CSC Computer Science Limited v CL Hampson
[2023] EAT 88
V Barnard v Hampshire and Isle of Wight Fire and Rescue Authority
14 February 2024
[2024] EAT 12
Employment Appeal Tribunal
A non-firefighter sued her fire department for equal pay, saying she did the same work as firefighters who were temporarily doing office jobs. The court said it was okay to pay the firefighters more because their job is riskier and requires more training, even when they weren't actively fighting fires. The court also said she wasn't unfairly fired.
Key Facts
- •Ms Barnard, a non-firefighter employed by Hampshire and Isle of Wight Fire and Rescue Authority, claimed equal pay with operational firefighters (comparators) seconded to non-operational roles.
- •The comparators were employed on Grey Book terms, which were more favorable than Ms Barnard's Green Book terms.
- •Ms Barnard claimed equal pay for a period during which she and her comparators performed like work.
- •The tribunal found like work but held the pay difference was justified due to material factors, rejecting the constructive unfair dismissal claim.
- •The appeal focused on whether the tribunal erred in its findings on material factors and justification, and on the unfair dismissal claim.
Legal Principles
Equal pay legislation (Equality Act 2010, sections 64-70) requires comparison of like work and consideration of material factors justifying pay differences.
Equality Act 2010
A material factor defence is successful if the difference is due to a material factor that does not involve direct sex discrimination and is a proportionate means of achieving legitimate aims.
Equality Act 2010, section 69
For constructive dismissal, there must be a fundamental breach of contract.
Case law on constructive dismissal
Objective justification requires showing the measure is reasonably necessary and proportionate to achieve a legitimate aim; not that no other way was possible.
Bilka-Kaufhaus GmbH v Weber Von Hartz [1986] ICR 317, Bank Mellat v HM Treasury (No 2) [2013] UKSC 39
Outcomes
Appeal dismissed.
The tribunal did not err in finding that the material factor defence applied, even though comparators did not fully maintain operational competence during secondments. The tribunal’s consideration of the HOST exercise and its findings on proportionality were not erroneous.
Equal pay claim failed.
The tribunal found that while the claimant and her comparators performed like work, differences in pay and conditions were justified by material factors that were a proportionate means of achieving legitimate aims (maintaining an effective fire service and rewarding employees for on-call and operational readiness).
Constructive unfair dismissal claim failed.
The tribunal found no fundamental breach of contract, neither of an implied equality clause (because the equal pay claim failed) nor the implied duty of trust and confidence.