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Equal Pay - Material Factor Defence

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The Claimant police officers received less than their male comparator doing like work. The reason was that the men worked shifts involving night work and received a special payment (effectively a bonus) for this, but the women did not work those hours because they were incompatible with their child care responsibilities.

The Tribunal held that it was a legitimate objective to reward night work, but that the Chief Constable could have paid the claimants as though they had done night work, even though they had not. It would not have been a significant expenditure and would have eliminated the discrimination.

The EAT upheld the Chief Constable�s appeal and held that the Tribunal had misunderstood the nature of the justification defence. Elias P. stated at para. 46 that "The payment of money to compensate for the economic disadvantages suffered by those who have child care responsibilities is not what the Equal Pay Act requires. Nor is the assessment of the employer's ability to pay sums of this kind a task which Parliament could conceivably have expected Tribunals to do."

West Midlands Police v Blackburn