It's the law: Equal pay: genuine material factor

The fourth in a series on equal pay claims and how best to deal with them.

Even if a woman can establish that she is engaged on like work, work related as equivalent to that of a man or work of equal value (Third Sector, 9 April), the equality clause will not apply if the difference between the contracts is genuinely because of a 'material factor' that is not the difference of sex.

There are a number of potential 'genuine material factor' defences on which charities could rely to defeat equal pay claims, and I will discuss these in my next article on the subject. Before that, we will look at how the defence operates.

In the case of equality claimed on the basis of like work or work rated as equivalent, the factor must be a material difference between the woman's case and the man's. However, where equality is claimed on the basis of work of equal value, the factor can be a material difference between the woman's case and the man's.

It is possible that a material factor could, in itself, be tainted by sex discrimination. For instance, a charity might seek to argue that the difference in pay was due to the fact that the woman worked part-time. This would be indirectly discriminatory on grounds of sex, because potentially more women than men work part-time as a result of childcare responsibilities.

This difference would then have to be objectively justified by establishing that the reason for the difference in pay related to a real need of the charity and was appropriate to achieving the objective pursued. It should also be established that the difference in pay is necessary to the end envisaged by the charity and is proportionate.

If the effect of the material factor defence, rather than the factor itself, could potentially have an indirectly discriminatory effect on the grounds of sex, then this would not have to be objectively justified.

A charity might argue that a 'market forces' factor was responsible for the difference in pay, for example, and that pay levels were dictated by a particular labour market (such as the charity sector), which meant that an individual was paid the market rate. In these circumstances, the material factor defence is not in itself tainted by discrimination, but could have a potentially indirectly discriminatory effect (on the grounds of sex) if the effect is that more women than men are employed in the charity sector. In these circumstances, there will be no independent evidence to show that sex has any influence on a difference in pay.

- Emma Burrows is a partner and head of the employment group at Trowers & Hamlins solicitors.

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