Somerset County Council v Pike
The European directive governing indirect sex discrimination states that claimants have to show that an apparently neutral provision, criterion or practice "disadvantages a substantially higher proportion of the members of one sex" than the other. In Somerset County Council v Pike, the Court of Appeal said that, when establishing a valid pool for comparison, tribunals must pick the one that best illustrates the disadvantage, consisting of the group of people who have the offending rule applied to them.
Basic facts
Mrs Pike took early retirement on grounds of ill-health from her job as a full-time teacher in December 1993, but returned on a part-time basis in January 2004. She then discovered that she was not allowed to rejoin the pension scheme because the regulations excluded part timers already in receipt of a teacher's pension. This rule did not, however, apply to full timers.
Mrs Pike (along with 73 other teachers) claimed that that this rule amounted to indirect sex discrimination because a substantially higher proportion of women than men were disadvantaged by it.
There was then a long delay for a variety of reasons until March 2007 when the Council made an application to strike out her claim on the basis that she could not show that the rule excluding part-time teachers had a disproportionately adverse impact on women.
Tribunal and EAT decisions
The tribunal judge decided that the correct pool “for determining disproportionate impact” was “the whole of the teaching profession”. This included pre-retirement teachers as well as those who had retired and then returned to work. Using this pool, he found there was an extremely slight adverse disparate impact (0.3 per cent) and struck out the claim on the basis that it had no prospect of success.
The Employment Appeal Tribunal (EAT), however, disagreed. It decided, relying on the decision of the House of Lords in Rutherford v Secretary of State for Trade and Industry that the correct pool was one where the “disadvantage could be illustrated”. This was not possible if it included pre-retirement teachers who had no interest in post-retirement rules. “To describe them as an advantaged group, for the purposes of juxtaposition against the disadvantaged group of part-time returners, is an abuse of language. These people had no advantage out of the post-retirement rule favouring full-timers; it simply did not apply to them. They could only distort the view of the pool ...”
Over a 13-year period, this pool of returners to teaching showed that 15 per cent more women than men were in non-pensionable employment and “that a comparison of the proportion of advantaged men to the proportion of advantaged women over the same period” showed that 38 per cent more men than women were advantaged. Disparate impact was therefore proved.
Court of Appeal decision
And the Court of Appeal agreed. It said that the employment judge had been wrong to reject the narrower pool put forward by Mrs Pike. The result was that by adopting the entire teaching profession as the appropriate pool, he was “bringing into the equation people who have no interest in the advantage or disadvantage in question”.
The Court noted that this approach had since been approved by the Court of Appeal in Grundy v British Airways plc. Although the Court accepted the comment in Grundy that there may not always be a single suitable pool for every case, the one that the EAT had picked in this case was the only logical pool.
Comment
This decision underlines the requirement for tribunals to properly identify the correct pool. The pool should consist of the people who have the provision, criterion or practice applied to them. The decision should make it more difficult for employers to argue for a larger pool, in which the discriminatory effect is diluted.