Calmac Ferries Ltd v Wallace and Another: EAT 22 Oct 2013

EAT Equal Pay Act : Material Factor Defence and Justification – Possibly the first appellate consideration of the equal terms provisions of the Equality Act 2010.
The Claimants, two female port assistants claimed to be paid the same as outport clerks, one of whom was male and the other female, for performing like work. They expressly disavowed a claim that the pay arrangements were directly discriminatory. The Respondent applied to strike out the claim, arguing that it was for the Claimants to establish a prima facie case of indirect discrimination and that on the pleaded cases they could not do so: no PCP had been identified. The Employment Judge refused the application.
Held: she was entitled to do so, since although there had been confusion, the Claimants did not accept the reason the Respondent gave for the pay disparity. The material factor defence is fact specific.
Observations made about procedure, and a reminder that it may be unhelpful when considering the equal terms provisions of the Equality Act 2010 to talk in terms of direct or indirect discrimination without linking that closely to the statute. The distinction should not operate as a fetter on examining differences in terms and conditions which appear to affect one gender disproportionately.
The question whether Nelson v Carillion is good authority was resolved by the terms of the 2010 Act.

Langstaff P J
[2013] UKEAT 0014 – 13 – 2210
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522343