Sex Discrimination – Direct – Inferring Discrimination
SEX DISCRIMINATION – Burden of proof
SEX DISCRIMINATION – Continuing act
SEX DISCRIMINATION – Justification
EQUAL PAY ACT – Equal value
EQUAL PAY ACT – Work rated equivalent
EQUAL PAY ACT – Material factor defence and justification
The Employment Appeal Tribunal heard an appeal disputing the basis of an ET’s finding of direct sex discrimination. The EAT noted that the pay disparity had its origin in a pay negotiation which the ET accepted gave rise to a material factor defence. However in the period of time that followed these material factors ceased to apply. The Claimant’s comparators ceased to occupy the roles they had at the time of the pay negotiation and the role of the Claimant increased in significance. This disparity was evidenced in a Hay survey instructed by the Appellants and supplied to them about a year after the pay agreement in dispute. The ET felt able to assume that there had been direct discrimination in the period prior to the survey. On appeal the EAT held that in the absence of a decision or its equivalent which had the effect of displacing the original pay agreement, the original justifications offered in the material factor defence persisted. The EAT held that the Hay survey had the effect of alerting the Appellants that a pay disparity existed notwithstanding the fact that its conclusions were not reported to the committee of the Appellants responsible for setting executive pay. It was not possible however to extrapolate the findings of the Hay survey backwards standing the authority of Bainbridge v Redcar and Cleveland Borough Council and a lack of evidence as to when one or all of the material factors ceased to have effect.
[2019] UKEAT 0087 – 19 – 1110
Bailii
England and Wales
Updated: 21 August 2021; Ref: scu.646853 br>