Skills Development Scotland Co Ltd v Buchanan & Anor - TUPE requirements properly explained difference in pay [2011] EAT

In an equal pay claim,the requirement under TUPE to preserve contractual rights of a particular employee - albeit that results in them having a higher salary than other employees - can be a genuine, material, and gender-neutral factor to explain a difference in pay. Furthermore, the employer is under no duty to seek to reduce that pay difference.

Miss Buchanan and Miss Holland, along with their equal pay comparator Mr Sweeney, were employed by Scottish Enterprise (SE) as from 2002 following TUPE transfers in from different employers. Subsequently all TUPE transferred to Skills Development Scotland. All were customer service managers, in jobs of equal value for the purposes of Equal Pay Act 1970. Mr Sweeny joined SE on a higher salary and with a contractual right to two further specified increases (which he received) and thereafter normal pay increases. From 2004 all three  - like all SE employees - received routine pay increases; a performance related bonus scheme was also introduced. SE did not "ringfence" Mr Sweeney so as to freeze his pay (which was high for his role), meaning that he continued to earn about £10,000 a year more. 

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