Grundy v British Airways Plc

Whether a pay disparity has a disparately adverse impact on women is primarily a question of fact, bounded by logic. There is no rule requiring an employment tribunal always to use the widest pool or to focus on the advantaged group.

The pool must suitably test the particular discrimination alleged. It should permit comparison of like with like and ordinarily include people both affected and unaffected by the disputed term. A tribunal does not err in law merely because another suitable pool could have produced a different result.

A female member of cabin crew claimed equal pay with a male colleague doing like work. Her lower pay resulted from an earlier support-cabin-crew contract which provided no annual increments. Women were heavily over-represented among support cabin crew.

The employment tribunal found disparate adverse impact and rejected the employer’s justification. The Employment Appeal Tribunal, in EAT/0676/04/RN, held that the tribunal had wrongly focused on the disadvantaged group. It substituted a finding of no disparate impact, although it would have upheld the decision on justification.

The central issue was whether the tribunal had erred in selecting and analysing the pool used to test disparate impact under section 1(3) of the Equal Pay Act 1970.

1. Appeal allowed on disparate impact. Whether a pay disparity has a disparately adverse impact on women is primarily a question of fact. Like any factual question, it is bounded by principles of logic, departure from which constitutes an error of law. There is no rule requiring the tribunal always to focus on the advantaged cohort or to select the widest available pool.

2. The appropriate pool is one which suitably tests the particular discrimination alleged. The issue selected by the claimant determines the factual inquiry. The pool must enable the specificity of that allegation to be tested realistically. Provided the tribunal uses a suitable pool, its decision is not legally erroneous merely because another legitimate pool might have produced a different result.

3. The inquiry should ordinarily compare like with like. A useful indicator is section 5(3) of the Sex Discrimination Act 1975, which requires the relevant circumstances to be the same or not materially different. The pool should include, but should not be confined to, those affected by the disputed term. It may therefore contain people who can and people who cannot comply with that term. A pool may be unsuitable if it is too narrow to permit comparison, too broad to preserve comparability, or statistically incapable of producing a reliable conclusion.

4. In an equal-pay claim, pool analysis arises within the employer’s material-factor defence under section 1(3) of the Equal Pay Act 1970. The task is to identify a cohort within which that defence can be tested objectively. The employment tribunal lawfully considered both advantaged and disadvantaged cabin crew and focused on the disadvantaged group. The marked and consistent female over-representation in that group permitted its finding of systemic disparate impact.

5. The employer therefore had to accept the finding of disparate impact. Its contingent cross-appeal on objective justification remained to be argued and was reserved for a further hearing.

1. Court of Appeal (Civil Division): Allowed the employee’s appeal on disparate impact. It held that the employment tribunal had made no error of law in its choice of pool. Argument on the employer’s contingent cross-appeal concerning justification was reserved.
2. Employment Appeal Tribunal: In EAT/0676/04/RN, set aside the finding of disparate impact and substituted a finding that there was none. It considered that the employment tribunal had wrongly focused on the disadvantaged rather than the advantaged group. It would otherwise have upheld the tribunal’s decision on justification.
3. Employment tribunal: Found for the employee under the Equal Pay Act 1970. It found disparate adverse impact, rejected justification and directed that her pay be retrospectively adjusted to the top of the cabin-crew scale on a 75% basis.