British Coal Corporation v Smith and Others: HL 23 May 1996

The phrase ‘common terms of employment’ means broadly comparable terms. There is no need for them to be identical, and the phrase should be construed liberally, though there can be no general commonality where there is no commonality in terms and conditions between comparative establishments.
Lord Slynn said that the terms had to be sufficiently similar to allow a fair comparison to be made: ‘generally’ does not necessarily mean ‘all’.
A genuine material factor defence, between different collective bargaining pay structures for claimant and comparator work groups, can become discriminatory: ‘Whilst accepting that differences in rates of pay historically were due to separate bargaining processes, which themselves were untainted by sex, the question remained whether at the relevant date (January 1986) the difference between workers had been shown by the Corporation to be objectively justified on grounds other than sex.’


Lord Slynn


Times 23-May-1996, Gazette 12-Sep-1996, Gazette 03-Jul-1996, [1996] ICR 515


Equal Pay Act 1970 1(6), Employment Protection Act 1970 1(2)(c)


CitedLeverton v Clwyd County Council HL 1989
The claimant, employed as a nursery nurse by the respondent in an infant school sought to compare herself with clerical staff employed by the respondent, but not in schools.
Held: The employee’s appeal succeeded. The majority of the Employment . .

Cited by:

CitedWhite v Burton’s Foods Ltd EAT 6-Jul-2010
The Claimant had been employed by the Respondent since 1984 before becoming Production Planning Manager at the Respondent’s Blackpool site. She brought a claim under the Equal . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 18 May 2022; Ref: scu.78619