Employment Tribunal
On 2nd July 2009, the employment tribunal decided that Bury MBC did not have a good defence to the equal pay claims that had been brought. This defence is called a genuine material factor defence or GMF. The tribunal stated that from before 2001, the payment of bonuses to those in male dominated jobs was not for “productivity” reasons, but was a sham. What employees were paid was determined by compulsive competitive tendering, and not how much work they did, or how fast it was done.
Bury MBC not having a GMF defence does not mean that the equal pay claims are successful – it still needs to be shown that the claimants (those in the predominantly female jobs) were doing work rated as equivalent or work of equal value to their comparators (those in predominantly male jobs). However, it is a key decision in the claimants’ favour as a number of the male dominated jobs were on the same grade and so are likely to be considered “rated as equivalent”.
Another issue in the case was about pay protection, which is where employees whose pay is cut have their pay frozen, or gradually reduced, over a number of years. The tribunal also decided that Bury MBC were right to only give pay protection to those in male dominated jobs.
The Appeal
Bury MBC decided to appeal the decision of the tribunal that they did not have a GMF defence. They will argue that the tribunal used the wrong test of a “sham”, and that the Bury does have a GMF defence. Bury MBC will argue that it does not matter that they stated bonuses were paid for productivity and they were actually paid for another reason. It does not matter, Bury MBC will argue, because the real reason for paying the bonuses was not tainted by sex. It is Bury MBC’s argument that unless we show that the real reason for those in male dominated jobs receiving bonuses was because Bury MBC wanted to give more money to men, then Bury MBC does have a GMF defence.
The Claimants are resisting this appeal, and will argue that the tribunal made the right decision about Bury MBC not having a GMF defence. At the same time, they are also appealing the tribunal’s decision on pay protection. The Claimants will say that giving pay protection only to male dominated jobs is direct discrimination against those in female dominated jobs, as the underlying reasons for pay protection are the result of historic sex discrimination. Alternatively, it is indirect discrimination which is not justified. Bury MBC gave no evidence of why extending pay protection to female dominated jobs was unaffordable, and it was wrong to find that Bury MBC could not work out which female dominated jobs should also have received pay protection.
The initial hearing before the Employment Appeal Tribunal is on the 19th January 2010, which will set directions and a date for the full hearing.