Indirect discrimination and equal pay 





Sometimes an employer’s reason for paying more is indirectly discriminatory. This is where a pay practice (for example, overtime) looks neutral because the same rule applies to everyone, but where the practice leaves one group worse off. Indirect discrimination is looked at on page 229. For example, different pay rates based on length of service may discriminate against women because of time off for childcare. Or shift premium payments to reward anti-social hours may discriminate because anti-social hours are better suited to most men than to women with caring responsibilities. 


As always, indirect discrimination can be justified if employers can prove that the practice 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 female police constables 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 rewarded night shift workers. 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 following a reorganisation enabled senior male employees to retain their higher pay when compulsorily transferred to a lower skilled role. As a result, the men ended up being paid up to £10,000 a year more than their female co-workers in the lower skilled role, for doing the same job. The Court of Appeal confirmed that the combined effect of the pay protection and the reorganisation was indirectly discriminatory against the women, but accepted that the employer’s wish to retain skilled staff and to protect their pay were legitimate aims justifying the indirect discrimination.