"It is usual to regard the pool as consisting of the aggregate of the advantaged and disadvantaged and to express the proportions of the advantaged and the disadvantaged as percentages of the whole pool."
"We have to examine the situation as we find it at the date of the presentation of the claim forms. We have to consider those metro operators who were working on the main link. Not all of the claimants were working on the main link at the time of the presentation of their claim forms. All metro operators are now, in fact, working on the main link. This is an entirely different situation than previously when the metro operators had mixed duties; driving trains and revenue collection. We have not been presented with any evidence whether the work of the metro operators, when they worked their mixed duties, was work of equal value. Reliance has been put on the concession by the respondent that those who work on the main link are, in effect, exclusively driving trains."
"The complex and labyrinthine nature of equal pay law is well known. The existence of authorities which cannot always be easily reconciled, is, regrettably, confusing and unhelpful. In equal pay cases there is a need not to lose sight of the essential purpose of the legislation. In considering s.1(3) the fundamental question is whether the material cause of the pay difference between the applicant and her comparator is tainted by sex related factors. If it is, then the defence fails."
"…In Strathclyde Regional Council & others v Wallace and others[1998] IRLR 146 it was held that the object of s.1 of the 1970 Act was to eliminate sex discrimination in pay, not to achieve fair wages. Accordingly, if a difference in pay between a female worker and her male comparator was explained by genuine factors which were not tainted by any sex discrimination that was sufficient to raise a valid defence under s.1(3). There was, in those circumstances, no further burden on the employer to justify anything."
"94. After consideration of the Act and the cases it appears to us that we have to consider various stages:-
"the presumption applies that the difference in pay is due to the difference of sex."
"97 The factor relied on is, so it seems to us, that for financial and economic reasons the respondent entered into two agreements. The agreements created a two category workforce capable of driving trains, the existing train drivers and the newly formed metro operators. The train drivers' agreement was to remove restrictive practices and introduce more flexibility. The metro operators agreement was to create a flexible workforce capable of train driving and revenue collection. The metro operators were to be paid less than train drivers.
"107 The exclusion of the metro operators from the train drivers' group is not based on the characteristics of gender. It applies equally to men and women. The metro operators in the disadvantaged group (the metro operators) is not significantly female, it is significantly male. Entry to the advantaged group is dependent upon an historical fact of being a train driver prior to the train drivers' agreement. It applies equally to men as it does to women within the metro operator groups, that group being substantially comprised of men."
"109 We must consider whether the rate of pay is determined by sex, if it is the respondent must justify the disparity. In this case the pay difference is not based on characteristics which are gender based. There is no part time working. Both male and female can be and are metro operators. The difference in pay is equally applicable to male and female metro operators. There being no gender based factors we must then look to see if the disadvantaged group has a significant majority of female employees. The metro operators, as a group, have a significant majority who are male employees, in September 2003, 78 males and in September 2004 71 males compared with, in both years 13 female employees. Is a provision criteria or practice (PCP) applied equally to men and women, but is such that a substantially larger number of women than men face a detriment? The PCP has to be, that to be a member of the advantaged group of train drivers the employee must have been a train driver before that group became protected. That is the particular argument in Home Office v Bailey . But, the Court of Appeal in Bailey v Home Office decided that it was not necessary for there to be a PCP if the statistical evidence shows that a sufficient prima facie case of pay discrimination arises requiring the employer to objectively justify any material difference. It is necessary to look at both the proportions of each gender in the disadvantaged group. The proportion in this case is 2:1. That is sufficient for objective justification to be required."
"117 We should add that this case has been presented in a particular way. There was a partial concession, by the respondent, that those on the main link at the time of the presentation of their claims were, subject to the genuine material factor defence, doing like work and entitled to the equality clause. No evidence as to those not on the main link either doing like work or work of equal value has been presented to us. No evidence on what the male metro operators were doing has been presented to us. The statistics put forward by the respondent deal with the train drivers as one group and the metro operators as another group. There has been no breakdown of metro operators group who were just train driving and those doing train driving duties and revenue collection throughout the period that we have considered."
"6 (1) If a Claimant shows that there has been prima facie indirect discrimination between the Claimants and the comparators, it is not sufficient that the respondent employer shows that there is a difference between the claimant's and comparator's cases which explains the differential in pay: it is necessary for the respondent to go further and to prove that the difference is objectively justified."
"An Act to prevent discrimination, as regards terms and conditions of employment between men and women."
"137 Third, and in our view very importantly, as Ms Rose fairly accepted, if her argument is correct then it means that a woman may recover under the equal pay legislation, read with Article 141, simply because she happens to be a woman. That fortuitous and chance fact will give her the right to a remedy in circumstances where a man would be denied one. Take a case where, for example, 100 men are employed in job A at £x and 100 men in job B at £x+1O% for historical reasons which could not be objectively justified. The men in the lower paid job have no grounds for complaint under discrimination law. Put a woman into a lower grade job, however, and, says Ms Rose, she can require the employer objectively to justify the difference in pay. Since he cannot do that, she must receive the higher pay. It cannot conceivably be said that her lower pay has anything whatsoever to do with discrimination on grounds of sex, yet she will be able to bring a claim because she happens to be a woman, in circumstances where a man could not do so. Once her claim has succeeded, of course, the men in job A can thereafter compare themselves with her so as to lead to an improvement in their pay also. The overall result may be a fairer wage, but the root by which it is achieved is the fact that a woman can rely upon the fortuitous and arbitrary fact of her sex as a basis for making the claim. At the heart of anti-discrimination law is the notion that it is wholly obnoxious to permit one sex to obtain benefits or advantages by the mere fact of their sex. Yet on this analysis the law has done just that; it is permitting the chance fact that the new recruit is a woman to determine legal rights. Of course the principle could directly benefit the men. If in the example we have given a woman is employed in job B then all the men in job A can immediately claim equal pay with her since there is no objective justification. Yet the notion that there has been sex discrimination is absurd. We think it would be surprising if any court were willingly to adopt an approach so lacking in principle."
"114 Following Enderby , therefore, there are three different circumstances in which pay arrangements may, to use an expression frequently found in the cases, be 'tainted by sex'.
"110 The classic way in which indirect discrimination is established is to identify a practice, criterion or provision which adversely impacts upon women. Jenkins, Bilka and Rinner-Kühn all fall into that category. However, the concept of indirect discrimination was extended by the decision of the European Court of Justice in Enderby v Frenchay Health Authority[1993] IRLR 591 . In that case Mrs Enderby was a speech therapist employed in the National Health Service. Speech therapists were overwhelmingly female. She claimed that she was paid less well than clinical psychologists and pharmacists, who were, in different degrees, predominantly male. It was assumed that the work performed was of equal value. The industrial tribunal had found in terms that in the fixing of pay there had been no discrimination, either direct or indirect. The employers therefore contended that they had rebutted the presumption imposed upon them by Article 141. Since there was no scintilla of sex discrimination, there could be no recovery under the principle of equal treatment. The applicant was not claiming that there were any specific hurdles which created an impediment to her gaining access to either of the other professions. The pay structures of the different professions were governed by different processes of collective bargaining and the tribunal had found that they were conducted without discrimination.
'However, if the pay of speech therapists is significantly lower than that of pharmacists and if the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least where the two jobs in question are of equal value and the statistics describing the situation are valid.
"124 What is striking about this whole jurisprudence is that prior to any uncertainties that may have been created by Brunnhofer, no one has ever thought that the mere fact that a woman is paid less than a man for work of equal value is enough to trigger the obligation objectively to justify the difference in pay. If it were enough then the legislation would be concerned with fairness rather than with sex discrimination. All the case law is premised on the basis that whilst that basic comparison is enough to raise a prima facie case of direct sex discrimination which the employer will have to rebut, if the claim is one of indirect discrimination then the claimant will have to establish a prima facie case. This may be done either from the relevant statistics or in some other way (perhaps, for example, because the criterion involved plainly discriminates against women, such as treating part timers less favourably, in which case formal statistics may not be necessary). But it is only once indirect discrimination is established that the employer has to go on to show objective justification."
"127 It is perhaps hardly surprising that the House of Lords held that where the allegation is of unlawful treatment contravening laws which discriminate on grounds of sex, an applicant cannot expect to succeed if there is no discriminatory treatment on grounds of sex."
"I can well understand that an instructor in a special school, whether a woman or a man, may feel aggrieved that a teacher in the same school is being paid more for doing the same or broadly similar work. I have more difficulty in understanding how, in the absence of sex discrimination, this perceived unfairness is said to be caught and cured by a statute whose object, according to its preamble, is to prevent discrimination between men and women as regards terms and conditions of employment. The instructors' contention is that this conclusion follows from the clear wording of section 1. Further, they contend that this conclusion is not surprising. Proof that women are being paid less than men for like work is prima facie evidence of sex discrimination. Part of the purpose of the Act of 1970 was to ensure that discrimination does not arise through accident or inertia. If an employer fails to rebut the presumption of sex discrimination because he is unable to show a proper reason for the disparity in pay, the case falls within the mischief the Act was intended to remedy. This conclusion may go further than the provision regarding equal pay for equal work in Article 119 (now renumbered 141) of the E.C. Treaty. But there is no reason why the equality of pay legislation in a member state should be confined in its scope to that of article 119.
"129 The House of Lords therefore held that when read in context, the material factor defence did not require the employer to demonstrate a justifiable reason for the differential in the absence of any evidence at all of sex discrimination.
'In order to fulfil the third requirement"—that the reason for the less favourable treatment is not "the difference of sex", a phrase "apt to embrace any form of sex discrimination, whether direct or indirect"—"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.'
"36. I have in short come to the clear conclusion that in an indirect discrimination case the burden of proving disproportionate adverse impact lies on the complainant and that merely to raise 'a credible suggestion' that, were the relevant (valid and significant) statistics provided, these might establish disproportionate impact is not sufficient for the complainant's purposes and imposes no further burden of explanation upon the employer."
"It is well established that in a case such as these [an equal pay case] the burden of proving sex discrimination lies initially on the person asserting that such discrimination exists."
"37. I have to say that I do not understand why the applicants in this case should have to accept that there was some onus on them to show 'disparate impact'. I understand that the concession was made in reliance on Nelson v Carillion Services[2003] IRLR 428 . We did not explore that decision during the hearing of the appeal and it may be that the concession in the light of that authority was rightly made. But, by an applicant being compelled to take on that burden, cases, in my view, get into an unnecessary evidential tangle, because one finds oneself considering (a) is there a prima facie case that the difference in pay is due to sexual discrimination; (b) if so, what is the employer's position – is it open to the employer to prove that it was not, and can he do that without establishing what his genuine reason was? Or is the establishment of a prima facie case sufficient to place on the employer the burden of establishing a genuine reason, which is not the difference in sex?"
"There must come a time when a point is normally to be treated as having been settled at first instance. I think that should be when the earlier decision has been fully considered, but not followed, in a later one. Consistently with the modern approach of the judges of this court to an earlier decision of one of their number… I would make an exception only in the case, which must be rare, where a third judge is convinced that the second was wrong in not following the first."
"29. I am left unpersuaded by the EAT's attempt in paragraph 26 of its judgment, cited in paragraph 15 above, to identify a clear and sensible difference between a condition or requirement case on the one hand and cases where no such condition or requirement is identified. In each case the ET 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. The distinction drawn by the EAT between true 'requirement or condition' cases and 'cases involving disparity of pay which has arisen between two work groups' may not always be capable of clear definition or consistent practical application, as Ms Gill pointed out. Usually the disparity of pay between two work groups will reflect the fact that they do different work, and there may well be features of the work of the advantaged group which could be elevated to a requirement or condition. For example, where the disadvantaged group works in ordinary office or shop hours and the advantaged group does shifts or unsocial hours, it might be said that there was a requirement or condition for entry into the advantaged group of availability to work shifts or unsocial hours. The same statistics would be available whichever categorisation was used, and yet, if the Home Office was right, if it could be labelled a 'requirement or condition' case the Seymour-Smith approach could lead to a conclusion of prima facie discrimination whereas, if it were categorised as a case involving disparity of pay between two work groups, prima facie discrimination could only be found if the disadvantaged group was predominantly female (or male) and the advantaged group predominantly of the other gender. As Ms Gill submitted, the difference between a formal requirement or condition for obtaining a benefit which divides two groups of workers and a division by reference to jobs for which different amounts are paid is one of form rather than substance, and a common approach to the two types of case has the merit of ensuring that the 1970 Act is applied consistently to all forms of indirect discrimination."
"7. In its first question, the Court of Appeal wishes to know whether the principle of equal pay for men and women requires the employer to prove, by providing objective justification, that a difference in pay between two jobs assumed to be of equal value, of which one is carried out almost exclusively by women and the other predominantly by men, does not constitute sex discrimination."
"16. However, if the pay of speech therapists is significantly lower than that of pharmacists and if the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least where the two jobs in question are of equal value and the statistics describing that situation are valid."
"63. As I have already stated, the mischief at which the legislation is aimed is women being paid less than men for performing work of equal value. Where the women are members of an exclusively female group it is fair to assume that there is discrimination – an assumption could not easily be made if that group were a mixed group. It seems to me that the more women there are in the group the easier it would be to draw an assumption in their favour – conversely, if there were more men in the group it is unlikely that such an assumption could be fairly drawn – indeed it probably could not be drawn at least without convincing evidence. I would also add that the composition of a group may lead to a presumption one way or the other and in the light of relevant evidence that presumption will be revealed as sound or unsound and a final determination will be reached having regard to all the evidence."
"101 In its judgment, the Court of Justice was less explicit than the Advocate-General in explaining its reasoning. The Court did not express disagreement with the Advocate-General, however, and concluded that, based on the percentages of women and men in either group, a prima facie case of discrimination may arise. In paragraph 16 of the judgment the Court stated:
'(16) However, if the pay of speech therapists is significantly lower than that of pharmacists and if the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least if the two jobs in question are of equal value and the statistics describing that situation are valid.'
'(17) It is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether they appear to be significant.'
"30. I can see no justification for the imposition of a high threshold for satisfying the test of prima facie discrimination. Where, as here, there is one group of employees of an employer which contains a significant number, even though not a clear majority, of female workers whose work is evaluated as equal to that of another group of employees of the employer who are predominantly male and who receive greater pay, it would be very surprising if an ET were to be precluded by the presence in the disadvantaged group of a significant number of men from holding that that disparity in favour of men required justification by the employer. In the present case it may well be that, as the Home Office suggests, there is a genuine material factor which is not the difference of sex and which justifies that disparity. Whether there is such factor is for further determination."
"Finally, I must state an agreed fact of the greatest importance. The disparity in pay between the appellants and principal teachers has nothing to do with gender. Of the 134 unpromoted teachers who claimed to be carrying out the duties of principal teachers, 81 were men and 53 women. The selection by the appellants in this case of male principal teachers as comparators was purely the result of a tactical selection by these appellants there are male and female principal teachers employed by the respondents without discrimination. Therefore the objective sought by the appellants is to achieve equal pay for like work regardless of sex, not to eliminate any inequalities due to sex discrimination. There is no such discrimination in the present case. To my mind it was be very surprising if a differential pay structure which had no disparate effect of impact as between the sexes should prove to be unlawful under theEqual Pay Act 1970 . The long title to that Act describes its purpose as being "An Act to prevent discrimination, as regards terms and conditions of employment, between men and women."
"18 The appeal tribunal held that there was no error of law in the tribunal's choice of a pool. Lindsay J quoted the decision of the President, Waite J, in Kidd v DRG (UK) Ltd[1985] ICR 405 ,415:
'The choice of an appropriate section of the population is in our judgment an issue of fact (or perhaps strictly a matter for discretion to be exercised in the course of discharging an exclusively fact-finding function)…'
"But even in non-piecework cases, one should at least strive to include all the advantaged workers, where work is held or assumed to be of equal value, in the comparator pool. In any event, to limit the comparator pool to the all male porters amongst the hospital ancillary workers employed by the appellant who were receiving a bonus and to omit the caterers should at the very least be regarded as arbitrary and contrary to the approach laid down in Enderby. It would artificially bolster the case for the respondents by leaving out the other ancillary workers who received the advantage of the bonus."
"such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper application of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal."
"It is to be observed that in paragraph 14 the ECJ was considering the cases which had previously been determined by it and placing them in two categories. One comprised cases involving measures distinguishing between employees on the basis of their hours of work which in practice had an adverse impact on substantially more members of one or other sex. The other was where a system of pay, wholly lacking in transparency, was applied. In paragraph 15 it was pointed out that the Enderby case was different in that it did not fall into either of those categories. In paragraph 16 the ECJ turned to the situation where the facts were as set out in the question which it was answering, and gave its answer in those terms. The ECJ does not purport to be defining exhaustively the only circumstances in which a prima facie case of discrimination can be established. For example, no one would suggest that the first category should be limited to cases involving part-time workers. What the ECJ was doing was describing the circumstances which applied in the cases already decided and another different set of circumstances which applied to the case which it was then deciding."
"Although in a case of indirect sex discrimination in pay it is for the employee to identify a comparator group and to produce statistical evidence to show an appreciable difference in pay for jobs of equal value, the employee is not entitled to identify an artificial or arbitrary group. In principle, the comparison should between the disadvantaged group and the advantaged group. As a matter of statistics, a more reliable result is likely to be forthcoming if one takes as large a group as possible, so long as that group shares the relevant characteristics and can be seen as doing work of equal value."
"The appropriate pool of men and women for comparison was all those to whom the relevant provisions of the agreement applied at the time that the determination of the applicant's employment. It was necessary to look at all part-time workers at that time and the average of their hours of work throughout their service and to compare the men and the women in the advantaged and the disadvantaged groups. The disadvantaged group in that pool were those part-time workers whose hours of work at termination were less than the average of their hours of work throughout their service. As no statistics were available as to the composition of the advantaged and disadvantaged groups in the pool, the applicant had failed to prove her case of indirect discrimination."
"I do not see how it can be said that a failure to deprive the male comparators of part of their income was discriminatory, if the assumption is that their original receipt of that part of their income was not discriminatory. The same is true of the decision to put the domestics out to tender. If that decision was discriminatory when made, it continued as such thereafter. If it was not discriminatory when made, it could not become such thereafter."