Scottish Water v Lynne Edgar
[2024] EAT 32
CSC Computer Science Limited v CL Hampson
15 June 2023
[2023] EAT 88
Employment Appeal Tribunal
A woman sued her company for unequal pay. The first judge didn't properly explain *why* they decided she wasn't doing similar work to men, just summarized what happened. A higher court said the judge needed to explain things clearly and redo the case.
Key Facts
- •The employment tribunal failed to make sufficient factual findings to determine whether the claimant and her comparators were engaged in like work.
- •The tribunal's judgment primarily recounted evidence without making clear findings of fact regarding the claimant's and comparators' work, differences in their work, frequency of differences, and the nature and extent of those differences.
- •The tribunal improperly considered individual performance and job descriptions instead of focusing on the actual work performed.
- •The tribunal did not adequately assess the employer's material factor defence.
Legal Principles
Like work requires a two-stage assessment: (1) whether the work is the same or broadly similar; (2) whether any differences are of practical importance.
Equality Act 2010, Section 65(2)(3)
Like work assessments must be based on clear findings of fact, detailing the work performed by the claimant and comparators, differences in their work, frequency of differences, and the nature and extent of the differences.
Eaton Limited v. Nuttall [1977] ICR 272; Equality Act 2010 Equal Pay Code of Practice, paragraphs 35-37
The focus is on the work actually done, not what is required by contracts or job descriptions.
Brunnhofer v Bank Der Österreichischen Postsparkasse AG [2001] 3 CMLR; Beal & Others v. Avery Homes [2019] EWHC 1415
The material factor defence requires the employer to show the difference in pay is due to a material factor that is causative and not based on sex discrimination.
Equality Act 2010, Section 69; Glasgow City Council v Marshall [2000] ICR 196
Employment tribunal judgments must identify issues, state findings of fact, identify relevant law, and explain how the law applies to the findings.
Employment Tribunal Rules 2013, Rule 62(5); Simpson v Cantor Fitzgerald [2021] ICR 695
Outcomes
Appeal allowed.
The employment tribunal failed to make the necessary factual findings to determine the like work claim. The judgment primarily recounted evidence without sufficient factual conclusions. The tribunal also improperly considered individual performance and job descriptions, and inadequately assessed the material factor defense.
Remitted to a differently constituted employment tribunal for rehearing.
The lack of sufficient factual findings necessitates a rehearing before a new tribunal.