BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
United Kingdom Employment Appeal Tribunal |
||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> British Airways Plc v Grundy [2005] UKEAT 0676_04_1908 (19 August 2005) URL: http://www.bailii.org/uk/cases/UKEAT/2005/0676_04_1908.html Cite as: [2005] UKEAT 0676_04_1908, [2005] UKEAT 676_4_1908 |
[New search] [Printable RTF version] [Help]
At the Tribunal | |
On 6 June 2005 | |
Before
HIS HONOUR JUDGE McMULLEN QC
DR B V FITZGERALD MBE
MS B SWITZER
APPELLANT | |
RESPONDENT | |
(2) BRITISH AIRWAYS PLC |
APPELLANT |
RESPONDENT | |
(3) MS SUSAN HILTON & MS CHRISTINE HARGREAVES |
APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Transcript of Proceedings
"A more flexible alternative to PWCC was also introduced in 1985, which was the Support Cabin Crew (SCC). SCC was designed to cover the peaks in British Airways' business and avoid incurring excess staff costs during quiet times".
(1) Whether the operation of the pay scales impacted disproportionately against women. The Tribunal found that it did. We disagree.
(2) Whether the difference in pay between Ms Grundy and her named comparator was justified (there was no claim for loss of seniority in her case).
(1) Whether permission should have been granted to Ms Clayton and others to amend their Originating Applications in order to raise a claim in relation to seniority. The Employment Tribunal allowed the claims to be made. We would disagree.
(2) Whether on a proper analysis the claims were properly under the Equal Pay Act 1970 (EqPA). The Tribunal held that they were, but failed. We agree. The Employment Tribunal did not decide whether they were presented out of time. In our view, it should have so concluded.
(3) In the alternative, if the claims were presented in time, whether the Tribunal was correct to dismiss them on the merits. We agree it was.
(4) Since the claims were EqPA claims and were either presented out of time nor dismissed on the merits, whether the Tribunal should have gone on to consider them as claims made under the Sex Discrimination Act 1975 (SDA). We hold it was wrong to do so.
(5) Whether the claims under the SDA were presented out of time. We would hold they were and should have been dismissed by the Tribunal.
(6) Whether the Tribunal was correct in dismissing the SDA claims in the Hargreaves appeals on the basis that they were presented out of time. We would hold it was right to do so.
(7) If the Tribunal was wrong to conclude that the SDA claims in the Hargreaves appeals were presented out of time, and right to hold that the other claims were in time, whether they should all have been dismissed on the merits in any event. We would hold the Employment Tribunal erred in its approach to disparate impact, and so the claims would fail.
(8) Whether the Tribunal rightly rejected BA's defence of justification. We would have upheld the Tribunal's judgment on this.
"1. Requirement of equal treatment for men and women in same employment
1(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.
1(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the "woman's contract"), and has the effect that --
1(2)(a) where the woman is employed on like work with a man in the same employment --
1(2)(a)(i) if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and
1(2)(a)(ii) if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term;
"2ZA. "Qualifying date" under section 2(4)
2ZA(1) This section applies for the purpose of determining the qualifying date, in relation to proceedings in respect of a woman's employment, for the purposes of section 2(4) above.
2ZA(2) In this section –
…
"stable employment case" means a case where the proceedings relate to a period during which a stable employment relationship subsists between the woman and the employer, notwithstanding that the period includes any time after the ending of a contract of employment when no further contract of employment is in force;
"standard case" means a case which is not -
(a) a stable employment case,
(b) a concealment case,
(c) a disability case, or
(d) both a concealment and a disability case.
2ZA(3) In a standard case, the qualifying date is the date falling six months after the last day on which the woman was employed in the employment.
2ZA(4) In a case which is a stable employment case (but not also a concealment or a disability case or both), the qualifying date is the date falling six months after the day on which the stable employment relationship ended.
"1(3) An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor -
1(3) (a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman's case and the man's; and
1(3) (b) in the case of an equality clause falling within subsection (2)(c) above, may be such a material difference".
1.-(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if-…..
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or(b) he applies to her a requirement or condition which he applies or would apply equally to a man but-(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and(iii) which is to her detriment because she cannot comply with it.
"1 (2) …
(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but~
(i) which is such that it would be to the detriment of a considerably larger proportion of women than of men, and(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and(iii) which is to her detriment".
"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her-
(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or(b) by dismissing her, or subjecting her to any other detriment.
……
6) Subsection (2) does not apply to benefits consisting of the payment of money when the provision of those benefits is regulated by the woman's contract of employment."
"8.-(1) …
(2) Section 1(1) of the Equal Pay Act 1970 … does not apply in determining for the purposes of section 6(1) of this Act the terms on which employment is offered.
(5) An act does not contravene section 6(2) if-
(a) it contravenes a term modified or included by virtue of an equality clause, or(b) it would contravene such a term but for the fact that the equality clause is prevented from operating by section 1(3) of the Equal Pay Act 1970.
"76.-(1) an employment tribunal shall not consider a complaint … unless it is presented to the tribunal before the end of:-
(a) the period of three months beginning when the act complained of was done …
(5) A … tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(6) For the purposes of this section-
(a) where the inclusion of any term in a contract renders the making of the contract an unlawful act that act shall be treated as extending throughout the duration of the contract, and(b) any act extending over a period shall be treated as done at the end of that period, and(c) a deliberate omission shall be treated as done when the person in question decided upon it,
and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done".
"211. - (1) An employee's period of continuous employment for the purposes of any provision of this Act-
(a) (subject to subsections (2) and (3)) begins with the day on which the employee starts work, and(b) ends with the day by reference to which the length of the employee's period of continuous employment is to be ascertained for the purposes of the provision."
"The effect of sections 6 and 8 of the Sex Discrimination Act 1975 may be summarised sufficiently accurately for present purposes as follows, in so far as they distinguish between complaints to be made under the Equal Pay Act 1970 and complaints to be made under the Sex Discrimination Act 1975:
"(a) If the less favourable treatment relates to the payment of money which is regulated by a contract of employment, only the Equal Pay Act can apply. (b) If the employee is treated less favourably than an employee of the other sex who is doing the same or broadly similar work, or whose work has been given an equal value under job evaluation, and the less favourable treatment relates to some matter which is regulated by the contract of employment of either of them, only the Equal Pay Act can apply. (c) If the less favourable treatment relates to a matter which is not included in a contract (either expressly or by virtue of the Equal Pay Act), only the Sex Discrimination Act can apply. (d) If the less favourable treatment relates to a matter (other than the payment of money) in a contract, and the comparison is with workers who are not doing the same or broadly similar work, or work which has been given an equal value under job evaluation, only the Sex Discrimination Act can apply.(e) If the complaint relates to a matter (other than the payment of money) which is regulated by an employee's contract of employment, but is based on an allegation that an employee of the other sex would be treated more favourably in similar circumstances (i.e. it does not relate to the actual treatment of an existing employee of the other sex), only the Sex Discrimination Act can apply."
(See: paragraph 3.18 of the Home Office publication: A Guide to the Sex Discrimination Act 1975).
Accordingly, the industrial tribunal should first have considered whether Mr. Peake had a valid claim under the Equal Pay Act 1970, and F it is necessary for us to do so. If the less favourable treatment of which he complained related only to the payment of money he could have no claim under the Sex Discrimination Act 1975. A system of equal pay was in operation, and the men and women worked the same normal hours. But it is still possible to look at the matter either way, and one could say that the women were being paid the same for less work: five minutes a day, or two and a half days a year.
"The case has established that the Equal Pay Act 1970 has to be construed so far as possible to work harmoniously with both the Sex Discrimination Act 1975 and Article 119 [now article 141 of the Treaty of Amsterdam]. All three sources of law are part of the code dealing with unlawful sex discrimination [citing Shields and other authorities]".
"the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer".
'If the question is asked whether a considerably greater proportion of women than of men cannot comply with a given requirement or condition….the results can be seriously misleading. If a hypothetical requirement is considered, which 99.5% of men can comply with but only 99% of women, it follows that the proportion of women who cannot comply with the requirement is twice as great as the proportion of men who cannot comply. The figures relevant to the present proceedings are very much less extreme; nevertheless the arguments advanced…are of the same kind and are, it is contended, similarly misleading. The logic of this argument is unanswerable'.
'in considering whether there is a considerable disparity, the court should look both at the relative percentages of those who meet the requirements and at the relative percentages of those who do not. Of these, the more important group will be those who qualify. The following example makes the point: If 98% of men qualify and 2% do not, and if 96% of women qualify and 4% do not, it would not be right to conclude that the disparity was considerable. But if only 4% of men and 2% of women qualified the opposite conclusion might well be correct.'
"59 Next, as the United Kingdom Government was right to point out, the best approach to the comparison of statistics is to consider, on the one hand, the respective proportions of men and women in the workforce able to satisfy the requirement of two years' employment under the disputed rule and of those unable to do so, and, on the other, to compare those proportions as regards women in the workforce. It is not sufficient to consider the number of persons affected…
60 As the Court has stated on several occasions, it must be ascertained whether the statistics available indicate that a considerably smaller percentage of women than men is able to satisfy the condition of two years employment required by the disputed rule….
61 That could also be the case if the statistical evidence revealed a lesser but persistent and relatively constant disparity over a long period between men and women who satisfy the requirement….
62 It is also for the national court to assess whether the statistics concerning the situation are valid and can be taken into account, that is to say whether they cover enough individuals whether they illustrate purely fortuitous or short term phenomena and whether, in general, they appear to be significant….
63 In this case, it appears from the order for reference that in 1985, the year in which the requirement of two years' employment was introduced, 77.4% of men and 68.9% of women fulfilled that condition.
64 Such statistics do not, on the face of it, show that a considerably smaller percentage of women than men is able to fulfil the requirements…".
" … the starting point is to look at the percentage of those who do qualify and to ask, do these figures cover enough individuals, are they purely fortuitous or significant or are the figures 'relevant and sufficient for the purposes of resolving the case before [the national court]'? If these figures are not sufficient or significant, it may be necessary to look elsewhere, including, as the Divisional Court accepted, the figures of those who do not qualify …"
'shows that at this point in the judgment of the Court was looking at the respective percentages of men and women, firstly able to comply and secondly, unable to comply with the requirement in issue'.
'Where does this leave us? Again leaving aside the case where a smaller but persistent constant disparity appears, we believe the authorities are to be synthesised and may be extended as follows:
(i) There will be some cases where, on the statistics, a disparate impact is so obvious that a look at numbers alone or proportions alone, whether of the advantaged (qualifiers) or disadvantaged (non-qualifiers) will suffice beyond doubt to show that members of one sex are substantially or considerably disadvantaged in comparison with those of the other.(ii) However, in less obvious cases it will be proper for an employment tribunal, as the national court of fact, to use more than one form of comparison, no one of which is necessarily regarded as on its own decisive.(iii) In such less obvious cases it will be proper for the employment tribunal to look not merely at proportions (as proportions alone can be misleading) but also at numbers, and to look at both disadvantaged and non-disadvantaged groups and even to respective proportions in the disadvantaged groups expressed as a ratio of each other.(iv) It will never be wrongful for a tribunal to look at more than one form of comparison, if only to confirm that the case remains as obvious as it first appeared. Moreover if there is any doubt as to the obviousness of the case, the tendency should always be to look at a second or further form of comparison.…(vii) The employment tribunal, in…less obvious cases, after looking in detail at such figures as should have been laid before it, just then stand back, as it were, and assimilating all figures, judge whether the apparently neutral provision, criterion or practice has a disparate impact, be it on men or women, that could fairly be described as considerable or substantial."
'We also agree with Mr Pannick that the consequences of the failure to look at the advantaged group are compounded in the instant case by the very small numbers in the disadvantaged group, and the consequentially small differentials which emerge…The wider pool (the qualifiers/advantaged group) gives a clear and unequivocal answer to the question of disparate impact, namely that there is no disparate impact. If one then looks at the disadvantaged group, the figures are very small and are in "borderline country". Thus, by comparison with the qualifiers/advantaged group, the disadvantaged group represents, in our view, an unsound basis on which to find disparate impact'.
'My reading of the passage cited, as applied to this case, is that, in general, the relevant statistical comparison involves (a) taking as the pool the "workforce" (ie the entire workforce) to whom the age limit is applicable, not taking just a small section of the workforce, confined to those who are adversely affected by being over 65 or within 10 years of the age of 65; (b) ascertaining the proportion of men in the workforce who are under the age of 65 and are advantaged by being able to meet the requirement, and the proportion of men who are excluded from the right and therefore disadvantaged by being unable to meet the requirement; (c) ascertaining the proportion of women in the workforce who are under the age of 65 and are therefore advantaged by being able to meet the requirement, and the proportion of women who are excluded from the right and are therefore disadvantaged by being unable to meet the requirement; (d) comparing the results for the percentage (not the numbers) of men in the workforce who are advantaged is considerably smaller than the percentage of women who are advantaged. The primary focus is on the proportions of men and women who can comply with the requirement of the disputed rule. Only if the statistical comparison establishes a considerable disparity of impact, must the court then consider whether the disparity is objectively justifiable.'
"can produce seriously misleading results, as in the simple cases of a requirement with which 99.5% of men can comply and 99% of women can comply. If the focus is then shifted to the proportions of men and women who cannot comply (ie 1% of women and 0.5% of men), the result would be that twice as many women as men cannot comply with the requirement. That would not be a sound or sensible basis for holding that the disputed requirement, with which the vast majority of both men and women can comply, had a disparate adverse impact on women."
"a comparison must be made between, on the one hand, the respective proportions of men... who are not disadvantaged and, on the other hand, the like proportions regarding women in the workforce".
"Objective justification
I turn to the question of objective justification. In Bilka-Kaufhaus G.m.b.H v Weber von Hartz (Case 170/84) [1987] ICR 110 a department store pursued a policy of excluding part-time workers, mostly women, from an occupational pension scheme. The employer's case was that the exclusion of part-time workers was intended to discourage part-time work, since part-time workers generally refused to work in the late afternoon or on Saturday. The Court of Justice held, at p.126, para 36, it was for the national court to determine whether and to what extent the ground put forward by the employer might be regarded as an objectively justified economic ground. The court added:
'If the national court finds that the measures chosen by Bilka corresponded to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measure affect a far greater number of women than men is not sufficient to show that they constitute an infringement of article 119'.
More recently, in Enderby v Frenchay Health Authority (Case C-127/92) [1994] ICR 112, 163 the Court of Justice drew attention to the need for national courts to apply the principle of proportionality when they have to apply Community law. In other words, the ground relied upon as justification must be of sufficient importance for the national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women or men as the case may be, the more cogent must be the objective justification. There seem to be no particular criteria to which the national court should have regard when assessing the weight of the justification relied upon".
"Once a finding of a condition having a disparate and adverse effect on women has been made, what was required was at the minimum a critical evaluation of whether the college's reasons demonstrated a real need to dismiss the applicant; if there was such a need a consideration of the seriousness of the disparate impact of the dismissal on women including the applicant; and an evaluation of whether the former were sufficient to outweigh the latter."
"The national court's fourth question, paragraph (b), asks what significance should be attached so far as concerns equal pay for men and women to the fact that the rates of pay are determined by collective bargaining or by negotiation at local level.
Since article 119 of the E.E.C. Treaty is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals: see in particular Defrenne v. Sabena (Case 43/75) [1976] ICR 547, 568, para. 39.
Nonetheless, the fact that the rates of pay have been determined by collective bargaining or by negotiation at local level may be taken into account by the national court as a factor in its assessment of whether differences between the average pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex".
"32. Section 1(2)(b)(ii) requires the employer to show that the proposal is justifiable irrespective of the sex of the person to whom it is applied. It must be objectively justifiable (Barry) and I accept that the word "necessary" used in Bilka is to be qualified by the word "reasonably". That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word 'reasonably' reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances.
33. The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action. The effect of the judgment of the employment tribunal may be profound both for the business and for the employees involved. This is an appraisal requiring considerable skill and insight. As this court has recognised in Allonby and in Cadman, a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind, as did this court in Allonby and in Cadman, the respect due to the conclusions of the fact finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification.
34. The power and duty of the employment tribunal to pass judgment on the employer's attempt at justification must be accompanied by a power and duty in the appellate courts to scrutinise carefully the manner in which its decision has been reached. The risk of superficiality is revealed in the cases cited and, in this field, a broader understanding of the needs of business will be required than in most other situations in which tribunals are called upon to make decisions.
35. The employment tribunal, at paragraph 9, referred to Allonby and stated:
"It is understood that it was necessary to weigh the justification put forward by the [appellants] against its discriminatory affect. Accordingly, it proceeded to consider the matters on which the [appellants] relied in order to refuse the applicants request that the RRM job be done on a job share or part-time basis".
36. I find nothing wrong with that general statement. Whether the correct test has been applied, and an analysis conducted with appropriate rigour, can in this case be considered only upon a detailed consideration of the reasoning of the employment tribunal, which I have already set out in full. In his submissions, Mr Clarke has analysed it in detail.
37. The employment tribunal's analysis, Mr Langstaff submits, correctly focused on evaluating the employers' reasons for their decisions. The members gave weight to the employers' evidence where it was entitled to weight and had regard to the employers' needs. Detailed reasoning was not required; it was sufficient to indicate in broad terms what the answer was. The tribunal did not accept that the business could not be run efficiently with a job share. It was not necessary to go further and state how the job share was to be arranged. The tribunal's conclusion was plainly expressed. The TSM job could have been done by two job sharers or two part-time workers".
21. We had submissions put to us as to how we should do this, in particular whether we should look at the advantaged or disadvantaged group of employees, or both, and whether we should look at the whole of the cabin crew or part. The numbers of the support cabin crew, in total, declined from 1994 to 2002 but the proportions of male and female support cabin crew to male and female full and part time cabin crew throughout that period were similar. The figures regarding the composition of cabin crew and support cabin crew between 1994 and 2002 are as follows:
"22. The policy criteria or practice contained in section 1(2)(b) Sex Discrimination Act 1976 was the fact that support cabin crew had not been entitled to increments whereas full time cabin crew were.
23. We were referred to a number of authorities, had regard to all of them in particular Harvest Town Circle v Rutherford (No.1) 2002 ICR page 123 and to the synthesis in paragraph 18 of that judgement; to the Burden of Proof Directive, and section 1 (2)(b)(i) Sex Discrimination Act 1976 we consider it relevant to look at both the advantaged (full time, part-time and job share cabin crew) and disadvantaged groups (support cabin crew) in order to establish whether there has been discrimination but our focus must be on the disadvantaged group.
24. The inability to receive an increment is a detriment as it results in the employee of more than five years standing receiving a lower rate of pay than she otherwise would. Having regard to Allonby v Accrington and Rossendale College and Others 2001 ICR 1189 we consider the pool for comparison to be all the cabin crew, whether full time, part-time, job share or support.
25. We examined the figures produced to us and the calculations:
(i) We identified all those employees who, but for the ability to acquire increments would be in the same position, this is a total of all the cabin crew whatever that type. This amounts to 13,127.
(ii) We divided that total into those who are advantaged and those who are disadvantaged (8,952 + 4130) i.e. 13,082 into those who cannot (42 + 3) i.e. 45. This equals 0.34%.
(iii) The percentage of women in the pool who are advantaged as a percentage of the total in the pool is calculated by dividing 8,952 by 8994 and multiplying that by 100 which [produces a figure of 99.53%. In respect of men, the same calculation i.e. 4,130 + 4,133 x 1000 produces a figure of 99.93%
(iv) The percentage of women who are advantaged compared to the percentage of men who are advantaged is 99.53% compared to 99.93%.
(v) In proportional terms this is 0.996.1. Expressed in that manner we consider the difference in proportions to be insignificant.
26. We considered the proportion of women to men within the overall workforce of the cabin crew. In 2002 the total female cabin crew (including support cabin crew) was 8,994 and the total male cabin crew (including support cabin crew) was 4,133, a proportion of2.18:1. Women in both groups comprised a considerably larger proportion than men. In respect of the disadvantaged group, the women comprise 42 out of 13,127, the men comprise 3 out of 13,127, the proportion of women disadvantaged to the proportion of men disadvantaged amounts to 14:1. In the disadvantaged group 86.67% more women than men are disadvantaged (42 -3) + 45 = 86.67%.
27. The proportion of women in the disadvantaged group is considerably higher than the proportion in the advantaged group. In the context of the Respondent's cabin crew workforce which is comprised predominantly of women we consider that this reveals, and we find that the policy criterion or practice of not paying increments to support cabin crew was to the detriment of a considerably larger proportion of women than men".
"The fundamental question for the tribunal is whether there is a causative link between the applicant's sex and the fact that she is paid less than the true value of her job, as reflected in the pay of her named comparator. This link may be established in a variety of different ways depending upon the facts of the case…".
"29. The Respondent's position is that, if there was indirect discrimination which it had disputed, it was justified. The justification put forward and to which we address ourselves were threefold, namely:
(i) The collective bargaining process and the incremental pay scale;(ii) The need to avoid anomalies and excess administrative burden within the pay structure;(iii) The need to encourage and reward workers to work for their length of service under a regime which required them to work when the Respondent required them to work rather than when the staff wished to work
30. The reasons for justification put forward and the evidence we heard were interrelated. The reasons put forward for justification relate to employment relations and business organisational efficiency and effectiveness. They are legitimate aims. We have considered the reasons put forward separately and cumulatively".
"36. …… We do not consider that the fact that the scheme was agreed by the Respondent and the trade unions or any impact on employment relations justifies the discrimination".
"36. The collective bargaining process aimed to and achieved terms of employment for support cabin crew which were less advantageous than their full time colleagues".
"that employers have to devise all sorts of mechanisms in respect of pay"
"C. This offer is subject to:-
- The loss of all previous seniority if you are a former member of our Air Cabin Crew."
"Your employment (including your initial appointment and any subsequent one) will be governed by…
7(c) the loss of all previous seniority if you are a former member of our cabin crew…
9 any rights entitlements or claims (if any) in respect of or arising out of any previous employment by British Airways as a member of Peak Workload Cabin Crew are hereby waived.
10 The terms and conditions set out in the document headed 'PWCC Categories 1 & 2: Proposed Terms and Conditions of Permanent Employment attached to the letter sent to you by British Airways and dated 25 November 1983 are incorporated into and form part of this contract".
"1. Allocation of Seniority.
1.1 All PWCC accepting a permanent contract will be added to the bottom of the present BA seniority list.1.2 All category 1 and 2 crew will have their priority positions determined according to the total number of weeks worked on a temporary basis up to February 28 1984 (this being the completion date of current PWCC contracts). All category 3 and 4 PWCC will be below category 1 and 2 on the seniority list.
2. Continuous Service
2.1 For all categories date of joining for continuous service is date of commencement of permanent contract or any immediately preceding temporary contract.
3. …
4. Pensions
APS rules provide that Pension membership starts on date of commencement of a permanent contract.
5. Pay
5.1 Category 1 & 2 PWCC will be assimilated on to the increment point appropriate to total continuous service prior to resignation plus accrued PWCC service".
"79 The Tribunal has found that the claims under the Equal Pay Act fail.
Accordingly, the provisions as to seniority do not contravene the provisions of the Equal Pay Act so as to bring them within the ambit of section 8(5) of the Sex Discrimination Act 1975. The provisions of section 8(5) relate to contravention, not to the ability to bring a claim. Mr Randall has argued that, if a claim can be brought under the Equal Pay Act, it cannot be brought under the Sex Discrimination Act. The wording of section 8(5) require contravention of the Equal Pay Act which we have found not to be the case. The claim can therefore proceed as a claim of indirect sex discrimination".
"81. The parties agree that the provision, criterion or practice is that the Respondent imposed a criterion or condition to work full-time and continuously in order to maintain seniority. Accordingly, the first issue for the Tribunal is whether there was a disparate impact under section 1(2)(b)(i).
"58. The Tribunal took the view that the refusal by the Respondent to recognise the Applicants' service prior to the PWCC once they had taken up full-time employment again in 1984 constituted a continuing act. It was an act extending over a period and the Respondent was responsible for the ongoing situation in which the Applicants were treated less favourably by not having their seniority recognised".
"It is therefore the unanimous decision of the Tribunal that the claim of indirect sex discrimination succeeds. The Applicants were indirectly discriminated against by failing to maintain their pre-PWCC seniority for the entire period of their full-time employment after the PWCC scheme was 'discontinued".
"102. ….. In relation to this, we have no statistical information and no evidence that there was any distinction between the men or women on the PWCC period of service. Accordingly, in relation to that, no disparate impact has been demonstrated and that claim must fail. We also have no figures or statistics for temporary workers and therefore cannot use them for comparative purposes".
"28 The factual circumstances in which discrimination occurs have been illustrated in the authorities as falling into one of the following categories.
(1) A one-off act of discrimination, such as a refusal to promote, which has continuing consequences for the disappointed candidate.(2) An act extending over a period of time, constituting a rule or policy, by reference to which decisions are made from time to time.(3) A series of discriminatory acts, whether or not set against a background of a discriminatory policy.
A complaint in respect of category (1) must be made within three months of the act or, where specific statutory provision is made for a deliberate omission to act, within three months from the date when the relevant less favourable treatment was "decided on". Time runs for a category (2) complaint when the discriminatory rule is abrogated; and it will also run in the case of the specific application of the rule to any given employee, e.g. in refusing promotion, from the date of that application. Time runs in a category (3) complaint where there is specific statutory provision for this, from the last in the series of acts.
29 A full exposition of these rules was given by Auld LJ, before the Court of Appeal, in Cast -v- Croydon College [1998] ICR 500. A pregnant employee asked in March 1992 whether she could return after her maternity leave to work part-time and was refused. She made further applications and was met with further refusals in March and May 2003, on her return from maternity leave. She gave notice of resignation in June and left in July 1993. Her complaint to the Employment Tribunal in August 1993 was rejected as out of time, a decision upheld by the EAT. The Court of Appeal held that the correct approach was to regard there as being in place a continuing act, and further that there were several decisions of the relevant employer, the last being the last refusal to accept her application for part-time work in May 1993. The final conclusion in the Applicant's favour was that the Tribunal had jurisdiction, but that a complaint presented in August was only three days out of time and the Tribunal might well have exercised its discretion to hear the case out of time under section 68(5) of the Race Relations Act 1976. Auld LJ set out the propositions as follows, at pp 507-509:
'22 The authorities distinguish between a complaint of a 'one-off' discriminatory decision whether or not it has a long-term effect, which is governed by the general provision in s.76 (1), and one of the application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time, 'an act extending over a period' for which s.76(6)(b) provides.
23 Lord Griffiths in Barclays Bank pIc v Kapur [1991] IRLR 136 HL, referred, at 138, 17, to the difference between a 'one-off' decision and 'the continuing state of affairs which is governed by s.68(7)(b ) (the equivalent in the 1976 Act of s. 76(6)(b) of the 1975 Act). In Owusu v London Fire & Civil Defence Authority [1995] IRLR 574, a complaint of an employer's failure to regrade the complainant on a number of occasions, Mummery J, giving the judgment of the Employment Appeal Tribunal, made the same distinction:
'... the tribunal erred in law in failing to treat the acts complained of on regrading and failure to give the opportunity to act up as continuing acts ...in our view the allegations amount to a prima facie case that there was a continuing act. The continuing act was in the form of maintaining a practice which, when followed or applied, excluded Mr Owusu from regrading or opportunities to act up.
The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of Mr Owusu .
It would be a matter of evidence for the tribunal as to whether such a practice. ..in fact exists. It may be that, when explanations are given by the respondents, it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice (my emphasis). (Emphasis added)
24 As to a 'one-off discriminatory act', it is important to keep in mind that it may be an application of an established discriminatory policy or it may be inherently discriminatory regardless of any such policy. If the complaint is of a specific discriminatory act, the fact that it may have been an application of an established policy adds nothing for this purpose. The starting point is, therefore, to determine what is the specific act of which complaint is made.
25 The fact that a specific act out of time may have continuing consequences within time does not make it an act extending over a period; see Amies v Inner London Education Authority [1977] ICR 308 EAT - failure to appoint to a position; and Sougrin v Haringey Health Authority [1992] ICR 650 CA - refusal to upgrade an employee.
26 As to an act extending over a period, the authorities make clear - at least in the case of discrimination in the field of employment under s.6 of the 1975 Act and s.4 of the 1976 Act (see Brooke LJ in Rovenska v General Medical Council [1997] IRLR 367, CA, at 370-371, in particular, paragraphs 18, 19, 27 and 31) -that it is the existence of a policy or regime, not a specific act of an employer triggering its application to the complainant, that matters. A moment's consideration of the concluding words of s.76(6)(b) - 'any act extending over a period shall be treated as done at the end of that period' (my emphasis) -shows that that must be so. If the 'act extending over a period' required a specific act by an employer to give it effect there would be no need or room to 'treat ...it as done at the end of the period'. See, as examples of claimed continuing acts of discrimination, Calder v James Finlay Corporation Ltd [1989] IRLR 55 EAT -refusal of benefit of employment; and Barclays Bank v Kapur [1991] IB-LR 139- -employer's refusal to take previous pensionable employment into account in calculating pension entitlement'
30 When an act is alleged to consist of the repetition of a previous discriminatory act, special considerations apply.
"Policy or no, a decision may be an act of discrimination whether or not it is made on the same facts as before, providing it results from a further consideration of the matter and is not merely a reference back to an earlier decision.'
31 In every case, the essential question is "what is the discriminatory act of which complaint is made?" (Paragraph 51). When looking at the way in which the complaint was made, tolerance must be given to the fact that Tribunals are "shop floor" Courts, whose procedures and approaches must be attuned to the needs of litigants in person. Accordingly, a tribunal should not take a narrow or legalistic view of the terms in which the complaint is couched (paragraph 41, following Sougrin v Haringey Health Authority [1992] IRLR 416 CA at 419 paragraph 32, per Sir John Donaldson MR).
32 ……
33 In Barclays Bank Plc -v- Kapur [1991] IRLR 136 Lord Griffiths approved the judgment of the EAT in Amies (above). In Amies it was held that a complaint made in 1976 of discriminatory refusal to promote a woman in 1975, and the filling of the post by a man in 1975, before the Sex Discrimination Act 1975 took effect, was out of time. The appointment had a continuing effect but was not a continuing act. In Barclays itself, a decision made by the bank to exclude service by Asian workers abroad from qualification for pensions, made before the implementation of the Race Relations Act 1976, was not out of time, for there was a continuing act of discrimination".
"60. All Applicants, with the exception of Mrs Hargreaves and Mrs Hilton, presented their claims prior to 1996 and therefore are within the prescribed time limit for their claims of sex discrimination. Mrs Hilton and Mrs Hargreaves' claims are out of time by some four years".
"83 If the Tribunal looks at categories 1 and 2 only, the situation is that between 1979 and 1984 there were some 6,000-8,000 full-time cabin crew and some 200 on the PWCC contract of whom 30-40 were in categories 1 and 2. We therefore take the total full-time cabin crew as 7,000 and the categories 1 and 2 PWCC as 30. Of the 7,000 total, 60% were women, that is 4,200, and 40% were men, that is 2,800. Of the 30 PWCC categories 1 and 2, 28 were women and 2 were men. Therefore, taking the total of the full-time employees and the PWCC employees, there were 4,228 women and 2,802 men.
84 ….
85 Using a pool of 4,228 women and 2,802 men, the corresponding percentages in the PWCC categories 1 and 2. Of these, 28 were women and 2 were men, so the percentages were 93.3% women, 6.7% men.
86 …..
87 Of the 28 women out of a total of 4,228 women, the percentage who could not comply with the criterion or condition to work full-time and continuously to maintain seniority were 0.66% whereas 99.34% could comply. Taking the figures for men as two men out of 2,802, the numbers of men who could not comply with the criterion or condition were 0.07% and those who could comply were 99.93%.
88 ……
89 The Tribunal has taken into account the guidance given in this case. Harvest Town is authority at paragraph 18(i) that we may look at the distinctions in the PWCC, namely that 93.3% of women could not comply while 6.7% of men could not comply. By virtue of paragraph 3 of Lindsey J's guidance, the PWCC can be taken as a subpool. The whole pool of all full-time cabin crew is 60% women, 40% men, whereas the PWCC pool is 93% women, 7% men, and therefore there is a disparate impact in that many more women than men are affected by the provision or criterion. We note that by virtue of (iv) of Lindsey J's guidance it would be wrong for us to look at only one form of comparison. As can be seen, we have looked at all the permutations. These together show that there was a disparate impact on women in the PWCC who were deprived of their seniority by joining the PWCC. We are satisfied that, taking into account the guidance of Lindsey P, the Applicants have shown a disparate impact.
90 ….
91 On the basis of a 60%:40% split, the ratio is 1.5 women to 1 man. In the PWCC, the ratio is 28:2 (14:1). Looking at this in accordance with the guidance of Lindsey P in Harvest Town, the impact is disproportionately high for women.
92 It is therefore the unanimous decision of the Tribunal that the Applicants have demonstrated that the provision, criterion or practice that they should work full-time and continuously to maintain seniority is to the detriment of a considerably larger proportion of women than of men
"96 The Respondent has not pleaded or identified any particularised need or objective which required that part-time service should not count for the purposes of seniority. Ms Ivimy therefore submitted that their claim that any disparate impact was justified must fail."