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'Serious doubt' test in equal pay claims clarified

27 October 2009

The requirement that claimants in equal pay cases must show there are ‘serious doubts’ about their employer’s pay criterion does not reverse the burden of proof, the Court of Appeal has ruled.

Following the European Court of Justice’s ruling in Cadman, the Court of Appeal said in Christine Wilson v Health and Safety Executive [2009] EWCA Civ 1074 that an employer could legitimately apply a length of service criterion when setting pay scales unless an employee provided evidence of serious doubts in that regard.

Lady Justice Arden said the ECJ’s ‘serious doubt’ test was “a filter on claims”.

She said an employer could be required in equal pay proceedings to provide objective justification for his use of a length of service criterion as well as its adoption in the first place.

“The employee does not necessarily have to descend into detail,” she added. “But there would have to be some basis for inferring that the adoption or use of the length of service criterion was disproportionate.”

Schona Jolly, a barrister at Cloisters, said: “An employee does not need to do very much to raise these doubts, and employers will have to justify the use of length of service to fix pay in many more situations than was previously thought,” she said.

“Companies who will fall foul of this ruling are ones who cannot show that the length of service criteria is rewarding increased skills or experience over that time or those that cannot show that using length of service is appropriate and necessary to achieving such an aim.”

In 2003, an employment tribunal found in favour of Wilson, saying that the length of service criterion had a disparate impact on women because they would tend to have shorter service than men as a result of career breaks to have children or delayed starting work until later because of childcare responsibilities.

Rejecting HSE’s appeal, Lady Justice Arden said: “The need to protect rights arising from the use of a service-related criterion is not an academic question, as it is common ground that women are often disadvantaged by the use of such a criterion in pay schemes.”

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Procedures Discrimination Landlord & Tenant