Employment Law Digest December 2025 – Case law update

Equal pay – material factor defences

In Perkins v Marston (Holdings) Ltd:

• Mrs Perkins claimed that her employer breached the equality clause in her contract as she was paid less than three male comparators who did work of equal value.
• An Employment Tribunal held that there were three material factors which accounted for the pay difference between her and her comparators namely:
  • Competition and expectation
  • Market forces
  • Recruitment and (to a lesser extent) retention
• Whilst it accepted two were justified it held that there was no justification for relying on market forces as a proportionate means of achieving a legitimate aim.
• Mrs Perkins appealed and argued that the material factors of competition / expectation and recruitment / retention were themselves tainted by indirect sex discrimination and therefore were required to be justified as a proportionate means of achieving a legitimate aim.
• The employer cross appealed against the finding that there was no justification for relying on market forces as a material factor.

The Employment Appeal Tribunal held that:

• The employee’s appeal succeeded, once it has been established that a material factor places people with relevant protected characteristics at a particular disadvantage compared with others, that is sufficient to require objective justification by the company. There was no need for the claimant to prove the reason why a material factor works to the disadvantage of women or to her as it is enough that it does work to their disadvantage. The matter was sent back to the ET.
• The employer’s cross appeal also succeeded. When considering justification, a critical and thorough evaluation is required but the Employment Tribunal did not analyse what part of the pay gap was proportionate, did not take account of the impact on staff retention and the loss of certification and did not assess proportionate or disproportionate impact using the pool of employees to whom the material factors applied. This was also sent back to the ET for reconsideration.

Unfair dismissal – performance

In Peter Sabourin v BT Group Plc:

• Mr Sabourin had been employed by BT Group since 2009 and been in a project manager role within the data compliance and assurance team from November 2021.
• From early 2022, his line manager began having concerns about his performance, which they addressed through a performance review process, initiated in August 2022.
• On 18 October 2022 an informal performance improvement plan (PIP), was agreed, with 9 areas for improvement. Mr Sabourin agreed those goals. Despite the goals being reviewed with him on a weekly basis, the manager concluded that there was no improvement.
• When his performance did not improve, Mr Sabourin was issued with a first written warning on 23 November 2022, followed by a final written warning on 9 January 2023 and a dismissal for his capability on 20 January 2023.
• Mr Sabourin brought a claim of unfair dismissal, highlighting the short time frame (two weeks) between his final warning and dismissal as key evidence that his employer had not fairly considered his performance prior to dismissing him.

The Employment Tribunal (ET) found that there was an honest belief that Mr Sabourin lacked the capability to do the job and there were reasonable grounds for that belief. The ET tribunal stated that it was satisfied that there was adequate evidence of his lack of capability at each stage of the PIP process, including at the decision meeting when he was dismissed.

The ET found that BT had carried out a thorough and reasonable investigation before coming to that conclusion, and the PIP process was fair and in accordance with its procedure. Mr Sabourin had been given over four months to improve. Realistic and achievable goals were agreed and reviewed weekly. He was provided with regular support and coaching. The ET accepted the employer’s position that, in light of his experience and qualifications, he should have been capable of undertaking the role without additional training.

The ET found Mr Sabourin was fairly dismissed. The ET did not accept that the two-week period between his final warning and dismissal was so short that it did not allow a fair opportunity for further improvement. That conclusion was not, itself, challenged on appeal.

However, in her closing submissions to the ET, in light of what she contended had been the evidence of the dismissing officer, Mr Sabourin’s counsel submitted that the dismissal was in any event unfair, for a further and distinct reason. That was because, she contended, the dismissing officer had not considered Mr Sabourin’s record of performance in that further two-week period at all, but had relied upon the same record of performance which had already resulted in a final written warning. Mr Sabourin appealed the decision on the basis that this argument had not been adequately addressed in the ET’s decision.

The Employment Appeal Tribunal accepted that this was a distinct argument of unfairness which the ET should have addressed in its decision.

The matter was sent back to the same judge in the ET to make a finding of fact about it, and, to decide afresh, taking account of that finding alongside the existing findings, whether the dismissal was fair or unfair.

Race discrimination

In Tamponi v Medequip Assistive Technology Ltd:

• The respondent provides medical devices to assist disabled persons living at home.
• The claimant is an Italian citizen, and therefore also a citizen of an EU member state and of an EEA member state.
• He was employed by the respondent as a warehouse operative / cleaner from November 2017.
• In November 2020 the respondent sent a letter in the same terms to the claimant and other EU-national employees concerning the Brexit transition period coming to an end and what it understood, or believed, to be a change in the immigration status (post-Brexit) of employees including the claimant, and the effects of that change on the respondent’s own position as an employer.
• In January 2021, disciplinary action was taken against the claimant relating to an incident for allegedly putting the safety of other individuals at risk by not reporting a breach of the respondent’s own Covid procedures. Other employees did not face a separate disciplinary charge. The claimant complained he had been “singled out”.

The Employment Tribunal (ET) dismissed complaints of direct race discrimination during employment, and of unfair dismissal by reason of protected disclosures (whistleblowing), but upheld a complaint of ordinary unfair dismissal.

The ET found that it was plain that the communications about EU settled status occurred because of the claimant being an EU National. In context, however, this was in connection to his immigration status as an EU National; not his nationality or national origin separate to its consequences for his immigration status. The ET concluded that the communications around settled status were “not a detriment”. They were “entirely innocuous” and it was “not a detriment to communicate in this way” with the claimant.

The ET found that the respondent did subject the claimant to a disciplinary process relating to safety incident. That was “self evidently” a detriment. However, the ET concluded it had nothing to do with his race or his immigration status. The ET concluded that these significantly different circumstances were the cause of the difference in treatment, which was unrelated to the claimant’s race.

The claimant appealed from the ET’s decision dismissing his two complaints of direct race discrimination. The Employment Appeal Tribunal dismissed the appeal.

The ET had not erred by concluding that the writing of the letters was not, in the requisite sense, because of the claimant’s nationality, but was because of the change in his immigration status and the associated introduction of a new settled-status scheme for which he was eligible.

The appeal was bound to fail, because the ET found that the conduct in question did not amount to subjecting the claimant to a detriment, and there was no appeal from that finding.

The appeal in respect of both complaints also failed, because the ET did not err in concluding that both complaints were presented out of time. There was no appeal from the ET’s decision that it was not just and equitable to extend time.