![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Newcastle Upon Tyne NHS Hospitals Trust v Armstrong & Ors [2010] EWCA Civ 1203 (07 September 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/1203.html Cite as: [2010] EWCA Civ 1203 |
[New search] [Printable RTF version] [Help]
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE UNDERHILL)
Strand, London, WC2A 2LL |
||
B e f o r e :
and
LORD JUSTICE SULLIVAN
____________________
NEWCASTLE UPON TYNE NHS HOSPITALS TRUST |
Appellant |
|
- and - |
||
ARMSTRONG AND ORS |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented.
____________________
Crown Copyright ©
Lord Justice Pill:
"…the employment tribunal should then consider whether the decision to put the domestic services out to tender, or to discontinue the domestic services' bonus scheme, was an act of discrimination on grounds of gender"
"On the Radcliffe issue, it appears to me that, having recognised the difficulties created by the terms on which the case was remitted to the ET, the EAT was correct to hold that the ET had been entitled to reach its conclusion. It appears to me that, even if this court were to reconsider the issue, in the end it would be bound to conclude that the ET was justified in holding that the Trust had not shown that the pay differential was not sex-tainted."
"In effect, therefore, Enderby establishes that statistics alone may, in a sufficiently powerful case, create an irrebuttable presumption of prima facie indirect sex discrimination. Once there is statistically relevant and material evidence to demonstrate that a group is in fact being adversely affected on sex grounds that will oblige the employer to justify the arrangements. It is not enough in those circumstances for the employer to demonstrate that the arrangements have resulted without any direct sex discrimination being practised of any kind. In effect the court is holding that there must somewhere have been some element of indirect discrimination, in other words there is an assumed indirect consideration. The statistics demonstrate a sufficiently marked adverse impact to constitute a prima facie case requiring not merely an explanation that the difference is not caused directly by sex, but in addition an objective justification."
"Thus although, in theory, it was right to say that an employer could still show that the pay differential was not due to the difference of sex even in the face of evidence of disparate adverse impact, it could only be possible in a case where the statistical evidence was not very strong or convincing."
"It is a pity that the Tribunal uses only the gender-neutral phrase "economically vulnerable group of workers"; but it is sufficiently clear that in its context that means "vulnerable because of the kinds of factor peculiar to women identified by the tribunal in Ratcliffe."
"We agree with both Lord Slynn and Arden LJ that the 1970 Act might be expected to give a remedy [to the claimant] in cases of this kind and we see nothing odd in the conclusion that the Trust has failed to justify a differential which has continued for so long after its initial rationale had disappeared."
They also stated:
"We are prepared to say that we do not regard the outcome of the appeal as surprising."
That reflects, or is reflected in, what Smith LJ has said when refusing permission to appeal on paper.
"We respectfully find the analysis in Surtees cogent and convincing and see little point in trying to gild the lily."
The EAT stated, at paragraph 72:
"Wallace and Marshall were both argued on the simplistic basis that the mere fact that a single individual woman was able to compare herself with a single individual man was enough to impose an obligation on the employer to justify the differential."
They stated that the argument, different from that on the present facts, was only possible because of the peculiar machinery in the 1970 Act. That appears to me to reflect the limited value which can be placed on the sentence in the speech of Lord Nicholls in Marshall on which Buxton LJ placed particular reliance at paragraph 110 of his judgment (Gibson, paragraph 49). It is not, however, necessary in my judgment to go further into the nuances which arise from the earlier cases and from what may arguably be a gloss put upon them in the case of Armstrong. In my judgment, the employment tribunal were entitled to find that the case was a case covered by authority in favour of the claimants. The EAT, in their most detailed consideration of the issues and the decision of the tribunal, were entitled to reach the conclusion they did. They demonstrated, in my respectful view, an understanding of the issues which had arisen in the case. Like Smith LJ, it appears to me inevitable that the Armstrong principle could not be relied on in this case on the material available.
Lord Justice Sullivan:
"It is a pity that the Tribunal uses only the gender-neutral phrase "economically vulnerable group of workers"; but it is sufficiently clear that in its context that means "vulnerable because of the kinds of factor peculiar to women identified by the tribunal in Ratcliffe."
Order: Application refused