Disparate impact

Case 3: The facts

Mrs Grundy, an airline cabin crew worker, went part-time as Support Cabin Crew (SCC) in 1987 because of childcare responsibilities. The SCC scheme was later halted and she was given a fixed 75% contract. While she was SCC she was not entitled to pay increments (or to pension, holiday pay or sick pay), leaving her earning £4,000 less than a male comparator.

Grundy brought an equal pay claim, but to succeed she had to show that her employer’s pay provisions adversely affected more women than men. The Employment Appeal Tribunal (EAT) held that it did not.

The ruling

The Court of Appeal held that more women than men were disadvantaged by the practice: in 2002 there had been 42 women and only three men in the “disadvantaged” SCC group, and from 1994 to 2002 there had been 471 women and 24 men.

The EAT had been wrong, the court said, to hold that the tribunal must focus on the figures in the “advantaged”, non-SCC group; the way that a tribunal approaches the figures in such cases should depend on the facts, and there should be no general rule.

Having found that the pay practice did have a disparate impact, the court sent the case back to the original tribunal to decide whether the resulting discrimination could be justified.

Grundy v British Airways plc [2007] EWCA Civ 1020