Wilson v HSE has now found its way back into the English Courts some seven years after Mrs Wilson started her challenge to service related pay. The Court of Appeal has now in my view removed any doubt that such provisions are open to challenge. All that now remains is the rebuttable presumption that people who do a job for longer tend to be better at it and can be rewarded accordingly (service related pay).
What the Court of Appeal held was that the ‘serious doubts’ test handed down by the ECJ did not add a further hurdle to the Equal Treatment Directive and that the burden of proof remained the same as for any other challenge namely that “the Claimant has established facts from which it may be presumed that there has been direct or indirect discrimination....”
So it seems to me that the ‘serious doubts’ side step adopted by the ECJ has for the moment been downgraded. The test is now what is described as the lower test by Lady Justice Arden namely that the Claimant has to adduce evidence or point to evidence that is capable of establishing credible reasons for doubting the applicability of the general rule that service related pay is ‘automatically’ justified.
It should also be noted that Dinah Rose QC also succeeded on a new appeal point which in effect bypassed the Directive altogether. She argued that as service related pay was not specifically excluded by the 1970 & 1975 Acts the normal equal pay rules applied. This is probably the most important part of the judgment as it effectively removes Danfoss and Cadman from the reckoning and leaves the Claimant with a straightforward claim under the Equal Pay Act.
What the Court of Appeal held was that the ‘serious doubts’ test handed down by the ECJ did not add a further hurdle to the Equal Treatment Directive and that the burden of proof remained the same as for any other challenge namely that “the Claimant has established facts from which it may be presumed that there has been direct or indirect discrimination....”
So it seems to me that the ‘serious doubts’ side step adopted by the ECJ has for the moment been downgraded. The test is now what is described as the lower test by Lady Justice Arden namely that the Claimant has to adduce evidence or point to evidence that is capable of establishing credible reasons for doubting the applicability of the general rule that service related pay is ‘automatically’ justified.
It should also be noted that Dinah Rose QC also succeeded on a new appeal point which in effect bypassed the Directive altogether. She argued that as service related pay was not specifically excluded by the 1970 & 1975 Acts the normal equal pay rules applied. This is probably the most important part of the judgment as it effectively removes Danfoss and Cadman from the reckoning and leaves the Claimant with a straightforward claim under the Equal Pay Act.
Why service related pay has become such a sacred cow is beyond me? If the employee deserves a different rate of pay from his female comparator then justify it. Things would be so much easier and Mrs Wilson would have won her case first time round 7 years ago!
http://www.bailii.org/ew/cases/EWCA/Civ/2009/1074.html
Peter D
http://www.bailii.org/ew/cases/EWCA/Civ/2009/1074.html
Peter D
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