What does court ruling on pay mean?

By Declan O'Dempsey and Clare Cozens

The European Court of Justice has rejected an appeal by Bernadette Cadman, 44, from Manchester, who said it was wrong to pay more to male staff simply because they had been longer in the post. So what does this ruling mean?

The decision means that employers can pay more to people who have worked for them longer.

Court rejects pay appeal

A pay structure which increases pay with length of service is likely to affect women more than it affects men because women's employment is interrupted by career breaks for children.

The court said that higher pay for longer service can be justified, because someone who has been doing a job for longer will in most cases have greater relevant skill arising from greater experience.

And rewarding experience which enables the worker to perform his duties better is a legitimate objective of pay policy.

Challenges

However, it also said that it could be possible for a woman to challenge this if she can show that it is doubtful in any particular case that length of service is linked to greater skill at the job.

If she does that, the employer must prove that length of service goes hand in hand with experience and that experience enables the worker to perform his duties better.

For example, take a job in which you get the required skills within the first six months. After that, the level of skill involved does not increase particularly.

There has been a lot of misunderstanding about this ruling overnight in the press

The woman would be able to show that it is doubtful that pay based on length of service is a fair reflection.

In that situation the employer would have to try to justify using length of service as a factor in determining pay.

There has been a lot of misunderstanding about this ruling overnight in the press.

It does not mean, as some have suggested, that women who take maternity leave will be put at a disadvantage in terms of pay.

Age discrimination

Now, if you take maternity leave, your contract continues during that leave.

The women it will affect are those who took a career break which did not count towards seniority.

This may happen either because they changed employers or because the employer's scheme did not count the career break time as part of their employment.

If their employer uses length of service to justify unequal pay, and the woman cannot disprove this is unfair, the ruling means that the employer will not have to defend its decision.

Paying someone more just because they've done the job longer is also now affected by age discrimination laws, as it may discriminate against younger workers.

Employers will need to justify using length of service as a factor in determining pay in this context as well.

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Declan O'Dempsey is an employment law barrister and Clare Cozens is an equality consultant.