Secretary Of State For Justice (Sued As National Offenders Management Service) v Bowling

Under section 1(3) of the Equal Pay Act 1970, an employer may rely on a material factor unrelated to sex where it explains the pay difference. Where a comparator is recruited at a higher point on an incremental scale because of relevant skills and experience, that factor may continue to explain later differences produced by the scale. It is not decisive that the factor is historical, or that the claimant later acquires comparable experience and performance. The question is whether the factor continues to have causative effect on the differential. The case is distinguishable from an authority where the original factor was expressly time-limited and had ceased to operate.

The claimant and her male comparator were employed in the same role by the Prison Service. She started at spinal point 1, while he started at spinal point 3 because of his substantially greater relevant IT skills and experience. Both subsequently progressed annually through the incremental scale.

The Employment Tribunal accepted the material factor defence for the first year but held that the original difference ceased to explain the differential from April 2009, when the claimant had gained experience and achieved the same performance rating. The Secretary of State appealed, contending that the initial placement continued to produce the later difference through the operation of the scale. The central issue was whether the original non-discriminatory factor continued to explain the pay differential in subsequent years.

1. Appeal allowed; claim dismissed. The Employment Tribunal had accepted that the comparator’s higher starting point was attributable to his relevant skills and experience and was not tainted by sex.

2. That finding, coupled with the operation of the incremental scale, necessarily explained the continuing differential. Once the comparator had started two points higher, the difference was built into subsequent years, subject to satisfactory progression. The factor therefore retained causative effect even if the claimant had caught up in experience and performance.

3. Calling the explanation historical was unhelpful. The relevant question was whether it continued to explain the differential at the time under consideration. The claimant’s later development might affect justification, but it did not remove the causal explanation for the difference in pay.

4. Glasgow City Council v Marshall [2000] ICR 196 was followed. The Tribunal had referred to it but had not properly applied its reasoning. Bury Metropolitan Borough Council v Hamilton [2011] ICR 655 was distinguishable because the bonus arrangements there changed character over time.

5. Benveniste v University of Southampton [1989] ICR 617 was also distinguishable. In that case the factor relied on was a period of financial stringency which had ended and could no longer explain the differential. Here, the initial placement was not time-limited and necessarily affected later pay.

6. The issue was the explanation for the continuing differential, not what the employer could theoretically have done by disrupting the agreed incremental arrangements.

• Employment Appeal Tribunal: allowed the Secretary of State’s appeal and dismissed the claim.
• Employment Tribunal: accepted the material factor defence up to April 2009 but upheld the equal pay claim from that date.