Indirect discrimination and equal pay

Sometimes an employer’s reason for paying more is indirectly discriminatory. For example, different pay rates based on length of service may discriminate against women because time off for childcare means it takes them longer to accumulate the same amount of continuous service. In another example, shift premium payments to reward anti-social hours may discriminate because they are better suited to most men than to women with caring responsibilities.

Employers can justify indirect discrimination where they can show it is a proportionate means of achieving a legitimate aim, for example, attracting people to work in difficult locations or over awkward hours, to make sure there are enough workers to cover night shifts and weekends.

In Chief Constable of West Midlands Police v Blackburn & Manley [2008] EWCA Civ 1208, two WPCs with childcare responsibilities complained that a shift bonus scheme for officers who worked at least four hours at night indirectly discriminated against them. The EAT disagreed. It ruled that the shift bonus was to reward those who worked night shifts. It was a legitimate aim, unrelated to discrimination based on sex and could be justified.

In Haq v the Audit Commission [2012] EWCA Civ 1621, pay protection after a reorganisation enabled senior male employees to keep their place on the pay scale despite an enforced move to a lower skilled role. This meant that the male employees were paid sometimes £10,000 a year more than their female counterparts in the lower skilled role, for doing the same job. The Court of Appeal confirmed that the combination of the pay protection and the reorganisation in this case was indirectly discriminatory against the women, but accepted that the employer’s wish to retain skilled staff and to protect their pay were both legitimate aims capable of justifying the discrimination.

A claim for indirect discrimination can only succeed if there is no material difference between the claimant and their chosen comparator, except for the protected characteristic:

Women who are transferred to alternative work for health reasons during pregnancy cannot pursue an equal pay claim for that alternative work. Similarly, men cannot claim equality for any additional lump sum or loyalty bonuses paid to women on maternity leave (Abdoulaye v Renault [1999] IRLR 811).