CSC Computer Science Limited v CL Hampson

For a like-work claim under Equality Act 2010, the tribunal must make clear findings about the work actually done by the claimant and each comparator. It must identify differences in that work, their frequency in practice, and their nature and extent.

The assessment has two stages. It asks first whether the work is the same or broadly similar and, secondly, whether established differences are of practical importance to the terms of work. It is not an evaluation of the work’s value or of individual performance. Job descriptions and contractual duties may be evidential, but the focus is on practice.

The claimant brought an equal-pay claim against her employer. The Employment Tribunal at Manchester, by a majority, held that she had performed like work with specified male comparators during periods from 2011 and from 19 October 2015 until her employment ended.

The employer appealed. It contended principally that the tribunal had failed to make the findings necessary to determine like work. Its further grounds concerned seniority and responsibility, reliance on individual performance and job descriptions, reasons, and the material-factor defence.

The central issue was whether the tribunal’s reasons contained sufficient factual findings to support its conclusion that the claimant and her comparators performed like work.

1. Appeal allowed. The tribunal had not made the findings of fact necessary to decide whether the claimant and her comparators performed like work. Its judgment largely recited evidence, including competing evidence, without resolving whether it was accepted. The absence of a separate heading for findings was not decisive, but a fair and generous reading of the judgment as a whole showed that the necessary findings had not been made.

2. Section 65(2) and (3) of the Equality Act 2010 require findings as to the work done by the claimant and each comparator, any differences, the frequency with which those differences occurred in practice, and their nature and extent. Those matters inform both stages: whether the work is the same or broadly similar, and whether any differences are of practical importance in relation to terms of work.

3. The inquiry concerns work actually performed. It is not an assessment of the value of the work or how well an employee performs it. Seniority and responsibility may be relevant at the first stage. Job descriptions may evidence actual work, but cannot replace findings about it.

4. The tribunal’s treatment of the material-factor defence also appeared to focus wrongly on whether the explanation was valid, rather than whether the asserted factor caused the pay difference. The employer must establish, at least, that causal materiality. No final ruling was made on the interaction of sections 69 and 136, or on any allegation of direct discrimination.

5. The matter was remitted to a differently constituted Employment Tribunal for a complete rehearing.

• Employment Appeal Tribunal — allowed the employer’s appeal and remitted the matter for rehearing.
• Employment Tribunal, Manchester — by a majority, found that the claimant performed like work with specified comparators.