Equal Pay Claim Court of appeal rules on justification


Court of Appeal Rules on Justification in British Airways Cabin Crew Equal Pay Claim

Male and female cabin crew in British Airways (BA) are paid on an incremental pay scale with annual increases. However, the Claimant in this case, Mrs Grundy, was paid less than a male member of cabin crew doing comparable work and of comparable service to herself because, for part of Mrs Grundy’s service, she worked on a “support cabin crew’’ contract which did not attract annual increments. When Mrs Grundy took up employment as support cabin crew it was the only part time cabin crew contract offered by BA. Most support cabin crew were women.

In an earlier Judgment, Vivien Grundy v British Airways plc 2007 EWCA CIV 1020, the Court of Appeal held that there was indirect sex discrimination because the arrangement had a disparate adverse impact on women.

BA then argued that the discrimination was justified.

On 28 July 2008 the Court of Appeal upheld the Employment Tribunal’s decision that the indirect sex discrimination suffered by Mrs Grundy was not justified and dismissed BA’s Appeal.

The Court of Appeal stated that when balancing the discriminatory effect of the scheme and the reasonable needs of the employer:
  • it does not matter that the scheme adversely affects a relatively small number of employees nor that the amount involved is small (which it was not in this case) nor that those not being disadvantaged are predominantly women as well
  • although the terms of the discriminatory scheme had been collectively agreed with the Unions and there may be many reasons why, in the give and take of collective bargaining, one group of employees does worse than another, one of the important messages sent out by the Equal Pay Act has been that attention must be paid by negotiators to the possibility that such differentials will have a disparate impact on employees of one gender and if this is overlooked, and leads to a breach of the equality clause under the Equal Pay Act, the oversight cannot be justified by the agreement reached
  • although there is no rule of law that the justification must have formed part of the initial decision making process and justification in retrospect is perfectly admissible there will probably be less evidence of it
  • the fact Mrs Grundy could have applied to change jobs which might have avoided or lessened the discrimination did not justify the discrimination because you cannot justify pay discrimination by telling the employee that she can always change job

Mrs Grundy was supported throughout by her Union, UNITE and was represented at the appeal by Jane McNeill QC and Michael Ford, instructed by Joy Drummond of Simpson Millar LLP who has welcomed the Court of Appeal decision as providing helpful guidance upon matters that cannot be used to justify discrimination.

The Court of Appeal has refused leave for BA to appeal to the House of Lords. At the time of writing it is not known whether or not BA will apply to the House of Lords for leave to appeal.

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