The Employment Appeal Tribunal (EAT) has considered in Barnard v Hampshire and Isle of Wight Fire and Rescue Authority whether an employer could rely on a contractual requirement that trained operational firefighters must maintain operational competence, even during periods of secondment, as a material factor justifying a pay differential with non-operational staff.
An equal pay claim was brought by an employee of a fire and rescue authority who was employed on nationally agreed "Green Book" terms applicable to those in non-operational roles. She sought to compare herself to trained firefighters employed on more favourable nationally agreed "Grey Book" terms. The firefighters were seconded to non-operational roles but remained on the preferential terms. Those on the "Grey Book" terms were contractually required to maintain their operational competence, as they could be expected to return to operational roles in due course. This involved training, maintaining their fitness levels and being available for redeployment to a different location at any time at management's discretion.
Although the tribunal found that the claimant and her comparators were carrying out "like work" during the secondment periods it rejected the claimant's equal pay claim. The EAT agreed with the tribunal. The more onerous requirements placed on Grey Book employees meant that the pay differential between the claimant and her comparators was objectively justified and the employer could rely on the material factor defence. The tribunal had clearly found that the maintenance of operational competence was a genuine requirement and supported the legitimate aims of allowing the comparators to be able to resume operational duties if called upon to do so. Although the more onerous requirements on the Grey Book employees did not defeat the finding of "like work", they were sufficient to support the justification defence.
Take note: Although in this instance a material factor defence was established, the EAT acknowledged that if a comparator no longer took steps to comply with the contractual requirements, and these requirements were not strictly enforced by the employer, it would be open to the tribunal to look at the evidence and conclude that the requirement had been abandoned. If a contractual requirement is clearly a "dead letter" then it cannot be a material factor defence to an equal pay claim.
