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 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. 




Employers are allowed to justify indirect discrimination by showing that 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 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 in this case. 




Women 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 extra lump sum or loyalty bonuses paid to women on maternity leave (Abdoulaye v Renault [1999] IRLR 811).