The claimant was employed as a chef by the respondent over a period of 15 years. Over that time, she had received increases in her wages. She claimed that she had been discriminated against on grounds of her gender in that she had received less favourable treatment from the employer (i.e. a unilateral reduction in wages) because she had been off on maternity leave, and only a woman can be off on maternity leave.

It was found by the tribunal that the reason the claimant was treated in the way that she was because she was already being paid considerably more than her male colleagues, and the respondent was seeking to reduce her pay in line with theirs to facilitate the sale of the business.

The tribunal stressed, pursuant to the decision of Madarassy v Nomura International PLC [2007] IRLR 246, that the burden is on the claimant to prove facts from which tribunal could conclude that the respondent had committed an act of discrimination against the complainant. In this case no such facts were proved and this claim was dismissed. A separate claim of unfair dismissal was upheld.

Practical lessons

The case is a recent local example of the long held principle that mere differences in status and treatment are not a sufficient basis for a sex discrimination claim. The reality in this case was that the claimant was already being paid more than male colleagues, and to bring her back down to this level of remuneration was not discriminatory. The fact that she had returned from maternity was not of particular significance as the employer was able to offer a legitimate business reason that the sale of the business could be jeopardised by her failure to accept the reduced wage.

The same situation could realistically have occurred involving a male colleague who had returned from holiday for example. If an employer has treated one sex differently to the other, it is important to note that this must have been on the ground of sex. Mere difference in treatment and a difference in sex alone will never be sufficient to successfully make a claim.