Equal pay: the material factor defence

A fire and rescue service has successfully defended an equal pay claim even though the claimant and comparators were engaged in 'like work' for the period of the claim. Jessica Scott-Dye analyses the case.

Equal pay law

Under the Equality Act, men and women should receive equal pay for equal work. A 'sex equality clause' is implied into claimant contracts of employment in order to replace less favourable terms with the equivalent provisions of comparator contracts. Claimants and comparators must be employed either to do the same work as each other, to do work rated as equivalent, or work of equal value. However, employers can defend equal pay claims if they can show that the difference between the two sets of terms can be explained by a "material factor". This is known as the "material factor defence".   

Facts

In the case of Barnard v Hampshire and Isle of Wight Fire and Rescue Authority, the claimant worked in an administrative role under nationally agreed pay and conditions (known as Green Book terms). The respondent also employed operational firefighters, whose employment was governed by terms that were more favourable in relation to remuneration, hours and holiday (Grey Book terms).

The claimant claimed equal pay in respect of certain Grey Book terms. During the period of her claim, the comparators, who were trained operational firefighters, had been seconded to non-operational roles. The claimant argued that, in those roles, the work the comparators had been doing was similar to the claimant’s work during the relevant period.

The Tribunal found that the claimant and comparators were indeed carrying out “like work” in the relevant period, but rejected the claim, finding the Grey Book comparators were under a genuine requirement to maintain their operational competence and this was a valid material factor defence. The claimant appealed to the EAT.  

EAT outcome

In Barnard v Hampshire and Isle of Wight Fire and Rescue Authority (EQUAL PAY) [2024] EAT 12 the EAT dismissed the claimant’s appeal. It found that whilst the claimant and her comparators were engaged in 'like work' during the relevant period, it was open to the Tribunal to reject the equal pay claim on the evidence. The Grey Book comparators were under a genuine contractual requirement to maintain operational competence, including training, fitness and being available for redeployment to an operational role. Whilst there was evidence that some of the comparators might have failed to keep up to date, this could be relevant to the Tribunal's determination but did not oblige the Tribunal to find that there was no genuine requirement for seconded comparators to maintain their skills.

The Tribunal was therefore entitled to find that the pay differential was objectively justifiable, so the respondent could rely on the material factor defence.

Learning points for employers

This is an interesting illustration of the relevance of a requirement on comparators to maintain operational competence despite being engaged on a day-to-day basis in non-operational work. As the Tribunal had found the requirement was genuine on the facts, it was entitled to find that there was a valid defence to the claim.

Jessica Scott-Dye is a Senior Associate in the Employment team at VWV.