In Walton Centre for Neurology & Neuro Surgery NHS Trust v Bewley, the EAT has confirmed that a comparator in an equal pay claim cannot be a successor. In doing so, the EAT found that earlier case law (Diocese of Hallam Trustee v Connaughton) was based on a misinterpretation of European law.
Background
The Equal Pay Act 1970 provides that men and women should receive equal pay for like work, work rated as equivalent, or work of equal value. A woman pursuing an equal pay claim must identify a male comparator engaged on more favourable terms than she is. A woman may use a predecessor as a comparator. Following the Hallam case, it was also held that a woman could use a successor as a comparator.
Mrs Bewley raised an equal pay claim for six years' pay dating back to 2000. Her comparator had only been employed since 2004. The employment tribunal had to consider whether she could claim for the period 2000 to 2004 when she was employed but her comparator was not. At first instance the tribunal held that they were bound to follow the decision in Hallam and therefore allow the claim for the full period.
The EAT, however, overturned the decision and held that a claim for equal pay can only succeed in relation to a period when a comparator is actually employed. Comparison with a successor is too hypothetical as it requires consideration of what would have happened had the comparator been employed, rather than what did in fact happen. This does not satisfy the requirements for a "concrete appraisal" between the claimant and her comparator.
Impact on employers
This case will be of comfort to employers facing equal pay claims by confirming that a successor cannot be used as a comparator. It is also a useful confirmation by the EAT that there must be a method for comparing the terms of an equal pay claimant and her comparator on tangible rather than hypothetical grounds.