CSC Computer Science Limited v CL Hampson
[2023] EAT 88
Scottish Water v Lynne Edgar
6 March 2024
[2024] EAT 32
Employment Appeal Tribunal
A woman sued her employer for unequal pay. The employer said the pay difference wasn't due to sexism but other reasons (a 'material factor'). The judge made a mistake by focusing too much on who made the decision and ignoring evidence. A higher court said the judge was wrong and sent the case back for a new trial. The important thing is proving the reasons for the pay difference, not finding the person who made the decision.
Key Facts
- •Lynne Edgar (claimant) brought an equal pay claim against Scottish Water (appellant) under the Equality Act 2010.
- •Her comparator was a male employee, Mr B, with the same job title and pay band, appointed after her.
- •Scottish Water defended the claim using the 'material factor' defence, arguing the pay difference was due to Mr B's superior skills, experience, and potential.
- •The Employment Tribunal (ET) held that Scottish Water failed to prove the material factor defence because it did not identify the pay decision-maker.
- •The ET also deemed evidence of the claimant and comparator's skills and abilities *after* Mr B's appointment irrelevant.
Legal Principles
Material factor defence under section 69 of the Equality Act 2010 requires showing the pay difference is due to a material factor unrelated to sex discrimination.
Equality Act 2010, section 69
Causation in a material factor defence is assessed objectively, not solely by the subjective thought processes of the decision-maker.
Skills Development Scotland Co Ltd v Buchanan UKEATS/0042/10/BI
To prove a material factor defence, an employer must show a causal link between the pay difference and a genuine, non-sex-related factor. Identifying the specific decision-maker is not always essential.
Glasgow City Council v Marshall [2000] IRLR 272; Skills Development Scotland Co Ltd v Buchanan UKEATS/0042/10/BI
Evidence of comparative skills and abilities after the comparator's appointment can be relevant to proving a material factor defence, particularly in demonstrating the persistence of the skills gap.
Bury Metropolitan Borough Council v. Hamilton and others [2011] ICR 655
Outcomes
The Employment Tribunal's judgment was set aside.
The ET materially misdirected itself on the law regarding the material factor defence by requiring proof of the decision-maker's identity and by excluding relevant post-appointment evidence.
The preliminary issue of the material factor defence was remitted to a differently constituted Employment Tribunal.
The ET's errors of law prevented a proper consideration of the evidence, making a remit necessary.