Case round-up by Eversheds 020 7919 4500
Long service pays
Cadman v Health & Safety Executive, EAT, 22 October 2003
Cadman, a Health & Safety Executive (HSE) inspector, was paid less than
four male colleagues and brought an equal pay claim. The HSE defended the claim
on the grounds that the men had longer service. It accepted that its pay scheme
was indirectly discriminatory against its female employees; they generally had
less service and were more likely to take career breaks.
A defence available to the HSE, however, was that paying staff in this way
was objectively justifiable.
Relying on the decision in a European case (the Danfoss case) the HSE argued
that such justification had already been established. The tribunal disagreed.
It ruled that the Danfoss decision had been watered down by later cases and
that employers must, in every case, demonstrate specific justification for a
pay differential. Here, the HSE had failed to do so. The HSE appealed.
The Employment Appeal Tribunal (EAT) overruled the tribunal, dismissing
Cadman’s claim. It confirmed that the principles set out in the Danfoss case
were sound. There was no requirement for the HSE to produce specific
justification for using length of service as a factor in its pay scheme. What
the tribunal needed to do in such a case was to balance the discriminatory
effect of using length of service as a criterion in determining pay, against
the reasonable needs of the employer. Here it had not done so.
Having a choice
Dehaney v Brent Mind and Another, CA, 27 October 2003
Following the rejection of her tribunal claims Dehaney appealed to the EAT.
She was asked if she would agree to her case being heard by a reduced panel of
one member, as opposed to two – something to which she verbally consented.
After the proceedings had commenced, however, Dehaney discovered that the
single appointed member of the panel was an employer’s representative, rather
than an employee’s representative. She therefore objected, but the EAT refused
to discharge itself since the hearing had started.
Dehaney appealed this refusal. In giving verbal consent to a reduced panel,
she had not given her informed consent. She claimed that she should have been
told in advance that the single appointed member was an employer’s
representative, a claim with which the Court of Appeal agreed.
The Employment Tribunals Act 1996 dictates that the EAT panel should consist
of equal numbers of lay members with experience of employers’ interests and
those representing the interests of employees. Deviation from this requires
express consent of the parties. Dehaney had not, in fact, given informed
consent, therefore the legislative requirements had not been met. The Court of
Appeal commented that it would be better practice for written consent to be
obtained before the hearing commenced.