The possible defences that you may raise in response to an equal pay claim are:
- the woman and her comparator are not doing equal work
- the chosen comparator is not allowed by law (for example he is not in the same employment)
- the difference in pay is due to a genuine material factor, which is not related to the sex of the jobholders
Genuine material factor defence
Once a claimant has shown that they are doing equal work with their comparator, the equality clause will take effect unless the employer can prove that the difference is genuinely due to a material factor which does not itself discriminate against the claimant because of their sex. Basically, the employer is able to give a genuine reason for the difference in pay between the claimant and their comparator that is not related to gender.
The employer must identify the factor(s) and prove:
- it is the real reason for the difference in pay
- it causes the difference in pay between the woman and her comparator
- it is material - that is, significant and relevant
- it does not involve direct or indirect sex discrimination
Personal differences between the workers concerned such as experience and qualifications may be material factors.
To be a valid defence, the material factor must not be directly discriminatory and if it is indirectly discriminatory, the difference in terms must be objectively justified. A material factor will be directly discriminatory where it is based on treating women and men differently because of their sex.
Indirect discrimination arises where a pay system, policy or arrangement has a disproportionate adverse impact on women compared with their male comparators, unless you can objectively justify it.
You can justify an indirectly discriminatory factor by showing that it is a 'proportionate means of achieving a legitimate aim'. Even where the aim is legitimate, the employer must be able to show that the means it adopts to achieve the aim is proportionate in the circumstances.
Job evaluation is a systematic and analytical procedure for comparing and determining the relative importance of different jobs. The process is common across the public sector where it enables employers to create fair pay systems and job hierarchies.
Employers considering the adoption of a job evaluation scheme should seek expert support around the development and implementation of the scheme to ensure that it does not unlawfully discriminate.
Where a non-discriminatory and analytical job evaluation scheme has determined that the work of the man and the woman are not equal, this can be used to defend an equal pay claim. Due to the risk of discrimination creeping into the job evaluation process, employers should seek expert support throughout the process.