Sheffield City Council will find it difficult to argue bonuses are objectively justified says expert

Dinner ladies and female care workers were excluded from a bonus system made available to male gardeners and street cleaners working for Sheffield City Council.

The outcome of the case will be particularly relevant to local authorities and the NHS said Selwyn Blyth, an expert in discrimination law with Pinsent Masons, the law firm behind Out-Law.com.

There is still a certain amount of occupational segregation in roles such as refuse collection and caring which have traditionally been carried out by only one gender, he said.

The trade union Unison is supporting the Sheffield employees and says it has 40,000 equal pay cases that could be affected by the ruling.

Last year the Court of Appeal found in favour of the female workers, who had argued that productivity bonuses granted to male street cleaners and gardeners meant that their colleagues were being paid between 33.2% and 38% more for work the council said was of equal value.

Indirect sex discrimination can occur where an apparently neutral provision is applied in a way that puts workers of one sex at a particular disadvantage compared to the other. It is a defence if an employer can show that the provision is objectively justified.

In this case Sheffield Council argued that the bonuses had nothing to do with gender but were paid to boost productivity. It claimed that the predominantly 'female' jobs could not be measured or rewarded in the same way, and therefore the differences in pay did not need to be objectively justified.

Lord Justice Pill disagreed. "The impossibility of applying the productivity bonus to women's work, carefully reasoned by the Tribunal, is genuine enough but that does not remove the sexual taint from the operation of the scheme," he said in the ruling.

The objective justification test is very strict, said discrimination law expert Blyth. "In order to be successful in the Supreme Court, Sheffield will need to show categorically that the productivity bonuses were nothing to do with gender. Indirect discrimination does not depend on the intention of the employer, so that will not matter if the net result of its actions was discriminatory," he said.

"To justify why the pay scales have to be this way, it is not enough for them to argue that the gender split was merely something that happened organically. That does not explain why the situation is still happening now," he said.

His comments echoed those of Lady Justice Smith in the court of appeal ruling.

"Where the statistics show that the pay practice has produced an adverse impact on women over a long period and where the statistics are convincing, it will generally be difficult for an employer to show that the adverse impact had nothing to do with sex," she said.

Dave Prentis, Unison general secretary, described the case as "ground breaking", but expressed his disappointment about the number of equal pay cases the union are handling.

"More than 40 years after the Equal Pay Act, it's a disgrace that so many women are still waiting for fairness. It's time for Sheffield, and other councils like it, to drop the legal wrangles and face up to their responsibilities to pay women fairly. These legal challenges are a pointless waste of public money. Times are touch and instead of stuffing money into lawyers' pockets, councils should be using the money to keep vital public services running," he said.