Grundy v British Airways plc

This appeal concerns an Equal Pay Act 1970 claim by a long-serving member of British Airways’ support cabin crew (SCC) who alleged that she was paid less than a male comparator doing like work because SCC did not receive annual increments. The key legal issues were (i) whether the employer could rely on the defence in s.1(3) of the Equal Pay Act by showing that the pay disparity was genuinely due to a material factor other than sex, and (ii) how to select the statistical "pool" for assessing disparate impact. The Court of Appeal held that an employment tribunal is entitled to choose a pool that suitably tests the particular discrimination alleged and that there is no legal rule requiring a focus exclusively on the advantaged group. The tribunal’s focus on the disadvantaged SCC group was therefore a permissible factual approach and not an error of law. The question of objective justification was left to be heard on the basis that the finding of disparate impact stands.

Background and parties

Mrs Grundy, a long-serving cabin crew member, had worked for British Airways initially full-time and later as support cabin crew (SCC) under the Burford Bridge Agreement. SCC members nominated days to work and were paid a daily rate without the annual increments available to full-time and later part-time cabin crew. By the time of trial Mrs Grundy’s pay at 75% hours lagged behind a male comparator who had benefited from increments.

Procedural history

• The claim under the Equal Pay Act 1970 was brought in the employment tribunal (Watford ET) which found in Mrs Grundy’s favour, concluding that the failure to pay increments to SCC had a disparately adverse impact on women and was not justified.
• On appeal the Employment Appeal Tribunal (EAT) set aside the ET on disparate impact, holding the tribunal should have focused on the larger advantaged group and that no disparate impact was shown; the EAT upheld the ET on justification.
• The case proceeded to the Court of Appeal.

Nature of the claim and relief sought

The claimant sought the effect of an equality clause under the Equal Pay Act 1970 so as to secure pay terms equivalent to a male comparator who did like work; the ET directed retrospective adjustment of pay to the top of the cabin crew pay scale at 75%.

Issues framed by the Court

1. Whether the ET erred in law in choosing the disadvantaged SCC group as the focus of the disparate impact analysis rather than the larger advantaged group.
2. If disparate impact were established, whether the employer could justify the pay disparity as a material factor not the difference of sex under s.1(3) of the Equal Pay Act 1970.

Reasoning

The court reviewed the interplay between the Equal Pay Act 1970, the Sex Discrimination Act 1975 and the relevant European law as explained in prior authorities, notably Glasgow City Council v Marshall and the Rutherford decisions. It emphasised that whether a pay disparity has a disparately adverse impact is primarily a question of fact but subject to logical constraints. The correct principle is that the pool must be one which suitably tests the particular discrimination complained of; there is no single universal formula mandating selection of the largest or advantaged cohort in every case. Applying that principle, the Watford tribunal’s choice to look at both groups and to focus on the disadvantaged SCC group was a permissible factual approach and not an error of law. Accordingly the tribunal’s finding of disparate impact stood. The Court of Appeal reserved and ordered further hearing on justification, since the finding of disparate impact meant the employer would have to show objective justification under s.1(3).

Wider context: the court observed the difficulty for tribunals in choosing an appropriate pool and noted that previous authorities, including Rutherford (No.2), do not prescribe a single universal rule. The court stressed the fact-sensitive nature of such enquiries and the limited role of appellate intervention in pure factual assessments.

Appeal allowed. The Court of Appeal held that the employment tribunal had not erred in law in focusing its analysis on the disadvantaged support cabin crew group; there is no legal principle requiring tribunals always to select the advantaged cohort when assessing disparate impact under the Equal Pay Act. The tribunal’s choice of pool was a permissible factual approach and its finding of disparate impact must stand. The issue of objective justification under s.1(3) was to be heard further.

The claim was heard at first instance before the Watford Employment Tribunal which found for the claimant. The respondent appealed to the Employment Appeal Tribunal (EAT/0676/04/RN), which overturned the ET on the disparate impact issue but upheld its view on justification. The matter was then brought to the Court of Appeal, which allowed the claimant's appeal on the pool/disparate impact point and reserved further argument on justification.