factor. Third, that the reason is not “the difference of sex.”
“It is then for A [i.e. the Claimant] to prove that any such factor puts her, and other women doing equal work with her, at a particular disadvantage compared with men; but if she does so the burden of proving that the factor is a proportionate means of achieving a legitimate aim—for short, that it is justified—is on the employer.”
“The definitions of indirect discrimination in both section 19 and section 69(2) are concerned with group disadvantage. The essential comparison is between the positions of the men within the relevant pool, viewed as a group, and the women in the pool, likewise viewed as a group. The requirement that the claimant herself should suffer the same disadvantage is additional, and merely ensures that she should not be entitled to complain of a disadvantage to which she is not herself subject. The relevant pool for the purpose of the comparison is all (properly comparable) employees doing equal work to whom the factor in question applies.”
“In summary, when considering whether there is group disadvantage in a claim of indirect discrimination, tribunals should bear in mind that particular disadvantage can be established in one of several ways, including the following: a. There may be statistical or other tangible evidence of disadvantage. However, the absence of such evidence should not usually result in the claim of indirect discrimination (and of group disadvantage in particular) being rejected in limine; b. Group disadvantage may be inferred from the fact that there is a particular disadvantage in the individual case. Whether or not that is so will depend on the facts, including the nature of the PCP and the disadvantage faced. Clearly, it may be more difficult to extrapolate from the particular to the general in this way when the disadvantage to the individual is because of a unique or highly unusual set of circumstances that may not be the same as those with whom the protected characteristic is shared; c. The disadvantage may be inherent in the PCP in question; and/or d. The disadvantage may be established having regard to matters, such as the childcare disparity, of which judicial notice should be taken. Once again, whether or not that is so will depend on the nature of the PCP and how it relates to the matter in respect of which judicial notice is taken.” a. There may be statistical or other tangible evidence of disadvantage. However, the absence of such evidence should not usually result in the claim of indirect discrimination (and of group disadvantage in particular) being rejected in limine; b. Group disadvantage may be inferred from the fact that there is a particular disadvantage in the individual case. Whether or not that is so will depend on the facts, including the nature of the PCP and the disadvantage faced. Clearly, it may be more difficult to extrapolate from the particular to the general in this way when the disadvantage to the individual is because of a unique or highly unusual set of circumstances that may not be the same as those with whom the protected characteristic is shared; c. The disadvantage may be inherent in the PCP in question; and/or d. The disadvantage may be established having regard to matters, such as the childcare disparity, of which judicial notice should be taken. Once again, whether or not that is so will depend on the nature of the PCP and how it relates to the matter in respect of which judicial notice is taken.”
‘if a group who are predominantly male are paid more than a group who are largely female and yet employed on equal work, the difference in pay will generally have to be justified’
“Thus the court [in Enderby] held that there will be some situations in which prima facie indirect discrimination will be found, even though it is not possible to identify a requirement or barrier or provision, criterion or practice which is having a disparate adverse impact on women. So, in the context of an equal pay claim, the ways in which indirect discrimination can be proved are not limited to the method described in section 1(2)(b) of the 1975 Act. It is open to a court or tribunal to find indirect sex discrimination when the circumstances are such that they recognise it. This principle was followed and endorsed by the Employment Appeal Tribunal (Cox J presiding) in Ministry of Defence v Armstrong[2004] IRLR 672 . Cox J said, at para 42, that tribunals should not apply a formulaic approach to issues of sex discrimination; what matters is whether the tribunal is satisfied in any particular case that the evidence discloses a pay difference which is related to the difference of sex.”
‘... the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.’