If the claimant can show that their work is of equal value to that of their comparator but that they are being paid less, then the onus shifts to the employer to prove that the variation is "genuinely due to a material difference which is not the difference of sex".
If the employer can show that there is no direct or indirect sex discrimination, then a Tribunal will accept their explanation for the difference provided it is genuine and relevant. However, if there is evidence of sex discrimination in the pay system, the employer has to try to justify the difference. This involves showing that it:
- Corresponds to a "real need" of the business
- Is reasonably necessary and appropriate to that need
- Is proportionate to that need
The reason put forward for the difference in pay must be the actual reason (although it can be given in hindsight). In other words the employer does not have to have thought of it at the time, provided it really does explain the difference. The reason must also be "significant and relevant".
Examples of genuine material factor defences that employers have used to defeat equal pay claims include:
- Market forces and skills shortages
- Red circling
- Geographical differences
- Different skills, qualifications and experience
The genuine material factor defence will fail, however, if the reason itself is 'tainted with discrimination' and is not justifiable. For example, the House of Lords refused to accept an employer's material factor defence based on market forces, when the market itself discriminated against the claimant – female catering workers. The evidence in that case indicated that the market valued the work of catering workers at a lower rate because catering workers were on the whole women.
If you consider that you may have an equal pay claim please contact our employment lawyers on 0800 0891 331, we can offer you free initial advice and can take on your claim on a no win no fee agreement.
