Buddy says: No, according to the recent decision made by the European Court of Justice (ECJ) in Cadman v Health and Safety Executive Case C-17/05, 3 October 2006, an employer does not have to specifically justify pay based on length of service. This still applies where this means that there is disparate pay between men and women employed in equal work or work of equal value.

Employer information: The opinion of the Advocate General in the Cadman case was that if an employer used length of service as a factor when determining pay, then the employer under Article 141 of the EC Treaty (which was implemented by the UK through the Equal Pay Act 1970) was required to show that by using that factor they had taken into account the business needs of the undertaking and that it is applied proportionately so as to minimise the disadvantageous impact it has on women.

The ECJ however, chose not to follow the Advocate General's opinion. The ECJ held that Article 141 did not require an employer to justify the use of length of service when calculating pay.

The ECJ's ruling now provides clarity to this area. Employers can continue to work out pay based on length of service without the having to specifically justify their reasons for doing so. This is still the case where this results in unequal pay between men and women.