Questioning pay progression for length of service

There is no question that length of service criterion for pay progression is likely to disadvantage women disproportionately. It is therefore discriminatory.

Nevertheless, the European Court of Justice has ruled that the added experience and training which in principle, results from longer service can be generally taken to be an objective justification for using length of service as a criterion of extra pay.

The court did say, though, that the employee could raise 'serious doubts' about the employer's 'recourse' to such a scheme.

Now the Court of Appeal has ruled unanimously (Wilson v HSE) on how 'serious doubts' and 'recourse to' are to be interpreted in English law.

'Recourse to' means both adopting and operating a scheme. 'Serious doubts' is only a sensible evidential requirement to ensure the complaint has some prospect of success.

Once this is established, the burden of proof then shifts to the employer to justify the scheme. So far, so good. However, the court then went on to say that in any case the 1970 Equal Pay Act gave better protection to women and so should be applied before the EU Directive.

While there will be a margin of error allowed to an employer, the implication of the judgement appears to be that any scheme that exceeds five years of promotion based on length of service will be dubious or at least will require careful justification.

This will not affect the statutory teacher's scheme but it may affect support staff in maintained schools and will require careful thought in some colleges and independent schools.