Employers can defend an equal pay claim by arguing that any difference in terms between a claimant and their comparators is due to a “material factor”. In Barnard v Hampshire and Isle of Wight Fire and Rescue Authority, the Employment Appeal Tribunal (EAT) held that the difference in pay and holidays in this case could be justified as the claimant’s comparators were required to be available for operational duties when they were not carrying out firefighting roles.
Basic facts
Ms Barnard was initially employed in an administrative role on Green Book terms which apply to non-firefighters. Operational firefighters are employed on Grey Book terms which are more favourable in relation to pay, hours and holidays but more onerous in relation to duties and obligations.
From December 2011 to October 2012, Ms Barnard was seconded into a new Business Support Officer (BSO) role on Green Book terms. A firefighter was also seconded into a BSO role, albeit with a different job title during the same period, but on Grey Book terms. From October 2012 to June 2014 she had the role of Fire Safety Officer (FSO) and subsequently the role of Office Manager (OM). During that period, another firefighter was also in an FSO role and when she was promoted to OM on Green Book terms, he was also promoted to the OM role of Station Manager, but on Grey Book terms.
Ms Barnard resigned in 2017, claiming that she was entitled to Grey Book terms during the periods when her two comparators were seconded to non-operational roles with regard to pay and annual leave entitlement. The fire authority argued that the difference in terms was due to a “material factor” which was a proportionate means of achieving a legitimate aim.
Tribunal decision
Although the tribunal found that Ms Barnard was doing like work with her comparators during that period, it agreed that the authority’s material factor defence had two legitimate aims. The first was to provide an efficient and effective service to the public; and the second was to reward firefighters for being “on call” and available for operational duties, requiring them to maintain their operational competence during the secondment.
Ms Barnard appealed, arguing that the tribunal could not conclude that the more favourable terms were to reward firefighters on secondment without making a finding about whether they had actually complied with the requirement to maintain operational competence during their secondments. Had it done so, it would have found that neither of them did.
She also relied on the fact that a group of Green Book employees in Head of Service Team (HOST) roles had received equal pay with colleagues on Grey Book terms in equivalent roles, thereby undermining the Authority’s argument that maintenance of the differential was necessary and proportionate to its legitimate aims.
EAT decision
Rejecting the appeal, the EAT held that the tribunal clearly found that the comparators were genuinely required to carry out operational duties should the need arise during their secondment, however infrequently. Even if an individual had failed to keep up their operational competence, that did not mean the authority no longer had a genuine requirement that they should. Apart from anything else, these firefighters had to be in a position whereby they could resume their duties when their secondment ended.
As for the argument about the HOST team roles, the EAT noted that HOST was the highest grade to which Green Book terms applied. A memo written in January 2015 indicated that the difference between the HOST employees and their equivalent Grey Book colleagues was felt to be divisive and a decision was taken to align them. However, the exercise was not considered to have been successful and had been brought to an end.
Comment
This decision demonstrates that even where an individual can show they were carrying out work of the same value as their comparator and that a discriminatory pay difference exists, it is still possible for an employer to objectively justify the discrimination by showing they had a legitimate aim, and the steps taken to reach this were proportionate. It’s therefore important when considering the merits of a potential equal pay claim to have in mind all of the legal tests a tribunal will apply when reaching a decision, including whether any discrimination can be objectively justified.