UK: EAT rules that clustering of women at low end of a pay grade was insufficient to establish indirect discrimination

The use of length of service as a criterion for pay may indirectly discriminate against women and therefore require objective justification to be lawful (particularly long pay scales are likely to face more of a challenge). However the mere fact that women are clustered at the lower end of a pay scale and men in the same grade are clustered at the higher end is not sufficient in itself to establish that an employer's use of length of service as a pay criterion puts women at a particular disadvantage.  The EAT held in McNeill v HMRC that women were not put at a particular disadvantage as the average pay figures showed no significant differences between pay for men and women in the same pay grade.

The EAT also made clear its obiter view that old case law (Armstrong v Newcastle upon Tyne NHS Hospital Trust), which suggested that an employer could avoid the need to show objective justification if it could show a non-discriminatory underlying reason for any disparity, is no longer good law, following the Supreme Court ruling in Essop v Home Office. Once a claimant can show that a practice puts a protected group at a particular disadvantage, the practice in question must be justified and there is no need first to establish why the protected group is disadvantaged.  If followed in other cases, this would make clear that equal pay cases should be approached in the same way as other indirect discrimination cases.