Skip to main content
CLOSE

Charities

Close

Corporate and Commercial

Close

Employment and Immigration

Close

Environmental, Social, and Corporate Governance

Close

Fraud and Investigations

Close

Individuals

Close

Litigation

Close

Planning, Infrastructure and Regeneration

Close

Public Law

Close

Real Estate

Close

Restructuring and Insolvency

Close

Energy

Close

Entrepreneurs

Close

Private Wealth

Close

Real Estate

Close

Tech and Innovation

Close

Transport and Infrastructure

Close
Home / News and Insights / Blogs / Employment Law / 448: Pay differential justified for firefighters seconded to non-operational roles

Under the Equality Act 2010, an employee is entitled to the same pay and contractual terms as an actual (not hypothetical) comparator of the opposite sex who is doing like work, which has been rated as equivalent or work of equal value. Employers have a defense to an equal pay claim if they can show that the difference in pay is due to a non-discriminatory material factor.

In Barnard v Hampshire and Isle of Wight Fire and Rescue Authority, the EAT has confirmed that the employer could rely on the material factor defense where firefighters who were seconded to non-operational roles were paid more than the non-operational staff doing like work.

Ms Barnard worked in an administrative role for the Hampshire and Isle of Wight Fire and Rescue Authority under nationally agreed terms and conditions known as the ‘Green Book.’ Her comparators were trained operational firefighters who were employed under more favourable ‘Grey Book’ terms and conditions, including higher rates of hourly pay, paid lunch breaks, and more annual leave. The firefighters remained entitled to these preferential terms whilst on secondment to non-operational roles.

Ms Barnard brought an equal pay claim on the basis that her comparators received better terms than her whilst they were seconded to non-operational roles even though they were carrying out similar work. The Fire And Rescue Authority defended her claim on the basis that the firefighters were contractually required to maintain their operational competence, even during periods of secondment, and this amounted to a material and non-discriminatory factor which justified the pay differential.

The Employment Tribunal agreed that Ms Barnard and her comparators were doing like work during the periods of secondment, but held that the contractual requirement for the firefighters to maintain operational competence at all times satisfied the material factor defense. Firefighters could be called up for operational duties at any time and were expected to be returning to operational roles. Even during secondment, they were therefore required to complete training, maintain fitness levels, and be available for redeployment at any time. Although this might not be strictly enforced in practice, it was still a genuine requirement, supporting the legitimate aim of enabling them to resume operational duties at any time.

The EAT has now upheld this decision, agreeing with the Tribunal’s reasoning. Despite the finding that Ms Barnard and her comparators were engaged in like work, the pay differential was objectively justifiable, and the Fire and Rescue Authority could rely on the material factor defense.

The employer was successful in establishing a material factor defense in this case on the basis that the firefighters were under a contractual requirement to maintain operational competence which justified their higher pay. However, the EAT noted that an employer may not be able to rely on a contractual requirement as a defense to an equal pay claim if it is not strictly enforced in practice or has been abandoned altogether. This will be determined by looking at all the facts and circumstances in each case.

Related Articles

Our Offices

London
One Bartholomew Close
London
EC1A 7BL

Cambridge
50/60 Station Road
Cambridge
CB1 2JH

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
4 Grosvenor Square
Southampton SO15 2BE

 

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
4 Grosvenor Square
Southampton SO15 2BE

  • Lexcel
  • CYBER ESSENTIALS PLUS

© BDB Pitmans 2024. One Bartholomew Close, London EC1A 7BL - T +44 (0)345 222 9222

Our Services

Charities chevron
Corporate and Commercial chevron
Employment and Immigration chevron
Environmental, Social, and Corporate Governance chevron
Fraud and Investigations chevron
Individuals chevron
Litigation chevron
Planning, Infrastructure and Regeneration chevron
Public Law chevron
Real Estate chevron
Restructuring and Insolvency chevron

Sectors and Groups

Private Wealth chevron
Real Estate chevron
Transport and Infrastructure chevron