Q. How many claims are there?
A. There are approximately 13000 claims in the NHS in England. There are also claims in Scotland and Wales.
Q. Who are the claims from and what are they
seeking?
A. The claims are poorly litigated so it is not always clear
what the individual employees seek. However the claims are mainly from
women seeking payment for alleged past inequalities with male colleagues, under
the pay arrangements that preceded Agenda for Change.
Q. Why don't we settle the claims?
A. We are keen to progress and resolve the claims as quickly
as possible. However, the merits of individual claims cannot be assessed
until several legal issues have been litigated. It would be irresponsible
to settle claims some or many of which may turn out to have no merit.
Q. The trust can't answer the challenge to Agenda
for Change. This was negotiated nationally.
A. Secretary of State will defend the Agenda for Change
system and is a respondent in several claims. But trusts are of course
responsible for the local implementation of the system.
Q. What are the legal points to be litigated?
A. There are approximately 10 legal issues. Two examples
are:
• we need to establish whether an applicant in one trust can compare
themselves with and seek the same pay as someone in another trust.
• in law staff rated as equivalent by a job evaluation scheme and hence
placed in the same pay band are not necessarily of “equal value”. A
recent Employment Appeals Tribunal ruling has contradicted the common
misconception that common pay banding under a job evaluation scheme creates a
right to “back-pay”.
Q. When will the legal position be clear?
A. The legal timetable is not in our hands. It will be
some months before legal points are heard in the Employment Tribunals and they
are not all being heard in the context of a single case. Depending
on the outcome either party may appeal the Judgment to higher courts which will
further delay resolution of the point.
Q. My trust only has two claims and we want to
settle them to get them out of the way?
A. You need to discuss this with the NHSLA and your
solicitors who will advise you. However settling claims is likely to
encourage other staff to lodge claims and this could raise expectations of staff
unjustifiably. You need to be sure that settlement is merited before
going down that path.
Q. Why aren't all cases stayed while the common
"test" issues are sorted out. That would save everyone - not only
trusts - a great deal of time, money and aggravation.
A. The decision on how claims are handled in the tribunal is
down to tribunal chairs. A case management discussion on 10 September 2007
agreed on a test case which raises a number of national issues. The outcome of
this test case will inform and impact on how other claims with national issues
are dealt with, therefore these claims have been stayed until the outcome is
known.
Q. Could there be a common approach to grievances,
equal pay questionnaires and FOI requests to save re-inventing the wheel.
A. The recommended panel of solicitors meet regularly to
discuss claims treatment in order to promote a common approach across the
NHS. There is advice on the NHSLA web site and the NHSLA welcome
suggestions for improvement. However it is not possible to recommend a
blanket course of action as each case has to be assessed separately.
Q. What will claims cost?
A. We don’t know until there is more information on the
merits of groups of claims; and by the same token it is unlikely that
individual employers could assess costs.
Q. How will claims' settlements be funded?
A. Any cost that may arise from claims will need to be met
by NHS trusts. No central support will be provided by either the
Department or HM Treasury. In cases where NHS trusts find it difficult to
meet the cost of claims, they will be able to agree a loan with the Department.
Q. We are incurring mounting legal costs in
defending the claims.
A. Costs can be kept down by using solicitors from the NHS
Litigation Authority panel who offer competitive rates, and also have access to
the legal network which the NHS Litigation Authority have established. In a few
cases, where the NHSLA accepts that a particular trust is running the leading
case on one of the test issues, some help with legal costs may be available.
Q. How is claims management being managed
centrally?
A. Under a statutory instrument and Direction, the NHSLA has
been charged with assisting trusts with claims management to ensure that there
is a consistent and informed approach to claims which are generally poorly
litigated, spread across the country, but which have many similarities.
The NHSLA are well placed to fulfil this role with wide experience of handling
litigation. The NHSLA report to the Equal Pay Project Board, a strategic
group that meets bi-monthly with all stakeholders represented.
Q. Why should I use solicitors on the NHSLA panel
rather than the trust's normal solicitors?
A. Equal pay is a complex area. In the interests of
co-ordination and consistent treatment of claims the NHSLA has recommended a
small number of solicitors covering the whole country. These lawyers offer very
competitive rates, and specialist expertise. This simplifies claim management
and facilitates clear communication lines and messages between trust/solicitors
and the NHSLA.
Q. I intend to use solicitors not on the NHSLA
recommended list
A. If you intend to use solicitors not on the recommended
list it would be helpful if you could discuss this fully with the NHSLA to
ensure that the trust is not isolated from mainstream developments on claims
management.
Q. Why should the trust sign up with the NHSLA?
A. The NHSLA needs to be able to represent the NHS as a
whole on equal pay claims so that it has authority in dealing with tribunals
and other organisations to speak on behalf of the NHS as a whole. There
is no cost to accessing the advice and support the NHSLA can provide so there
is no reason not to sign up with the NHSLA. The bottom line is that this
does not commit trusts to any particular course of action but will help trusts
to be informed on the sound and considered national stance on claims.
Q. Why should Foundation Trusts follow the
national line?
A. Foundation Trusts are part of the NHS and claims lodged
against Foundation Trusts are likely to be similar to claims lodged at other
trusts.
Q. Will Foundation Trusts be able to access funds
under the loans arrangement the DH has set up?
A. No. But Foundation Trusts, unlike trusts, can access
funds commercially.
Q. If an aspirant Foundation Trusts has claims
will that affect consideration by Secretary of State and Monitor of the FT
application?
A. Foundation Trust applications are assessed under
particular criteria and it will depend on whether the claims affect these
considerations.
Q. How will I know what developments there are
across the NHS and who should I notify of developments at the trust?
A. Individual trusts should contact the NHSLA for any update
on wider claims management across the NHS and also look on the NHSLA web site.
Contact EqualPayAdvice@nhsla.com
or contact John Mead the Technical Claims Manager tel: 020 7430 8821. The web
site is www.nhsla.com.
Also the SHA lead will be interested in developments and
will have information on the wider picture. Additionally many SHAs are
holding equal pay seminars aimed at CEs, HR Directors and Finance
Directors. Your SHA equal pay lead contact will organise these. A list of
SHA equal pay leads is attached. Both the NHSLA and SHA leads will keep
DH informed. NHS Employers will update employers on national developments
through the Workforce Bulletin.
Q. What should trusts with claims do?
A. There are several things. First contact the NHSLA to
notify them of your claims. They will explain their role and encourage
you to sign up with the NHSLA for claims management. You are advised to
use one of the NHSLA recommended solicitors. The solicitors will advise
you on handling claims. We ask you to let the SHA lead knows if there are
significant developments with your claims.
Q. Should comparators be informed who have been
named in claims?
Comparators should be informed by their employers once they
are cited by claimants' representatives as a matter of courtesy and good
practice.
Last reviewed 6 Feb 2008