Equal Pay

[Thanks to Lionel Stride of 1 Temple Gardens for providing this case summary]

The Court of Appeal has handed down its decision in Gibson v Sheffield City Council, which is the latest case relating to whether or not UK law is consistent with EU law in matters of equal pay.

The Claimants, female care workers, successfully appealed against the Tribunal's decision that the council did not have to show objective justification for a bonus paid predominantly to male manual workers over a 40-year period on the basis that it was due to an historical productivity incentive which could not be applied to care work in the same way. This despite the finding that the bonus scheme predominantly benefited male workers and that care work was stereotypically 'women's work'.

On appeal the council relied upon the Court of Appeal case of Armstrong v Newcastle upon Tyne NHS Hospital Trust [2006] IRLR 124, as authority for the proposition that, once it had been shown that the reason for the bonus was not 'tainted with sex', it was not necessary to show objective justification. The Claimants contended that Armstrong had been wrongly decided and relied upon the ECJ case of Enderby v Fenchay Health Authority [1993] IRLR 591 to argue that, given the evidence of significant disparate impact (and therefore indirect discrimination), the burden should have passed to the employer to show objective justification for the bonus.

The Court of Appeal rejected the claimants' submission that the relevant passages in Armstrong were obiter or per icuriam. However, the Court found unanimously that, on the facts, the burden had shifted to the council to show objective justification in the light of the statistical evidence showing the disparately adverse effect of the scheme on women's work. The matter was therefore remitted to the Tribunal to consider whether the bonus scheme can be objectively justified.