Bradley v Royal Holloway and Bedford New College, University of London

Under section 1 of the Equal Pay Act 1970, an employer may establish a material-factor defence by proving a genuine, significant and relevant reason for a difference in a contractual term. The claimant must then produce sufficient evidence that the factor may be tainted by sex. Objective justification arises only where such a taint is established.

Equal-pay comparisons must be made term by term. A tribunal must not treat more favourable terms in one part of a contract as offsetting a less favourable remuneration term elsewhere. An erroneous global comparison will nevertheless be immaterial where the tribunal has independently found a genuine, sex-neutral material factor explaining the identified difference.

A female professor brought equal-pay claims against her college under the Equal Pay Act 1970. It was agreed that her two male comparators performed like work or work of equal value. The relevant issue on appeal concerned retention payments and benefits given to the comparators after approaches by other institutions.

The Employment Tribunal at Watford, by a reserved judgment dated 15 July 2013, found that the college had a genuine material-factor defence and that the payments were not tainted by sex. It also held that the claimant's own retention-related arrangements were at least as favourable as those of the comparators. The claimant appealed, challenging the reasoning on sex taint and statistics, and the Tribunal's global comparison of contractual terms.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the college's wish to retain each comparator after a credible approach from another institution was a genuine material factor. It was a significant and relevant cause of the retention payments and benefits.

2. The Tribunal adequately explained its conclusion that the claimant had not established a sex taint. Its reasoning had to be read with its findings on the evidence of Professor Frank, the college's statistics, and the Hay Group material. The available figures were small and vulnerable to minor numerical changes. The Tribunal was entitled to find that they did not establish sex-related discrimination in retention payments.

3. The employer was not required to prove, in the first instance, the negative proposition that the factor was unrelated to sex. Once it had proved a genuine causative material factor, the claimant had to adduce sufficient evidence of a possible sex taint. In the absence of such evidence, the material-factor defence succeeded. Since no taint was established, no issue of objective justification arose.

4. The Tribunal erred at paragraphs 6.5 and 6.6 by comparing broad groups of retention-related terms and treating the claimant's other contractual advantages as an answer to the particular retention payments made to the comparators. Following [1998] 1 AC 894 and [2011] EWCA Civ 903, the statutory comparison must be term by term. A favourable term cannot offset discrimination in another distinct remuneration term.

5. That error was immaterial. The Tribunal had separately found that the claimant received less favourable retention payments, and that those differences were wholly explained by genuine, sex-neutral material factors. Its unnecessary global comparison did not undermine that dispositive finding.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal's erroneous global comparison of retention-related terms was immaterial because its genuine material-factor finding was sustainable.
• Employment Tribunal at Watford: Reserved judgment dated 15 July 2013 rejecting the claimant's equal-pay claims on the discrete issue tried.