Introduction

The case of Parliamentary Commissioner for Administration & Anor v. Fernandez ([2004] 2 CMLR 4) was adjudicated by the United Kingdom Employment Appeal Tribunal on September 5, 2003. The appellants, the Parliamentary Commissioner for Administration and The Health Service Commissioners (collectively referred to as The Ombudsman), challenged the decision of an Employment Tribunal that upheld Mr. Fernandez's complaints under the Equal Pay Act 1970 and direct racial discrimination.

Mr. Fernandez, a barrister employed as a case worker, alleged unequal pay and racial discrimination compared to his female comparator, Ms. Christine Moulder, within the same employer's departments. The key issues revolved around the interpretation and application of the genuine material factor defence under Section 1(3) of the Equal Pay Act 1970, especially in light of recent European Court of Justice (ECJ) jurisprudence.

Summary of the Judgment

The Employment Appeal Tribunal examined whether the ECJ's judgment in Brunnhofer v Bank Der Osterreichischen Postparkasse AG [2001] IRLR 571 influenced the approach to assessing the genuine material factor defence under the Equal Pay Act, as previously guided by cases like Strathclyde Regional Council v Wallace [1998] and Glasgow City Council v Marshall [2000].

The Tribunal concluded that the Employment Tribunal had misdirected itself by imposing an undue requirement for objective justification beyond established domestic jurisprudence. Consequently, the appeal was allowed, resulting in the remittance of the Equal Pay claim for rehearing and the setting aside of the finding of racial discrimination.

Analysis

Precedents Cited

The judgment extensively references several pivotal cases that have shaped the interpretation of the Equal Pay Act and related discrimination laws:

• Strathclyde Regional Council v Wallace [1998] and Glasgow City Council v Marshall [2000]: These cases provided foundational guidance on assessing the genuine material factor defence under S1(3) of the Equal Pay Act.
• Tyldesley v TML Plastics Ltd [1996]: Emphasized that objective justification is essential in determining the materiality of factors influencing pay disparities.
• Bilka-Kaufhaus GmbH v Laber Vaughn Hartz [1987]: Established the requirement for objective justification concerning material factors affecting pay.
• Brunnhofer v Bank Der Osterreichischen Postparkasse AG [2001]: Clarified that differences in pay must be objectively justified by factors unrelated to sex discrimination, reinforcing the principle that objective justification is paramount.
• North Yorkshire County Council v Ratcliffe [1995]: Addressed the interpretation of direct and indirect discrimination within the context of the Equal Pay Act.
• Yorkshire Blood Transfusion Service v Plaskitt [1994] and Tele Denmark A/S v Handles [2001]: Further elucidated the nuances of objective justification and direct discrimination.

Legal Reasoning

The core legal debate centered on whether the Employment Tribunal had appropriately applied the genuine material factor defence by requiring the employer to provide objective justification for pay disparities. The EAT majority held that the Tribunal overstepped by enforcing additional objective justification requirements beyond what domestic law, as interpreted in prior cases, necessitated.

The majority distinguished the Brunnhofer case, noting that it did not override the established domestic jurisprudence in Wallace and Marshall. They argued that while Brunnhofer emphasized objective justification, it did not mandate its application in scenarios where direct discrimination was not established. Conversely, the minority believed that Brunnhofer necessitated an objective justification irrespective of prior domestic interpretations.

Regarding racial discrimination, the Tribunal was found to have improperly shifted the burden of proof onto the respondent, contradicting the established burden on the claimant. Additionally, the Tribunal was criticized for substituting its own assessment for that of the employer’s, violating precedents like Marks & Spencer PLC v Martins [1998].

Impact

This judgment clarifies the boundaries of the genuine material factor defence under the Equal Pay Act 1970, reinforcing the necessity for objective justification only within the framework established by domestic case law. It underscores the primacy of established jurisprudence over newer ECJ interpretations unless directly conflicting.

For future cases, this means that employment tribunals must adhere to the domestic precedents set by cases such as Wallace and Marshall when assessing pay disparity defences. The judgment also serves as a caution against improperly shifting the burden of proof in discrimination claims, maintaining that the onus remains with the employer to justify pay differences once a prima facie case is established.

Complex Concepts Simplified

Conclusion

The Parliamentary Commissioner v Fernandez case serves as a pivotal reference in understanding the application of the genuine material factor defence under the Equal Pay Act 1970. It reaffirms the importance of adhering to established domestic jurisprudence while navigating the complexities introduced by broader European legal interpretations.

By remitting the Equal Pay claim for rehearing and setting aside the racial discrimination finding, the judgment underscores the necessity for tribunals to maintain clarity in burden distribution and to avoid overstepping legal bounds in assessing defences. This ensures that claims of discrimination are adjudicated fairly, based on established legal principles, and without undue burdens being placed on employers beyond their obligations to provide legitimate, objective justifications for pay disparities.

Ultimately, this judgment contributes to the ongoing discourse on equality in the workplace, balancing the rights of employees with the responsibilities of employers to maintain fair and non-discriminatory pay practices.