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"Sexual taint" in bonus for male workers

16 February 2010

A “sexual taint” was present in a productivity bonus paid to male council workers, the Court of Appeal has decided.

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.

Giving judgment in Gibson and others v Sheffield City Council [2010] EWCA Civ 63, Lord Justice Pill said the issue was whether the council had proved the absence of discrimination under section 1(3) of the Equal Pay Act 1970.

Pill LJ said the effect of the bonus was discriminatory.

“A sexual taint is present,” he said. “The impossibility of applying the productivity bonus to women’s work, carefully reasoned by the tribunal, is genuine enough but that does not remove the sexual taint from the operation of the scheme.”

Lord Justice Pill said the council had to justify indirect discrimination against the women. He allowed the appeal and remitted the case to the employment tribunal so the council could “attempt such justification”.

Agreeing, Lady Justice Smith said: “I think that the problem is that tribunals fall into the trap, as this tribunal did, of thinking that, provided there is an explanation for the difference of pay which is not directly discriminatory, that will suffice to show that the pay practice in question is not sex-tainted.”

She went on: “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. But the disadvantage was indirectly causally linked to their gender.

“In my view, the history of the payment of bonuses to the street cleaners and gardeners and not to female carers was redolent of gender bias. It was quite impossible to say that the practice was nothing to do with sex.”

Lord Justice Maurice Kay agreed that the case should be remitted to the employment tribunal.

Categorised in:

Discrimination Charities Local government