“The key objective of single status is set out as to provide a fast and non-discriminatory pay and grading structure at local level for all employees. There is an expectation on Councils and trade unions to check that bonus arrangements remain appropriate, non-discriminatory and effective. At page 676 is stated, ‘A key element in such an exercise will be to ensure that each bonus pay scheme is applied in a manner that complies with equal pay and sex discrimination legislation’. There are statistics at page 677 indicating the majority of the manual workforce is female (515,202 of 651,669), 57.3% of full-time men received bonus compared to 6.9% of full-time women and road worker groups followed by gardeners and drivers were the top 3 in a ‘bonus league’ and all are said to be male dominated groups.”
“There is a further statement that if female groups are not given access to productivity bonus because they are already fully productive the employer is unlikely to be able to justify male groups receiving bonus irrespective of productivity levels or not giving female workers the same bonus for doing work of equal value at equivalent levels of productivity. This is effectively a warning from the National negotiating body as to the equal pay challenge inherent in the single status agreement.”
“3.114 From these can be seen that the vast majority of employees in the claimant group jobs are female. The figures vary from 84.7% to 100% but 10 out of the 14 are above 95%. Of the comparator jobs 4 have no female employees, the other 3 are 7.7%, 11.1% and 12.5%. The statistics so far as 1996 is concerned show a majority of full-time workers as male (92.5%). By 1996 56,623 of 146,626 full-time staff are female. 79.1% of staff on manual worker grades are female. 57.3% of full-time males are on bonus and only 6.9% of females, the equivalent of 39.4% of all male employees on bonus and only 3.1% of females. In 1998 75.4% of male manual and craft workers are on bonus and only 1.6% of females. The information is analysed by directorate. By 2006 the comparison remains as the comparator groups being mainly at 100% male (only 3 differ). 3.115 The impact of these statistics is that it is clear that the bonus has been given to predominantly male workers, that this has continued to 2006 and was present when bonuses were first implemented.”
“3.116 We consider between us that it is correct that there were stereotypical assumptions that the Claimants’ work was essentially ‘women’s work’ and the comparators work considered ‘mans work’. We consider this in relation to 1988 first of all and consider the same to be true in the 1960’s and 1970’s that cleaning and looking after people was stereotypically viewed as women’s work. By contrast using a barrow or machine to clear the streets or to drive a vehicle cleaning roads, using machinery to cut grass or hedges or doing general garden tasks was probably perceived as mans work. We considered the position in 1999 and feel that the same was true. We feel also that this is reflected in the Respondent’s evidence that there was difficulty in encouraging for example men into caring roles or women to the comparator roles. This is not to say that we ignore the fact that there may be women and men engaged on each of the roles nor do we believe the respondent wanted only to recruit men or women to the roles but that as a general proposition socially the jobs of the Claimants were viewed as ‘women’s work’ and the comparators’ as ‘men’s work’.”
“The ‘care workers’ impressed as a dedicated group of individuals who, as with the supervisors and escorts, enjoyed the nature of their work and put the interests of the client or children first.”
“5.4 We have found that such a scheme could not be applied to school supervisors or to school escorts. We have also found that such a scheme could not apply to persons providing personal care. 5.5 We have no evidence of a positive decision being made not to apply a productivity bonus to any of these grades. However, the culture within the care sphere was that such payments would not be conducive to personal care. There is independent evidence of this. We have set out our reasons as to why we believe such a scheme would not be possible which includes; the job is not a series of mechanical repetitive tasks, it cannot be objectively assessed, there is no regular work input and it is determined by the recipient, the recipient pays a contribution to care costs, the workers themselves could not anticipate how such a scheme could work and there would be a risk of workers ‘re-writing’ care plans and a perceived risks of attribution of errors to rushing caused by the need to earn a bonus, there had never been a known example of bonuses in such work areas.”
“There was indirect discrimination. A pay policy was applied which adversely affects women disproportionately when compared with their male counterparts. We do not believe the respondent has discounted any possible relationship between gender and the provision of bonuses.”
“5.7 We consider therefore that the reason the care workers, meal supervisors (and senior supervisor) and escorts do not receive a bonus is made out. The respondent has therefore proved in our view the reason why it pays a bonus to the comparators but not to the claimants in those roles . . . 5.8 The reason is the need to provide payments for increased productivity which it cannot and does not need to make to these claimants. 5.9 This is a reason which is not the gender of the recipients of the bonus or the claimants. In our view the respondent has proved that the reason is not the reason of the sex of the group of workers. The respondent having proved this is not required to objectively justify the payments. They have proved there is no discrimination. . . . 5.26 By reference to the legislation we believe the reason why the male comparators receive a bonus is in return for productivity in relation to outcomes which are measurable. This productivity is achieved by more flexible efficient working which has been kept up to date by the various pressures on the part of the respondent employing the comparators. It is a genuine scheme. It is material in that it is there to provide efficiency of production. It is unrelated to the gender of the recipients. 5.27 . . . [The Council] has shown it could not apply such a bonus to the claimants who are carers, escorts or lunchtime supervisors . . .”
“34. We return to the principal issue. It seems to us that, applying Armstrong as analysed by the President in Surtees without disapproval by the Court of Appeal in that case, even assuming that disparate impact was made out, it remained open to the Employment Tribunal to find that the difference in carers’ pay was not sex tainted and they so found, permissibly, on the basis that (a) the consolidated bonus in the male comparators’ pay was genuinely referable to productivity and (b) that a similar productivity bonus was inappropriate for the carers. In this way the Council negatived the taint of sex in the pay differential and thus were not required to objectively justify that differential. 35. Having rejected Ms Gill’s principal submission in this appeal we can deal shortly with two further grounds. First, she relies upon the statistical impact on the carers and their comparators, together with the Employment Tribunal’s finding of ‘stereotypical assumptions’ (para. 3.116) for the proposition that the Employment Tribunal failed to look behind the reason found for the difference in pay to its impact on the disadvantaged group. With respect, that seems to us to be another way of seeking to circumvent the effect of Armstrong. Even where there is disparate impact which has an adverse effect on the women’s group it remains open to an employer to prove that the pay differential is not sex tainted. On the facts, that is what the Council succeeded in doing in relation to the carers (but not the cleaners).”
“1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.”
“An equality clause . . . shall not operate in relation to a variation between the woman’s contract and man’s contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex . . .”
“(1) Where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article [141] of the EEC Treaty requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex. (2) The fact that the respective rates of pay of two jobs of equal value, one carried out almost exclusively by women and the other predominantly by men, were arrived at by collective bargaining processes which, although carried out by the same parties, are distinct, and, taken separately, have in themselves no discriminatory effect, is not sufficient objective justification for the difference in pay between those two jobs.”
“1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no discrimination whatsoever based on sex, either directly or indirectly. 2. For the purposes of the principle of equal treatment referred to in paragraph 1, indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.”
“This defence avails an employer if he proves that the difference in pay is genuinely due to a material factor which is not the difference of sex and that factor is a material difference between the woman’s case and the man’s case. This appeal raises, once more, the much-discussed question of the proper interpretation of this subsection.”
“Given that instructors are engaged on like work with their teacher comparators, and given also that instructors are paid far less than the teachers, the onus was on the education authorities to establish a defence under section 1(3).”
“This [the Tribunal’s] approach would mean that in a case where there is no suggestion of sex discrimination, the equality clause would still operate. That would be difficult to reconcile with the gender-related elements of the statutory equality clause. The equality clause is concerned with variations in pay or conditions between a woman doing like work with a man and vice versa. But if the equality clause were to operate where no sex discrimination is involved, the statutory starting point of a gender-based comparison would become largely meaningless. On this interpretation of the Act, what matters is not sex discrimination. What matters is whether, within one establishment, there is a variation in pay or conditions between one employee doing like work with another employee. The sex of the employees would be neither here nor there, save that to get the claim off the ground the chosen comparator must be of the opposite sex. On this interpretation the Act could be called into operation whenever mixed groups of workers are paid differently but are engaged on work of equal value. In such a case the statutory equality clause would operate even when the pay differences are demonstratively free from any taint of sex discrimination.”
“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'. This phrase is apt to embrace any form of sex discrimination, whether direct or indirect . . . When section 1 is thus analysed, it is apparent that an employer who satisfies the third of these requirements is under no obligation to prove a 'good' reason for the pay disparity. In order to fulfil the third requirement he must prove the absence of sex discrimination, direct or indirect. If there is any evidence of sex discrimination, such as evidence that the difference in pay has a disparately adverse impact on women, the employer will be called upon to satisfy the Tribunal that the difference in pay is objectively justifiable. But if the employer proves the absence of sex discrimination he is not obliged to justify the pay disparity.”
“Whether a pay disparity has a disparately adverse impact on women is primarily a question of fact. . . . This issue has never previously been suggested. In all conscience, these proceedings have long passed the stage at which the applicants should be permitted to introduce fresh issues of fact.”
“The jurisprudence of the Court of Justice shows that equal pay for equal work or work of equal value is a fundamental principle of the Treaty. It is one of the values of the European Union and its achievement is important to the social and economic goals of the European Union.”
“The right to equal pay ‘expresses an ideal of social progress and human dignity’.”
“The figures, if they demonstrate a disproportionate or (what seems to be the same thing) disparately adverse effect on female employees, thus open the door to a claim of indirect discrimination, by placing on the employer the burden of proving that the variation in terms between the woman's and the man's contract is "genuinely due to a material factor which is not the difference of sex":Equal Pay Act 1970, section 1(3) . How he discharges that burden was the major matter of dispute in this case.”
“As Lord Nicholls said at the end of the passage from Glasgow City Council v Marshall . . . if the employer proves the absence of sex discrimination he is not obliged to justify the pay disparity. That is the basis of the step by step approach explained by Arden LJ in her paragraph 32 above. Once disparate adverse impact has been established, the burden passes to the employer in respect of two issues. First, that the difference between the man's and the woman's contract is not discriminatory, in the sense of being attributable to a difference of gender. Second, if the employer cannot show that the difference in treatment was not attributable to a difference of gender he must then demonstrate that there was nonetheless an objective justification for the difference between the woman's and the man's contract. I deal with those issues in turn.”
“In effect, therefore, Enderby establishes that statistics alone may in a sufficiently powerful case create an irrebuttable presumption of prima facie indirect sex discrimination. Once there is statistically relevant and material evidence to demonstrate that a group is in fact being adversely affected on sex grounds, that will oblige the employer to justify the pay arrangements. It is not enough in those circumstances for the employer to demonstrate that the arrangements have resulted without any direct sex discrimination being practised of any kind. In effect the court is holding that there must somewhere have been some element of indirect discrimination - in other words there is an assumed indirect discrimination. The statistics demonstrate a sufficiently marked adverse impact to constitute a prima facie case requiring not merely an explanation that the difference is not caused directly by sex, but in addition an objective justification. The statistics must at least show that it is reasonable to infer that the treatment of the disadvantaged group must have resulted from some factor or combination of factors which impinge adversely on women because of their sex, even though no obvious feature causing this disparate treatment can be identified, and indeed even though the employer has apparently demonstrated to the contrary.”
“In its Middlesbrough decision[2007] ICR 1644 the Employment Appeal Tribunal considered Armstrong in some detail and concluded that it was correctly decided, but that it would be of limited effect in practice. The Appeal Tribunal considered that, if a tribunal found that there had been disparate adverse impact (at least if the statistical evidence was convincing), it would usually be impossible in practical terms for the employer to show that the pay disparity was not related to the difference in sex. In particular, in an Enderby-type case, where the disadvantaged group comprised all or almost all women and the advantaged group were all or almost all men, it would be impossible in practical terms for the employer to show that the pay differential was not related to the difference of sex. Thus, although, in theory, it was right to say that an employer could still show that the pay differential was not due to the difference of sex, even in the face of evidence of disparate adverse impact, it would only be possible in a case where the statistical evidence was not very strong or convincing.”
“It does seem to us that Mr Jeans [for the employer] is in fact running two inconsistent arguments. He has submitted that it was not possible to confer similar productivity benefits on any of the claimant groups and indeed, appeals against the Tribunal's finding that it was possible to adopt productivity schemes for caterers and cleaners. If he is right about that, then in our view the only conceivable finding is that there was sex tainting. If the benefit is given only to those who perform traditionally male jobs and cannot be conferred on the claimants doing traditionally women's work, then prima facie indirect discrimination inevitably arises. On that premise, only the predominantly male groups can benefit from the way the pay arrangements are structured. It is akin to paying more to full timers than part timers. The differential may be justified, but the need to justify plainly arises.”
“Similarly here: if it is possible to make a payment only to an exclusively or almost exclusively male group, because of particular features of their job not shared by the female claimants, then it necessarily involves a form of prima facie indirect discrimination against those women. The payment is being made by reference to characteristics of a job which in practice are held by job holders who are predominantly of one sex only. That does not, of course, mean that to pay such bonuses is necessarily unlawful, but it will be unless it can be justified.”
“Provided that the Employment Tribunal is satisfied as to the validity of the statistics and the appropriateness of their use, in my judgment it is free to use that statistical approach in order to determine whether there has been prima facie discrimination. In particular I do not see anything in Enderby that precludes such approach. 29. . . . In each case the Employment Tribunal is concerned to determine whether what on its face is a gender-neutral practice may be disguising the fact that female employees are being disadvantaged as compared with male employees to an extent that signifies that the disparity is prima facie attributable to a difference of sex.”