EQUAL PAY CASE WHAT HAVE WE. Julian Milford 11KBW

Transcription

1 THE IMPLICATIONS OF THE HARTLEY EQUAL PAY CASE WHAT HAVE WE LEARNT? Julian Milford 11KBW

2 Hartley: what the case was about Hartley: a root and branch attack on the validity of Agenda for Change. Allegation was that AFC perpetuated and indeed magnified previous systemic discrimination within the NHS. In particular: 1. AFC introduced a Job Evaluation Scheme (JES) that was invalid, discriminatory, and unsuitable to be relied upon. Its aim and effect was to overvalue male jobs and undervalue female jobs, thus perpetuating (or increasing) discrimination between the sexes. 2. Even if the JES was valid, it could not become binding until local implementation and assimilation processes had been completed and the jobs of the claimant and her comparators had been evaluated. 3. The national agreement was discriminatory because the terms relating to RRP, pay protection and assimilation (indirect pay protection) gave benefits to men which were not enjoyed by women. They perpetuated systemic sex discrimination in the pay systems in place before AFC.

3 Hartley: the tribunal s decision The Tribunal found for the Respondents. In particular: 1. The Claimants had not shown that there was systemic or endemic pay discrimination in the pre-afc pay systems within the NHS. No doubt there would be pockets of discrimination within an organisation the size of the NHS, but neither employers nor unions nor the Secretary of State knew at the time of AFC where they were. 2. The AFC JES was a proper analytical JES for the purposes of s.1(5) Equal Pay Act. It was not made on a system which discriminated on grounds of sex for the purposes of s.2a(2a) EPA. Nor was it unsuitable to be relied upon for the purposes of s.2a(2a). 3. The JES was effective from 1 October 2004 (the date the parties had agreed). In any case, if that was wrong, then the fact that claimants and comparators had been rated differently under the JES was a complete defence (GMF) to any claim for equal pay from 1 October 2004.

4 The national agreement was not discriminatory: a. The Respondents did not need to justify explicit or implicit pay protection (assimilation), but if it did, they were justified. b. There was no need objectively to justify the payment of a no loss RRP to 15 job groups in Annex H of the AFC agreement. If objective justification were required, then such justification was made out, but it would not continue indefinitely, in the absence of thorough research into justification. 31 March 2011 was a reasonable date by which a thorough review of all RRPs could be completed. c. The payment of a RRP to chaplains equal to the amount of any accommodation allowance already in payment did not require justification. If it did require justification, it was justified, though justification would not continue indefinitely in the absence of thorough research. d. The payment of fixed RRP to maintenance craft workers required justification. It was objectively justified, but only up to 31 March 2011.

5 Hartley was not appealed. As an employment tribunal decision, the decision is not binding. However, the decision is very authoritative and persuasive. Abuse of process likely if issues relitigated: Ashmore v British Coal Corporation [1990] IRLR 283.

6 Hartley: what lessons for trusts? Section 1(5) and 2A(2A) EPA Hartley has important lessons for trusts at local level, particularly as concerns job evaluation. Where jobs are rated differently on the proper application of a valid JES, there is an absolute defence to claim for equal pay. Section 1(5) and s.2a(2a) EPA: 1. Section 1(5): A woman is to be regarded as employed on work rated as equivalent with that of any man if, but only if, her job and their job have been given an equal value, in terms of the demand made on a worker under various headings (for instance, effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value but for the evaluation being made on a system setting different values for men and women on the same demand under any heading. 2. Sections 2A(2A) and 2A(3) (2A) The tribunal shall determine that the work of the woman and that of the man are not of equal value unless the tribunal has reasonable grounds for suspecting that the evaluation contained in the study- was (within the meaning of subsection (3) below) made on a system which discriminates on grounds of sex, or is otherwise unsuitable to be relied upon. (3) An evaluation contained in a study such as is mentioned in section 1(5) above is made on a system which (3) An evaluation contained in a study such as is mentioned in section 1(5) above is made on a system which discriminates on grounds of sex where a difference, or coincidence, between values set by that system on different demands under the same or different headings is not justifiable irrespective of the sex of the person on whom the demands are made.

7 Section 1(5) The JES must be thorough in analysis and capable of impartial application : Eaton v Nuttall [1977] ICR 277. Impartial means not subjective. The JES must identify the demand factors used to evaluate jobs, and provide for all jobs to be evaluated by reference to those demand factors Evaluations will not be valid for the purposes of s.1(5) if a job has not been evaluated by reference to the demand factors. Section 1(5) is a systemic test: provided the scheme is the sort of scheme mentioned in s.1(5), it will fall within the section.

8 Section 1(5) and Hartley Hartley: the AFC JES complied with s.1(5) at national level. No problem with changes in national profiles/introductions of new profiles. No problem with use of different methods of evaluation (job matching, hybrid matching/local evaluation, local evaluation). The fact that matching was possible where there was some factor variance (save in knowledge or freedom to act) was a strength, not weakness, of the scheme. Changes to guidance did not invalidate the JES: guidance was simply the instrument made available for the evaluation of particular jobs. It did not change the key elements of the JES. Hartley: at local level, an evaluation will not comply with s.1(5) unless there is no material departure from the study. See e.g. Paterson v Islington LBC EAT/0347/03.

9 Hartley and clustering. Clustering is compliant with s.1(5). Whether clustering has been appropriate in any particular case is a local issue. The jobs need not be exactly the same to be clustered. They must however be no material differences between them. Otherwise, a job inappropriately clustered would not have been evaluated under the particular study. Importance of unions/employees signing off on clustered jobs. Guidance in JE Handbook: employees themselves select one of number to complete JAQ, and circulate completed JAQ; or job holders work together to complete JAQ, select one of number to represent them in interview with job analyst.

10 Hartley ateyand s.2a(2a) The burden of proof is on the claimant to show reasonable grounds for suspicion Section 2A(2A)(a) deals with systemic sex discrimination, concerned only with the factors and weightings in the factor plan. Hartley the system in AFC JES is not discriminatory: section 2A(2A)(a) is satisfied. Section 2A(2A)(b): unsuitable to be relied upon. This relates to a particular evaluation, not the system as a whole. Some limitation must be placed upon the words otherwise unsuitable to be relied upon. Otherwise, arguments could be advanced in every case that a particular evaluation is wrong. Expert evidence could be used to challenge or support the evaluation. Hartley such litigation would be contrary to the purpose of s.2a(2a). Challenges should, as a matter of law, be confined to cases where there are reasonable grounds for suspecting direct discrimination or an act or omission motivated by bad faith or an improper motive (Hartley, para 629)

11 Hartley at para 684: It is inevitable, in a JES covering more than one million jobs, that there will be some respects at both national and local level in which the study falls short of perfection. There may even be some mistakes. We direct ourselves, however, in accordance with paragraph [629] of these reasons. Subsection 2A(2A) would become meaningless if parties could second guess those charged with implementing the JES by showing or purporting to show that mistakes have been made and the wrong outcome has been achieved. The JES should be free from that t kind of scrutiny, so long as it is an analytical l scheme which has been designed and is being implemented in good faith, without sex discrimination and in accordance with the formal and procedural requirements set out in the scheme documents. Hartley emphasises that JE matching/evaluation panels don t always have to get it right: but they do have to comply strictly with the JE Handbook. In Hartley, no reason to think that the scheme was unsuitable to be relied upon at national level (e.g. inappropriately high banding for male jobs, manipulation of national profiles).

12 Hartley ateyand the notional /developed o e oped job No problem in theory with national profile that doesn t represent an actual job: though the further the national profile is from job actually being done, the greater the danger of inappropriate matching. Nothing wrong with considering making jobs more demanding as an alternative ti to pay protection, ti provided d no manipulation/sex discrimination Nothing wrong with considering making a job more heavily loaded if it straddles a grade boundary, provided no manipulation/sex discrimination. However if an job being evaluated is given a score based partly on the However, if an job being evaluated is given a score based partly on the predicted future demands of the job, rather than the actual demands, that evaluation would be unsuitable to be relied upon

13 Hartley and RRP a few points from the decision: i Chaplains entitled to receive RRP up to the amount of any accommodation allowance already in payment, even if they do not suffer loss under AFC. No possibility of reducing or removing maintenance crafts/chaplains RRP on review. Needs amendment to AFC agreement