Somerset County Council & Anor v Pike

Indirect sex discrimination requires a meaningful comparison between advantaged and disadvantaged groups. The pool should include persons who have an interest in the relevant advantage or disadvantage and should facilitate a like-with-like comparison. It should not include people to whom the challenged rule does not materially apply, since that may dilute or distort the disparity. There may be more than one suitable pool in some cases, but the correct pool is context-specific. An appellate tribunal may determine disparate impact itself where the parties invited the relevant findings, the correct pool permits only one conclusion on the evidence, and doing so disposes of the appeal. It may then remit the remaining issue of justification.

Mrs Christine Pike was one of a group of teachers challenging the pension consequences of returning to part-time teaching after retirement. The Employment Tribunal treated the whole teaching profession as the comparison pool, found only a 0.3% disparate impact and struck out the claim.

The Employment Appeal Tribunal, in UKEAT/0046/08/ZT, held that the pool comprised post-retirement returners. It found statistically and legally significant disparate impact and remitted the case only on justification. The appeal concerned the proper comparison pool and whether the Employment Appeal Tribunal had jurisdiction to determine disparate impact rather than remit that issue.

Lord Justice Maurice Kay gave the judgment, with Lord Justice Lloyd and Sir Simon Tuckey agreeing. The appeal was dismissed.

1. Comparison pool. Indirect discrimination requires a comparison between groups affected differently by the relevant provision, criterion or practice. The pool must include people with an interest in the relevant advantage or disadvantage and must permit a like-with-like comparison. Including pre-retirement teachers, to whom the post-retirement rule did not materially apply, would distort the comparison. The Employment Appeal Tribunal was therefore correct to identify post-retirement returners as the appropriate pool.
2. Authorities. The broader approach taken by the Court of Appeal in Rutherford v Secretary of State for Trade and Industry (No.2) [2004] EWCA Civ 1186 did not survive the majority reasoning of the House of Lords in Rutherford [2006] UKHL 19. The interest-based approach was also reflected in British Medical Association v Chaudhary [2007] EWCA Civ 788 and Grundy v British Airways PLC [2007] EWCA Civ 1020. Grundy did not require one universal pool for every case. The pool must be selected according to the discrimination alleged. In this case, however, there was only one logical pool.
3. Disparate impact. On the returners pool, the statistical evidence showed that about 15% more women than men were in non-pensionable employment, while about 38% more men than women were advantaged. The Employment Appeal Tribunal was entitled to conclude that disparate impact had been established.
4. Jurisdiction. Section 35(1) of the Employment Tribunals Act 1996 permitted the Employment Appeal Tribunal, for the purpose of disposing of the appeal, to exercise the powers of the Employment Tribunal. The parties had accepted that the correct pool and the statistical consequences could be determined. Since the correct pool permitted only one conclusion on disparate impact, the Employment Appeal Tribunal acted within jurisdiction in deciding that issue and remitting only justification. The long delay, the overriding objective and the need to achieve finality supported that course.
5. The case remained remitted to the Employment Tribunal in accordance with the order and directions of the Employment Appeal Tribunal.

1. Court of Appeal (Civil Division) dismissed the employers’ appeal and left the case remitted to the Employment Tribunal on the Employment Appeal Tribunal’s order and directions.
2. Employment Appeal Tribunal, in UKEAT/0046/08/ZT, held that the comparison pool comprised post-retirement returners, found disparate impact and remitted the case on justification.
3. Employment Tribunal treated the whole teaching profession as the pool, found only a 0.3% adverse impact and struck out the claim.