Equal pay and agenda for change

1 May 2009

  
Following 2 days of legal argument in December of last year, the Employment Appeals Tribunal (EAT) gave their decision last Friday in the much anticipated appeal by the Claimants in Potter & Others v North Cumbria Acute Hospitals NHS Trust.

The first ground of appeal was that adding a new comparator to an equal pay claim does not represent a new cause of action. In fact, this ground was not pursued at the appeal as the judgment in the Court of Appeal in Bainbridge v Redcar and Cleveland Borough Council (No 2) (delivered after the Potter appeal was lodged) confirmed that a new comparator is a new cause of action.

The EAT did consider whether the comparison against any new comparator would be applicable from the date of claim, the claimant therefore being entitled to rely upon the new comparator for the full 6 year period from that date (subject of course to any other limitation issues). The EAT held that claimants will only be able to recover in respect of the comparisons with the amended comparators from the date of amendment and not from the date of claim.

Perhaps the most important aspect of the appeal was the question of whether assimilation onto Agenda for Change terms amounted to a new contract. The EAT held that assimilation did not amount to a radical change to employment terms, such as to equate to a new contract of employment and therefore raise a time point.

The EAT's decision was based on findings that the original Tribunal failed to have regard to the question of how far the existing contracts (under Whitley Council) permitted change, that KSF was not such a fundamental change as was suggested, that the views of other bodies (i.e. the Department of Health and the Unions) should not have formed part of the circumstances to be taken into account, and that the Tribunal failed to allow the parties to comment on the strong view expressed by one of the panel members, Dr Carter, a retired NHS Consultant, that AfC was a fundamental change.

It is not yet known whether the decision is going to be appealed.

The application to add new comparators has been sent back to the Tribunal to consider whether it will allow the application. It will also have to consider whether the Statutory Grievance Procedure had been completed in respect of each claimant and each new comparator.