[Thanks to Sophia Berry, pupil barrister at Littleton Chambers, for preparing this case summary]
Do pay protection policies breach the Equal Pay Act 1970?
Not necessarily, said the Court of Appeal in Haq v The Audit Commission.
The Court held that the employment tribunal had not erred in law in finding that the Claimants had established a prima facie case of indirect sex discrimination. The employment tribunal was entitled to conclude that the Audit Commission's amalgamation of two administrative roles and its application of a pay protection policy to the affected employees had had a disparate adverse impact on the Claimants.
The employment tribunal's analysis of the objective justification question was, however, wrong in law. The Court of Appeal rejected the tribunal's suggestion that 'red circling' the pay of those employees with higher pay points or assimilating the roles and making the employees with higher points redundant would have constituted a less discriminatory means of achieving the Commission's legitimate aims than the pay protection policy. The EAT was entitled to substitute its own view of the matter for that of the employment tribunal and the majority (Lewison LJ and Sir Mark Waller) therefore dismissed the appeal. Mummery LJ, dissenting, concluded that the question of objective justification should be remitted to the employment tribunal as the EAT had approached it incorrectly.
Mummery LJ's judgment promotes negotiation as a means of saving time, effort and money and achieving better outcomes in equal pay claims. He notes that 30 years of equal pay litigation has not eradicated sex discrimination in pay and that courts may not be the best places in which to end the injustice of workplace discrimination.