Service please

Wilson v Health and Safety Executive

Although the law requires employers to pay men and women equally for work rated as equivalent under a valid job evaluation scheme, they do not have to justify a difference in pay if it is due to a length of service award. In Wilson v Health and Safety Executive, however, the Employment Appeal Tribunal (EAT) said that employers must justify any differential if the employee can show serious doubts about whether longer service equals more expertise.

Basic facts

Ms Wilson (a band 3 inspector) made an equal pay claim in July 2002, comparing herself with three other inspectors in the same band. Although their jobs had all been rated as equivalent in a job evaluation study carried out in 1995, the male inspectors were paid more than her.

This was partly because they had received length of service increments to reflect their experience after ten years in the job. Ms Wilson agreed that the HSE was justified in having an incremental scale on the basis that somebody with experience was of more value than a relative newcomer, but argued that ten years was too long and that staff were fully proficient at their job after three years.

Tribunal decisions

At the first hearing in 2003, the tribunal decided that the length of service criterion had a disparate impact on female employees, but that because of the decision by the European Court of Justice (ECJ) in Danfoss, the HSE did not have to justify it.

Ms Wilson’s appeal to the EAT was then stayed until the ECJ had come to a decision in the similar case of Cadman v HSE (monthly LELR 117). It said that although employers did not, as a general rule, have to justify length of service as a pay policy objective (as the court in Danfoss had ruled) they would have to if a worker provided evidence that cast serious doubts on whether it was appropriate.

Ms Wilson’s case then went to a second tribunal which also rejected her claim on the basis that once it was accepted that the length of service criterion had been appropriately applied to the jobs in question, courts could not interfere in the way in which it had been applied. Ms Wilson appealed again.

EAT decision

And this time the EAT agreed with her that the tribunal had applied the decision in Cadman too restrictively.

It said that tribunals should be able to ask whether an employer could justify the way the length of service criterion had been applied. However, it made clear that it would not be enough for the tribunal to have “some doubts as to whether that is truly the position; they must have serious doubts. This suggests to us that the hurdle is a high one”.

It went on: “If after hearing the evidence of the claimant the tribunal is of the view that there is a genuine issue as to whether justification could be established, that would not be enough. We think that the tribunal would have to be satisfied that in the light of the evidence adduced by the claimant there is real reason to suspect that the employer has stepped beyond the margins which can properly be afforded to employers when considering whether added experience typically improves job performance”.

And as the tribunal had not asked itself if it had serious doubts about whether the ten year period was justified, the EAT remitted the question to another tribunal.

Finally, the EAT said that, when hearing these cases, tribunals must decide whether there are “serious doubts” first before they hear evidence on justification, which should be fairly straightforward and simple. The more complicated and detailed the evidence, the less likely it is that there is a basis for serious doubts that longer service results in more expertise and experience.