Secretary of State for Justice v Bowling UKEAT/2011/0297

Miss Bowling and Mr Thomas worked for the Prison Service.  They were recruited a month apart.  Mr Thomas however was placed on a different point in an incremental scale to the post than Miss Bowling.  As they moved up the incremental pay scale the gap between them remained.  In August 2010 Miss Bowling brought an equal pay claim.  The tribunal accepted that she and Mr Thomas had been doing like work and that as they were doing identical jobs the differential in pay which had been evident in 2008 ceased to be a material factor and therefore she would be entitled to pay equal of that of Mr Thomas from April 2009.  The Employment Appeal Tribunal disagreed. 

The EAT held that the pay differential between them was inbuilt until they both reached the top of the scale.  If the original pay differential had nothing to do with sex as the tribunal had found, then nor did the differential in subsequent years.  This  would not have meant that the cause of the differential was no longer material but as the cause was not tainted by sex, no question of justification arose.

Key Point: Incremental pay scales are still valid but will impact on pay in the future so employers must be aware of the risks of not reviewing pay scales from time to time to avoid equal pay claims such as in this case arising.