Wilson v Health and Safety Executive EAT/0050/08

equal pay | length of service criterion | justification

The Employment Appeal Tribunal (EAT) has given guidance on when employment tribunals can set aside the general rule that the use of length of service to set pay levels does not have to be objectively justified in order to defeat an equal pay claim.

Mrs Wilson, who worked at the Health and Safety Executive (HSE), claimed equal pay with three comparators who had been rated as equivalent in a job evaluation study. They were paid more partly because of their longer service, with incremental pay increases being awarded for the first 10 years' service. Mrs Wilson argued that after three years there was no difference in experience to justify the differences in pay. An employment tribunal accepted that the length of service criterion had a disparate impact on female staff because they tend to have shorter periods of service than male employees, as a result of childcare responsibilities. The employment tribunal, following the decision in Handels-og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening (acting for Danfoss) [1989] IRLR 532 ECJ, held that length of service as a criterion to establish pay levels does not require specific justification. Therefore, Mrs Wilson's claim failed, but her appeal was stayed pending the outcome of the ECJ decision in Cadman v Health and Safety Executive [2006] IRLR 969 ECJ, where the ECJ subsequently ruled that the length of service criterion does not have to be justified unless a claimant raises "serious doubts" about the efficacy of the criterion.

In light of the Cadman decision, the EAT remitted the case back to the tribunal to determine whether or not Mrs Wilson had provided evidence capable of raising sufficiently serious doubts to allow it to consider the issue of justification. The employment tribunal concluded that the "serious doubts" were doubts as to whether or not the criterion could be applied to the particular job. Once it was accepted that the job was one to which the length of service criterion could be applied, no further inquiries were necessary to consider whether or not it was applied proportionately. Therefore, the employment tribunal could not question the application of the length of service criterion.

On Mrs Wilson's appeal against the second tribunal's decision, the EAT held that the tribunal had applied Cadman too restrictively. A tribunal can question the way in which an employer applies a length of service criterion. However, it must have a real reason to suspect that the employer has stepped beyond the margins that can properly be afforded to employers when considering whether or not added experience typically improves job performance.

In this case, the employment tribunal had not asked itself whether or not, in light of the evidence adduced by the employee, it had serious doubts about the justification of the 10-year period that the HSE had adopted. The tribunal should have asked: were there serious doubts as to whether or not experience would not improve job performance for the whole of the 10-year period? The EAT remitted the issue of whether or not such doubts could be established to a fresh tribunal.

Case transcript of Wilson v Health and Safety Executive (Microsoft Word format, 86K) (on the EAT website)

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