Does an equal pay claim have to establish either direct or indirect discrimination?

Daniel Barnett: Not always, if the reasons provided by the employer for inequality of pay are not accepted by the Claimant, according to the decision in Calmac Ferries v Wallace.

The Claimants, the only two female port assistants at Largs ferry terminal brought identical equal pay claims under the Equality Act 2010. The Respondent conceded that the work of the two women was like work to that of the comparator.

The tone of the Claimants’ claim suggested that they were seeking to remedy their perceived unfairness in the pay arrangements, rather than an inequality between employees on grounds of their gender. However, the Claimants’ pool of two was too small to establish a systematic disadvantage to women as a group and they failed to provide a PCP.  The Respondents applied to strike out the claims, arguing that it was for the Claimants to establish a case of indirect discrimination and that on the pleaded cases they could not do so.

Despite this, on the basis that the Respondents’ material factor defence was not conceded, there remained a prima facie case of discrimination which had to be answered on the facts. The application was refused.

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