ECJ advisor queries legality of linking pay to long service

Employers who pay higher wages to employees with longer service may be guilty of sex discrimination unless they can provide a business justification, Europe’s top legal advisor has said.

The issue was referred by the Court of Appeal to the European Court of Justice (ECJ) in the case of Bernadette Cadman, a principal inspector at the Health and Safety Executive who was paid between £4,000 and £9,000 less than four male comparators in the same pay band (see Labour Research, November 2004). The main reason for the difference in pay was that the men had longer service.

Cadman, who has been supported in her equal pay claim by the public services union Prospect, argues that the pay structure indirectly discriminates against women because more women than men have had breaks in their career and therefore cannot build up the necessary service to benefit from the top pay.

It is common practice for the EAT, before considering a case, to seek the opinion of its legal advisor, the Advocate General — who has now given his opinion that using length of service as a criterion in a pay structure must be justified on business grounds if it is to be lawful.

This opinion is not binding on the ECJ, but may influence its thinking when it considers Cadman’s case.

Cadman v Health and Safety Executive case C-17/05