A ruling that a woman's successor, in the same job, was a valid comparator for an equal pay claim has been overturned. Rachel Heenan and Daniella McGuigan explain the implications
Remarking on the case of Walton Centre for Neurology and Neuro Surgery NHS Trust v Bewley, the tribunal stated that a successor comparator was too vague a concept for a claimant to rely on and held that the decision was "fundamentally defective" and should not be followed.
The facts of this particular case are that Ms Bewley was employed by the trust as a senior healthcare assistant/nursing assistant. She brought a claim for equal pay, seeking to compare herself with male employees who began work after she had left.
Originally, an employment tribunal felt that it had to follow a decision in a previous case, Diocese of Hallam Trustee v Connaughton (1996), which established that article 119, (now article 141), allows a woman to claim equal pay with a man who succeeds her in her job.
As a result, the employment tribunal decided that she could rely on her chosen comparator not only for the period in which they had both been employed, but also for the period before the comparator had started work.
However, the Employment Appeal Tribunal ruled that this decision was flawed as it had mistakenly relied on a passage from the European Court of Justice in Macarthys Ltd v Smith (1980), rather than the court's decision itself. In addition, the tribunal examined who can be a comparator under article 141 and decided that allowing comparisons with a successor were beyond its scope.
Last year, it was reported that there had been a massive 155 per cent increase in equal pay cases year-on-year, a figure largely affected by the number of claims brought against local authorities and the NHS following the introduction of job evaluation schemes, which are intended to remedy unequal pay between female and male employees. The question of who can be a comparator and for what period is crucial to many of these cases and the Bewley case has provided employer trusts with a significant clarification.
Comparators should be employed at the same time as the claimant and cannot be hypothetical. Where a claimant relies on a predecessor, the comparison cannot extend beyond the comparator's terms and conditions as they stood at the termination of their employment. Perhaps this important clarification will help to reduce the growing tide of equal pay cases.