Equal pay comparators

Case 9: The facts

Ms Bewley, a senior health care assistant/nursing assistant, brought an equal pay claim, comparing her pay with that of three male comparators. Her comparators were employed into new posts in April 2004, February 2005 and July 2005 respectively. Part of Bewley’s claim covered the period of six years before her comparators started employment. The issue therefore arose as to whether a person can compare their pay with that of a successor.

The ruling

The EAT said no such comparison could be made, because it amounted to a hypothetical comparison, using evidence of the successor’s pay as a peg on which to hang the claim. The wording of the Equal Pay Act 1970 does not allow such a claim, and even European law only permits concrete comparisons, ie with the pay of those employed at the same time or a predecessor. The earlier EAT case of Diocese of Hallam Trustee v Connaughton [1996] IRLR 505 was wrongly decided because it misinterpreted the decision of the European Court in Macarthys Ltd v Smith [1980] IRLR 210. The President of the EAT (Mr Justice Elias) did accept that there are cogent arguments in favour of permitting hypothetical comparisons to be made in equal pay cases, since such comparisons are permitted for other forms of discriminatory conduct.