An Employment Judge decided, contrary to the usual practice and the expectations of the parties, to sit alone on a forthcoming PHR to determine the ‘material factor’ defence in two major equal pay multiples.

Held:

(a) that the reasons for his decision were flawed, and that the usual practice of hearing such an issue with lay members was sound; and

(b) that the right decision at the time that it was taken would have been to direct a hearing by a full tribunal; but

(c) since the effect of now substituting such a decision would be to necessitate a substantial adjournment, the lesser of two evils was to allow the decision to stand.