Experience related pay has been the focus of complaints from female employees for sometime now. The difficulty is that as more women than men tend to take career breaks or start careers later, when they return to or in fact enter the labour market they find that they have fallen behind men in seniority and pay. A lot of women never catch up and find themselves always a few steps behind their male peers.
This was the position that Bernadette Cadman found herself. She took her case all the way to the ECJ. In Cadman v Health & Safety Executive [2006] IRLR 969 the ECJ made it pretty clear that establishing that a seniority based system of reward is discriminatory will always be a hard nut to crack for a Claimant. This is based on the ECJ decision in Danfoss [1989] IRLR 532 which held that as experience usually improves performance time served can be used to justify pay differentials.
Cadman made it clear that for an employee to succeed the employee must show that the employer has stepped beyond the margins that are afforded employers when applying such a criteria.
Now the UK courts have had their first look at Cadman in Wilson v Health and Safety Executive EAT/0050/08. Mrs Wilson was again challenging pay based on length of service. The EAT held that such a challenge is possible where an employee has raised serious doubts over the appropriateness of the criteria.
The test is set out in paragraph 44 of the Judgment:
“We think that the tribunal would have to be satisfied that in the light of the evidence adduced by the claimant there is real reason to suspect that the employer has stepped beyond the margins which can properly be afforded to employers when considering whether added experience typically improves job performance.”
The door is now a little further open but without wanting to stretch a metaphor too far it will be difficult for most women to squeeze through the gap.
Peter D
This was the position that Bernadette Cadman found herself. She took her case all the way to the ECJ. In Cadman v Health & Safety Executive [2006] IRLR 969 the ECJ made it pretty clear that establishing that a seniority based system of reward is discriminatory will always be a hard nut to crack for a Claimant. This is based on the ECJ decision in Danfoss [1989] IRLR 532 which held that as experience usually improves performance time served can be used to justify pay differentials.
Cadman made it clear that for an employee to succeed the employee must show that the employer has stepped beyond the margins that are afforded employers when applying such a criteria.
Now the UK courts have had their first look at Cadman in Wilson v Health and Safety Executive EAT/0050/08. Mrs Wilson was again challenging pay based on length of service. The EAT held that such a challenge is possible where an employee has raised serious doubts over the appropriateness of the criteria.
The test is set out in paragraph 44 of the Judgment:
“We think that the tribunal would have to be satisfied that in the light of the evidence adduced by the claimant there is real reason to suspect that the employer has stepped beyond the margins which can properly be afforded to employers when considering whether added experience typically improves job performance.”
The door is now a little further open but without wanting to stretch a metaphor too far it will be difficult for most women to squeeze through the gap.
Peter D
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