Sharp v Caledonia Group Services Ltd: EAT 1 Nov 2005

EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The claimant appealed dismissal of her action for equal pay, saying that the ‘material factor’ defence used to justify a different payment had been incorrectly applied. It was suggested that the decision on Fernandez did not fit with the ECJ decisions leading up to Brunhoffer.
Held: The Brunhoffer case was to be preferred to Fernandez, since it ‘provides clear guidelines in equal pay cases as to the need for objective justification in all cases.’ In the case of a conflict between UK and European decisions on this subject the European Court should be preferred. ‘the Tribunal approached the genuine material factor defence on a subjective rather than objective view. ‘ and that decision would require a rehearing. When an employer raised in defence to amn action for sex discrimination a defence that there had been a material factor justifying the difference in pay it was for that employer to establish the existence of the condition objectively.
EAT In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.


Ansell J


UKEAT/0041/05, [2005] UKEAT 0041 – 05 – 0111, [2006] IRLR 4, [2006] ICR 218




Equal Pay Act 1970 1(3), Sex Discrimination Act 1975 1


CitedParliamentary Commissioner for Administration and the Health Commissioner v J Fernandez EAT 11-Jun-2003
EAT Equal Pay Act – Article 141
The applicant began work as a case worker at a lower salary than a female case worker employed by different departments in the same office. The female case worker was . .
See AlsoA Sharp v Caledonia Group Services Ltd EAT 18-Apr-2005
EAT Sex Discrimination – Direct.
EAT Equal Pay Act – Material factor defence. . .
CitedKumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .
CitedRatcliffe and Others v North Yorkshire County Council HL 7-Jul-1995
Three school dinner ladies had been employed by the Council at National Rates of pay and conditions. Their work which was almost exclusively carried out by females had been rated as of equal value to that of men employed by the council at various . .
CitedMacarthys Ltd v Smith ECJ 27-Mar-1980
The first paragraph of article 119 of the EEC Treaty applies directly, and without the need for more detailed implementing measures on the part of the community or the member states, to all forms of direct and overt discrimination which may be . .
CitedStrathclyde Regional Council v Wallace HL 1988
Female teachers carried out the work of principal teachers but had not been appointed to the promoted post and were paid less than they would have received had they been so appointed. They claimed equal pay with male comparators who were appointed . .
CitedGlasgow City Council and Others v Marshall and Others HL 8-Feb-2000
Although instructors in special schools, carried out work of a broadly similar nature to qualified teachers, and the majority were women, they were not entitled to an equality of pay clause, since there was no evidence of sex discrimination, and the . .
CitedTyldesley v TML Plastics Ltd EAT 23-Mar-1995
Mrs Tyldesley complained that she had been paid less than a male comparator. The employer said the reason for this was that the comparator understood and was committed to the concept of total quality management. The tribunal had found that in . .
CitedBilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
CitedHandels Og Kontorfunktionaerernes Forbund I Danmark v Dansk Arbejdsgiverforening, Acting On Behalf Of Danfoss. (Preliminary Questions ) ECJ 17-Oct-1989
Europa Where the law provides that an industrial arbitration board has jurisdiction in disputes between parties to collective agreements made between employees’ and employers’ organizations and either party may . .
CitedHill and Stapleton v The Department of Commissioners and Department of Finance ECJ 17-Jun-1998
Two female employees shared a job in the civil service during which time they each moved up one point in the incremental pay scale with each year of service and were paid fifty percent of the salary for clerical assistants. After two years they . .
CitedLawrence and others v Regent Office Care Ltd and Others ECJ 17-Sep-2002
The employees claimed sex discrimination, and sought to have as comparators, male employees of an employer who had previously employed some of them, before a TUPE transfer of the services supplied. The Court of Appeal referred to the court the . .
CitedBarton v Investec Henderson Crosthwaite Securities Ltd EAT 6-Mar-2003
EAT Sex Discrimination – Inferring Discrimination
The claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay.
Held: The new . .
CitedIgen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
CitedAutologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
CitedEnderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 04 July 2022; Ref: scu.235060