Representation:-

in layman's language:-

1. in order to decide whether an employer can succeed in using the "genuine material factor other than sex" defence to an equal pay claim the test to apply (except in straightforward open and shut cases) is the same as the one used in indirect discrimination cases generally, namely were the employer's actions "a proportionate means to achieve a legitimate aim?" (see Sex discrimination/defence of justification and/or Sex discrimination/equal pay and terms of employment/genuine material factor defence ).

2. temporary arrangements designed to phase in equal pay between male and female employees over a period of time can themselves amount to unlawful discrimination contrary to provisions introduced by the Equal Pay Act 1970.

in technical language:-

1. when considering the genuine material factor ("gmf") defence to an equal pay claim the start point is to consider whether the factor which the employer says was the reason for inequality of pay between men and women is in any way connected with sex. There are three possible positions: (i) that sex was the reason for the disparity - the gmf defence then clearly fails; (ii) that sex had nothing whatsoever to do with the reason for the disparity - the gmf defence then clearly succeeds; and (iii) the position is somewhere in between in that the reason for the pay disparity is not directly sex-related but it is indirectly sex-related. In this third situation in order to decide whether the gmf defence can succeed the correct test to apply is the one relevant generally in indirect discrimination cases, namely was the putative gmf a proportionate means to achieve a legitimate aim (see for notes at Sex discrimination/defence of justification ).

2. arrangements for phasing in pay adjustments to eliminate unlawful unequal pay can themselves breach the equal pay rules if they provide "pay protection" for those whose pay will actually reduce but exclude those whose pay would reduce if they had been properly paid in the first place. Those whose pay would reduce if they had been properly paid in the first place may therefore bring an equal pay claim based on their exclusion from the phasing in arrangements. If they do so the question of whether the employer can successfully use the gmf defence (by claiming that he was using a proportionate means to achieve a legitimate aim) should be considered by reference to the exclusion of the claimants from the pay protection arrangements and not by reference to the pay protection arrangement as a whole. In other words, in those circumstances a narrow rather than a wide view should be taken of what constitutes the "means" used to achieve the legitimate aim.

3. it is not open to the Employment appeal Tribunal (paras 116, 141, 147, 152 and

4. the fact that a claim under the "work rated as equivalent" provisions of EqPA 1970 s.1(2)(b) has already been decided does not prevent the same claimants bringing a further claim under the "work of equal value" provisions of EqPA 1970 s.1(2)(c) as the two claims are sufficiently distinct to mean that the doctrine of "res judicata" does not apply (see notes at Estoppel ).

For relevant general notes see:

For emplaw editor's notes on the decision in this case see below (professional versions only)