Equal pay: indirect discrimination for anti-social hours bonus

In Blackburn and Manley v Chief Constable Of West Midlands Police the tribunal found that the bonuses for police officers for “anti-social hours” were indirectly discriminatory. Women with childcare responsibilities were not eligible for the bonuses and defence advanced of a “24/7” requirement (objective justification) though legitimate as an aim had not been carried out in a proportionate or reasonable necessary way.

 

S1 of the Equal Pay Act (EqPA) provides for equal pay between men and women in the same employment by implying an equality clause in their contract of employment where they are employed on “like work”/ “work rated as equivalent” or “equal value” work with a person of the opposite sex (comparator).

 

In order to show objective justification as a defence for the employer it must show:

 

• There is a material factor which corresponds to a real need or legitimate aim of the employer;
• The means adopted is adopted with a view of achieving the objectives pursued and
• It is necessary and proportionate to achieving those objectives.

 

With this case the tribunal assessed whether the need to work at any time day or night to qualify for the special bonus had a disproportionate effect on women officers and if so whether this could be claimed by a material factor that was not the difference of sex.

 

The West Midlands Police (WMP) force had three shifts and officers were expected to rotate 24/7 between them.

 

The bonuses amounted to between £500 and £3000 pa on average and had qualifying criteria to achieve which meant between 20-30% of local police would benefit.

 

Two women police officers claimed against WMP on the basis that they could not work 24/7 for childcare reasons and that the pay difference was for reason of their sex.