In Wilson v Health and Safety Executive EAT/0050/08, the EAT held that the ECJ decision in Cadman does not prevent the tribunal examining the period to which a length-of-service criterion is referable. This is provided that the employee has raised "serious doubts" about the appropriateness of the criterion to meet the employer's legitimate aim of rewarding experience that delivers improved job performance.
The Employment Appeal Tribunal has given guidance on when employment tribunals can set aside the general rule that the use of length of service to set pay levels does not have to be objectively justified in order to defeat an equal pay claim.
In Nimz v Freie und Hansestadt Hamburg (7 February 1991) EOR38A, the European Court of Justice holds that where using service as a pay criterion has a disparate impact upon women, the employer must justify it by showing a relationship between the nature of the work performed and the experience gained by performing the work.
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