British Coal Corp v Smith [1996] 3 All ER 97

• Plaintiffs worked in canteen and clerical jobs and were nearly all women.

• They claimed equal pay under s.1(2) EqPA and used comparators of surface mineworkers (nearly all men).

• HL held that there was a claim for equal pay, and that the s.1(6) didn't exclude a comparison just because the contractual terms weren’t identical. 

Lord Slynn

• What is definition of ‘common’ in s.1(6) EqPA? Depends on intention of the legislation.

Was it seeking to exclude a woman's claim unless, subject to de minimis exceptions, there was complete identity of terms and conditions for the comparator at his establishment and those which applied or would apply to a similar male worker at her establishment?

Or was the legislation seeking to establish that the terms and conditions of the relevant class were sufficiently similar for a fair comparison to be made, subject always to the employer's right to establish a “material difference” defence under section 1(3) of the Act.

• He says it’s the latter, the former being ‘far too restrictive’.

• As a result there is no need for all the terms of the contracts of Plaintiff and the comparator to be ‘identical’. It was necessary and sufficient that they be “employed on broadly similar terms”.