United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS ELIZABETH SLADE (One of Her Majesty's Counsel) and MR ANDREW BLAKE (of Counsel) Instructed by: West Midlands Police Legal Services Dept Civic House 156 Great Charles Street BIRMINGHAM B3 3HN
For the Respondents	MS TESS GILL and MS CORINNA FERGUSON (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Landore Court 51 Charles Street CARDIFF CF10 2GD


 


SUMMARY

Equal Pay Act – Material factor defence

The claimant police officers received less than their male comparator doing like work. The reason was that he worked shifts involving night work and received a special payment (effectively a bonus) for this, but they did not work those hours because they were incompatible with their child care responsibilities. The Tribunal held that it was a legitimate objective to reward night work, but that the Chief Constable could have paid the claimants as though they had done night work, even though they had not. It would not have been a significant expenditure and would have eliminated the discrimination. The EAT upheld the Chief Constable's appeal and held that the Tribunal had misunderstood the nature of the justification defence and had erred in concluding that the differential was not reasonably justified.


 


THE HONOURABLE MR JUSTICE ELIAS

1. This is an appeal against a unanimous finding of the Tribunal that the appellant, the Chief Constable of West Midlands Police, was in breach of the Equal Pay Act in failing to pay the respondent officers (hereinafter "the claimants" as they were below) certain special priority payments (SPPs). The reason they did not receive these payments is that they were made only to those who were rostered to meet a requirement to work a 24/7 shift pattern. The claimants were not so rostered, being unable to work these hours because of their child care responsibilities.
2. The Tribunal concluded that although in principle it was legitimate to pay staff extra for working those particular hours, that objective could have been achieved by making appropriate payments to these claimants also.
3. Initially the claimants advanced a cross-appeal on the basis that the Tribunal erred in concluding that it was a legitimate objective to make additional payments with respect to those working these hours. They contended that it was ultra vires for the Chief Constable to adopt a system which rewarded officers in this way. The Tribunal did not reach any conclusion on this issue because it was advanced for the first time at the closing submissions stage. However, even if the argument were correct, it proves too much for, as Ms Gill recognised, if the payments were ultra vires there would be no power to pay them to anyone, and that would include the claimants. In the circumstances the cross appeal was not pursued.

The background.

4. The essential facts can be briefly summarised. These claimants worked for the West Midlands Police, the second largest police force in the UK. The police need to respond to emergencies 24 hours a day, 7 days a week. They deal with 1,800 calls for assistance daily and on a typical day deal with 3,200 incidents leading to some 320 arrests. The force is divided on a geographical basis into 21 operational command units ("OCUs"). The claimants were both in one of those units, as was their chosen comparator, PC Bowles.
5. Each OCU is responsible for implementing its own shift system within the limits of guidance published centrally by the force. It is, however, an overriding requirement that an OCU's shift patterns must achieve 24/7 cover. All uniformed constables and sergeants will work a shift pattern agreed under the variable shift agreement framework.
6. As a general principle, the OCUs operate a 3 shift pattern consisting of early shifts from 7.00 a.m - 3.00 p.m; late shifts from 2.00 p.m. - 10.00 p.m., and night shifts from 10.00 p.m - 7.00 a.m. Sector officers are expected to work this 24/7 rotating shift pattern and approximately half of all officers work that pattern at any one time. Whilst most sector officers work 24/7, some officers, like the claimants, are excused either by reason of their child care responsibilities or, in some cases, because of some medical restriction.

The introduction of SPP.

7. Police officers' pay is regulated by police regulations which are updated periodically. Under part 4 of the regulations in force at the material time, namely the Police Regulations 2003, the Secretary of State has the power to determine police pay. Individual police forces cannot deviate from the terms of the police regulations, although in certain areas discretion is delegated to them. The Police Negotiating Board ("PNB") consists of representatives of both employers and employees. It is independently chaired. It oversees the operation of the police regulations and makes recommendations on pay and allowances to the Home Secretary. In May 2002 it reached an agreement designed to give effect to the Home Office's aim of introducing modern management and reward systems. The PNB suggested the introduction of SPPs and the power to grant these is conferred by the 2003 Regulations.

8. The purpose of these payments is to reward those operating in "the most demanding and difficult front line operational roles". The determination of how the scheme will be applied is for each police authority. However, the guidance provided with respect to SPPs stated in terms:

"Local schemes should not discriminate on the grounds of gender, race or any other material factor."

9. The PNB agreement was implemented locally in the West Midlands force. The Tribunal set out the circumstances in which the criteria for paying SPPs were determined in West Midlands. It is not necessary to spell out the detail. The decision was taken to reward those working 24/7. There was debate within the force about the appropriate wording to identify who would fall into that category and ultimately the definition was drafted in the following terms:

"Officers whose published rostered working patterns either involve a shift pattern or regular working hours covering a bandwidth of at least 4 hours between midnight and 6am over a cyclical period and which technically complies with the provisions of the Working Time Regulations 1998.'

Neither claimant worked in accordance with these hours and it was not disputed that this was because of their child care obligations.

The law.

8. Section 1 of the Equal Pay Act, so far as is material, is as follows:

"(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one."

This is the domestic implementation of Article 141 of the Treaty establishing the European Union, which secures the right to equal pay for equal work or work of equal value.

9. Section 1(2) provides that the equality clause applies, inter alia, whenever the claimant and her chosen comparator are employed on like work.
10. The effect of the equality clause is to ensure that the contractual terms, including pay, under which the woman is employed are no less favourable than those under which the man is employed.
11. Section 1(3) is highly material to this case. It provides a defence to an equal pay claim where the employer can show – the onus being on him – that there is a genuine non-sex reason for any difference in pay:

"An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor—

(a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman's case and the man's….

12. It is trite law that the court is obliged to interpret the relevant provisions of the Equal Pay Act fully in compliance with Article 141. Any ambiguity must be resolved in favour of EU law: see, for example, the speech of Lord Nicholls of Birkenhead in Autologic plc v IRC [2006] 1 AC 118 paras 16-17.
13. The obligation to construe the domestic law in accordance with EU law is of particular relevance when analysing the scope of section 1(3). The reason is that the scope of discrimination in European law extends beyond direct discrimination, i.e. the case where the woman is paid less because she is a woman, and embraces also indirect discrimination. That is not an entirely straightforward concept, not least because there are different definitions of indirect discrimination, even in EU law itself.
14. The essential point, however, for current purposes, is that indirect discrimination occurs where a pay practice in some way has a disparate impact on women or subjects them as a group to a particular disadvantage when compared with men. That is generally, but not necessarily, established by a statistical analysis of the relevant pools. The fundamental difference between direct and indirect discrimination is that (save arguably in very exceptional cases) direct discrimination can never be justified, whereas indirect discrimination can. An employer whose pay practices involve paying women less than men because of their sex is necessarily acting unlawfully; one whose practices have the effect of adversely impacting on women may be able to demonstrate that there is an objective justification for this difference in pay. Accordingly the concept of indirect discrimination, with its attendant concept of justification, are now to be treated as an integral part of establishing the genuine material factor defence under section 1(3), as the House of Lords recognised in Rainey v Greater Glasgow Health Board [1987] 1 AC 224
15. The test which the courts must apply when determining whether the employer has established objective justification, is now well established. The classic definition was given by the European Court of Justice in Bilka-Kaufhaus Gmbh v Weber von Hartz [1987] ICR 110 and has been regularly repeated since:

"It is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker's sex but in fact affects more women than men may be regarded as objectively justified economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of article 119."

16. In Barry v Midland Bank [1999] ICR 319 , a case we consider more fully below, Gibson LJ giving the lead judgment in the Court of Appeal referred to this passage in the Bilka-Kaufhaus judgment and added (at pages 335G-336F):

"In our judgment it would be wrong to extrapolate from those words written in that context that an employer can never justify indirect discrimination in a redundancy payment scheme unless the form of the scheme is shown to be necessary as the only possible scheme. One must first consider whether the objective of the scheme is legitimate. If so, then one goes on to consider whether the means used are appropriate to achieve that objective and are reasonably necessary for that end."

17. It will not be possible for the employer to demonstrate that the means are appropriate or reasonably necessary if there is evidence that less discriminatory means could be used to achieve the same objective. That uncontentious proposition was recognised by the ECJ in Kutz-Bauer v Freie und Hansestadt Hamburg [2003] IRLR 368, a case specifically relied upon by the Employment Tribunal. The Court stated that it is necessary to ascertain:

"51. … in the light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether such aims appear to be unrelated to any discrimination based on sex and whether those provisions, as a means to the achievement of certain aims, are capable of advancing those aims (see, in that regard, case C-167/97 Seymour-Smith and Perez [1999] IRLR 253, paragraph 72)."

18. In a more recent decision of Cadman v Health and Safety Executive [2006] ICR 1623, the ECJ summarised the test for justification thus (para 33):

"The justification given must be based on a legitimate objective. The means chosen to achieve that objective must be appropriate and necessary for that purpose".

19. This language of "appropriate and necessary" is the language of proportionality, as Lord Nicholls recognised in Barry v Midland Bank [1999] ICR 859, 870E, when that case went to the House of Lords. Lord Nicholls described how he understood the principle of justification would operate:

"In other words, the ground relied upon as justification must be of sufficient importance for a national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women, or men as the case may be, the more cogent must be the objective justification. There seems to be no particular criteria to which the national court should have regard when assessing the weight of the justification relied upon."

20. In Barry the issue was whether employers were discriminating against certain females in the way in which they calculated redundancy payments. This was done as under the statutory redundancy scheme by focusing on the salary at the time of dismissal. Some women who had earlier worked full time, but at the time of dismissal were working part time, contended that this meant that they were not getting the full reward for their service. They would have completed years of service working full time and yet their redundancy compensation would be calculated on their current part time hours, thereby failing to give full credit to their years of service. It was accepted that the reason for fixing the payment by reference to final salary was in part to cushion the redundant workers from the loss of income that would flow from being made redundant. To give effect to that objective, the focus necessarily had to be not on past service but on future loss.
21. In the House of Lords four of their Lordships held that there was no discrimination at all on these facts. Lord Nicholls considered that there was prima facie indirect discrimination but concluded that the method of determining pay was objectively justified. Once the aim of cushioning against future loss was seen as legitimate, relating compensation to the actual pay received at the date of termination was inevitable. The way in which the women said the pay should be calculated, namely by reference to the service over the whole period of employment, would inevitably have involved adopting a different scheme and would have undermined that particular objective. Lord Nicholls expressed himself thus (page 872):

"In these circumstances I agree with the Court of Appeal that the

bank's scheme is lawful. Its objects are of sufficient importance

to override the weight to be given to the fact that under a different

scheme with a different object a group of employees, mostly

women, would be better off. To decide otherwise would be to

compel the bank to abandon its scheme and substitute a scheme

where severance pay is treated and calculated not as compensation

for loss of a job but as additional pay for past work. That could not

be right."

That principle is heavily relied upon by the Chief Constable in this case.

The Tribunal's conclusions.

22. The Tribunal determined at a preliminary hearing that the two officers were employed on like work with their chosen comparator, notwithstanding the different hours in which they worked. There was no appeal against that decision.

25. They further concluded, in the course of the hearing which is the subject of this appeal, that there was a disparate impact such that women were adversely affected by the adoption of this criterion. There was a detailed analysis of quite sophisticated statistics. They did not show clear discrimination; 96.6% of men could comply with the requirement to work 24/7 and 91.5% of women. The Tribunal nonetheless considered that on balance this was sufficient to establish disparate impact.

23. It may be that it was strictly unnecessary to scrutinize the statistics in the detailed and conscientious way in which this Tribunal did, and that disparate impact might have been established simply from the fact that at least in the current climate, conferring a benefit on those working throughout the night will disadvantage some women, and has disadvantaged the claimants, by virtue of the fact that they have child care responsibilities. There is some support for that in the approach of the Court of Appeal in London Underground Ltd v Edwards (No.2) [1999] ICR 494 (a case on which the Tribunal properly placed reliance when reaching its decision that the relatively small adverse impact was sufficient to constitute prima facie indirect discrimination requiring justification.) However, it is not necessary for us to explore that interesting issue because the Tribunal's conclusion that there was disparate impact has not been appealed.
24. The Tribunal then went on to consider the question whether the difference could be objectively justified. They concluded that it could not, and this is the decision under appeal. They first set out the test as laid down in the Bilka-Kaufhaus case, reproduced above. They then noted that the current section 1(2)(b) of the Sex Discrimination Act 1975 which talks about "a proportionate means of achieving a legitimate aim" is the domestic law reflection of that principle.
25. The Tribunal then considered whether the 24/7 requirement corresponded to a real need on the part of the undertaking. They concluded, not without some doubts, that it did:

"The question we have to ask ourselves is whether the 24/7 requirement corresponded to a real need, was appropriate to achieve the objectives and was necessary to that end bearing in mind the extended definition of "necessary" previously referred to in Barry.We find the wish to reward night time working was, for our purposes, a legitimate aim and the "24/7" requirement corresponded with that aim."

26. Notwithstanding this finding, they went on to hold, applying the Kutz Bauer principle, that the same objective could have been achieved by less discriminatory aims, namely paying the claimants as if they had done the work:

"114. In accordance with the decision in Kutz-Bauer, the tribunal is enjoined to consider whether it was possible to achieve the desired aims by less discriminatory means. In our deliberations when we met to consider our reserved judgment, we considered in more detail the information with which we had been provided as to how other forces approached the aim of targeting SPPs on frontline officers to include the working of night shifts. In some forces, '24/7' was merely one consideration in a scoring matrix. In Sussex, officers excused '24/7' for childcare reasons were, very sensibly in our view because there is no reason not to extend the logic of their excusal, excused also from having to meet that requirement in order to qualify for SPPs. Part of Ms Slade's argument was that SPPs represented only a small amount, between 2.5 and 3%, of a police constable's basic annual salary, but that argument works both ways. By our calculation, to recognise the gender issue by excusing the 29 officers with childcare responsibilities from the '24/7' requirement would have added only a little over £20,000 (probably less because many were part-time and would have qualified only for a pro rata sum) to the force's annual wage bill. It is doubtful whether economic grounds can be relied upon for justification in the public sector at all but in the context of the size of the respondent's very large organisation, that must be a relatively insignificant sum.

115. When weighed against the importance of the principle of equality of treatment and pay between the sexes, the introduction of pay practices which derogate from that principle requires, in our judgment, much more cogent justification than has been demonstrated in this case. The respondent's aim could easily have been achieved, as other forces appear to have achieved it, without offending against this important principle. Having regard to our observations about the unsatisfactory lack of the gender impact assessment the respondent's witnesses told us was 'invariably' carried out, it seems to us likely that it occurred either because the issue was not thought out or was ignored. However it occurred, it was neither necessary nor proportionate to adopt a criterion for qualification for SPPs which failed to take account of the discrimination which we have found to be implicit in the definition adopted. On these grounds, we find that the respondent has been unable to demonstrate to us that the reason for the difference between the claimants' case and PC Bowles' case is a material factor other than the difference of sex."

(We note that the Tribunal appear to have been under the impression that in Sussex women were paid the same as the men even although they did not work the requisite shifts. It seems that this may in fact have been a misunderstanding of the position in Sussex.)

The grounds of appeal.

27. Ms Slade QC, counsel for the Chief Constable, submits that there is a fundamental inconsistency in this approach. Once the Tribunal had concluded that the wish to reward night time working was a legitimate aim, it was not appropriate to refer to schemes adopted by other police forces which had a different aim. For example, a matrix system does not simply reward night time working; that is simply one of a number of factors which are treated as deserving the increased pay. The Tribunal was making the error identified by Lord Nicholls in the Barry case of substituting the employer's legitimate aim for another aim.
28. If payments had been made to the claimants, as the Tribunal suggested, that would have rewarded those who did not work the hours in question. It would also have potentially wider ramifications than merely paying women in this category. If these claimants were to be rewarded, so would any men with similar child care responsibilities, otherwise they would be discriminated against compared with the claimants. Moreover, it may be difficult to refuse to reward others who are prevented for other good reasons, such as medical reasons particularly where - as was apparently the case here - they are predominantly male.
29. Ms Slade also submitted that the tribunal erred in concluding that the logic of excusing women from the obligation to work shift patterns was that they should be paid for the work they could not do. An employer may properly wish to provide flexible work patterns to assist women with child care responsibilities to remain in employment, but that does not mean that he should pay them for work they have not done or in some way deem them to have done work at a time when they have in fact not done it.
30. A second ground - in reality another way of putting the first - was that the Tribunal had misdirected itself on the approach to proportionality. It was not disproportionate to reward those doing night work and not those who did not. The fact that it would not cost much to pay the claimants and others in a like position was irrelevant; it was proportionate to pay a differential to reflect the different working conditions. Whilst it would have been disproportionate to have paid a very significant differential for those working at night, no-one suggested that the relatively modest payments made here (about £750 per annum) fell into that category.
31. Ms Gill submitted that it was for the Tribunal to make their own assessment of whether the difference in pay was objectively justified; they are not simply reviewing the Chief Constable's decision. Justification was not established merely by demonstrating that there was a legitimate objective. It was also necessary for the Authority to demonstrate - the onus being on them - that there were no less discriminatory means of achieving that objective.
32. The claimants had adduced before the Tribunal other possible means of achieving that objective which had been employed by other Police authorities. One was the possibility of eliminating or reducing the discrimination by making payments, either in whole or in part, to those who were unable to work the hours in question because of their domestic responsibilities.
33. Ms Gill submits that the Tribunal were not saying that it was necessary for the Chief Constable to adopt a scheme similar to the one that had been adopted in Sussex (or at least, which they thought had been adopted there), merely that the existence of such a scheme demonstrated that there were other potentially less discriminatory ways of securing the objective.
34. Ms Gill accepted that requiring the Chief Constable to adopt a matrix scheme would have involved a scheme with a different objective, and therefore would have fallen foul of the principle enunciated by Lord Nicholls in Barry that it is not for the Tribunal to substitute a different legitimate objective for the employer. By contrast, she submits that there is nothing incompatible with seeking to reward those who actually work the additional hours by also rewarding this limited category of those who do not. The fundamental objective of the scheme is still being achieved, but in a way which reduces or eliminates the discriminatory effect. The Tribunal were entitled to find that given the relatively small costs involved, this was a less discriminatory means which the Chief Constable should have adopted.
35. She sought to buttress her submissions by two further arguments. First, she says that the form of discrimination here is "closely related" to direct discrimination. She relies upon observations by Mummery LJ in the Court of Appeal in R (on the application of Elias) v Secretary of State for the Home Department [2006] IRLR 934 para.161 to the effect that the task of establishing objective justification is particularly onerous in these circumstances, and that the courts will subject the claimed justification to "a stringent standard of scrutiny."
36. Second, she relies upon the Tribunal finding that there had been no monitoring or analysis of the potentially discriminatory impact of the measure being adopted. If there has been no proper appreciation of the discriminatory impact, the justification defence will inevitably be harder to sustain because the issue of proportionality will not have been specifically addressed. That proposition also receives support from the Elias case: see para. 176. Ms Gill links this to a submission, again supported by dicta in the Elias case (para. 128-130), that where the employer has not contemporaneously had a particular objective in mind when introducing a scheme, there will be a heavy onus to establish an ex post facto justification.

Conclusions.

37. Notwithstanding the attractive and forceful way in which Ms Gill advanced her argument, we reject it. In our judgment, Ms Slade is right to say that in this instance Ms Gill is seeking to require that the Chief Constable adopt a different scheme. She conceded that was in fact so with relation to the matrix scheme. That would be rewarding night work in a different way; although it would be giving credit to it, it would not be directly rewarding it. We think it would also be true of the scheme relied upon by the Tribunal as demonstrating a less discriminatory approach. The purpose of the scheme adopted by the Chief Constable is to single out and reward those working nights; we find it difficult to see how that objective is achieved if those who do not work nights are also paid the same amount. Those doing the work are not then being marked out for special treatment, which is the very purpose of the payment.
38. More fundamentally, we consider that the approach of the Tribunal misunderstands the principle underlying indirect discrimination. The premise is that the predominantly male group is paid more than the predominantly female group for some reason other than sex. The question is whether it can be justified to make that payment.
39. It can be justified if it is in pursuance of an objective which is legitimate and where the means chosen are proportionate to that objective. To say that the employer can afford to eliminate the difference in pay simply fails to engage with the defence at all. It is no answer to a defence of justification for a difference in pay to say that there is no need for the difference in the first place. If the employer had made these payments to the claimants, as the Tribunal suggested that they should, then the issue of justification would not have arisen at all because there would have been no pay differential to justify.
40. The error is akin to that pointed out by the EAT in Redcar and Cleveland Borough Council v Bainbridge [2007] IRLR 91, para. 62. The assumption appears to be that the employers should do their utmost to ensure that women and men on equal work are paid the same. That is not what the law requires. As the EAT observed:

"The right is to equal pay unless there is a genuine material factor explaining the difference; it is not a right to the same pay even where the genuine material factor continues to explain and justify the difference."

41. The Tribunal's conclusion is that the employer cannot justify because they can secure equalisation by deeming the women to have done what they have, in fact, not done. This is in truth a conclusion of staggering consequence. Taken logically, it would mean that in all cases of indirect discrimination the employer would have to satisfy the Tribunal that notwithstanding that he has a legitimate objective in differentiating between the pay given to the predominantly male and female groups, he is acting reasonably in not paying the women on the basis that they can be taken to have done the same work as the men.
42. As Ms Gill accepted, if the argument is right then logically there would be no reason in principle why a woman who is working part time, and whose employer has specifically accommodated her to be able to do that, could not say that she should be paid the same as the full timer, the employer paying her for the hours she was not able to work because of her domestic responsibilities. Tribunals would be making judgments as to whether an employer could really be expected to bear the cost of indirectly discriminatory treatment. That is not their function. Paradoxically, it would also mean that the more severe the indirect discrimination, the greater the cost to the employer of eradicating it, and the greater the likelihood of his being able in those circumstances to satisfy the tribunal that the cost would be disproportionate.
43. Nothing in the Equal Pay Act requires an employer to deem that women have done what they have not done. The payment of money to compensate for the economic disadvantages suffered by those who have child care responsibilities is not what the Equal Pay Act requires. 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.
44. We agree with Ms Slade that the Tribunal was wrong to say that paying the claimants as if they had worked was simply a logical consequence of excusing the women from doing the work in the first place, and indeed Ms Gill did not seek to support the Tribunal's observations on this point. It is highly desirable that employers adopt flexible work practices which will enable women to work part time or at hours compatible with their child care, even if that involves incurring some cost in achieving that. But it does not follow at all that they should then pay the women on the basis of the work they would have done if they had not had the child care responsibilities.
45. As to the two subsidiary arguments relied upon by Ms Gill, in our judgment, neither of these factors carries much, if any, weight in the circumstances of this case. This is not a case where the discrimination is "closely related" to direct sex discrimination at all, in the sense in which that term was used in the Elias case. In that case the Government adopted certain criteria for making certain payments to those who had been interned by the Japanese in Hong Kong in the War. These criteria were in their effect virtually indistinguishable from the direct application of a test based on national origin, which would have infringed the Race Relations Act. In those circumstances even although the Court of Appeal held that there was not direct discrimination - because some who did not have UK national origins could exceptionally qualify for payment - the criteria did indirectly discriminate against those of a different national origin and there was a heavy onus on the Secretary of State to justify a measure which achieved virtually the same objective as would have been achieved if the forbidden criteria had been adopted.
46. That is not this case. The vast majority of women were fully able to comply with the 24/7 requirement; it was only a small proportion of women who could not. If there had been direct sex discrimination, the statistics of those who qualified for payment and those who did not would have been wholly different.
47. Ms Gill submits that the reason why it is closely related to sex discrimination is that it is predominantly women who have to take child care responsibilities. But that is simply the condition which leads to the indirect discrimination in the first place. The whole point about indirect discrimination is that the criteria adopted will bear more heavily on one sex than the other. It does not mean that the criterion is in any sense closely related to direct sex discrimination. Indeed, given the very small adverse impact in this case, the justification could be more readily established than in many other discrimination claims.
48. As to the failure to monitor, that is a matter which the Tribunal was entitled to take into consideration when considering whether the means were proportionate. However, this was not a case, as occurs in some circumstances, where the Chief Constable's contemporaneous reason for adopting the scheme was wholly different from that which he sought to justify before the Tribunal. The reason for structuring the scheme in this way was that it was thought fair to reward officers undertaking duties at night because of the social, psychological and other stresses that such work creates. That was precisely the same justification the Chief Constable was seeking to rely upon before the Tribunal. It was not one of those cases where, for example, a scheme was adopted in order to achieve productivity and subsequently the pay differential is sought to be justified on a wholly different basis, such as market forces. The Chief Constable had not appreciated that the scheme would have a relatively small adverse impact, but the objectives of the scheme were always transparently clear.

Disposal.

49. In our judgment, the appeal succeeds. Having found that paying extra for night work was a legitimate objective, the Tribunal erred in saying that the relatively modest sums paid in this case were not objectively justified.