The employer’s reason must not be “tainted by sex”

The employer’s reason for paying the men more must not be based on a discriminatory practice. For example, in Redcar & Cleveland Borough Council v Bainbridge; Surtees v Middlesbrough Borough Council [2009] ICR 133, councils tried to justify a four-year pay protection scheme on the basis that it was designed to correct past pay inequalities gradually over time. The pay protection scheme could not be a genuine material factor in this case because it was “irredeemably tainted by sex discrimination”, as it perpetuated the benefit of past sex discrimination.