The Respondent is a market leading enforcement business with contracts for the enforcement of debts, judgments, tax liabilities, penalties and eviction orders. The Claimant was Head of Enforcement – Local Taxation and was part of the business which dealt with enforcement for local authorities collecting unpaid council tax, business rates, child maintenance and motoring penalties. Her three male comparators were Divisional Enforcement Directors or DEDs (previously called Regional Enforcement Managers or REMs) within that part of the Respondent’s business who managed enforcement agents collecting debts for HMCTS, HMRC and Highways England. The Claimant was paid around £40,000pa less than her male comparators. She brought an equal pay claim to the ET arguing that any of the material factors on which the Respondent relied put the Claimant and other women doing work equal to hers at a particular disadvantage. Alternatively, she contended that market forces disadvantaged women. Her claims were dismissed and she appealed to the EAT.

The EAT allowed the appeal and cross appeal in part. In relation to the appeal. The Claimant had argued that two of the material factors were tainted by sex and required to be justified as a proportionate means of achieving a legitimate aim. She challenged the ET’s conclusion that the Respondent did not need to justify those material factors because she did not share the particular disadvantage that applied to other women. The EAT found that the ET had erred in its approach to particular disadvantage by impermissibly enquiring into the reason why there was a particular disadvantage. The EAT held that there was no need for the Claimant to prove the reason why a material factor works to the disadvantage of women or to her as it is enough that it does work to their disadvantage. In relation to the cross appeal, the Respondent challenged the findings (in the alternative) that the material factors were not a proportionate means of achieving the legitimate aims of the Respondent because there were less discriminatory ways of achieving those aims. The EAT allowed the cross appeal as a critical and thorough evaluation is required and yet the ET did not analyse what part of the pay gap was proportionate, did not take account of the impact on staff retention and the loss of certification and did not assess proportionate or disproportionate impact using the pool of employees to whom the material factors applied.