Employment Cases Update

McNeil & Ors v HM Revenue & Customs [2018] UKEAT0183/17/2702

Appeal in this equal pay case against a finding that the female Claimants had not suffered a particular disadvantage when considering the analysis of differential distribution and basic pay. Appeal dismissed.

The focus of the Claimants' case was the 'core allegation' that the Employment Judge should determine whether particular disadvantage had been established simply on the basis of an analysis of the differential distribution of men and women within the pay scale that showed "clustering of women towards the lower end of the pay scales and men towards the upper end …", rather than on the basis of an analysis of differences in the basic pay of men and women in the relevant grades. The EJ concluded that the Claimants failed to establish that length of service put them and women at a particular disadvantage on that basis. The issue in this appeal was whether the ET was correct to exclude (to the extent he did) the distribution analysis as establishing particular disadvantage.

The EAT dismissed the appeal. The EJ had not excluded a distribution analysis entirely from his consideration; nor did he focus exclusively on an inappropriate comparison of average total basic pay. Rather, in the context of the Claimants' concession that the average basic pay figures showed no significant long-term differences between the basic pay of men and women in either of the two grades, the EJ held that distribution could not be equated with, or allowed to supplant pay. In other words, a distribution analysis on its own said nothing about pay.

Employment Claims without a Lawyer 2nd edition published March 2018

Read the full text of the judgment on Bailii