The EAT has held (overturning previous caselaw) in Walton Centre for Neurology v. Bewley that a woman's successor in a job cannot be used as a comparator for the purposes of an equal pay claim, either under the Equal Pay Act 1970 or Article 141 of the EC Treaty.
Elias P. accepted the Appellant's submission that the 1970 Act does not permit a comparison with a woman's successor because the statute envisages a specific person contemporaneously employed with whom a comparison can be made.
However, this was not determinative of the appeal because it was necessary to consider whether the Act should be read in accordance with EU law.
Having examined the case-law at some length, the EAT decided that comparison with a successor is not permitted under EU law either. The logic behind comparison with a successor was the same as that behind allowing a hypothetical comparator; in essence, it is an exercise in speculation as to what would have happened if they had been employed contemporaneously. This is not consistent with the structure of the Equal Pay legislation, which requires comparison with an actual comparator and not a hypothetical comparator.