Blackburn & Anor v West Midlands Police

In an indirect equal pay claim, objective justification must be assessed against the employer’s own legitimate aim. A proposed less discriminatory alternative is relevant only if it can achieve that same aim. An employer which legitimately chooses to reward actual night or 24/7 working is not required to make the same payment to officers who do not perform that work, even where their exclusion has a disparate impact on women.

The statutory material-factor defence under section 1(3) of the Equal Pay Act 1970 was established where the criterion rationally rewarded 24/7 working and fell within the locally tailored national scheme.

Two female sector police officers brought equal pay proceedings under section 1 of the Equal Pay Act 1970. They worked different hours because of childcare responsibilities and did not receive a special priority payment available to sector officers working a full 24/7 rotating shift pattern. Their male comparator worked that pattern and received the payment.

The Employment Tribunal found like work and an unchallenged disparate impact on women. It nevertheless rejected the Chief Constable’s justification defence. The Employment Appeal Tribunal reversed that decision. The officers appealed, contending that the proportionality assessment should have addressed the wider purposes of the national special-priority-payment scheme rather than only the wish to reward 24/7 working.

1. Appeal dismissed unanimously. Lord Justice Maurice Kay, with whom Lord Justice Wilson and Lord Justice Scott Baker agreed, upheld the Employment Appeal Tribunal’s decision. The Chief Constable established the section 1(3) material-factor defence under the Equal Pay Act 1970.

2. The relevant legitimate aim was the employer’s aim: to recognise and reward 24/7 working, including night work. That aim had been found by the Employment Tribunal and was not challenged. It was rational and was permitted by the national structure, which envisaged local schemes tailored to local circumstances.

3. Objective justification required consideration of alternative means of achieving that legitimate aim. It did not permit the tribunal to replace the employer’s aim with the different aim of extending the payment to officers who did not work 24/7. A scoring matrix which did not give special recognition to 24/7 work, or equal payments to officers excused from it for childcare reasons, would not achieve the Chief Constable’s chosen aim.

4. The Employment Tribunal therefore erred by treating the modest cost of equalising payments as decisive. Once the legitimate aim was rewarding actual 24/7 work, the payment could properly be confined to officers who did that work. No remittal was required.

• Court of Appeal (Civil Division): dismissed the officers’ appeal and upheld the Employment Appeal Tribunal’s reversal of the Employment Tribunal.
• Employment Appeal Tribunal: in proceedings referenced as UKEAT000707MAA, allowed the Chief Constable’s appeal and held that the justification defence succeeded.
• Employment Tribunal: upheld the officers’ equal pay claims, finding like work and disparate impact, but its conclusion on objective justification was reversed on appeal.