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Material factor defence: sex taint and objective justification

08 June 2012

The Employment Appeal Tribunal ("EAT") has held that a tribunal erred in concluding that a council faced with equal pay claims could not objectively justify on-call payments to predominantly male groups, such as electricians, which it did not make to predominantly female groups, such as school midday assistants. Where the tribunal determined that the council had a legitimate aim of rewarding employees who were prepared to be on call when necessary, it was bound to find that there were no other means to achieve that aim than by making additional payments to employees performing the relevant roles. On a separate point, the EAT upheld the tribunal's decision that, in the light of the ECJ's decision in Enderby v Frenchay Health Authority, the council's making bonus payments and attendance allowances to predominantly male groups, but not to predominantly female groups, was tainted by sex and required objective justification. However, it held that the tribunal erred in deciding that a female caretaker's claim in respect of such bonuses and allowances must fail for want of "sex taint" where she was a member of a predominantly male group. The EAT remitted this issue to the tribunal as it had failed to consider the relevant authorities. (Cooksey and others v Trafford Borough Council and others UKEAT/0255/11 and 0226/11.)