Pool for comparison cannot contain groups not affected by provision
An issue that has proved problematical for many tribunals has been identifying the correct pool for comparison in indirect discrimination cases. When assessing whether a provision, criteria or practice (PCP) places one group at a particular disadvantage compared to another, the comparison must take place in circumstances which are the same or not different in any significant way.
In Somerset County Council and anor v Pike, under the rules of the Teachers’ Pension Scheme, a teacher who retired with a pension and who then returned to teaching part time could not rejoin the pension scheme. In contrast, a teacher who retired with a pension but who then returned to teaching full time could rejoin the scheme. Ms Pike complained that this amounted to indirect sex discrimination, as the majority of part-time teachers were women.
Her claim was struck out by a tribunal as having no reasonable prospect of success on the basis that the pool for comparison was the whole of the teaching profession, i.e. including teachers who had yet to retire as well as those who had retired and then returned to work. Using this pool, the analysis revealed that there was only a slight disadvantage to women. The EAT ruled that the tribunal had erred in its choice of the pool for comparison since it had included pre-retirement teachers, who are not affected by post-retirement rules. The Court of Appeal (CA) dismissed the Council’s appeal.
The CA held that the proper approach to identifying the pool for comparison is to only include those groups who could be affected by the PCP in question. Indirect discrimination cannot be shown by bringing into the equation people who have no interest as to whether the PCP advantages or disadvantages them. Therefore where discrimination is alleged concerning a rule which only affects teachers who have retired and then returned to work, it is illogical to include teachers who have not retired in the comparator pool. In this case, using the appropriate pool, the EAT had been correct to conclude that a pension scheme rule that excluded retired teachers who returned to work part time, but not those who returned full time, did give rise to indirect sex discrimination requiring justification.