Successor not an appropriate comparator in equal pay claims

In Walton Centre for Neurology and Neuro Surgery NHS Trust v Bewley, the EAT held that a previous decision of the EAT, that a woman’s successor in the same job was a valid comparator for an equal pay claim, was incorrectly decided and should not be followed. After considering European case law on the scope of Article 141 of the EC Treaty, a successor comparator was too vague a concept for a claimant to rely on and was not permitted by EU law.

Ms Bewley brought a claim for equal pay, seeking to compare herself with male employees who commenced employment after her. Basing its decision on the precedent set by the EAT in Diocese of Hallam Trustee v Connaughton, the tribunal found that Mrs Bewley could use her successors as the chosen comparators.

The EAT decided that the reasoning in Hallam was ‘fundamentally defective’. The EAT in Hallam had mistakenly relied on a passage from the ECJ’s decision in Macarthys Ltd v Smith 1980 ICR 672, which was part of the European Commission’s argument submitted to the ECJ, but not the ECJ’s judgment itself. It was therefore not an authority that can be relied upon in any way.

The EAT then went on to examine European case law on the kinds of comparators available to claimants under Article 141 to determine if there was any way in which Mrs Bewley’s claim could proceed. It found that successor comparators were beyond its scope.

Successor comparators would not enable the concrete appraisal which the ECJ has emphasised is the bedrock of the application of Article 141, and it does not provide the secure factual premise which enables the extent of the past discrimination to be determined. Furthermore, as the comparator was not employed at the same time, a hypothetical comparator would need to be created, which the ECJ has held is not permitted under Article 141.