![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201305.jpg)
The material factor must be genuine
An employer must be able to produce evidence to show that the explanation offered is the real reason for the difference.
If an employer argues that it was necessary to pay the comparator more because of a skill shortage, they will have to provide evidence of actual difficulties in recruiting and retaining people to do the job being done by the higher paid man. The employer will also need to monitor the discrepancy to make sure it is still justified.
ECHR Code of Practice
In Dolphin v Hartlepool Borough Council and Housing Hartlepool Ltd (UKEAT/0007/08/CEA), bonus schemes purportedly designed to encourage productivity were attached to jobs which were predominantly carried out by men. A tribunal found that the bonus payments were in fact additional payments for completing the work individuals were already paid to do and were a sham. As a result, the employer’s defence that the bonus payments were genuinely intended to encourage productivity failed.
In Bury Metropolitan Borough Council v Hamilton ([2011] ICR 655), another claim for bonus payments made to male employees, the EAT went a step further, confirming that there is no need to go as far as to prove that the reason is a “sham” i.e. something deliberately fabricated to mislead. Instead, the tribunal’s finding that the bonus payments were not in fact linked to productivity as claimed by the employer was enough to show that the reason put forward to explain the pay difference was not genuine.