Night shift pay not discriminatory

Chief Constable of West Midlands v (1) Susan Elezabeth Blackburn (2) Victoria Jane Manley (2007) EAT 11 December 2007 Lawtel 19 December

The appellant chief constable appealed against an employment tribunal’s decision that he had breached the Equal Pay Act 1970 by failing to pay the respondent female police officers enhanced payments for night work, because they were unable to work at night due to childcare commitments. The tribunal concluded that the pay arrangements had a disparate impact upon women. It went on to find that, although in principle, it was legitimate to pay staff extra to work unsocial hours, that objective could have been achieved by making similar payments to women as well. It cited the example of another police force that used night work as only one consideration in an overall scoring matrix, and found that it would not have added a substantial amount to the force’s wage bill to have paid the women the same. The chief constable submitted that once the tribunal had concluded that the need to reward night time working was a legitimate aim, it was wrong to then refer to schemes adopted by other forces with different aims. The chief constable argued that the tribunal had approached the issue of proportionality incorrectly as the fact that it would not cost much to pay women the same was irrelevant; it was proportionate to pay a differential to reflect the different working conditions.