Walton Centre for Neurology and Neuro Surgery NHS Trust v Bewley
Unlike sex discrimination legislation, the 1970 Equal Pay Act requires an actual (as opposed to a hypothetical) comparator. The Employment Appeal Tribunal (EAT) has now said in Walton Centre for Neurology and Neuro Surgery NHS Trust v Bewley that the comparator cannot be a “successor” employee.
Mrs Bewley’s union, Unison, instructed Thompsons to act on her behalf.
Basic facts
Under the NHS Agenda for Change programme, Mrs Bewley’s job as a care assistant was graded at band 3 from 1 October 2004. In June 2006 she claimed equal pay with various male comparators under both the Equal Pay Act and article 141 of the EC treaty.
For the period prior to 1 October, she compared herself with three men who did not start working for the trust until April 2004, February 2005 and July 2005 respectively. The question was whether she could claim back pay for the period when she was employed but her comparators were not.
Relevant law
Article 141 requires member states to ensure that the principle of equal pay for equal work or work of equal value is applied to employees.
Section 1(1) of the Equal Pay Act implies an equality clause into every contract. Section 1(2) states that if a woman is employed on like work, work rated as equivalent or work of equal value to that of a man in the same employment, the woman’s contract must be treated as having been modified or as including the more favourable term in the man’s contract.
Tribunal decision
The tribunal said (albeit reluctantly) that it was bound by the decision of the Employment Appeal Tribunal (EAT) in Diocese of Hallam Trustee v Connaughton which meant that Mrs Bewley could rely on both sets of comparators.
EAT decision
The EAT said that Hallam was wrongly decided. It was clear that section 1(2) of the Equal Pay Act only allowed comparators who were employed contemporaneously with Mrs Bewley, whether successors or predecessors. Yet comparisons with predecessors had been allowed by the European Court of Justice in Macarthys v Smith.
So what did EU law have to say about successors? The EAT said that as article 141 was directly effective, courts had to “give effect to it even if this involves disapplying inconsistent domestic legislation. Accordingly the real issue in this case is whether EU law requires that, at least in principle, comparison with a successor is permitted”.
It decided, however, that it did not as “the exercise of comparing with a successor is too hypothetical” and involved too much speculation. For instance “the assumption that if the male successor is now receiving higher pay then he would have done so in the past. … The valuation of jobs is not a science and the assumption that values attached to a post now would necessarily have been conferred in an identical way in the past is by no means a safe one”. Comparison with a successor also required an assumption “that the current differential would have been maintained in the past”.
It therefore concluded that just as the ECJ had denied the use of hypothetical comparators in the Macarthys case, EU law also denied the use of successors as comparators because such a comparison could “not provide the secure factual premise which enables the proper and precise extent of the past and necessarily hypothetical discrimination to be determined”.
The EAT also said that when a claimant is comparing their pay to a predecessor, they have to limit the comparison to the terms that applied when the comparator’s employment came to an end.