Wilson v Health and Safety Executive (Equality and Human Rights Commission intervening): [2009] EWCA Civ 1074

CA: Sedley, Arden and Rimer LJJ: 20 October 2009

The claimant’s employer operated a pay system whereby employees were placed in pay bands with scales of pay which increased according to length of service up to a maximum of ten years. The claimant claimed equality of pay, pursuant to section 1(2)(b) of the Equal Pay Act 1970, with three male comparators in the same band whose pay was higher than hers primarily due to the difference in their lengths of service. The employment tribunal held that, since it was accepted that an employer was justified in having an incremental scale to reflect length of service for some period beyond the initial appointment because of the additional experience gained, and that it had been properly applied to the jobs in question, the genuine material factor defence in section 1(3) was made out, and it was not open to the tribunal to question whether recourse to the length of service criterion for a ten-year period was justified; but, had that matter been open, it would have found that a ten-year period was not justified. The claimant appealed to the Employment Appeal Tribunal, which held that a tribunal could question whether a length of service criterion was justified in circumstances where the claimant raised serious doubts as to whether or not it was justified; and that the employer could be required to justify not only the adoption of the criterion but also the period for which it was applied. The appeal tribunal remitted to the employment tribunal, for determination as a preliminary issue, the question of whether the claimant’s evidence did raise such serious doubts about the employer’s use of the length of service criterion.

The employer appealed and the claimant cross-appealed against the decision to remit the preliminary question, contending, inter alia, that, regardless of Community law, where the use of a service-related criterion put women at a disadvantage, under the Equal Pay Act 1970 the onus was on the employer to prove proportionality.

The Court of Appeal held:
While as a general rule Community law did not require an employer to provide objective justification for adopting service-related pay scales, justification would be required where an equal pay claimant provided evidence capable of raising serious doubts that such a criterion was appropriate to attain the objective of rewarding experience. Further, an employer could be required to provide such justification for his application of a length of service criterion as well as for its adoption in the first place. The “serious doubts” test was intended as a filter on claims and envisaged a preliminary test requiring the claimant to show that there was evidence from which, if established at trial, it could properly be found that the general rule did not apply, not merely evidence capable of giving rise to serious doubts. Such a test, however, had no place once the trial had taken place and liability was established, and the onus of proof on proportionality did not shift to the claimant. In the present case, the employment tribunal had found that the application of the service-related pay criterion for ten years was excessive, so that the “serious doubts” test must have been satisfied. In any event, the onus of showing justification under section 1(3) of the Equal Pay Act 1970 was placed on the employer without any qualification for cases where what was challenged was the use of a service-related criterion as a determinant in pay, and Community law could not take away features of the Act which constituted additional rights for the disadvantaged. The order of the appeal tribunal would be varied to reflect the finding of the employment tribunal, so that the claimant succeeded on liability.

The appeal was dismissed and the cross-appeal allowed.

Appearances: Jennifer Eady QC and Robert Moretto (Treasury Solicitor) for the employer; Dinah Rose QC and Ben Cooper (Russell Jones & Walker) for the claimant; Robin Allen QC and Dee Masters (Solicitor, Equality and Human Rights Commission) for the intervener.