Updated to include information on Asda Stores v Brierley and others, in which the EAT held that supermarket employees were able to compare their work with that of depot workers.
The employer in this case persuaded the employment tribunal that a difference in pay between the female claimant and a newer male recruit was caused by its need to offer him a competitive salary to get him to take the job.
This week's case of the week, provided by DLA Piper, covers disparities in pay after the amalgamation of senior and junior roles.
Definition from the XpertHR glossary.
The Employment Appeal Tribunal has held that an employer's compliance with the TUPE legislation to preserve existing contractual terms and conditions that results in a disparity in pay can amount to a genuine material factor that may provide a defence to an equal pay claim.
In Gibson and others v Sheffield City Council  IRLR 311 CA, the Court of Appeal confirmed that, even in cases of indirect pay discrimination, it remains open to the employer to establish that any apparent difference in treatment was not in any way tainted by sex, so that the need for objective justification of the disparate impact is not engaged. However, on the facts of the case, it was plain that the employer had not discharged that burden, so objective justification of the differential treatment was required.
The Court of Appeal has held that an employment tribunal was wrong to find that a pay differential between male street cleaners and female carers, which had been caused by a productivity bonus given to the cleaners that was not appropriate for the carers due to the nature of the work, was not tainted by sex.
In Wilson v Health and Safety Executive  EWCA Civ 1074 CA, the Court of Appeal agreed with the EAT that the ECJ decision in Cadman allows a tribunal to examine the practical application, as well as the adoption, of a length-of-service criterion in a pay scheme. However, the EAT had set the threshold for establishing the requisite "serious doubts" about the criterion too high. To challenge the particular use of such a criterion, "the employee only has to show that there is evidence from which, if established at trial, it can properly be found that the general rule" that such a criterion is appropriate "does not apply".
In Wilson v Health and Safety Executive EAT/0050/08, the EAT held that the ECJ decision in Cadman does not prevent the tribunal examining the period to which a length-of-service criterion is referable. This is provided that the employee has raised "serious doubts" about the appropriateness of the criterion to meet the employer's legitimate aim of rewarding experience that delivers improved job performance.
HR and legal information and guidance relating to the material factor defence to equal pay claims.