Blackburn v Chief Constable of West Midlands Police [2008] EWCA Civ 1208

In brief

Female police officers excused from 24/7 shift-working due to childcare responsibilities were denied a Special Priority Payment available only to officers working the full rotating shift pattern. The Court of Appeal upheld the objective justification defence, confirming that rewarding unsocial hours is a legitimate aim, that proportionality is tested against the employer's own aim, and that neither financial capacity to eliminate the differential nor availability of less discriminatory means of achieving a different objective can defeat a justification rationally connected to the criterion applied.

Key provisions

• blackburn-ca-2008-p1 — Bilka test: objective justification standard: Indirect pay discrimination is justified where the employer's measure corresponds to a real need, is appropriate and is necessary to that end.
• blackburn-ca-2008-p2 — Focus on the employer's actual aim: The proportionality assessment must test whether the means chosen achieve the employer's own legitimate aim. Alternative aims are irrelevant.
• blackburn-ca-2008-p3 — Rewarding unsocial hours is a legitimate aim: The wish to reward 24/7 night-time working is a legitimate aim capable of justifying a pay differential.
• blackburn-ca-2008-p4 — Equal Pay Act does not require payment for work not done: An employer is not required to deem that an employee has performed work they have not performed.
• blackburn-ca-2008-p5 — Modest cost of eliminating differential is not an answer: It is no answer to say the employer could afford to eliminate the differential. That reasoning sidesteps the proportionality analysis.
• blackburn-ca-2008-p6 — Local flexibility within national frameworks is permissible: Where a national scheme delegates local design, a locally tailored criterion that falls within national parameters is rational.

When relevant

When an organisation's inclusion policy aim is challenged as being the wrong aim. Blackburn prevents a tribunal from saying 'you should have chosen a different policy objective'. Combined with Ladele, it creates a pincer: the aim is accepted at face value AND must be enforced without undermining exceptions. Relevant to: organisations defending their equality policies, service providers justifying Schedule 3 decisions, employers defending Schedule 9 occupational requirements.