Allonby v Accrington and Rossendale College

A requirement or condition for indirect sex discrimination is not a technical or narrow concept. Once it is realistically identified, the comparison pool follows logically and is not a matter of free choice.

Under the Sex Discrimination Act 1975, objective justification requires a critical proportionality assessment. The tribunal must establish a real need, assess whether the means are appropriate and reasonably necessary, and balance that need against the discriminatory impact. A discriminatory aim cannot justify discriminatory means.

Section 9 protects contract workers against discrimination by a principal in relation to work, including by comparison with the principal's employees. However, contractual terms imposed solely by the supplier remain matters for the supplier. The domestic equal-pay comparison failed, but questions concerning Article 141 and occupational pension equality required a reference to the European Court of Justice.

The appellant had been an hourly-paid part-time lecturer employed by the College. In 1996 the College terminated such contracts and offered continued work through Education Lecturing Services Ltd, an agency. She became self-employed, received lower income, and lost employment benefits.

She brought claims for unfair dismissal, indirect sex discrimination, discrimination as a contract worker, equal pay and occupational pension equality. The Employment Tribunal rejected the material claims, although it found the dismissal unfair without awarding redress. The Employment Appeal Tribunal upheld those decisions and granted permission to appeal.

The Court of Appeal considered the proper requirement, comparison pool and justification for indirect discrimination; the scope of section 9 of the Sex Discrimination Act 1975; and whether domestic equal-pay and pension provisions were compatible with Article 141 of the Treaty of Rome where the proposed comparator worked for a different employer at the same College.

1. Appeal allowed in part. Sedley LJ gave the leading judgment. Gage J and Ward LJ agreed with the result and the material reasoning. The indirect-discrimination and section 9 issues were remitted for further hearing, and questions concerning equal pay and pension equality were referred to the European Court of Justice.

2. The College imposed a relevant requirement or condition for continued employment: a lecturer had to have been previously employed on a salaried basis, rather than hourly paid, to avoid dismissal. The words are not technical terms and may encompass a realistic threshold created by an employer's business decision. The alternative condition advanced by the College, registration with the agency, concerned re-engagement rather than dismissal.

3. The Employment Tribunal had correctly selected the pool as all lecturers who would have qualified for continued employment but for the condition. The selection of a pool is ordinarily a matter of logic flowing from the identified condition, not a discretionary factual choice. The Tribunal nevertheless had to reconsider whether the proportion of women able to comply was considerably smaller, as section 1(1)(b)(i) requires.

4. The Tribunal's justification decision could not stand. Objective justification required it to examine whether the College had a real need for the dismissals, whether dismissal was appropriate and reasonably necessary, the seriousness of the adverse impact on women, and whether the need outweighed that impact. Its reasons did not demonstrate that balancing exercise or a critical examination of alternatives. If the aim was itself to deny statutory benefits to a predominantly female group, it could not justify discriminatory means.

5. Section 9 of the Sex Discrimination Act 1975 is not confined to discrimination between contract workers supplied to the same principal. It can apply as between a contract worker and an employee working for that principal. The Tribunal had to determine whether the College, rather than the agency alone, denied relevant benefits, facilities or services; some alleged benefits could fall within section 9.

6. The equal-pay claim failed under the domestic wording of the Equal Pay Act 1970, because the comparator was employed by the College, not by the agency, and the two were not associated employers. It was not acte clair whether Article 141 nevertheless permits comparison of workers in the same establishment or service despite different employers. That question was referred.

7. For occupational-pension purposes, the appellant's contract with the agency was a contract of employment within section 1(6)(a) of the Equal Pay Act 1970, read with sections 62 and 63 of the Pensions Act 1995. The unresolved comparator and exclusion questions under Article 141 were also referred.

• Court of Appeal (Civil Division) Allowed the appeal in part, remitted the indirect-discrimination and contract-worker issues for further hearing, and referred equal-pay and pension questions to the European Court of Justice: [2001] EWCA Civ 529.
• Employment Appeal Tribunal Upheld the Employment Tribunal's determinations in a group of interlocking judgments in March 2000, but granted permission to appeal on all issues.
• Employment Tribunal Held that the appellant could not use a full-time College lecturer as an equal-pay comparator; found the dismissal unfair but awarded no redress; found indirect sex discrimination but held it justified; and dismissed the section 9, agency and pension claims.