The rules of teachers’ contracts said that if they took a break from full time teaching and returned to full time teaching, they could re-enter the Teachers’ Pension Scheme. However they could not re-enter if they were merely returning as part time teachers. P said this was indirect discrimination because or the proportion of part time teachers who are women. CA held that this was discrimination, and that the appropriate comparator was a full time employee returning to work full-time after a break. It was irrelevant to compare teachers who never took a break as they were simply unaffected by the provision, following the majority (Hale, Rodger and Scott) reasoning in Rutherford.
Kay LJ: “Equality of treatment is predicated upon comparison. In cases of indirect sex discrimination, the first question is whether an apparently neutral provision, criterion or practice “disadvantages a substantially higher proportion of the members of one sex.”
Those are the words of Council Directive 97/80/EC . They presuppose an advantaged group and a disadvantaged group. The comparative exercise is crucial but the identification of appropriate groups has given rise to recurrent difficulty.” He said that the conclusion to be inferred from Rutherford was not entirely clear (though he rejected the use of the broad pool of the ‘entire workforce’ in favour of the narrower pool of people who had taken breaks before returning to work). Nevertheless “I do not disagree with the observations of Sedley LJ in Grundy (at paragraphs 27 and 31) to the effect that there may not be a single suitable pool for every case.”