The EAT (Underhill P) has handed down its decision in The Audit Commission v Haq, which is authority for the proposition that:
- An ET is not entitled to find a prima facie case of indirect sex discrimination where a pay protection policy is applied on the amalgamation of two job roles. The pay protection policy does not put women at a particular disadvantage when compared to men and statistics can only establish that one of two roles that were amalgamated was subject to gender stereotyping; and
- Protecting the pay of employees affected by a re-structuring is in principle a legitimate aim and is justified provided the policy is a proportionate means of achieving that aim.
Both roles fell within the same pay grade, which incorporated a points system to determine the exact level of pay. The pay protection policy applied on amalgamation of the roles allowed employees to retain their previous pay point. The EAT noted that the policy may have led to a situation where a man and a woman doing work of equal value were receiving different amounts, but that was because of the different rates which they were (non-discriminatorily) paid previously and had nothing to do with their gender.