In an equal pay case, was it open to a tribunal to find that a successful material factor defence explaining a difference in pay had ceased to operate at a later point in time?
Not on the facts of the case, held the Court of Appeal in Walker v Co-operative Group Limited.
The tribunal found that the material factor defence applied at the point when the Claimant was appointed, but this explanation was rejected by the tribunal as being 'historical' a year later.
The Court of Appeal held that to dismiss this explanation as 'historical' missed the point. What mattered is that it was, indeed, the explanation for the pay difference. Moreover, the tribunal's analysis had overlooked the fact that, even a year later, in respect of the comparators, there was at least one material factor, which remained causative of (or which explained) the differential in pay.
Thanks to Tim Kenward of 7 Harrington Street Chambers for preparing this case summary.
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