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Currently more than 13,700 claims have been lodged with employment tribunals for equal pay. Over half of the claims specifically challenge Agenda for Change under the Sex Discrimination Act. NHS Employers, together with the Secretary of State, NHS trades unions and local NHS employers, has been named as a party to the Sex Discrimination challenge. A test case (Hartley v Northumbria Healthcare NHS Foundation Trust) has been identified to decide on the national issues related to Agenda for Change. A pre-hearing review for this case will be heard before the Newcastle Tribunal from 6 October to 21 November 2008. 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. This order, however, applies only to the part of the claim involving the challenge to Agenda for Change. Claims involving both challenge to Agenda for Change and other local issues will progress with regard to the other issues. Employers should consult with their lawyers about claims that may be progressing, in full or in part, and make preparations with regard to disclosure of data as necessary.
BackgroundNHS trades unions argue that some of their members are able to make claims under the Equal Pay Act for back pay where, they claim, assimilation to Agenda for Change has revealed past unequal pay which was based upon gender difference. They are seeking up to six years back pay. In addition to this, contingency fee lawyers are also challenging some of the transitional elements of the Agenda for Change implementation (including the pay protection arrangements and the national recruitment and retention premia) on equal pay grounds. NHS Joint Unions on the NHS Staff Council had originally been seeking to negotiate a national collective agreement that would provide a framework for back pay to be made for individuals that they maintained were shown to have suffered unequal pay before the introduction of Agenda for Change. This however was rejected by Department of Health (DH) and NHS Employers because of differences over the interpretation of the law on equal pay that had yet to be tested through the legal process. Whilst it is expected that some of these legal issues may be clarified during 2008, should either party appeal decisions the final outcomes may fall in later years. For this reason, it is too early to advise on what the outcomes and implications may be. A national strategy for managing equal pay claimsIt is clear that the responsibility for the resolution of equal pay claims is for the local NHS organisations- back pay and legal costs if they occur would fall to the NHS organisation. However, NHS Employers and the Department of Health believe that there needs to be strong national coordination of the management of the handling of these claims. A consistent approach to handling claims should help to minimise total costs to the NHS and avoid the risk of local settlements that might cause unhelpful precedents for other employers. The DH has given the NHS Litigation Authority (NHSLA) responsibility for providing advice and support to NHS organisations on the management of claims. NHSLA is funded by the DH and their assistance is therefore free to NHS organisations. NHS Employers encourages organisations to sign up to the assistance of the NHSLA on handling claims (whether or not they have any claims at present). The NHSLA will provide advice, but each NHS organisation will retain the authority for deciding on settlement of claims. NHSLA are currently seeking to co-ordinate activity on claims lodged against trusts to ensure a consistent streamlined approach across the NHS. To support employers NHSLA:
The NHSLA recommend that employers use solicitors drawn from their recommended panel of solicitors. Information currently on the NHSLA website includes guidance on responding to equal pay Freedom of Information Act enquiries, equal pay grievances and the new tribunal protocol. Further information is available on the NHSLA website. Strategic Health Authorities (SHAs) have nominated a senior manager to lead on equal pay issues and these individuals work closely with DH colleagues to ensure an informed and consistent approach is followed. In addition, the Health and Social Care Information Centre will collect information on a quarterly basis from NHS organisations on the number of claims received. This information will help NHSLA to co-ordinate the national strategy and provide updates to the Equal Pay Project Board and SHAs on developments. Issues for NHS organisationsIt is clear that NHS organisations have real concerns. However in view of legal uncertainties it is too early to make a judgement on the likely outcomes of many of these cases. To ensure that financial support is available to trusts should there be settlement costs, arrangements are being made for funding through loans arrangements which would normally be repayable over 2-4 years. The recent Allan v GMB case heard by the Newcastle Employment Tribunal has led to uncertainty about whether collective agreements to settle equal pay claims (either at local or national level) are a sensible way forward at present. In this local government case, the GMB union reached a negotiated settlement of their equal pay claims with the employers but given the process followed and outcome of the deal, the union was found to have indirectly discriminated against female members with regard to their right to receive equal pay. GMB appealed this judgement and won but the decision of the ET was subsequently restored by the Court of Appeal. Employers need to be thinking now about the possible demands on them in terms of administration and information collection that they will be expected to provide should they need to defend claims. This may have to include trawling through payroll and personnel records for up to six years which can be difficult and resource intensive. The impact of NHS re-organisations and mergers and the roll out of Electronic Staff Record (ESR) are likely to make this a major problem for some employers. The quality of the factual information supplied on posts to the independent experts who are appointed by the employment tribunals to undertake work analysis and assessment can make a big difference in terms of the strength of any case. NHS Employers is represented on the Department of Health's Equal Pay Project Board. Membership of this group also includes representatives from Strategic Health Authorities, the NHSLA and NHS organisations, including foundation trusts. The overall aim of this group is to manage and coordinate a national strategy to deliver efficient and effective outcomes across the NHS. Support, advice and further informationWhere employers require further information on equal pay claims, enquiries should be directed to the NHS Litigation Authority which has responsibility for managing claims on behalf of NHS organisations:
NHS Employers has also put together a question and answer briefing and a glossary of terms that may help when discussing and dealing with enquiries regarding equal pay. Pages in this sectionEqual pay latest news FAQs: equal pay Equal pay: glossary of terms Equal pay: messages for boards Appeal ruling Ashford & St. Peters Freedom of Information requests Keeping staff records Last reviewed 14 Oct 2008 |
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