Evesham v North Hertfordshire Health Authority Secretary of State for Health [1999] ILR 155
The concept of "pay", for the purpose of equal pay legislation, applies to each, individual term of a contract of employment.
A successful applicant in an equal pay case is entitled to the benefit of an "equality clause". This means that each and every term of her contract of employment which is less favourable than the equivalent term in her male comparator's contract is modified so as to be not less favourable.
It is therefore essential to analyse an applicant's contract of employment to identify each individual term contained within it. The Employment Appeal Tribunal fails to appreciate the distinction between two such contractual terms - one being the grade within which an applicant is entitled to be paid and the other being the mechanism for progression within that grade in this case - Evesham v North Hertfordshire Health Authority and Secretary of state for Health [1999] IRLR 155.
Mrs Evesham is a speech therapist. Along with Pamela Enderby and other speech therapists, Mrs Evesham claimed equal pay to that of clinical psychologist comparators - in her case, a Dr Mollan. Mrs Evesham succeeded in showing that her work was of equal value to that of Dr Mollan. However, she claimed that she should, in overall terms, actually be paid more than Dr Mollan.
Mrs Evesham had been in her current post for six years at the time she submitted her claim. She therefore had six years' worth of annual increment added to her salary as a speech therapist. Dr Mollan was in his first year in post. At the time that Mrs Evesham submitted her claim, Dr Mollan had no addition by way of incremental progression to his basic salary for his grade. Mrs Evesham claimed that she should be entitled to be paid within the same grade range as her comparator, but at the incremental point within that grade appropriate to her years in post in accordance with her contract of employment.
The Employment Appeal Tribunal refused Mrs Evesham's appeal. In a short judgment, thin on reasoning, the EAT found that Mrs Evesham had established equal value only with Dr Mollan's work, and not with all, or indeed any, other clinical psychologists.
She was therefore entitled to "mirror" Dr Mollan on the incremental pay scale- she was only entitled to the same overall rate of pay as Dr Mollan and not to additional incremental progression based on her years in post.
This is not only a disappointing decision, it is plainly wrong. Relevant to these proceedings were two terms in Mrs Evesham's contract of employment: first, the grade within which Mrs Evesham was entitled to be paid; and, secondly, the mechanism for incremental progression within that grade.
Mrs Evesham sought only to have modified the first of those terms - that is, the one that was less favourable to her. She did not seek modification of the system for incremental progression, yet the EAT has nonetheless taken it upon itself effectively to modify the application of the second term to Mrs Evesham by awarding her an overall rate of pay based on Dr Mollan's years in post.
It is well settled law that each term in a contract of employment falls to be considered, for equal pay purposes, on a separate basis. The legislation does not operate by taking a "global" view of the contract as a whole, nor by allowing one term to be "traded off" against another in an overall comparison of an applicant's and a comparator's contract. Plus, the statutory requirement is that the relevant term in the applicant's contract should be no less favourable: not that it should not be more favourable.
The EAT failed to distinguish between the two contractual terms at play and denied Mrs Evesham the benefit of a term in her contract of employment which it had no right to modify. If Mrs Evesham were to be given equal pay to that of Dr Mollan as required by equal pay legislation, she should be given, not only the same grade as Dr Mollan, but also the opportunity provided for in her own contract of employment to progress incrementally. In any event this is no more favourable than the equivalent term in Dr Mollan's contract.