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

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