P was paid less than her male colleague despite comparable qualifications and experience, and therefore brought a claim under EqPA. D raised a defence under s.1(3), saying that the ‘material difference’ was that while P had been recruited through the NHS and was therefore placed on the appropriate pay scale, higher pay was offered to those recruited from the private sector as an incentive for them to join, such as her colleague. HL held that this was a material difference within s.1(3) and therefore no claim could be brought within EqPA.
Lord Keith: ‘material’ difference = one that’s ‘significant and relevant’. This goes beyond merely the question of personal attributes, but court must look at all circumstances. He also suggests that indirect discrimination, as well as direct discrimination is covered by EqPA, though both are subject to the material difference defence under s.1(3). His reasoning also says that judgments of the ECJ, on when a breach of article 141 is justified, must be read into determining what constitutes ‘material difference’ (he quotes Bilka extensively). NB slight naivety of Lord Keith- he describes it as simply an ‘accident’ that the male prosthetist was recruited from the private sector and therefore higher paid, when in fact all those recruited from private sector and on higher pay were men, whereas all those who came through the NHS internally were women and therefore lower paid.