23 / 5 / 2013 Midnight
This page contains details of key legal judgments involving equal pay claims
Hartley and others v Northumbria Healthcare NHS Foundation Trust
Bainbridge/Surtees Court of Appeal decision
Appeal ruling in Ashford and St Peters case
Employment Tribunal ruling in Jones v Blackpool, Fylde and Wyre Hospitals NHS Foundation Trust and others
Employment Tribunal/Employment Appeal Tribunal ruling in Brownhill v St Helens and Knowsley NHS Trust
Judgement of the Court of Appeal in North Cumbria University Hospitals NHS Trust v Fox and others (formerly known as Potter)
Judgement of the Court of Appeal in Briggs & Ors v Nottingham University Hospitals NHS Trust
Judgement of the Employment Tribunal in McGarry/Hatch v Basingstoke and North Hampshire NHS Foundation Trust and University Hospitals of Morecambe Bay NHS Trust
Judgement of the Court of Appeal in Mrs J Fox (and others) v North Cumbria University Hospitals NHS Trust
Prest and Others v Mouchel Business Services Ltd - (Newcastle Employment Tribunal, 24 June 2010)
Forward and Another v East Sussex Hospitals NHS Trust - (Newcastle Employment Tribunal, 12 November 2010)
Power and Others v Pennine Acute Hospitals NHS Trust - (Manchester Employment Tribunal, 12 November 2010)
Aitchison and Others v South Ayrshire Council - Employment Appeal Tribunal 11 March 2011 - Lady Smith
Emmanuel v City and Hackeny Primary Care Trust
3 April 2009
The Newcastle Appeal Tribunal rejected a challenge by ‘Hartley and others’ that Agenda for Change is not fully compliant with anti-discrimination legislation.
The pay system was developed in partnership with the trade unions and is based on the principle of equal pay for equal value. The judgement recognised this and that Agenda for Change is fair and consistent with the principles of equal pay.
Read the judgement in full on the NHS Litigation Authority website.
28 August 2008
The Court of Appeal decision in the Bainbridge/Surtees equal pay claims was given extensive press coverage but, in fact, introduced very little that is new.
It confirmed the current understanding that pay protection is capable of being an objectively justified and genuine material factor defence in equal pay challenges. Decisions are determined on the facts of each case. After seeking legal advice, the Department of Health reported it has no particular concerns in relation to the challenges in the Hartley v Northumbria Healthcare NHS Trust claims and was satisfied that the case would not affect the chances of successfully resisting those claims.
Appeal ruling in Ashford and St Peters case
22 August 2008
The Employment Appeal Tribunal (EAT) on 13 August 2008 made a ruling in an equal pay claim that has important implications for the rest of the equal pay litigation taking place in the NHS.
The EAT upheld the decision of the employment tribunal to refuse to withdraw the requirement for an independent expert to report to the tribunal on the question of equal value. The EAT also confirmed that, just because jobs are on the same band of Agenda for Change, the Tribunal is not bound to accept that the jobs are of equal value for the period prior to Agenda for Change. The EAT also confirmed that the onus is on the claimant to prove equal value.
The decision is helpful as it confirms that Agenda for Change does not have retrospective effect and establishing equal value will be more problematic, which will make it more difficult for claimants to bring successful equal value claims. This is because claimants will not be able to simply rely on the banding of their roles and their comparators' roles under Agenda for Change to show that the roles were of equal value prior to assimilation. Although banding will be taken into account, it will not determine the question of equal value and claimants will have a bigger hurdle to overcome to prove their claim.
This judgment was appealed to the Court of Appeal which dismissed the appeal on 9 July 2009. The judgment confirmed that a small difference in Job Evaluation Scheme points does not of itself establish that the jobs are of equal value and that the Tribunal was right to conclude that it was far from clear that the claimant's case would necessarily succeed and that there was therefore no basis to withdraw the reference to the expert.
Employment Tribunal ruling in Jones V Blackpool, Fylde and Wyre Hospitals NHS Foundation Trust and others
Newcastle Employment Tribunal - March 2010
These three cases, which were heard together, concerned the effect of NHS reorganisation upon limitation in equal pay claims. The Tribunal held that, where a trust or PCT is dissolved by statutory instrument, this gives rise to a limitation period of only six months for the purpose of enforcing liabilities arising under the equality clause. However, where a trust converts to foundation status, the limitation period is not similarly reduced and therefore remains six years, assuming continuous employment.
The ruling in respect of non-foundation trusts will have the effect of rendering many other cases out of time, because no appeal has been lodged. Consequently, there should be significant savings for NHS employers.
Employment Tribunal/Employment Appeal Tribunal ruling in Brownhill v St Helens and Knowsley Teaching Hospitals NHS Trust
The Newcastle Employment Tribunal has issued its Pre Hearing Review decision in the equal pay case of Brownhill and others v St Helens and Knowsley Teaching Hospitals NHS Trust. The issues in dispute in this case were:
• Whether claimants who were already paid more basic pay than their comparators could benefit from the comparators' more favourable unsocial hours uplift. The Tribunal decided then they could not.
• What constitutes basic pay for the purposes of comparison when considering an uplift for unsocial hours? The ET decided that an uplift payment for working unsocial hours must be construed as an increase to basic pay in these cases. The tribunal was mindful that a hospital environment is very much a 24-hour operation and shift work was so common that it should be construed as part of the normal working hours of the claimants, who were healthcare assistants and receptionists.
The decision was favourable for the trust and it is expected that other respondents will now take this point in any similar cases they are dealing with.
This judgment has been overturned by the EAT which held that, following the judgment of the House of Lords in Hayward V Cammel Laird Shipbuilders, in the comparison of claimants' and comparators terms, a "term" is a distinct provision of the part of the contract with sufficient content to make it possible to compare it with a similar provision in another contract. By comparing the terms separately, the EAT determined that the Equal Pay Act operated so as to modify the less favourable term relating to unsocial hours.
The decision of the EAT was appealed to the Court of Appeal which gave judgement in July 2011. The decision of the EAT was upheld.
Judgment of the Court of Appeal in North Cumbria University Hospitals NHS Trust v Fox and others (formerly known as Potter)
25 January 2010
This case looked at whether Whitley Council terms and/or the Secretary of State for Health constituted a "single source" of terms of employment, where the claimants and comparators were not employed by the same employer.
The Court of Appeal ordered, by consent, in January 2010, that where the claimants and comparators were employed by different employers, the NHS trust was not the single source of terms of employment. The claims against these comparators will therefore fail.
This decision is good news for NHS trusts, which have equal pay claims where the claimant is trying to compare themselves to a comparator at a different trust, or who is employed by a contractor carrying out an outsourced service. This case makes it clear they cannot do this.
Judgment of Court of Appeal in Briggs & Ors v Nottingham University Hospitals NHS Trust
17 March 2010
On 17 March 2010 the Court of Appeal ruled that a group of maintenance supervisors working for Nottingham University Hospitals NHS Trust were not entitled to be paid a recruitment and retention premium (RRP) under Agenda for Change (AfC).
The maintenance supervisors originally brought an unlawful deduction from wages claim in the employment tribunal, arguing that as qualified maintenance supervisors they were entitled to the RRP along with the qualified maintenance workers they supervised. The trust disputed this, arguing that the RRP applicable to maintenance workers was not applicable to those who supervise them, as supervisors were not in short supply. The maintenance workers lost in the Employment Tribunal and appealed to the Employment Appeal Tribunal and then the Court of Appeal. The Court of Appeal dismissed the supervisors’ claim, finding that the correct construction of AfC supported the trust's argument and that although the supervisory role may have required the same qualifications as the maintenance workers, that did not entitle supervisors to the RRP.
To read the full judgement see the England and Wales Court of Appeal Decisions website.
Judgment of the Employment Tribunal in McGarry/Hatch v Basingstoke and North Hampshire NHS Foundation Trust and University Hospitals of Morecambe Bay NHS Trust
25 February 2010
This case concerned claimants whose pay on assimilation to Agenda for Change was lower than that of men in the same pay band who received pay protection or who were assimilated to a higher pay point than the claimants.
The tribunal ruled that, even if there was a finding that the claimants were entitled to equal pay with the men prior to the introduction of Agenda for Change, they could not then be entitled to the difference in pay following assimilation. The claims failed because although the claimants were entitled to higher pay before assimilation, there was a lawful and binding agreement to use the actual pay received for the purpose of Agenda for Change. This agreement superseded the existing contract as varied by the equality clause.
The Tribunal commented that it would have been impossible in practice to make a realistic assessment of the cost of including potentially successful claimants in the arrangements for pay protection and indirect protection. If this had been done, the cost of the project would have become unsustainable and success for the claimants in this case would have been a massive deterrent to the adoption of similar large scale projects in the future.
Judgment of Court of Appeal in Mrs J Fox (and others) v North Cumbria University Hospitals NHS Trust
The issue considered by the tribunals in this case was whether the employment of the applicants came to an end on the day that the Agenda for Change terms and conditions came into effect with the result that the 6 month limitation period for bringing claims under the Equal Pay Act would apply from that date. In effect, the issue was whether the introduction of Agenda for Change constituted a new contract of employment or was only a variation of an existing contract.
The Employment Tribunal decided that the changes had resulted in a new contract as the introduction of the KSF and other changes had fundamentally changed the terms and conditions. The EAT disagreed, finding that the changes introduced by AfC were not fundamental to the contracts of employment as a whole.
The discussion in the Court of Appeal turned upon a new legal issue, the concept of a “stable employment relationship” which was introduced into the Equal Pay Act following the decision of the European Court of Justice in Preston v Wolverhampton Healthcare NHS Trust. Referring to the earlier judgment of the Court of Appeal in the case Slack v Cumbria, the Court found that as the claimants continued to do the same work for the Trust, without any break in either the work itself or the succession of contracts, there were stable employment relationships which were not interrupted by AfC.
The effect of the judgment, which is not being appealed, is that claims may be brought under the Equal Pay Act which were previously thought to have been debarred by the 6 month limitation clause – a significant number of claims may be affected.
Prest and Others v Mouchel Business Services Ltd
Newcastle Employment Tribunal - 24 June 2010
The main issue here is the effect that a change of comparators has upon the period for which a claim can be brought. Initial comparators were cited on 23 January 2007, and an amended list submitted on 22 June 2009. The employers argued that the new comparators constituted a new cause of action, and that the six year period therefore now ended on 22 June 2009. The employees argued that this was merely a minor amendment and that the arrears period should be projected back from 23 January 2007.
The Tribunal decided that it was bound by the judgment of the EAT in Potter v. N. Cumbria Acute NHS Trust (2009) and by that of the Court of Appeal in Bainbridge and Surtees (2008), and accordingly found in favour of the employers. However, in giving his reasons, Employment Judge Hargrove stated that he reached this conclusion “not without some hesitation”, because it was not totally clear to the Tribunal if the Court of Appeal had intended that the addition of a new comparator invariably constituted a fresh cause of action, or if this was so only if a new cause of action was being alleged.
The decision was appealed to the EAT which delivered its judgment on 12 May 2011.
Held: The critical issue was whether the new comparators who the claimants were seeking to adduce were undertaking work different from that performed by those originally named. Only if it was different would the period for which equal pay could be claimed be affected. In other words, if the new comparators were performing different work, the six year (maximum) retrospective period would commence from the date the amendment was permitted by the Tribunal.
Forward and Another v East Sussex Hospitals NHS Trust
Newcastle Employment Tribunal - 12 November 2010
This was the test case on challenges to independent experts. In brief, the Tribunal appointed Mr. R as independent expert, but his methodology was challenged by Thompsons, who obtained permission to call Ms. H as a party expert. The trust, in turn, were allowed to call Mr. P as a party expert.
The Tribunal upheld the system used by Mr R in compiling his report and considered it preferable to that advocated by Ms H. It laid down a number of points of general relevance to such challenges:
- A party disagreeing with an independent expert should not automatically be granted leave to call their own;
- A genuine challenge to methodology might “possibly” result in permission;
- Scoring of jobs was very much within the fact-finding competence of a tribunal;
- Challenges to factors should be made before job descriptions are completed;
- Detailed lists of challenges should be submitted in advance of any hearing.
Taken as a whole, this is a very helpful ruling for the NHS because it reduces significantly the circumstances in which a valid challenge can be made and thus minimises the risk of trust lawyers incurring substantial costs on this point.
Power and Others v Pennine Acute Hospitals NHS Trust
Manchester Employment Tribunal - 12 November 2010
This is the group of age discrimination claims where the primary allegation is that the transitional provisions of AfC unfairly discriminate against younger people who did not receive the enhancement accorded to those nearing retirement.
The trust applied to strike out these claims on the ground of limitation, because the allegedly discriminatory provisions came into effect on 1 October 2004, whereas the claims were not lodged until 31 July 2008. Furthermore, the Employment Equality (Age) Regulations did not come into force until 1 October 2006.
The Tribunal rejected this argument, holding that the allegation was in respect of a mechanism which applied over a period. That meant that the claims were not out of time, i.e. the allegation was of continuing discrimination.
On appeal, the EAT held that first instance Judge had failed to identify the basis on which she had held that the claims for alleged discrimination related to a continuing act and were therefore not out of time. The distinction between acts, such as re-grading under AfC, and their consequences had not been made clear.
Aitchison and Others v South Ayrshire Council
Employment Appeal Tribunal - 11 March 2011 - Lady Smith
A union official purported to raise a collective grievance regarding equal pay by a letter dated 11 August 2006. No schedule was attached, despite an indication to the contrary in the letter, but rather there was an accompanying computer disc containing the names of all Unison members in the Ayr branch, both male and female. The employers refused to accept this as a valid grievance.
On 7 November 2006, the Union lodged an ET1 on behalf of a Mrs Alexander and 35 others. There had been no follow-up letter containing only the names of relevant employees.
Held: this was not a valid grievance. The disc did not include any specification of periods of employment. It included the names of many males and lists of various jobs. The employers could not reasonably be expected to conclude that the names on the disc were those on behalf of whom equal pay grievances were being raised. The condition which had to be complied with was not technical or sophisticated: it was simply a requirement to name the relevant names. Accordingly, the claims would be struck out.
Lady Smith did not, as a result of this finding, regard it as necessary to rule on the employers' other main argument, namely that a computer disc containing names does not constitute notification of a grievance 'in writing', although she was sympathetic to this attack.
This was a helpful ruling from the NHS perspective, given that the EAT had held in the Suffolk Mental Health case that a grievance does not have to be at all specific.
This was the national test case involving potential GMF (Genuine Material Factor) defences of (a) different negotiation bodies, outside the control of individual NHS organisations, setting pay rates and terms/conditions for NHS workers prior to the introduction of AfC; and (b) market forces affecting the pay rates of maintenance workers.
The case was heard over several weeks in May/June 2011, and the judgment amounts to 730 paragraphs and almost 200 pages. The main findings were as follows:
1) The gender statistics of PRB (Pay Review Body for nurses/midwives) and MAP (Maintenance Advisory Panel) were significant and consistent, so as to require both the collective bargaining and market forces GMF defences to be objectively justified;
2) The trust failed to demonstrate that the separate bargaining arrangements were non-discriminatory;
3) The trust succeeded in objectively justifying the market forces defence in respect of basic pay;
4) The trust failed to demonstrate objective justification in the respect of weekend overtime rates.
This was clearly something of a mixed outcome, but on balance it was a good result for the NHS because most outstanding claims relate to basic pay only.
Shortly before the deadline for submitting notice of appeal expired, Thompsons advised that the Emmanuel claim was being dropped, doubtless because it did not involve any element of weekend overtime.
Since this judgment, the anticipation of many interested parties was that the tribunal would make rulings of relevance to similar groups of claims, but in fact cases have been dealt with individually and many claims have been dropped completely. The NHSLA is monitoring the position closely.