Indirect discrimination and equal pay

Sometimes the 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 longer to accumulate the same amount of continuous service, or shift premium payments reward anti-social hours, that 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 (see page 166).

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 and found that the payment of the bonus was to reward those who worked night shifts. It was a legitimate aim, unrelated to discrimination based on sex. The tribunal should have concluded that it was justified.

In Haq v the Audit Commission [2012] EWCA Civ 1621, a policy of pay protection following 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 the chosen comparator is alike in all material respects except for the protected characteristic. For example, in Naeem v Secretary of State for Justice [2013] UKEAT 0215/13/1501, the claimant, a Muslim prison chaplain, brought a claim for indirect religious discrimination against the prison service, because its pay scale rewarded length of service. Since the prison service only began employing Muslim chaplains in 2004, there were no non-Muslim chaplains at the higher end of the pay scale. Instead they were heavily represented towards the lower end. The claim failed because there was only disadvantage if Muslim chaplains were compared with all non-Muslim chaplains. The correct comparison was between all chaplains recruited since 2004, and on this basis the disadvantage fell away.

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 in respect of any additional lump sum or loyalty bonuses paid to women on maternity leave (Abdoulaye v Renault [1999] IRLR 811).