Wilson v Health and Safety Executive

An employer may be required to justify both the adoption and the particular use of length of service as a determinant of pay. Although rewarding experience is ordinarily a legitimate and appropriate aim, an employee may displace that general rule by producing evidence which raises serious doubts about its application.

The serious-doubts requirement is a preliminary evidential filter. The employee need only establish a basis from which a tribunal could properly find at trial that the general rule does not apply. The employee does not bear the burden of proving disproportionality. Once justification is required, the employer must establish that the criterion is proportionate, subject to an appropriate margin for managerial judgment.

The claimant, a band 3 inspector employed by the Health and Safety Executive, received less pay than male employees whose work was rated as equivalent. Her pay scale awarded increments for up to ten years by reference to length of service. An employment tribunal found a disparate impact on women and concluded, contingently, that the ten-year scale was not objectively justified.

Following the Court of Justice's ruling in Cadman v Health and Safety Executive [2006] ICR 1623, the Employment Appeal Tribunal held that the claimant could challenge the manner in which the criterion was used. It nevertheless remitted the case for determination of whether she had raised serious doubts about the criterion.

The central questions were whether the use, as distinct from the adoption, of a service-related criterion could require justification; what the serious-doubts threshold required; and whether domestic equal pay legislation independently placed the burden of proving proportionality on the employer.

1. Appeal dismissed and respondent's notice upheld. The claimant succeeded on liability. Arden LJ delivered the judgment, with which Rimer and Sedley LJJ agreed.

2. The ruling in Cadman v Health and Safety Executive [2006] ICR 1623 permits a challenge both to an employer's adoption of a length of service criterion and to the manner in which that criterion is used. The Court of Justice's expression “recourse” was capable of covering both stages. Excluding scrutiny of the criterion's application would leave arbitrary or discriminatory schemes without an effective remedy and would be inconsistent with the fundamental principle of equal pay.

3. Length of service generally accompanies experience, and experience generally improves performance. An employer therefore ordinarily need not provide special justification for rewarding it. That general rule is qualified where the employee produces evidence raising serious doubts about whether the criterion is appropriate to reward experience in the circumstances.

4. The serious-doubts requirement is a preliminary evidential filter rather than an additional substantive or jurisdictional burden. It applies before trial and has no function after liability has been established. The employee must convince the tribunal that evidence exists from which, if established at trial, it could properly find that the general rule does not apply. There must be some basis for inferring disproportionality, but the burden of proving proportionality does not shift to the employee.

5. A tribunal may allow the employer an appropriate margin for commercial or managerial judgment when assessing a service-related pay scale. The original tribunal had allowed such a margin and had found that the Health and Safety Executive exceeded it. Those findings were not challenged. Even if the serious-doubts threshold had been high, it was satisfied.

6. The Equal Pay Act 1970 and the Sex Discrimination Act 1975 form a single, coherent code for sex discrimination in employment. European law supplies minimum guarantees and cannot remove additional domestic rights. Under section 1(3) of the 1970 Act, the employer bears the burden of establishing justification, including proportionality. Domestic legislation contains no exception for the use of a length of service criterion.

1. Court of Appeal (Civil Division): The Health and Safety Executive's appeal was dismissed and the claimant's respondent's notice was upheld. The Employment Appeal Tribunal's order was to be replaced by an order reflecting the employment tribunal's 2003 findings, so that the claimant succeeded on liability.

2. Employment Appeal Tribunal: Held that the claim could challenge the use of the length of service criterion, but remitted the case to determine whether the claimant had raised serious doubts about the ten-year period.

3. Employment tribunal: Initially dismissed the claim because it considered itself bound by the earlier EAT decision in the related Cadman litigation. It found contingently that the ten-year period was not justified and that five years was appropriate. Following the Court of Justice's ruling in Cadman [2006] ICR 1623, it later accepted the employer's argument that the claimant had not satisfied the serious-doubts requirement.