That men employed on like work with women are in a special "red-circled" category does not automatically provide a defence to a claim for equal pay on grounds that the variation in pay is genuinely due to a material difference, other than the difference of sex, between the men's case and that of the women. This is the major principle established by the EAT in a joint judgment in respect of two "red-circling" appeals - Snoxell and Davies v Vauxhall Motors Ltd and Charles Early & Marriott (Witney) Ltd v Smith and Ball.
Although to date the EAT has not dealt with many cases under the job evaluation provisions of s.1(2)(b) and s.1(5) of the Equal Pay Act, and thus there is little guidance on the issues involved, the recent case of Eaton Ltd v Nuttall throws some useful light on this area.
In Defrenne v Sabena (No.2) [1976] ECR 455 ECJ, the European Court of Justice held that member states are bound to ensure and maintain the principle of equal pay for equal work as enshrined in Article 119 of the Treaty of Rome. It also held that in cases of direct discrimination, whether by the actions of public authorities or not, Article 119 is directly applicable to national law and gives rise to rights that national courts must protect.
In the Capper Pass v Lawton, the EAT hold that in determining whether a woman and a man are employed on broadly similar work, Industrial Tribunals should disregard "trivial differences or differences not likely in the real world to be reflected in terms and conditions of employment". And in Dugdale and others v Kraft Foods Ltd, the EAT hold that the time that the work is performed should also be disregarded when considering whether jobs constitute like work within the s.1(4) definition.