26 / 8 / 2016 4pm
These frequently asked questions, which are updated as information becomes available, have been put together by the Department of Health (DH) with input from representatives of NHS organisations and NHS Employers.
How many claims are there?
Who are the claims from and what are they seeking?
Why don't we settle the claims?
The trust can't answer the challenge to Agenda for Change. This was negotiated nationally.
What are the legal points to be litigated?
When will the legal position be clear?
My trust only has two claims and we want to settle them to get them out of the way.
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.
Could there be a common approach to grievances, equal pay questionnaires and FOI requests to save re-inventing the wheel?
What will claims cost?
How will claims' settlements be funded?
If an aspirant foundation trust has claims, will that affect consideration by Secretary of State and Monitor of the FT application?
Should comparators be informed who have been named in claims?
Q. How many claims are there?
A. There are now well under 1,000 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 advise you 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. The challenge to Agenda for Change was successfully defeated in the Hartley case. However, trusts are of course responsible for the local implementation of the system and there may be challenges under Agenda for change in the future, where it can be argued that the employer may not have implemented it in line with the processes set out in the JE Handbook.
Q. What are the legal points to be litigated?
A. There are legal issues involved. Two examples are:
- We need to establish whether an applicant and their comparator are employed by the same employer, as things currently stand, or whether there have been further judgements that have changed that position.
- 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 in 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. How can we do this?
A. You need to discuss this with 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. All settlement claims must be approved by HM Treasury.
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.
Q. Could there be a common approach to grievances, equal pay questionnaires and FOI requests to save re-inventing the wheel?
A. 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.
Q. If an aspirant foundation trust has claims will that affect consideration by Secretary of State and Monitor (now part of NHS Improvement) 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. Should comparators be informed who have been named in claims?
A. Comparators should be informed by their employers once they are cited by claimants' representatives as a matter of courtesy and good practice.
Last reviewed 25 August 2016