Because women have more breaks in service during their working lives than men (usually to have children and raise a family), they often work for shorter periods. But is it then discriminatory for an employer to use length of service as a criterion for say, extra holidays or even pay?

In Cadman v the Health & Safety Executive, the Court of Appeal decided to ask the European Court of Justice (ECJ) to make a ruling on whether length of service can be used as a justification for different pay for men and women.

What was the history to this case?

Mrs Cadman brought a claim for equal pay against her employer, relying on four male comparators (H, I, J and K) who were all on the same grade as her, but paid substantially more. They had all worked for the HSE for longer than she had.

As the proportion of men with longer service was greater than that of women, however, Mrs Cadman claimed that the use of length of service as a determinant of pay was indirectly discriminatory against her and that her employer should be required to justify it objectively.

The tribunal agreed with Mrs Cadman, but its decision was overturned by the employment appeal tribunal. It said that the ECJ had decided in Danfoss that using length of service as a criterion in a pay system did not need to be justified. But even if it did, it said that the tribunal had made a legal error when considering justification.

What did the parties argue?

Not surprisingly the HSE argued that Danfoss provided the authority to support its claim that length of service did not need justification, with the exception of subsequent cases decided by the ECJ that had concerned part-time workers.

Mrs Cadman, on the other hand, argued that those subsequent cases did not just modify Danfoss in relation to part-time workers, but amounted to a significant departure from it.

In the cases of Nimz v Freie und Hansestadt Hamburg; Hill v Revenue Commissioners; Gerster Freistaat v Bayern, the Court of Justice had indicated that the use of length of service as a criterion did seem to require justification. Although the court had not expressly overruled Danfoss in these judgements, it had, in essence, ignored it.

The conundrum for the Court of Appeal, therefore, was to figure out the relationship between Danfoss and Nimz, Hill, Gerster concerning part-time workers. Had the Court of Justice had second thoughts in Nimz and Hill? Or were they part of a sub-plot referable only to part-time workers?

To help it decide, the Court of Appeal looked at the opinions of the Advocate General in Nimz which could, it said, be construed as an invitation to at least reconsider Danfoss. It felt this change of approach was even more obvious in Hill.

On balance, the court felt that it could not escape the conclusion that 'cases such as Nimz, Hill and Gerster are probably not just exceptional and confined to the context of part-time work. They are more illustrative of a difference in approach.'

However, because of the element of uncertainty thrown up by the different cases, the Court of Appeal decided to remit the issue to the ECJ for a definitive judgement. 
It also said that, if Mrs Cadman succeeded in her claim in Europe, her case should be heard by a different tribunal to reconsider the issue of justification, which had been wrongly decided by the tribunal.

Comment

This case follows in the footsteps of the successful PCS backed case of Crossley v ACAS, in which the tribunal found that service related increments indirectly discriminated against women and could not be justified.

As a result, ACAS payscales were overhauled, leading to increased pay and shorter payÊscales. It is likely that the European Court in Cadman will take the same view.