Service increments

Case 9: The facts

Bernadette Cadman was a "grade 2 inspector" in the Health and Safety Executive (HSE). She was paid substantially less than her male colleagues on the same grade, and brought an equal pay claim.

The HSE has an incremental pay system rewarding length of service. Cadman claimed that this was indirectly discriminatory on grounds of sex, because women are more likely to take breaks in their career and consequently have shorter service.

Indirect discrimination is unlawful unless it can be objectively justified. A decision by the European Court of Justice (ECJ) - the "Danfoss" case - states that length of service is in itself an objective reason for a difference in pay and does not need to be justified, but Cadman argued that later ECJ cases had brought that decision into question.

The ruling

The Court of Appeal said it thought it was impossible to say that length of service as a criterion for determining pay rates need never be justified. It accepted that the matter needed clarification and referred the case to the ECJ for a ruling on that point.

If the ECJ decides that length of service as a reason for increasing pay does need to be justified, Cadman's case will be remitted to another tribunal to decide whether the HSE could justify it in this instance.

Cadman v HSE AI/2003/2359