The employer appealed against a finding that it had acted in an equal pay claim in allowing for length of service.
Held: The employer’s appeal was dismissed. Decisions based on length of service tended to discriminate against women, because they were more likely to have broken employment records. The court was asked whether and if so under what circumstances the employer should be required to provide objective support for the use of such criteria. The effect of Cadman was that an employer could be required to provide objective justification for using length of service as a criterion. The ECJ had used the phrase ‘serious doubts’ as the criterion for the presence of circumstances requiring justification. That phrase had no established status in UK law, and it should be used as a filtering preliminary test applied only before the trial.
Lord Justice Sedley, Lady Justice Arden and Lord Justice Rimer
[2009] EWCA Civ 1074, Times 26-Oct-2009, [2010] ICR 302, [2010] IRLR 59, [2010] 1 CMLR 24
Bailii
England and Wales
Citing:
Appeal from – Wilson v Health and Safety Executive EAT 19-Dec-2008
EAT EQUAL PAY ACT: Article 141/European law
EQUAL PAY ACT: Material factor defence and justification
The claimant contended that a system which rewarded pay in part by reference to length of service . .
Applied – Cadman v Health and Safety Executive, intervener: Equal Opportunities Commission ECJ 3-Oct-2006
Social Policy – The court considered what went to make up age discrimination: ‘the Court acknowledged that rewarding, in particular, experience acquired which enables the worker to perform his duties better constitutes a legitimate objective of pay . .
Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
Cited by:
Cited – Essop and Others v Home Office (UK Border Agency) SC 5-Apr-2017
The appellants alleged indirect race and belief discrimination in the conditions of their employment by the respondent. Essop came as lead claimant challenging the tests used for promotion. Statistics showed lower pass rates for BME candidates, but . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Employment
Updated: 10 November 2021; Ref: scu.376209