Equal Pay Claim Remitted After Tribunal Erred on "Particular Disadvantage"
An employment tribunal's decision in an equal pay case has been overturned, with the Employment Appeal Tribunal (EAT) finding errors in the lower tribunal's approach to indirect discrimination.
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Equal Pay Case Reaches Appeal Tribunal
Mrs A Perkins claimed Marston (Holdings) Limited breached the equality clause in her contract. She argued she was paid less than three male colleagues doing work of equal value. The core issue revolved around the "material factor defence" under section 69 of the Equality Act 2010.
The Employment Tribunal (ET) initially found three material factors accounted for the pay difference. These were competition and expectation, market forces, and recruitment and retention of enforcement agents. However, the EAT found the ET erred in its assessment of whether these factors were tainted by sex and required justification.
The "Particular Disadvantage" Argument
Perkins argued two of the material factors, market forces and recruitment and retention of enforcement agents, were indirectly discriminatory. She claimed they disadvantaged women because the pool of Enforcement Agents (EAs) was predominantly male (90%). The ET concluded Marston didn't need to justify these factors because Perkins didn't share the particular disadvantage applying to other women, namely, being deterred from becoming an EA due to perceived risks.
The EAT disagreed. It held the ET improperly inquired into the reason why the material factor disadvantaged women. The EAT clarified there's no need for a claimant to prove the reason; it's sufficient to show the factor does disadvantage women.
Proportionality and Legitimate Aim: Respondent's Cross-Appeal
Marston (Holdings) Limited cross-appealed the ET's alternative finding that the material factors weren't a proportionate means of achieving legitimate aims, such as business efficiency and recruitment/retention. The EAT allowed this cross-appeal, criticising the ET for failing to analyse what part of the pay gap was proportionate, ignoring the impact on staff retention and loss of certification, and not assessing the impact using the correct pool of employees.
The Remittal
The EAT has remitted the case back to a fresh tribunal. The tribunal will determine if the two material factors were tainted by sex, and if so, whether they were a proportionate means of achieving legitimate aims.
Deputy Judge Andrew Burns KC emphasised that a pragmatic approach should be taken, focusing on substance rather than form. He stated that objective justification is necessary when there is evidence of a sexual element in the employer's reason for the pay disparity.
The EAT dismissed other grounds of appeal from Perkins, which challenged the ET's findings that the respondent had proved the three material factors, finding that the ET had not reached perverse findings of fact.
Read the entire judgement here: Mrs A Perkins v Marston (Holdings) Ltd [2025] EAT 170
