Wilson v Health and Safety Executive 2009 EWCA Civ 1074

Ms Wilson was employed by the HSE as an inspector in Band 3. In 2002 she presented a claim under the Equal Pay Act 1970 taking as comparators 3 male inspectors who were paid more partly because of their longer service record and as a result of HSE’s incremental scale pay which varied with length of service, typically up to ten years. The Tribunal accepted HSE’s argument that it did not need to justify the length of service criterion because of the Danfoss ruling that service related pay was appropriate. Ms Wilson appealed.

The Court of Appeal held that an employer can be required to provide objective justification for the way in which it has applied a length of service criterion as well as its adoption in the first place. The Court also gave guidance on when the burden of proof shifts to the employer to establish that the length of service criterion is appropriate.

Key point: The legal burden of proof in relation to objective justification including proportionality remains on the employer in accordance with ordinary principles under the Equal Pay Act 1970.