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Blackburn and anor v Chief Constable of West Midlands Police

The 1970 Equal Pay Act requires employers to pay women engaged on “like work” to be paid the same as men, unless they can justify the difference. In Blackburn and anor v Chief Constable of West Midlands Police, the Court of Appeal said that the force could justify offering a bonus to a predominantly male group because it was legitimate to reward 24/7 working.

Basic facts

In May 2002 the police introduced a national system of special priority payments targeted at frontline officers. These ranged from £500 to £3000 per year and were paid as a lump sum each December. The Police Negotiating Board (PNB) estimated that no less than 20 per cent and no more than 30 per cent of “force strength” would benefit from the scheme.

The regulations allowed individual chief constables and police authorities to decide for themselves which posts should attract the priority payments, although they had to bear in mind certain criteria such as “specially demanding working conditions or working environments”.

The West Midlands police force decided to award the payments to sector officers whose working patterns involved doing at least four hours between midnight and 6.00am over a cyclical 168 hour period. The claimants, who were excused from working a 24/7 rotating shift pattern because of childcare responsibilities, were therefore excluded from the priority payment. They made a claim of indirect sex discrimination under the 1970 Equal Pay Act.

Tribunal and EAT decisions

The tribunal agreed with the women, saying that they were engaged in “like work” with the men but were being disadvantaged by the requirement to work 24/7 in order to attract the payment. As West Midlands police could avoid this indirect discrimination by making the payment to the women, the requirement to work a regular night shift could not be justified.

However, the Employment Appeal Tribunal (EAT) disagreed. It decided that the force was entitled to make a payment to a predominantly male group (for a reason other than sex) as long as it could justify the difference.

In this case, it said there was nothing in the Equal Pay Act that required an employer to “compensate for the economic disadvantages suffered by those who have childcare responsibilities … Nor is the assessment of the employer's ability to pay sums of this kind a task which Parliament could conceivably have expected tribunals to do”.

Court of Appeal decision

The Court of Appeal has now dismissed the women’s appeal. Saying that the issue was “straightforward”, it pointed out that "… the wish to reward night-time working was, for our purposes, a legitimate aim and the 24/7 requirement corresponded with that aim."

It said that the focus must be on the aim of the employer. In this case, it had been decided that 24/7 working should be rewarded. This, said the Court, was both rational and within the parameters of the national structure. The fact that some other police forces may have adopted schemes that had a lesser disparate impact was irrelevant.

When looking at the issue of justification, it said that tribunals must look at “other means of achieving the employer's legitimate aim” and not the “means of achieving different aims”. As a result, “providing special priority payments to those who were excused from 24/7 working for childcare reasons was not a means of achieving the Chief Constable's legitimate aim. As the Employment Appeal Tribunal observed, if the legitimate aim was to reward 24/7 working, it is difficult to see how that objective would be furthered if those who do not work 24/7 are also paid the same amount”.