A Perkins v Marston (Holdings) Limited

For the material-factor defence under Equality Act 2010, a claimant need show that the factor puts women, and the claimant herself, at a particular disadvantage. She need not prove why it has that effect, identify actual female colleagues doing equal work, or establish an Enderby-type statistical disparity.

An employer must prove its material factors by cogent and particularised evidence, but this does not impose a heightened evidential standard. Where justification is required, the tribunal must critically evaluate the precise sex-tainted factors and pay disparity, the employer’s operational needs, the discriminatory impact within the proper pool, and any less discriminatory alternatives.

The claimant, a Head of Enforcement—Local Taxation, brought an equal-pay claim against her employer. It was assumed at a preliminary equal-value hearing that her work was of equal value to that of three male Divisional Enforcement Directors.

The Employment Tribunal found that the pay difference was wholly explained by three non-directly-discriminatory material factors: commercial pressures under national contracts, market forces, and recruitment and retention of enforcement agents. It held that the latter two factors did not require justification because the claimant had not shared the asserted disadvantage to women. Alternatively, it found the factors unjustified.

The claimant appealed the material-factor and indirect-discrimination findings. The respondent cross-appealed the alternative proportionality finding.

1. Appeal allowed on ground 1; grounds 2 to 5 dismissed. Cross-appeal allowed on grounds 2, 4 and 5; grounds 1, 3 and 6 dismissed. The issues of indirect discrimination and, if necessary, justification were remitted to a fresh Employment Tribunal.

2. The Tribunal erred in deciding that the claimant did not share a particular disadvantage because it investigated why enforcement-agent work was male dominated and why the claimant had not become an enforcement agent. Under Equality Act 2010 section 69(2), read consistently with section 19, the relevant question is whether the material factor works to the particular disadvantage of women and of the claimant. The reason for that disadvantage is irrelevant. Nor must a claimant identify actual female co-workers doing equal work.

3. The Tribunal should therefore have assessed, pragmatically and without formulaic constraints, whether reliance on market forces and on recruitment and retention of enforcement agents disadvantaged the claimant because she was not a former enforcement agent in a workforce in which enforcement agents were 90% male. The EAT could not determine that fact-sensitive issue itself.

4. The Tribunal’s findings that commercial pressure, market forces, and recruitment and retention of enforcement agents caused the disparity were permissible. Cogent and particularised evidence is required, especially where a pay system is opaque, but there is no separate elevated threshold of proof. Once the Tribunal accepted the evidence, its factual findings could be disturbed only on the demanding perversity threshold.

5. The alternative proportionality conclusion could not stand. A critical and thorough evaluation required the Tribunal to identify the part of the pay gap attributable to the factors requiring justification, assess the employer’s retention needs and the effect of losing enforcement-agent certification, and measure discriminatory impact within the pool to whom those factors applied. Its reasons did not adequately perform that exercise. The procedural-unfairness challenge failed because the respondent had a fair opportunity to address the relevant recruitment issue and no injustice was shown.

• Employment Appeal Tribunal: appeal allowed on the indirect-discrimination issue and cross-appeal allowed in part; the outstanding issues were remitted to a fresh tribunal ([2025] EAT 170).
• Employment Tribunal: held that three material factors explained the pay difference and dismissed the equal-pay complaint; it considered justification in the alternative.