When is a legitimate aim legitimate?

In equal pay cases the potential exists for the defendant employer to justify a difference in pay if it satisfies a legitimate aim.

This defence is often used but many time unsuccessful.

In the case of Next Retails Ltd v Thandi & Ors, the EAT reversed the decision of an Employment Tribunal which had earlier rejected this defence.  The case involved retail workers (mainly female) comparing themselves with warehouse operators (mainly male).  The work was found to be of equal value. Next Retail sought to justify the pay differential on the basis that warehouse operators were harder to recruit and retain. This was rejected by the Employment Tribunal as a purely financial ‘get out’ allowing market forces to ‘trump’ legislation.

On appeal, the EAT disagreed with the Employment Tribunal and found that Next’s approach fulfilled the definition of ‘legitimate aim’ and as such should have been successful. The defining factor was that the backup evidence provided by Next was compelling and persuasive insofar as the pay differential was shown to be more than just a cost cutting exercise.

The moral of this story is that defences, even when often unsuccessful, can yield a positive result if the background information and evidence is well validated.