V Barnard v Hampshire and Isle of Wight Fire and Rescue Authority

For the material-factor defence in an equal-pay claim, a continuing contractual requirement may remain a genuine material factor even if a comparator has not fully complied with it. The decisive question is whether the employer genuinely maintains the requirement and whether it contributes to the difference in terms. A tribunal need not infer that the requirement was abandoned merely from an individual failure to comply.

Objective justification requires a proportionate means of achieving legitimate aims. A measure need only be reasonably necessary; it need not be the only possible means. A tribunal may find that more favourable terms properly reward continuing operational obligations, notwithstanding that a discrete higher-grade alignment exercise was practicable.

The claimant, employed on Green Book terms, brought equal-pay and constructive-unfair-dismissal claims after resigning. She compared her pay, working hours and annual leave with two trained operational firefighters on Grey Book terms. During the relevant periods, the comparators were seconded to non-operational roles found to be like the claimant’s work, but remained subject to Grey Book operational obligations.

The Employment Tribunal found an indirectly discriminatory disparity, but upheld the respondent’s material-factor defence as justified. It also rejected constructive dismissal. The claimant appealed, contending that operational-competence requirements could not justify the disparity, that a Heads of Service alignment exercise undermined justification, and that an equality-clause breach should have supported constructive dismissal.

1. Appeal dismissed. The tribunal was entitled to find that the continuing requirement for Grey Book comparators to maintain operational competence was genuine, contributed to the differential in terms, and supported the respondent’s legitimate aims.
2. A comparator’s incomplete compliance with a contractual requirement does not, without further evidence about the employer’s stance or conduct, compel an inference that the requirement has become a dead letter. The material question is whether the employer genuinely retains the requirement and whether it helps explain the more favourable term. The tribunal was not required to make further findings about the comparators’ individual compliance before accepting this material factor.
3. The tribunal had properly distinguished the like-work inquiry from justification. Additional operational duties could be too infrequent or limited to prevent a finding of like work, yet still be capable of supporting a material-factor defence and proportionality.
4. The tribunal correctly approached objective justification. The requirement that the chosen means be appropriate and necessary means reasonably necessary; the employer need not establish that no other arrangement was possible. The fact that it was practically possible to give the claimant a Grey Book financial package did not itself defeat the defence.
5. The tribunal was entitled to treat the temporary HOST alignment exercise, which concerned a distinct and higher grade and was subsequently ended, as not demonstrating that levelling up the claimant’s terms would avoid harm to the legitimate aims. It could also accept as a matter of common sense that employees bearing continuing operational responsibilities would expect remuneration to reflect them.
6. Since the equal-pay grounds failed, no equality clause fell to be implied. The constructive-unfair-dismissal ground, which depended on the alleged equality-clause breach, also failed. It was unnecessary to decide whether every breach of an equality clause is necessarily fundamental.

• Employment Appeal Tribunal: appeal from the Employment Tribunal dismissed.
• Employment Tribunal: equal-pay and constructive-unfair-dismissal claims dismissed in a reserved decision promulgated in May 2022.