MISS ASHWORTH (COUNSEL) FOR THE v Respondent — 2020

This was a preliminary equal pay hearing. The tribunal considered whether each claimant was engaged in like work with named comparators and whether the respondent could rely on a genuine material factor defence. It recorded that the respondent conceded like work for both claimants in relation to David Pope, Gareth Morgan and Ceri Irvine for the relevant periods, and it limited its fact-finding to what was necessary for the preliminary issues.

For Mrs Hanks, the tribunal held that her work was broadly similar to Jamie Higgs on a day-to-day basis, but that two differences were of practical importance: Mr Higgs had responsibility for profit and loss and strategic planning on the night shift, and he had authority to dismiss for conduct reasons. The tribunal found those differences in responsibility meant the roles were not like work for the July 2017 period argued against Mr Higgs. It nevertheless held that Mrs Hanks' equal pay claim was well founded from 14 February 2016 until 16 October 2019.

For Mrs Jarman, the tribunal accepted that her phased return to work in January 2017 was part of her normal contractual arrangements, but found that the role she moved into in April 2017 was a significant change. It said the training role involved creating training matrices and reorganising the training function, and was not broadly similar to the comparators' day-to-day work. The tribunal held that her equal pay claim was well founded from 14 February 2016 until April 2017, and it expressly limited the finding so as not to affect any later equal value issues or whether the later period of unequal pay was caused by the earlier inequality.

The tribunal rejected the respondent's material factor defence. It was not persuaded by the suggestion that David Pope's higher pay was ring-fenced or red-circled, describing the documentary record as extremely limited and noting that his pay fluctuated rather than remaining static. It also rejected the explanation that higher pay had been used to entice external recruits, finding there was no contemporaneous documentary evidence supporting that case. The tribunal held that the claimants were entitled to rely on the protection of the equality clause in respect of the highest paid comparator for the periods found.