Comment

Equal pay in the NHS after Abdulla – the calm before the storm?

Kerry Norval and Robert Davies examine the fall-out from a landmark equal pay judgement.

There has been some upheaval in the land of equal pay recently, as the Supreme Court has given its judgment in the hotly anticipated case of Birmingham City Council v Abdulla and others and which is anticipated to trigger further multi-million pounds of liability for local authority employers in relation to employees who were otherwise thought to have missed their opportunity to claim.

Equal pay claims may be raised in either the tribunal system or the civil courts. In practice, claimants prefer to use the tribunal system to manage their exposure to costs should they be unsuccessful. In civil courts, claimants have six years – or five years in Scotland – to lodge a claim from the date upon which they last received unequal pay but only have six months to raise a claim in a tribunal.

Until Abdulla, a question remained as to whether individuals who had missed the tribunal deadline would have a second opportunity to raise their claim in court. The Abdulla case has confirmed the answer is yes.

This decision potentially exposes employers to a new wave of claims from former employees, previously considered to be out of time. However, despite the stir which this decision has caused, its effect on the NHS is likely to be limited.

Broadly speaking, there have been two general categories of claims in the NHS. The first challenging various elements of the pre-Agenda for Change (AFC) pay regime under the Whitley Council regimes; the second focused on AFC itself.

The AFC job evaluation scheme was declared not to be discriminatory by the tribunal in the 2009 case of Hartley and others v Northumbria Healthcare NHS Foundation Trust. Therefore, most of the live NHS claims relate to alleged inequality pre-AFC.

Given that the deadline for AFC implementation was 2004, any new claims under this heading should, therefore, be out of time by two years regardless of the effect of Abdulla.

Some grey areas remain. Certain former and current NHS employees may now be within time to claim if: i) they were not employed on AFC terms and conditions and they left employment after 2006; or ii) they assert that AFC was not applied correctly to them, which may extend to current employees or those who left after 2006.

It remains to be seen whether there is appetite amongst trade unions and claimant advisers to identify such claimants in order to launch further waves of NHS-related equal pay claims in the civil courts.

Kerry Norval and Robert Davies are from the employment team at national law firm Dundas & Wilson.