Can a woman use her predecessor or successor as the comparator in an equal pay claim?

A woman making an equal pay claim under the "equality of terms" provisions of the Equality Act 2010 must compare herself with at least one man doing equal work. This can be either someone employed in the organisation at the same time as her, or her predecessor. However, the Employment Appeal Tribunal held in Walton Centre for Neurology and Neurosurgery NHS Trust v Bewley [2008] IRLR 588 EAT (which was decided under the now repealed Equal Pay Act 1970) that a woman cannot use her successor as a comparator.

Under the Equal Pay Act 1970, which was repealed by the Equality Act 2010 on 1 October 2010, it was not possible to bring a claim based on a comparison with a hypothetical comparator. However, under the Equality Act 2010, employees have the option of bringing a direct sex discrimination claim under s.13 of the Act in relation to contractual pay, rather than a claim under the "equality of terms" provisions. The employee can therefore compare her pay to that of a hypothetical male comparator. It may be possible for an employee to use her successor's pay as evidence in a claim under s.13; this remains to be tested by case law.