Bernadette Cadman, an inspector at the Health and Safety Executive, discovered that male colleagues in the same department were earning up to £13,000 more than her despite performing the same role. In common with most areas of employment in the public sector, the HSE operates an incremental pay system which, one way or another, rewards length of service and the fact that her male colleagues had been at the HSE longer entitled them to a higher salary. Cadman felt that this criteria weighs disproportionately against women, who are more likely to have taken a career break than men. In June 2001 Cadman applied to an employment tribunal complaining that the use of length of service as a determinant of pay is indirectly discriminatory and that her remuneration should be equal to that of her male colleagues. The tribunal found in her favour.

Since European law takes precedence, the matter was referred to the European Court of Justice who ruled against Cadman. The court confirmed that experience generally enables a worker to perform their duties better. Therefore, employers may reward length of service without having to establish the importance it has in the performance of the job. Contrary to the speculation rife in the media, the Cadman decision makes it clear that employers can be challenged by women with the proviso that they can supply evidence casting serious doubt that longer service does lead to better performance. However, the evidential burden on women is great and the decision cannot be seen to be opening the floodgates.

Despite this, employers should tread carefully and ensure that length of service is only used to determine levels of pay where it can legitimately be justified. Employers should ensure the length of service criterion is transparent and consider the following when looking at their experience tiered systems of pay.

• Is the job in question one where employees in the role reach a skills plateau and can therefore be caught up by new recruits?
• Does the business suffer problems in retaining experienced staff?
• Does the system penalise women? Remember that it is not lawful to deduct maternity leave from an employee’s length of service, thereby justifying a lower rate of pay.
• Is the experience tiered system of pay taking account of experience the employee may have gained from previous jobs?