Blackburn & Anor v West Midlands Police

Factual and Procedural Background

The appellants are female police officers employed as sector or front line officers within West Midlands Police. Typically, sector officers work a 24/7 rotating shift pattern, which qualifies them for a special priority payment. However, the appellants were excused from this shift pattern due to childcare responsibilities and consequently did not receive the payment. They brought a claim under section 1 of the Equal Pay Act 1970, alleging that they and a male comparator performed like work, yet only the comparator received the special priority payment due to his 24/7 working pattern.

The Employment Tribunal found in favour of the appellants, holding that the 24/7 requirement had a disparate impact disadvantaging women and that the employer failed to justify the pay difference. The Employment Appeal Tribunal reversed this decision, concluding that the payment scheme was objectively justified. The appellants appealed to the Court of Appeal, with permission granted by Lord Justice Mummery.

Legal Issues Presented

1. Whether the appellants and the male comparator were employed on like work for the purposes of the Equal Pay Act 1970.
2. Whether the special priority payment scheme, which rewards 24/7 working, constitutes indirect sex discrimination due to its disparate impact on female officers excused from such shifts.
3. Whether the employer’s differential payment scheme is objectively justified as a proportionate means of achieving a legitimate aim.
4. The appropriate legal test for objective justification in the context of indirect discrimination under the Equal Pay Act 1970, consistent with EU law.

Arguments of the Parties

Appellants' Arguments

• The appellants contended that the special priority payment scheme indirectly discriminated against them as women by excluding those excused from 24/7 shifts, predominantly women due to childcare responsibilities.
• They argued that the employer failed to objectively justify the pay disparity, particularly given the relatively modest cost of extending payments to those excused from 24/7 working.
• The appellants submitted that the Employment Tribunal correctly applied the proportionality test and that the Employment Appeal Tribunal erred in narrowly focusing on the aim of rewarding 24/7 working without considering the broader context of the national payment scheme.

Respondent's Arguments

• The Chief Constable argued that the legitimate aim of the scheme was to reward officers who actually worked night shifts, marking them out for special treatment.
• The respondent maintained that the 24/7 working criterion was rational, proportionate, and within the parameters set by the Secretary of State and the Police Negotiating Board’s national framework.
• It was contended that equalising pay by deeming women to have worked night shifts they did not perform was not required by the Equal Pay Act and would undermine the legitimate purpose of the payment.
• The respondent asserted that the Employment Tribunal erred by focusing on affordability rather than the legitimacy and proportionality of the employer’s chosen means.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Autologic Holdings plc v IRC [2006] 1 AC 118	Requirement to interpret the Equal Pay Act consistently with EU law (Article 141 of the Treaty)	Confirmed the obligation to interpret domestic equal pay legislation in conformity with EU law principles.
Rainey v Greater Glasgow Health Board [1987] 1 AC 224	Established indirect discrimination and justification defence under Equal Pay Act section 1(3)	Supported the characterization of the appellants’ claim as one of indirect discrimination with a material factor justification defence.
Bilka-Kaufhaus GMBH v Weber von Hartz [1987] ICR 110	Test for objective justification of indirect discrimination: legitimate aim, appropriateness, and necessity	Applied the ECJ’s test to assess whether the employer’s pay scheme was objectively justified despite disparate impact.
Kutz-Bauer v Freie und Hansestadt Hamburg [2003] IRLR 368	Consideration of alternative means to achieve legitimate aims in justification analysis	Emphasized that only alternative means achieving the same legitimate aim are relevant to proportionality assessment.

Court's Reasoning and Analysis

The Court began with the unchallenged Employment Tribunal finding that rewarding night-time working was a legitimate aim and that the 24/7 working requirement corresponded with this aim. The Court acknowledged the national framework established by the Secretary of State and the Police Negotiating Board, which allowed local schemes to tailor criteria to local circumstances.

The Court rejected the appellants’ argument that the 24/7 criterion was ultra vires or outside the regulatory framework. It emphasized that the employer’s legitimate aim was to reward officers who actually undertook 24/7 working, and that paying officers who did not perform such work would undermine the purpose of the scheme.

The Court applied the Bilka-Kaufhaus test for objective justification, noting that the employer’s chosen means must be proportionate and appropriate to achieve the legitimate aim. It agreed with the Employment Appeal Tribunal that alternative schemes which did not distinguish 24/7 working did not achieve the same objective and were therefore irrelevant to the proportionality assessment.

The Court further held that the Employment Tribunal erred by focusing on the affordability of extending payments rather than on whether the chosen means were proportionate to the legitimate aim. The Court found the reasoning of the Employment Appeal Tribunal, which upheld the justification defence, to be correct and persuasive.

Holding and Implications

The Court DISMISSED the appeal, upholding the decision of the Employment Appeal Tribunal.

The direct effect of this decision is that the employer’s special priority payment scheme, which excludes officers excused from 24/7 working (including those with childcare responsibilities), is objectively justified under the Equal Pay Act 1970 and EU law. The justification defence defeated the appellants’ claim of indirect discrimination. No new precedent was established beyond the application of established principles of objective justification in equal pay claims.