Discrimination

Equal pay - disparity in hourly pay rate - presumption of indirect discrimination based on sex - onus on employee to prove sex discrimination

Nelson v Carillion Services Ltd: CA: (Lords Justice Simon Brown, Dyson and Scott Baker): 15 April 2003

A female employee complained to the employment tribunal that she had been discriminated against by a disparity in the rate of her pay in comparison with male employees by her employer on the basis of her sex, contrary to the Equal Pay Act 1970.

The tribunal held that on the evidence produced by the employee it could not find that a case of discrimination had been proved.

The employee's appeal to the Employment Appeal Tribunal on the basis that under section 63A of the Sex Discrimination Act 1975, introduced by Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001, implementing Council Directive 97/80/EC, in a complaint where the disparity in the rate of pay had not been disputed by the employer there was a presumption of pay discrimination and the onus was on the employer to prove the absence of any indirect discrimination based on sex was dismissed.

The employee appealed.

Brian Langstaff QC (instructed by Whittles, Manchester) for the employee; Thomas Linden (instructed by the Engineering Employers Federation) for the employer.

Held, dismissing the appeal, that it was tolerably clear that the effect of section 63A of the Sex Discrimination Act 1975 was to codify rather than alter the pre-existing position established by the case law; that the burden of proving indirect discrimination under the 1975 Act was always on the complainant, and so remained after that amended section; and that unless and until the complainant established that the condition in question had had a disproportionate adverse impact on his or her sex the tribunal could not, even without explanation from the employer, conclude that he or she had been unlawfully discriminated against.