EAT Equal Pay Act : Material Factor Defence and Justification – A female professor claimed equal pay under the Equal pay Act 1970 with two male professors at the college where she taught and researched. They were assumed to be engaged on like work/work of equal value. In each of their cases, significant sums in addition to their original basic pay had been given to them when it was learned by the College that approaches had been made to ‘poach’ them away from its service. This was a wholly genuine reason, which the ET held was made for sound business reasons. It decided that the genuine material factor defence provided for by s.1(3) of the Act had been made out, and that the differences in pay were unrelated to sex. It was argued that in doing so the ET did not adequately deal with evidence produced by both College and Claimant which showed on available statistics that male academic staff were paid more than female staff, and evidence that retention payments were more likely to be made to men than to women because (inter alia) men were likely to be more mobile. This was rejected: the ET sufficiently reasoned why it thought that this evidence did not establish any ‘taint’ of sex, the burden being on the claimant to produce some evidence to show this once a genuine reason causative of the difference in pay had been identified. No issue of justification thus arose.
The ET also however held that a comparison could be made globally between the ‘retention-related’ terms in the men’s contract with those in hers, which it identified in fact though it had not been invited to do so by either party, and which the College had never claimed to rely on as a reason for the difference in pay. Indeed, it held that it eliminated any difference. This was an error: both the Act and European law called for a term by term comparison, and not an overall view of the value of remuneration and employment arrangements. It was however unnecessary for the ET to consider the question, since it had no obvious relevance to the question whether there was a genuine material factor, unrelated to sex, which explained the differences in retention payment (as such) which the ET had found to exist. The error was immaterial to the decision, which appeared clear, and which was reached without error after a correct statement of the applicable law.
Langstaff P J
[2014] UKEAT 0459 – 13 – 3004
Bailii
England and Wales
Discrimination
Updated: 20 December 2021; Ref: scu.535992
