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Equal pay: Cross-establishment claims and the GMF defence

This report relates to 1 case(s)

The Court of Appeal has recently considered two cases which raise the issues of whether a male comparator employed at a different establishment from an applicant is "in the same employment" for the purposes of a claim under the Equal Pay Act, and the nature of the employer's "material factor" defence under s.1(3) of that Act. In its consolidated judgment in British Coal Corporation v Smith and others and North Yorkshire County Council v Ratcliffe and others [1989] IRLR 28, the Court holds that a male comparator employed at a different establishment must be employed by the same employer, or an associated employer, on the same terms and conditions as apply, or would apply, to employees of the comparator's class at the applicant's establishment. On the material factor defence, in the British Coal case the Court upholds an industrial tribunal's finding that the historical development of separate collective bargaining structures did not provide "objective justification" for the apparently discriminatory effect of those structures on a group of applicants who were predominantly female, in comparison with other groups of employees who were almost exclusively male. In the North Yorkshire case, however, the Court concludes that a pay differential between groups of male and female council workers was genuinely due to "market forces" - that is, the need to compete with private contractors in a competitive tendering process - and was not tainted by sex.