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Equal pay-successor cannot be used as comparator
Women in theory if not in practice should be paid equal pay under The Equal Pay Act (EPA) 1970 and Article 141 of the EC Treaty.
Despite this pay disparity is common.
When making an equal pay claim it is imperative to find a comparator of the opposite sex at the same grade or level and doing the same or equivalent job to comply with the requirement of comparing like with like.
Once found the pays can be compared and then the onus falls on the employer to explain any disparity as a genuine material factor that is gender neutral(the employer’s defence).
Problems exist as a result.
The woman claimant has to find an actual not theoretical male comparator.
The case of Diocese of Hallam Trustee v Connaughton helped as here it said she could also use a male successor.
However this case questioned the previous EAT’s approach so leaving the law in a state of confusion. Here it said the opposite arguing that Hallam had been wrongly decided as it had based its decision on a case it believed wrongly came from one case when in fact it came from a submission supporting the use of a hypothetical comparator which the ECJ later rejected.
The EAT revisited the EPA and held its natural meaning could not allow a comparisons with successors taking into account ECJ law.
Walton Centre for Neurology & Neuro Surgery NHS Trust v Bewley UK
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