Is 'length of service' automatic justification for different pay for men and women?

The Court of Appeal has, today, published its judgment in Cadman v HSE (judgment was officially handed down last week, on Friday, 15th October).

Ms Cadman received less pay than men in the same grade as her at the Health & Safety Executive. But they had been employed for longer, which was the reason they were paid more.

It was common ground that in this country (and across the EC), the length of service of female workers, taken as a whole, is less than that of male workers.

The employment tribunal, relying on the ECJ case of Danfoss, held that the use of length of service as a criterion in a pay system does not require specific justification.

The Court of Appeal analysed subsequent decisions of the ECJ in detail. It noted that there have been indications in subsequent decisions which would seem to require justification for a 'length of service' criterion.

Although Danfoss has never been expressly departed from, the Court of Appeal noted that the ECJ has a tendency to just ignore previous decisions it dislikes rather than expressly overrule or depart from them. Indeed, in all the years of the ECJ's existence, there is only one recorded instance of the ECJ expresly overruling its own previous decision!

Thus the fact that some subsequent cases had cast doubt meant that the Danfoss decision had to be viewed with caution.

The Court of Appeal accordingly remitted the issue to the ECJ, for the ECJ to decide whether the use of 'length of service' as a factor in a pay system requires objective justification.

Cadman v HSE