There are now two conflicting EAT decisions on the question of whether pay protection to cushion the impact of a job evaluation scheme (JES) can be justified. The issue is now to be considered by the Court of Appeal. The problem arises because, during the pay protection period, successful equal pay claimants can still take home less pay than their male comparators.

This is because the pay protection scheme cushions the impact of the JES for workers whose jobs have been assigned lower grades, and who therefore would otherwise face an immediate reduction in pay. On the face of it the genuine material factor defence is available. But, because in almost every case it is the traditionally male jobs that need pay protection, the employer is called upon to justify the pay protection scheme, given its adverse impact on women.

The first EAT decision to consider this point, Bainbridge (No 1), concluded that the employer's pay protection scheme could not be justified. The claimants were therefore entitled to have their pay raised to the level of their comparators' protected pay. More recently the EAT has come to the opposite conclusion on very similar facts in Surtees v Middlesbrough Borough Council.

The Court of Appeal has now decided to hear the Bainbridge and Surtees appeals together on the pay protection point. This should help clarify the law because it is hard to understand why the EAT could reach such different conclusions on such similar facts. It is reasonably clear that pay protection can in principle be justified, particularly if it is fairly modest, but it would be useful for employers to have a better feel for what schemes are likely to be acceptable.