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 IRLR 74, CA, IRLR 815, CA (no.2) , Court of Appeal - Jane McNeill QC, Michael Ford QC
In an important judgment handed down today in the case of Mrs Grundy v British Airways plc, the Court of Appeal has given its ruling on the correct approach to whether a pay disparity involves sex discrimination under the Equal Pay Act. Disagreeing with the Employment Appeal Tribunal, the Court of Appeal has held that the choice of an appropriate pool for comparative purposes is an exercise which is fact specific. It does not require focus to be on the advantaged group, as the EAT had held.
The Court of Appeal has endorsed the view of Mrs Justice Cox in Armstrong v. Ministry of Defence that the concept of indirect discrimination under the Equal Pay Act requires consideration of whether there is a causative link between the Claimant’s sex and the fact that she is paid less than her comparator. This may be because of pay structures or practices disadvantageous to women or because of historical disadvantage. In other words, there is no single means of establishing whether differences in pay are discriminatory and so in breach of equal pay law.
Jane McNeill QC and Michael Ford, who acted for Mrs Grundy, instructed by Joy Drummond at Simpson Millar, have commented that the Court of Appeal judgment is a welcome move away from the excessively technical and restrictive approach to the assessment of disparate impact which was applied by the EAT in the present case. It rightly shifts the focus to the real issue of whether a pay disparity between a man and a woman in comparable positions has a link with their gender.
Mrs Grundy’s case was supported by her trade union, UNITE the Union.