Allonby v Accrington & Rossendale College [2001] EWCA Civ 529

In brief

A college terminated the contracts of its hourly-paid part-time lecturers and re-engaged them through an agency as self-employed contractors in order to reduce costs. Because women constituted a substantially greater proportion of that workforce, the arrangement constituted indirect sex discrimination. The Employment Tribunal's finding that the discrimination was justified was overturned because it failed to conduct the required objective balancing exercise.

Key provisions

• SDA1975-s1-1b — Requirement or condition for indirect discrimination: A requirement or condition must be identified and construed broadly. An employer cannot defeat the claim by recharacterising the same facts as a different requirement.
• SDA1975-s1-pool — Selection of the correct pool for differential impact: The pool for measuring impact is a matter of logic, not discretion. It should comprise all persons who would qualify but for the requirement.
• SDA1975-s1-justifiability — Justifiability requires an objective balancing exercise: To justify an indirectly discriminatory condition an employer must show a legitimate objective and that the means are appropriate and reasonably necessary. The tribunal must weigh the discriminatory effect against the genuine need.
• SDA1975-s9 — Protection for contract workers: Section 9 SDA 1975 applies both as between contract workers and as between a contract worker and an employee.
• EPA1970-s1-same-employment — Equal pay comparator — same employment and EU law reach: Under the Equal Pay Act 1970 a comparator must be in the same employment. EU law may extend the reach to workers doing the same work for the same establishment.
• PensionsAct1995-s62 — Occupational pension scheme access and indirect discrimination: Exclusion of workers on contracts for services from an occupational pension scheme may constitute indirect sex discrimination.

When relevant

Foundational authority for ANY proportionality assessment in the toolkit. When an employer or service provider restricts trans people's access to facilities, services, or roles, the three-stage Allonby test is the framework a tribunal will apply. Directly relevant to: EqIA proportionality sections, Proportionality Wizard, single-sex exception decisions, occupational requirements, and the L2-B4 Proportionality Check Flowchart.