All for change

Hartley and ors v Northumbria Healthcare NHS Foundation Trust and ors

The 1970 Equal Pay Act allows women to claim they are employed on work which has been rated as equivalent to that of a man under a valid job evaluation scheme (JES). In Hartley and ors v Northumbria Healthcare NHS Foundation Trust and ors, the tribunal said that the complex JES carried out by the NHS was valid and did not contain pay inequalities, or if it did, that they were justified.

All the NHS trade unions instructed Thompsons to represent them at the hearing.

Basic facts

In February 1999, the Government published a paper called Agenda for Change (AfC) which proposed major changes for modernising terms and conditions in the NHS. A national JES developed out of it covering more than one million jobs, agreed by both management and unions.

Apart from a new grading system, the agreement also included arrangements for pay protection for a total of six and a half years for staff whose pay would drop (because the maximum pay under the new band was lower than their previous pay). And it allowed for the payment of recruitment and retention premia in certain circumstances.

Following the implementation of the JES on 1 October 2004, claimants represented by Stefan Cross (a no-win, no-fee lawyer) challenged the new arrangements. They alleged that the new job evaluation was invalid under the 1970 legislation because it did not properly evaluate every job and that the process was flawed by bias and discrimination. They also argued that the pay protection, assimilation and recruitment and retention arrangements discriminated against women.

Tribunal decision

The tribunal made a number of findings (which include the following):

• There was nothing to indicate endemic sex discrimination in the NHS pay system prior to the introduction of AfC. Although there were a lot of equal pay claims ongoing at the time, the employers could not have been expected to know the extent of any pay inequality. 
• The Equal Pay Act does not allow a woman to use equal value to get an expert to analyse her job and that of a man on a higher grade unless the job evaluation is not analytical; or there are “reasonable grounds for suspecting” that the evaluation itself “discriminates on grounds of sex”; or the evaluations are “otherwise unsuitable”. The employee has to show that there were “reasonable grounds” for suspecting that the evaluation discriminated on the basis of sex or that it was not analytical or that it was unsuitable. In this case the tribunal held that it could not find any reasonable grounds for suspecting that AfC discriminated on the basis of sex or was unreliable in any other way. It was satisfied that the JES in this case (although it used a system of matching jobs against national profiles) was a perfectly valid, analytical scheme which met the requirements of the legislation. It said that using national profiles was not a way for the negotiating parties to benefit male-dominated job groups and preserve their historically higher salaries. 
• The pay protection arrangements agreed under AfC were not directly discriminatory against women as they applied equally to both groups. Nor were they indirectly discriminatory as they did not have a disparate impact on women - just over 4 per cent of men were in the advantaged group compared with just over three per cent of women. They therefore did not require to be objectively justified. However, even if disparate impact could have been shown, the tribunal decided that pay protection was a proportionate means of achieving a legitimate objective. 
• The assimilation rules did not have a direct or indirect discriminatory effect on women but if they did they were justified. The rules were well recognised industrial standards. 
• The payment of recruitment and retention premia to maintenance workers and chaplains (two predominantly male groups), did have a disparate impact on women. The payments to chaplains and maintenance workers were objectively justified but only up to 31 March 2011 as a transitional measure to achieve the legitimate purpose of securing the new agreement without damaging the NHS.