Walton Centre for Neurology v Bewley (Employment Appeal Tribunal)
The issue of comparators can often be fraught with difficulty. In equal pay claims the comparison between roles which are different, on the face of it, but regarded as equivalent or of equal value has led to a tremendous amount of litigation recently. However, one thing that is clear with regard to equal pay claims is that there should be an actual comparator and not a hypothetical comparator.
Sometimes an alleged difference in pay may not appear to manifest itself until there is a change in role. In this case the issue to be decided was whether Ms Bewley could compare herself with her successor.
The Employment Tribunal found that Ms Bewley could make such a comparison. In so doing it was following the Employment Appeal Tribunal (“EAT”) case of Diocese of Hallam Trustee v Connaughton. This 1996 case is the only appeal case to find that a claimant can rely on a male successor as a comparator, as opposed to a predecessor, in the same employment. The EAT in Hallam felt that the successor’s contract was so proximate to the claimant’s that is was effective as an actual comparator. Unfortunately, this finding was based on a mis-reading of a case at the European Court of Justice (“ECJ”). As Hallam was founded on a mistake even Ms Bewley did not place any reliance on it at the EAT.
With Hallam being cast aside what the EAT in the current case had to assess was whether Article 141 (formerly 119) of the EC Treaty (which requires Member Sates to ensure there is equal pay for equal work of work of equal value) allows for a comparator with a successor to be made.
The Equal Pay Act 1970, under which Article 141 can be enforced in the UK, envisages comparison with someone employed at the same time as claimant. Therefore, if the comparison with the successor is to be allowed it can only be done so as a requirement of EU law. EU case law has shown that it is not necessary for the claimant and comparator to have been in contemporaneous employment. However, they must have worked in the same establishment and a concrete appraisal of the work done must be possible.
In this case Ms Bewley was seeking a comparison dating back six years, with the comparison being made with male employees in posts which did not exist until after the a wholesale reassessment of roles created them. The EAT drew a distinction between comparison with a predecessor and comparison with a successor. In the former case the pay at the end of the predecessor’s employment can be established and compared with that of the claimant. Where the successor receives more pay than a claimant it cannot be fully established that they would have received more than the claimant if they had both been employed at the same time.
The EAT concluded that allowing comparison with a successor involved enough speculation to make it hypothetical and therefore was not allowed.
Although this case gives clarity to an area where there was previously a mistake there are still questions to be addressed as result. It might not always be possible for a concrete appraisal if the comparator is a predecessor and yet if a successor follows on immediately after the claimant, but at a greatly increased salary, could not a concrete appraisal be made in such circumstances? While such issues could have possibly been address in the new Single Equality Bill, this opportunity has not been taken.