Walton Centre for Neurology and Neurosurgery NHS Trust v Bewley

EAT: Elias J (President): 23 May 2008

The claimant’s job as a health care assistant was evaluated under a job evaluation scheme, following which she claimed equality of pay under the Equal Pay Act 1970 with male comparators on the same pay band. She claimed that prior to the evaluation she had been employed on work of equal value as the comparators, both during the period when the comparators were in contemporaneous employment with her and, for an earlier period, when she was employed but the comparators were not. On a pre-hearing review an employment judge held that the tribunal had jurisdiction to hear her claim in relation to both those periods.

The trust appealed.

Elias J (President) held:
Section 1(2) of the Equal Pay Act 1970 envisaged comparison with a comparator employed contemporaneously in the same employment as the claimant, so that, if comparison with someone employed subsequently was to be permitted, it had to be required by the directly applicable provisions of article 141EC, disapplying inconsistent domestic legislation. In determining whether there was equal pay for equal work, Community law required the analysis to be made on the basis of concrete appraisals of work actually performed, and comparison with a successor was too hypothetical, involving questions of what would have happened in the past. Accordingly, comparison with a successor did not provide the secure factual premise which enabled the precise extent of past, and necessarily hypothetical, discrimination to be determined. As such a comparison was outside the scope of the rights afforded by article 141EC, the claimant could not pursue her claim with respect to the period before her comparators were employed.

The appeal was allowed.

Appearances: Elizabeth Slade QC and Carlo Breen (Hill Dickinson, Chester) for the trust; Antony White QC and Betsan Criddle (Thompsons, Manchester) for the claimant.