Hi everyone, Collette here and welcome back to our case of the week. This week, we are looking at an equal pay case of Barnard v Hampshire and Isle of Wight Fire and Rescue Authority. Last week, we had the case of South Gloucestershire Council v Ms Pavandeep Hundal involving a claimant with endometriosis alleging disability discrimination. For those that missed it you can find it here.
Background
The Claimant, Ms Barnard, was employed by the Respondent, Hampshire and Isle of Wight Fire and Rescue Authority, under “Green Book” terms meaning she was not a trained firefighter nor in an operational firefighting role. However, her comparators, who are trained operational firefighters, were employed under more favourable “Grey Book” terms in relation to remuneration, hours, and holidays. One of the key differences between the relevant terms was the requirement that Grey Book employees had to maintain operational competence which included being physically fit during the period when they were seconded. No such requirements applied to Green Book employees such as the Claimant. The Claimant sought equal pay for a period when her comparators were seconded to non-operational roles, arguing they performed like work during that time.
The Claimant resigned and brought claims for Equal Pay, Constructive Unfair Dismissal, Sex Discrimination, and Indirect Discrimination.
ET
The Employment Tribunal (ET) held that: (1) the Claimant performed like work with her comparators; (2) the difference in terms was due to material factors not involving direct sex discrimination; (3) there was indirect discrimination; but (4) reliance on the material factors was a proportionate means of achieving legitimate aims.
Consequently, the equal pay claim failed. Her constructive unfair dismissal claim also failed as the ET found no fundamental breach of the implied duty of trust and confidence or of an equality clause.
The Claimant appealed.
EAT
The Claimant appealed to the Employment Appeal Tribunal (EAT), arguing that the ET erred by not determining whether the comparators fully complied with the requirement to maintain operational competence during their secondments. The Claimant submitted that had the ET made such a finding, it would have been clear that the comparators did not fully comply, yet their pay remained unaffected.
Dismissing the appeal, Judge Auerbach clarified that what matters is whether the employer genuinely required operational competence and whether this requirement contributed to explaining the higher pay. The ET was entitled to conclude that the requirement, even if not fully met, was genuine and could be relied upon as part of the material factor defence.
The EAT dismissed the appeal on three main grounds:
- The ET did not err by failing to make specific findings on whether the comparators fully complied with the operational competence requirement during secondments, as the Respondent’s requirement was genuine and supported the legitimate aims.
- The Claimant argued that a group of Green Book employees in Head of Service Team (HOST) roles had received equal pay with colleagues on Grey Book terms in similar roles, which should have undermined the Respondent’s case. However, the EAT found no error in the ET’s conclusion that the differential pay for the Claimant was necessary and proportionate to the Respondent’s legitimate aims.
The appeal also challenged the ET’s rejection of the constructive dismissal claim, arguing that if the ET had erred in dismissing the equal pay claim, it should have found a breach of the equality clause. However, this ground also failed.
Takeaway Points
There are some big corporations such as Next, Tesco and Morrisons all facing long-running equal pay litigation brought by female shop-based employees comparing their work to male distribution centre workers. In this case, the Claimant was successful in establishing that she performed like work with her comparators and there was indirect discrimination. However, she fell at the hurdle of challenging the Respondent’s reliance on the material factors being a proportionate means of achieving legitimate aims.
Not every instance of indirect discrimination related to unequal pay will necessarily result in a successful claim. The aim or the reason behind the discrimination must be fairly balanced against the disadvantage suffered because of the discrimination. This means it must be appropriate and necessary and is “a proportionate means of achieving legitimate aims.”
If you or someone you know are dealing with a similar issue, please contact us for further assistance.
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