Equal pay and gender pay gap reporting

Equal pay has been a statutory entitlement since 1970, when the Equal Pay Act came into force.  The Agenda for Change pay system was introduced in October 2004 to ensure that pay in the NHS was consistent with the requirements of equal pay law.

Agenda for Change, and its national job evaluation scheme, complies fully with anti-discrimination legislation, as found by the Newcastle employment tribunal judgement in the case of Hartley and others versus Northumbria Healthcare NHS Trust and others.

Although the employment tribunal found the scheme to be equal pay compliant, it is important to know that claims can still be brought against organisations locally if it is believed that the scheme has not been implemented correctly, leading to equal pay issues. 

Age-related claims
Dealing with equal pay claims
Record keeping and financial support
Outstanding legal issues
Collective agreements
Settling claims
Support, advice and further information                                

Age-related claims

Organisations should be aware that equal pay claims can be brought on the grounds of age as well as gender discrimination. The Employment Tribunal and Employment Appeal Tribunal in the case of Power and others vs Pennine Acute Hospitals NHS Trust have issued  judgements in such a case. See our key legal judgements page for details.

Dealing with equal pay claims

The responsibility for the resolution of equal pay claims is for local NHS organisations. Back pay and legal costs if they occur would fall to the NHS organisation. The approval of HM Treasury is now required for all settlements. 

Record keeping and financial support

NHS boards are reminded that any equal pay claim potentially backdates for up to six years prior to the date of the claim, so it is essential that NHS employers maintain accurate historical employment records of employees.  

Read our good practice for keeping staff records.

Outstanding legal issues

The Hartley judgment did not resolve all the legal issues involved in equal pay claims. Subsequent rulings have clarified other issues (see our key legal judgements page for further details) and legal advice should always be sought when contemplating settlements of any individual claims. The approval of HM Treasury is now required for all settlements. 

Most of the outstanding claims are for back pay where, it is claimed, assimilation to Agenda for Change has revealed past unequal pay that was based upon gender difference. They are seeking up to six years back pay. 

Collective agreements

The Allan versus 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 employment tribunal was subsequently restored by the Court of Appeal.

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.

Settling claims

Any trust or solicitors representing a trust wishing to settle a claim should seek approval from HM Treasury. 

Support, advice and further information

NHS Employers has also put together a glossary of terms that may help when discussing and dealing with equal pay enquiries.