"Material factor" defence

Case 5: The facts

While she was on secondment, a restructuring exercise deleted Louise Jacklin's old job. A new post was created at a higher grade but involving essentially the same duties. Jacklin was not consulted or offered this new post, which was given to a man. She had, however, by that time taken a permanent job on an equivalent grade in her new department.

Jacklin brought an equal pay claim, saying she should have been at the higher grade when doing the old job. She also claimed sex discrimination on the grounds that she had been treated less favourably by not being consulted or offered the job, but this claim was ruled out of time.

A tribunal found that Jacklin had been doing work of equal value to that of her male successor, and had been treated less favourably than him by not being consulted. It held that the council had not established that there was a non-discriminatory reason for the difference in pay and upheld the equal pay claim.

The ruling

The Employment Appeal Tribunal held that the tribunal had not properly dealt with the issue; it should have considered the employer's "material factor" defence, which was that Jacklin would not have been interested in the post because she had voluntarily left the department and obtained a higher-grade job.

The case was sent back to the tribunal to reconsider.

London Borough of Newham v Jacklin UKEAT/0508/05