Bonus sexually tainted

Gibson and others v Sheffield City Council [2010] EWCA Civ 63; SJ 16 February p3

Female care workers and dinner ladies claimed that bonuses paid by Sheffield Council to male road sweepers and gardeners discriminated against them. The council accepted that the work carried out by the women was of equal value, but, because of the bonus scheme, paid them a third less than the men. The issue was whether the Council had proved the absence of discrimination under s1(3) of the Equal Pay Act 1970. The effect of the bonus was discriminatory. The impossibility of applying the productivity bonus to women’s work, carefully reasoned by the tribunal, was genuine enough, but that did not remove the sexual taint from the operation of the scheme. The council had to justify indirect discrimination against the women. The tribunal had fallen into the trap of thinking that, provided there was an explanation for the difference in pay which was not directly discriminatory, that would suffice to show that the pay practice in question was not sex-tainted. The tribunal’s reasoning did not address the question of whether the pay arrangements, which on their face were gender neutral, unintentionally put women employees at a particular disadvantage when compared with the male employees. They plainly did. The claimants’ disadvantage did not result from the fact that they were women; that would have been direct discrimination. The disadvantage was indirectly causally linked to the gender. The appeal was allowed and the case remitted to the Employment Tribunal so that the Council could attempt to justify the indirect discrimination against women.