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Haq -v- Audit Commission – Judgment

In a new equal pay decision Haq v Audit Commission the Court of Appeal upholds the Respondent’s “genuine material factor” defence based on a form of “pay protection ”.

The policy entailed that on reorganisation, employees kept the higher pay level of their old jobs where the new and old jobs were in the same grade.

What was taken to be the pool was a very small group of the eleven employees doing a particular job in which , as events turned out, the two men were paid more than nine women. The job was an amalgamation of what had previously been a senior and junior role.

The difference in pay was essentially because – prior to the reorganisation in which the roles had been amalgamated- the men had previously done the “senior” role and the women the “junior” role.

The pay which was protected did not involve (in contrast to some local authority cases) the protection of pay which had itself been found to be discriminatory: the men had been paid more in the senior role because it was the senior role. But there was an ET finding the junior role was “women’s work”.

The ET held that the Respondent was required to justify and that justification was not established.

The EAT (Underhill J presiding) held (a) that the Respondent was not required to justify but that (b) in any event the ET had misdirected itself on justification and that justification was clearly established. It substituted opposite verdicts from those reached by the ET.

The CA holds

  1. unanimously that the ET was entitled to hold that the Respondent was required to justify
  2. unanimously that the ET had misdirected itself on justification
  3. by a majority (Mummery LJ dissenting) that it was sufficiently clear that the Respondent must succeed on justification that there was no need for remission to the ET .

Jude Shepherd was led by Christopher Jeans QC, appearing for the Audit Commission.

Please download full judgment here ‘Haq -v- Audit Commission – Judgment‘


07.12.2012