Barton v Investec Henderson Crosthwaite Securities Ltd

JurisdictionUK Non-devolved
CourtEmployment Appeal Tribunal
Judgment Date03 April 2003

EMPLOYMENT APPEAL TRIBUNAL

Before Judge Ansell, Mrs D. Palmer and Mr G. H. Wright

Barton
and
Investec Henderson Crosthwaite Securities Ltd

Sex discrimination - two-stage test - guidelines

Guidelines for two-stage test in sex-bias claims

No employment tribunal should be seen to condone a City bonus culture involving secrecy and lack of transparency as giving employers a reason for avoiding equal pay obligations.

The Employment Appeal Tribunal so stated in allowing the appeal, and remitting sex discrimination and unequal pay complaints, of Louise Barton against the decision of a London Central employment tribunal promulgated on September 30, 2002, which had found:

(i) the employer had established the material factor defence over variation in salary and long-term incentive plans between the applicant and a male comparator; (ii) the difference in treatment as to grant of share options was due to a material factor which was not the difference in sex under the Equal Pay Act 1970, or, if the options were not regulated by the contract of employment, did not amount to less favourable treatment on the ground of sex; (iii) the employer did not treat the applicant less favourably on the ground of sex in awarding bonuses.

The applicant, who was employed in the financial sector in the City, became aware of apparent discrepancies in salary and discretionary bonuses between herself and certain male employees in the same institution, including an apparent discrepancy, in the bonuses awarded in one year, of Pounds 700,000 between her own case and that of a male colleague.

Section 1 of the 1970 Act provides: "(3) An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex…"

Section 63A of the Sex Discrimination Act 1975, as inserted by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (SI 2001 No 2660) provides:

"(1) This section applies to any complaint presented under section 63 to an employment tribunal.

"(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -(a) has committed an act of discrimination against the complainant which … the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

Section 56A of the 1975 Act, as inserted by section 79(4) of the Race Relations Act 1976 provides for the Equal Opportunities Commission to issue codes of practice for certain purposes including the...

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