Court of Appeal

Published October 26, 2009

Wilson v Health and Safety Executive, Equality and Human Rights Commission intervening

Before Lord Justice Sedley, Lady Justice Arden and Lord Justice Rimer

Judgment October 20, 2009

An employer could be required, in proceedings in which an equal pay claim was brought, to provide objective justification for his use of a length of service criterion as well as its adoption in the first place.

The Court of Appeal so held in a reserved judgment when dismissing an appeal brought by the defendant, the Health and Safety Executive, against the Employment Appeal Tribunal (Mr Justice Elias, President, Mr I. Ezekiel and Ms P. Tatlow) ([2009] ICR 498) which had allowed the appeal of the claimant, Mrs Christine Wilson, from the dismissal by an employment tribunal at Shrewsbury of her claim about the way the length of service criterion was applied.

Ms Jennifer Eady, QC and Mr Robert Moretto for the executive; Ms Dinah Rose, QC and Mr Ben Cooper for Mrs Wilson; Mr Robin Allen, QC and Ms Dee Masters for the Equality and Human Rights Commission, intervening.

LADY JUSTICE ARDEN said that the appeal raised two fundamental questions affecting equal pay arising out of the use of a service-related criterion as a determinant of pay: did the employer have to provide objective justification for the way he used such a criterion and if so, in what circumstances?

The claimant was employed as a band 3 inspector by the executive. Her pay was governed by a scheme which in part fixed increases according to length of service over ten years, after which time no further increases were awarded. She was paid less than three employees selected as comparators, whose work was rated as equivalent.

The appeal tribunal held that the employer had to justify the use of a length of service criterion.

In her Ladyship’s judgment, the effect of the decision of the European Court of Justice in Cadman v Health and Safety Executive, Equal Opportunities Commission intervening (Case C-17/05) (The Times October 6, 2006; [2006] ICR 1623) was that an employer could be required, in proceedings in which an equal pay claim was brought, to provide objective justification for his use of a length of service criterion as well as its adoption in the first place.

The question which then arose was when did the employer have to justify the use of a length of service criterion? The Court of Justice in Cadman held that the employee had to show “serious doubts” in certain cases but it did not amplify that concept.

“Serious” could cover a spectrum of gravity from the non-frivolous to the very grave. There was no procedural stage in English law which used the same terminology.

On that issue, the appeal tribunal came to what was, on the face of it, a surprising conclusion: that although the tribunal had held that the employer could not provide objective justification for the way in which it used length of service criterion as a determinant of pay, none the less Mrs Wilson might fail on the “serious doubts” test.

Since the tribunal had not applied the test originally, the case should be remitted for determination of that issue. Both Mrs Wilson and the executive appealed against that finding.

In her Ladyship’s judgment, the test of “serious doubts” was a filter on claims. It envisaged a preliminary test which still left the issues to be decided at trial.

The “serious doubts” test could only be applied before a trial. It had no place once the trial had taken place and liability had been found.

Lord Justice Sedley and Lord Justice Rimer agreed.

Solicitors: Treasury Solicitor; Russell Jones & Walker; Mr Keith Ashcroft, Manchester.

Times Recommends

• The best legal yarns this Christmas
• Legal school 'earned £1m by exploiting bar course'
• Axe may fall on 5,000 more City lawyers