Court dismisses appeal concerning whether women were disproportionately clustered at the lower end of pay bands


Re: McNeil & Ors v Commissioners for HMRC [2019] EWCA Civ 1112

This appeal concerned a claim for equal pay by the claimants who are a group of women who work for the respondent. They argued that, within their pay bands, they were disproportionately represented at the lower end of the pay band, whilst their male colleagues were at the higher – described as ‘clustering’.

Under the Equality Act 2010, s 69, the respondents argued they had a material factor in their defence: namely that the differentials in pay were caused by ‘length of service’, and that this factor did not put the claimants in particular, or women generally, at a disadvantage.

The Court of Appeal examined in detail the calculations and analysis the claimants presented to show the disadvantage they purported to suffer. The Court held that the correct approach had to take into account what the individuals involved were actually paid; rather than simply looking at the ‘clusters’. It held that disadvantage in relation to pay distribution was not, of itself, sufficient to establish prima facie indirect pay discrimination: there must also be a material difference in actual or average pay. Therefore the Court upheld the decision of the Employment Tribunal and dismissed the appeal.

Thomas Linden QC was involved in this case.