Bowling: Non-discriminatory reasons for equal pay

A man who was hired in a comparative role to a female employee, but was paid more – both at the time he was hired, and for two years of pay increases – had significant IT skills that justified the difference in pay. His skills and experience constituted “a material factor”, other than the difference in gender, to account for the difference in pay – both at the time of hiring and in the years afterwards.

In Bowling v Secretary of State for Justice Mrs Bowling was employed in August 2008 by the Prison Service in Newport. She was on an incremental salary, which would increase each year depending on performance.

Mr Thomas was hired a month later to the same role, but was put two points above the claimant on the scale. This was because of his ten years’ experience in IT, which Mrs Bowling didn’t have.

There was a policy that said if someone was hired above the bottom of the salary scale other employees had to be lifted up. This policy did not apply when the person hired on the higher salary had “stronger background or experience”.

Mrs Bowling claimed that she had been doing “like work” and should be paid equally, as per the Equal Pay Act. Under that law, if an employer hires a man and a woman and pays them differently he will be presumed to have discriminated unless he can explain that difference. Once an explanation is given it must be decided whether that explanation is “tainted by sex”.

The Employment Tribunal, and the Employment Appeals Tribunal, accepted that Mr Thomas’ skills and experience were a genuine difference that was not tainted by sex. But the appeal was about whether the difference in pay should have continued for the two years after the hiring, when annual pay increases were given.

The question was: should Mrs Bowling’s pay have caught up with Mr Thomas’?

The Employment Appeals Tribunal decided that it was not gender discrimination to keep Mr Thomas’ pay above Mrs Bowling’s. They said,

It is in the nature of an incremental scale that where an employee starts on the scale will impact his pay relative to his colleagues’ … Once Mr Thomas had started two points above the Claimant a differential was built in.

They pointed out that the pay difference had nothing to do with gender: the policy would have applied the same way if the woman had been earning more than the man.