Equality of terms: defences and exceptions
Equality of terms: defences and exceptions

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Equality of terms: defences and exceptions
  • The general rule
  • Material factor defence
  • Equality clause—material factors that are indirectly discriminatory
  • Pay protection arrangements
  • Factor must not be the difference in sex
  • Burden of proof
  • Material factors
  • 'Genuine' factors
  • Material difference
  • More...

This Practice Note examines the defences available to an employer in relation to an equality of terms (equal pay) claim and the exceptions that apply.

The general rule

As a general rule, if the work of a worker and a comparator of the opposite sex is equal (see Practice Note: Equality of terms: equal work and comparators) but their terms are not, the sex equality clause and/or the sex equality rule takes effect.

Material factor defence

A sex equality clause in A's terms of work has no effect in relation to a difference between A’s terms and B’s terms if the employer shows that the difference is because of a material factor, reliance on which does not involve treating A less favourably because of A’s sex than the employer treats B, ie, which is not directly discriminatory.

A sex equality rule in an occupational pension scheme has no effect in relation to a difference between A and B in the effect of :

  1. a term on which persons become members of the scheme, or a term on which members of the scheme (and their dependants) are treated

  2. a term conferring a discretion that is capable of affecting the way in which persons become members of a pension scheme or the way in which members of a pension scheme (and their dependants) are treated

  3. the exercise of a discretion that

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