DISCRIMINATION

(i) Although budgetary considerations cannot be the sole justification for failing to give effect to the principle of equal pay, they could be a factor to be weighed with other considerations when determining whether the difference in pay can be objectively justified. However, financial considerations cannot form part of an employer’s defence where the purpose is merely to save costs.

(ii) Although the employer must show that the difference in pay has remained objectively justified throughout the relevant period, it is not obliged to remove or mitigate the effects of any genuine material factor simply because the disparity has continued for some time.

(iii) It is inherent in the principle of proportionality that where different means of achieving a particular objective could be achieved, the one which has the least discriminatory impact should be chosen. A tribunal considering objective justification is therefore obliged to have regard to whether different and less discriminatory means could have been used to achieve the same objective.