Pike v Somerset County Council

This appeal concerned the proper comparator group (the "pool") for establishing indirect sex discrimination by statistical comparison. The Court of Appeal held that the Employment Tribunal erred in identifying the entire teaching profession as the pool and that the correct pool was the narrower group of teachers who returned to work after retirement and were therefore subject to the post-retirement rule of the Teachers' Pension Scheme. The court accepted the analysis of the Employment Appeal Tribunal, which relied on the House of Lords decision in Rutherford (2006) and subsequent authorities such as Chaudhary and Grundy. Having identified the correct pool, the EAT was entitled to conclude that disparate impact had been established on the statistics before it and to remit the single remaining issue of justification to the Employment Tribunal. The court further held that the EAT acted within its statutory powers in doing so under section 35(1) of the Employment Tribunals Act 1996.

Background and parties: Mrs Christine Pike, a teacher, retired on grounds of ill-health in December 1993 and returned in January 1994 to teach part-time while receiving a teacher's pension calculated under the Teachers' Superannuation (Consolidation) Regulations 1988. The regulations rendered post-retirement part-time teaching non-pensionable if the teacher was already in receipt of a pension. Mrs Pike was one of a group of 74 teachers who claimed that that requirement produced indirect sex discrimination because it disproportionately disadvantaged women.

Nature of the claim / relief sought: The claim alleged indirect sex discrimination; the specific remedies sought are not stated in the judgment.

Procedural history: The claim was lodged in February 1995. An Employment Tribunal Chairman struck the claim out under the Rules after identifying the pool as the whole teaching profession and finding only a minimal disparate impact. Mrs Pike appealed to the Employment Appeal Tribunal (HHJ McMullen QC, UKEAT/0046/08/ZT), which accepted a narrower pool of post-retirement returners, found disparate impact established and remitted the case to the Employment Tribunal on the single issue of justification. The employer appealed to the Court of Appeal.

Issues before the Court of Appeal:

• What is the appropriate comparator pool for statistical proof of indirect sex discrimination?
• Whether the EAT was correct to find disparate impact on the evidence and whether it exceeded its jurisdiction in doing so rather than simply remitting the statistical issue to the Employment Tribunal.

Reasoning and decision: The court analysed Rutherford and subsequent authorities (including Chaudhary and Grundy) and concluded that the Employment Tribunal had erred by including teachers who were unaffected by the post-retirement rule in the pool. The correct pool was those who returned to work after retirement and so could be advantaged or disadvantaged by the rule. On that basis, the EAT properly concluded that disparate impact had been demonstrated by the statistics and acted within its powers under section 35(1) of the Employment Tribunals Act 1996 in deciding the statistical issue and remitting the case for consideration of justification. The appeal was dismissed and the matter remitted to the Employment Tribunal to determine justification and move towards finality.

The court commented on the recurrent difficulty of identifying an appropriate pool under the authorities and explained why a tailored, case-specific approach is required.

Appeal dismissed. The Employment Tribunal erred in using the entire teaching profession as the statistical pool; the correct pool is the narrower class of teachers who returned to work after retirement. The Employment Appeal Tribunal was right to identify that pool, to conclude that disparate impact was established on the statistics before it, and to remit the matter to the Employment Tribunal for consideration of justification. The EAT did not exceed its statutory powers in reaching those conclusions.

Appeal from the Employment Appeal Tribunal (HHJ McMullen QC, Ref. No. UKEAT/0046/08/ZT) to the Court of Appeal. The Employment Tribunal had struck the claim out; the EAT allowed the appeal, found disparate impact on a narrower pool and remitted the issue of justification to the Employment Tribunal; the Court of Appeal dismissed the employer's appeal and remitted the matter for determination of justification.