“If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.”
“An equality clause shall not operate in relation to a variation between the woman’s contract and the man’s contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor (a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman’s case and the man’s … ” (a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman’s case and the man’s … ”
“It is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker’s sex but in fact affects more women than men may be regarded as objectively justified economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119 [the predecessor of Article 141].”
“The PNB expects that no less than 20% of force strength will benefit from this scheme and no more than 30%, save in exceptional circumstances.”
“It is for each chief constable and police authority to determine locally the posts that should attract payment under this scheme, and the level of payment to be made to each qualifying post. In doing so, they should have regard and give due weight to the following factors: • the importance of individual posts to national and local policing priorities; • the relative importance of continuity in the post; and • whether the posts meet one or more of the national criteria specified in the PNB agreement.” • the importance of individual posts to national and local policing priorities; • the relative importance of continuity in the post; and • whether the posts meet one or more of the national criteria specified in the PNB agreement.”
“This scheme is about making extra payments to special priority posts in local schemes … The scheme envisages local schemes being tailored to the requirements of local circumstances. The scheme provides flexibility for managers to reward those posts where individuals are required to operate above and beyond the norm for the rank and to enable managers to respond to local management issues and requirements.”
“Posts covering the full 24/7 shift pattern: … Sector Officers” “24/7 officers” were defined as: “Officers whose published, rostered working patterns either involve a shift pattern or regular working hours covering a band width of at least 4 hours between midnight and 6.00am over a cyclical 168 hour period and technically complies with the provisions of the Working Time Regulations.” … Sector Officers” “Officers whose published, rostered working patterns either involve a shift pattern or regular working hours covering a band width of at least 4 hours between midnight and 6.00am over a cyclical 168 hour period and technically complies with the provisions of the Working Time Regulations.”
“The question we have to ask ourselves is whether the 24/7 requirement corresponded to a real need, was appropriate to achieve the objectives and was necessary to that end … We find the wish to reward night-time working was, for our purposes, a legitimate aim and the 24/7 requirement corresponded with that aim. … the tribunal is enjoined to consider whether it was possible to achieve the desired aims by less discriminatory means … By our calculation, to recognise the gender issue by excusing the 29 officers with child-care responsibilities from the 24/7 requirement would have added only a little over£20,000 (probably less because many were part-time and would have qualified only for a pro-rata sum) to the Force’s annual wage bill. It is doubtful whether economic grounds can be relied upon for justification in the public sector at all but in the context of the size of the respondent’s very large organisation, that must be a relatively insignificant sum. When weighed against the importance of the principle of equality of treatment and pay between the sexes, the introduction of pay practices which derogate from that principle requires, in our judgment, much more cogent justification than has been demonstrated in this case. The respondent’s aim could easily have been achieved, as other Forces appear to have achieved it, without offending against this important principle. Having regard to our observations about the unsatisfactory lack of the gender impact assessment the respondent’s witnesses told us was ‘invariably’ carried out, it seems to us likely that it occurred either because the issue was not thought out or was ignored. However it occurred, it was neither necessary nor proportionate to adopt a criterion for qualification for [special priority payments] which failed to take account of the discrimination which we have found to be implicit in the definition adopted. On these grounds, we find that the respondent has been unable to demonstrate to us that the reason for the difference between the claimants’ case and PC Bowles’ case is a material factor other than the difference of sex.”
“40 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. 41. More fundamentally, we consider that the approach of the tribunal misunderstands the principle underlying indirect discrimination. The premise is that the predominantly male group is paid more than the predominantly female group for some reason other than sex. The question is whether it can be justified to make that payment. 42. It can be justified if it is in pursuance of an objective which is legitimate and where the means chosen are proportionate to that objective. To say that the employer can afford to eliminate the difference in pay simply fails to engage with the defence at all. It is no answer to a defence of justification for a difference in pay to say that there is no need for the difference in the first place. If the employer had made these payments to the claimants, as the tribunal suggested that they should, then the issue of justification would not have arisen at all because there would have been no pay differential to justify. … 44. 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 staggering consequence. … 46. 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. 47 … 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.”
“The ET correctly analysed the context within which the issue of proportionality arose by reference to the purposes of the national scheme for special priority payments to officers over and above their normal wages. Its decision was based on a sound application of the principle of proportionality. The EAT erred in failing to consider the whole context within which the issue arose and in looking only at the aim of the West Midlands Police in choosing 24/7 working as a criterion for determining who would benefit from the allocation of funds in respect of special priority payments.”