In Amey Services Ltd v Cardigan and others and City of Edinburgh Council v Marr and others UKEATS/0082/06 and UKEATS/0083/06, the EAT has revoked question two from the schedule of questions attached to a standard order issued by the Vice President of Employment Tribunals (Scotland) in 2006.

Question two required respondents firstly to state whether, if there was found to be a difference in pay between a claimant and any of her male comparators, the difference was genuinely due to a material factor which was not the difference of sex. If that was the case, respondents also had to state what the difference was and why it was claimed to justify any difference of pay that was found to exist.

The EAT held that the question was premature. It is only once a claimant has identified a comparator who is employed on like work, work rated as equivalent or work of equal value, and in the same employment as she is, that a presumption of sex discrimination arises and the burden of proof passes to the employer.