The appeals concerned ‘pay protection’ measures adopted by local authorities to provide employees whose pay was to be reduced under a new job evaluation scheme with a ‘soft landing’ whereby the reduction in pay would be introduced gradually. However the scheme was in effect only given to male employees since it was only they, by virtue of higher pay given (in breach of EqPA) who would suffer from pay reductions. Ps, female employees, argued that they should be given the benefit of the measures too since, but for breach of EqPA their income would be high enough to qualify for the protection measures. CA held that the employer had not established the ‘material difference’ defence under s.1(3) EqPA and therefore Ps’ claim succeeded.
Mummery LJ: Both DD and ID are covered by EqPA so as to make it compatible with art 141 EC. The defence under s.1(3) must relate to an objective factor, not related to sex. This may, as here, involve looking at the underlying reason for the material difference. In this case it is due to historic underpayment of Ps in breach of the EqPA, so that the material difference is related to gender. It is irrelevant whether or not the Council knew it had been discriminating. “We think it is right to examine the underlying or historical position where that will throw light on the reason why one person is receiving an advantage and another is excluded from it.”