Pooling resources

Grundy v BA

The 1970 Equal Pay Act says that if a woman is doing the same work as a man, she is entitled to be paid the same, unless her employer can show there is a genuine material factor (GMF) to account for the difference.

In Grundy v BA (2008 IRLR 74; IDS 843), the Court of Appeal said that there is no particular test that tribunals must always apply when trying to establish whether the employer is doing something that impacts differently on women compared to men.

Basic facts

In 1987 Mrs Grundy switched from working on a full-time cabin crew (CC) contract for BA to a part time Support Cabin Crew (SCC) contract. This was of particular benefit to women with childcare responsibilities. The SCC scheme was halted in 1994 and abolished in 2002, at which point Mrs Grundy was transferred onto a part-time CC contract.

However, although full-time and post-1994 part-time cabin crew were on an incremental pay scale giving them annual increases, Mrs Grundy had had no such increments on her SCC contract. The result was that she was getting about £4,000 less per year than a man doing like work.

Mrs Grundy brought a claim for equal pay.

Tribunal and EAT decisions

The tribunal looked at the difference in pay and said that it formed part of a “policy, criterion or practice” by BA of not paying increments to a “disadvantaged” group of SCC staff, compared to an “advantaged” group of full-time and part-time cabin crew staff. Given that women outnumbered men by about 14 to one in the disadvantaged group, it concluded that far more women than men were affected and that the practice could not be justified by BA.

The Employment Appeal Tribunal agreed on the second point, but said that the tribunal had been wrong to focus on the small SCC disadvantaged group rather than on the larger, advantaged CC group. As the percentage difference between the numbers of men and women in that group was negligible, it concluded there was no disparate impact between the two.

Mrs Grundy appealed, arguing that the law did not require the tribunal to focus on the advantaged group.

Court of Appeal decision

And the Court of Appeal agreed with Mrs Grundy. However, it also made clear that there is no particular test that tribunals should always apply. Instead it said that “the pool must be one which suitably tests the particular discrimination complained of, but this is not the same thing as the proposition that there is a single suitable pool for every case.”

It said that the fundamental question for tribunals “is whether there is a causative link between the applicant's sex and the fact that she is paid less than the true value of her job as reflected in the pay of her named comparator.”

It is up to the tribunal to find the group or “pool” that best helps them to do that. Provided it tests the allegation in a suitable pool, the Court of Appeal made clear that tribunals cannot be said “to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen.”

In this case, it said that the pool chosen by the tribunal was suitable. It had looked at both the advantaged and the disadvantaged groups but decided to focus on the latter. Having found systematic discrimination in that group, it had concluded that it could not be justified by BA.