Coventry v Nicholls [2009] WL 392202 (EAT)

Plaintiffs (union members) worked for the LA in jobs that were exclusively done by women, and, unlike bin-men, whose work had been rated as equivalent by the LA, they were not given pay protection schemes.

They claimed equal pay under EqPA.

LA gave three material difference defences:

1. Even if the original pay difference was due to discrimination, it had now been overtaken by failure to reach an agreement with Plaintiffs’ intransigent union, which prevented a unified structure.

2. Second, it maintained that a productivity agreement for the refuse collectors was wholly unrelated to the sex and this had an effect on pay.

3. Third, it argued that the protected pay arrangement was justified.

EAT found for Plaintiffs, saying that a union’s hostility might explain a delay in removing discriminatory practices, but did not in any way ‘supersede’ the discrimination and was not a genuine material difference where the original inequality was due to discrimination.

• The productivity scheme was not genuine material difference, because any justification has to be the measure that achieves the aim while intruding least on the principle of equal pay for equal work.

• Here LA had given no though to discriminatory consequences of the productivity bonus scheme.