BMC Software Ltd v Ms A Shaikh (second Judgment)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Hand |
| Neutral Citation | UKEAT/0092/16/DM |
| Court | Employment Appeal Tribunal |
| Subject Matter | Equal Pay Act,Equal Pay Act - Material factor defence,justification,Not landmark |
| Date | 09 August 2017 |
| Published date | 21 November 2017 |
Copyright 2017
Appeal No. UKEAT/0092/16/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 4, 5 and 17 January 2017
Judgment handed down on 9 August 2017
Before
HIS HONOUR JUDGE HAND QC
(SITTING ALONE)
BMC SOFTWARE LTD APPELLANT
MS A SHAIKH RESPONDENT
Transcript of Proceedings
JUDGMENT
UKEAT/0092/16/DM
APPEARANCES
For the Appellant MS MING-YEE SHIU
(of Counsel)
Instructed by:
CMS Cameron McKenna
78 Cannon Street
London
EC4N 6AF
For the Respondent MR ANDREW MacPHAIL
(of Counsel)
Instructed by:
LB Law
123 Honor Oak Park
London
SE23 3LD
UKEAT/0092/16/DM
SUMMARY
EQUAL PAY ACT - Material factor defence
EQUALITY ACT 2010
Ground 3A and Paragraph 3 of the Judgment
The ET erred in law by concluding that breach of the sex equality clause amounted to dismissal
and therefore was sex discrimination contrary to section 39(2)(c) of the Equality Act 2010
(“EqA”).
The reasoning as to the difference between causes of action under the Equal Pay Act 1970
(“EPA”) and those under the Sex Discrimination Act 1975 (“SDA”) of this Tribunal in
Newcastle upon Tyne City Council v Allan and Others; Degnan and Others v Redcar and
Cleveland Borough Council [2005] ICR 1170; [2005] IRLR 504, namely that a claim under
the SDA was essentially a claim made in tort, whereas a claim under the EPA was essentially a
claim in contract (see paragraphs 7 to 13 of the Judgment), applied also to the cognate
provisions in the EqA and the same separation of remedies as applied in the predecessor
legislation is preserved by sections 124 (breach of discrimination provisions) and 132 (breach
of an equality clause) EqA.
Moreover, the clear division between the EPA and the SDA (see section 6(8) SDA) and, thus,
the elimination of any overlap between or of the possibility of duplication of causes of was
maintained by section 70 EqA. Section 71 EqA provided for a cause of action to be available
in cases relating to terms as to pay where there was no equality clause but it did not provide any
general exception to section 70 EqA and it was not a “gateway” for claims of sex
discrimination to arise out of breach of a sex equality clause. Put broadly section 70 EqA has
the effect of making the two statutes mutually exclusive and even though a breach of an
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