Santosh Alexander Thukalil & Anor v Kamalammal Poonnamamnal Kattuvila Puthenveettil & Anor

Article 157 TFEU applies where a statutory pay measure produces unjustified indirect sex discrimination. It is not confined to an equal-pay claim based on an actual male comparator.

Where legislation deprives a predominantly female group of a statutory minimum wage, the fact that the legislation pursues fair wages rather than pay parity does not prevent its discriminatory effect from engaging article 157. The single-source requirement for comparator-based equal-pay claims does not govern a challenge to the discriminatory statutory source of the inequality.

During the relevant transition period, former section 2(1) of the European Communities Act 1972 required a tribunal to disapply incompatible domestic legislation. The later removal of that power did not retrospectively affect the tribunal's decision.

The claimant was employed as a live-in domestic worker in the respondents' home between 2005 and 2013. Her contractual pay was below the national minimum wage. Regulation 2(2) of the National Minimum Wage Regulations 1999 excluded qualifying domestic and family workers from the definition of work for minimum-wage purposes.

The Employment Tribunal found that the exception disproportionately disadvantaged women and was not justified. It disapplied the provision and declared that the claimant was entitled to the minimum wage. The respondents appealed on the permitted ground that article 157 of the Treaty on the Functioning of the European Union did not apply without an equal-pay claim, a male comparator and a single source capable of remedying the inequality.

1. Appeal dismissed. The tribunal correctly disapplied regulation 2(2) of the National Minimum Wage Regulations 1999 and declared the claimant entitled to the minimum wage for her employment.

2. Regulation 2(2) was facially neutral, but the tribunal's unchallenged findings established that it placed women generally, and the claimant in particular, at a substantial disadvantage. The provision therefore constituted unjustified indirect sex discrimination. A domestic legislative provision may be a provision, criterion or practice for this purpose.

3. Article 157 TFEU applies to unequal pay caused by an indirectly discriminatory legislative measure. The authorities establish that the article reaches indirect discrimination; the references in some authorities to indirect or disguised discrimination requiring industry-wide comparative studies concern hypothetical comparators, not indirect discrimination in the relevant sense.

4. The absence of a qualifying male comparator and of a single source capable of equalising contractual terms did not prevent reliance on article 157. Those requirements concern an equal-pay or equal-value claim. Here the source of the inequality was statutory. The claimant could challenge the statutory measure itself, notwithstanding that its stated purpose was ensuring fair wages rather than achieving sex-based pay parity.

5. Article 157 was directly effective. During the transition period, former section 2(1) of the European Communities Act 1972 required disapplication of incompatible national law. It was unnecessary to decide whether the EU general principle of non-discrimination independently had horizontal direct effect. The subsequent removal of the disapplication power did not invalidate the tribunal's earlier decision, although a tribunal could not now disapply regulation 57 of the National Minimum Wage Regulations 2015 on that basis.

• Employment Appeal Tribunal: Appeal dismissed. The tribunal's disapplication of regulation 2(2) of the National Minimum Wage Regulations 1999 and its declaration of entitlement to the minimum wage were upheld.
• Employment Tribunal (London South): In a decision dated 14 December 2020 and sent to the parties on 15 December 2020, the tribunal found unjustified indirect sex discrimination, disapplied regulation 2(2), and declared the claimant entitled to the national minimum wage.
• Earlier Employment Appeal Tribunal proceedings: An earlier appeal remitted the matter to a newly constituted tribunal to determine the lawfulness and disapplication of regulation 2(2), together with related issues.