The Employment Appeal Tribunal ruled recently in the case of Potter v North Cumbria Acute Hospitals NHS Trust, that equal pay claims can pre-date contracts agreed under Agenda for Change (AfC), a major health service pay reform launched in 2004. This decision overturned a previous Employment Tribunal ruling.
Mrs S Potter, an employee of the Trust, is a lead claimant in an action involving hundreds of other female employees at North Cumbria. Their case was taken on by Newcastle-upon-Tyne lawyer Stefan Cross who is handling thousands of equal pay claims related to AfC.
Potter and others were refused leave by the ET to amend their equal pay applications by adding new male comparators against which their pay could be compared. It ruled that that the move from the old pay structure – called the Whitley Council – to AfC meant they had entered into a new contract of employment and could not amend their claims as the time limit to do so – 6 months – had expired.
The EAT ruled that the ET’s decision was “perverse” and said the move to AfC meant contracts had been varied not terminated and replaced.
Sarah Lamont, partner at Bevan Brittan, said the ruling means “that claimants will be able to pursue claims for the pre-AfC period as well as the post-AfC period.
“The decision will come as a major disappointment to NHS Trusts against whom equal pay claims have been lodged.”
She added though there was “some better news” for employers as the EAT decided that the addition of a new comparator is a new cause of action – “ie a new claim. Claimants will therefore be subjected to new time points and will have to amend their claims rather than have the comparator added automatically.”
Lamont also pointed out that any amendment to comparators applies from the amendment date and is not backdated to the date of the claim, which may limit the employer’s liability.