Equal pay claim struck out: why a 'material factor' defence can succeed
An administrative officer's equal pay claim against Carnegie Theatre Trust was struck out after the tribunal found a genuine material factor—different duties and unsociable hours—explained the pay difference. Her sex discrimination complaints about a 2020 grievance and redundancy were allowed to proceed.
1 min read · Last updated 18 May 2026
Case details
- #equal-pay
- #sex-discrimination
- #unfair-dismissal
- #tuce-transfer
- #material-factor-defence
- #time-limits
Key facts
- The claimant was employed by the respondent from 1 May 2015 to 25 December 2020 as an Administrative Officer (Finance Lead).
- The claimant's equal pay claim compared herself to male colleagues Daniel Marsden and Mike Nutter, who received a Duty Manager allowance that she did not.
- The claimant did not wish to carry out Duty Manager duties, which involved unsociable hours and extra responsibilities.
- The claimant's sex discrimination complaints about incidents before 19 December 2020 were out of time, except for the September 2020 grievance and December 2020 redundancy.
- The equal pay complaints were struck out as having no reasonable prospect of success.
- The complaints about the September 2020 grievance and December 2020 redundancy were allowed to proceed to a final hearing.
Timeline
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TUPE transfer
The claimant's employment transferred from Allerdale Borough Council to Carnegie Theatre Trust under TUPE.
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New role as Administrative Officer (Finance Lead)
The claimant's job title changed to Administrative Officer (Finance Lead), but duties remained similar to her previous role.
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Christmas party incident
The claimant alleges she was asked to look after coats while a male colleague was taken to meet former colleagues.
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Flexible working request refused
The claimant's request to reduce hours from 37 to 22.5 was refused; she accepted a reduction to 15 hours.
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Restructure of roles
Two new positions (Box Office Manager and Hospitality Manager) were created and given to male colleagues; the claimant was not allowed to apply.
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First grievance
The claimant raised a grievance about pay and other issues, which was not resolved.
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Second grievance
The claimant raised another grievance about pay and discrimination.
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Redundancy dismissal
The claimant was dismissed by reason of redundancy.
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Claim presented
The claimant presented her ET1 claim form to the Employment Tribunal.
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Preliminary hearing
A three-day preliminary hearing was held to determine time limits and strike out issues.
The legal issue
The tribunal had to decide whether the claimant's equal pay and sex discrimination claims were brought within the time limits, and whether any parts should be struck out as having no reasonable prospect of success.
The outcome
The tribunal decided that the equal pay complaints were presented in time but struck them out for having no reasonable prospect of success. The reason was that the male comparators received a Duty Manager allowance for extra duties and unsociable hours, which the claimant did not want to do. This was a genuine material factor not related to sex.
Most of the sex discrimination complaints were dismissed as out of time, except for two: the September 2020 grievance and the December 2020 redundancy. Those two complaints can proceed to a final hearing.
No compensation was awarded at this stage as the case was only a preliminary hearing.
Lessons & takeaways
- An employer can defend an equal pay claim by showing a genuine material factor that explains the pay difference, such as extra duties or unsociable hours.
- Time limits for discrimination claims are strict—most incidents must be brought within three months of the act complained of.
- If you do not apply for a role with higher pay because you do not want the extra responsibilities, you may not have a valid equal pay comparison.
- A preliminary hearing can strike out weak claims early, saving time and costs for both sides.
What this case shows
This case illustrates how an equal pay claim can fail when the employer can point to a genuine reason for the pay difference that is not linked to gender. The claimant, an administrative officer, compared herself to male colleagues who received a Duty Manager allowance. However, that allowance was paid for extra duties and unsociable hours—work the claimant did not wish to do. The tribunal accepted this as a 'material factor' defence, meaning there was no reasonable prospect of proving sex discrimination in pay.
What the employer did right
Carnegie Theatre Trust was able to show that the pay difference was not about gender but about different roles and responsibilities. This is a key lesson for employers: document why certain roles attract additional payments, and ensure those reasons are transparent and non-discriminatory.
Why the result matters
For employees considering an equal pay claim, this case highlights the importance of checking whether the comparator's role genuinely involves different duties or hours. If it does, the employer may have a valid defence. The case also shows that time limits are strictly applied: most of the claimant's discrimination complaints were dismissed because they were brought too late. Only the complaints about the September 2020 grievance and the December 2020 redundancy survived to go to a full hearing.
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