November 23, 2010
The recently implemented Equality Act gives increased force to the illegality of discrimination by employers on the basis of gender. However, recent cases have illustrated that basing pay and benefits on criteria such as long-term service can indirectly discriminate against women. Many women have joined male-oriented professions more recently or have taken breaks in their careers to have children. The previous position was that length of service criteria could be justified on the basis of greater experience, unless there are serious doubts that such experience would lead to better performance in the circumstances. A recent Court of Appeal decision in October involving the Health and Safety Executive found female workers to be at a serious disadvantage to their male colleagues. Health and Safety Inspectors were paid in accordance with a ten-year pay scale but were deemed unlikely to improve in performance after five years in service. The scale was therefore discriminatory as it could not be objectively justified and women employees were less likely to have as long periods of service as men. The burden of establishing serious doubt by the employee is not a particularly high one but will be met where evidence can be produced that could be relied upon to show that length of service would not necessarily lead to better performance. Therefore employers who currently use length of service criteria should seek legal advice as to whether the criteria can really be objectively justified and whether it is likely to discriminate against women in their organisation.