Thousands of female public sector employees have a greater chance of succeeding in equal pay claims following recent key legal rulings – one of which prompted a council to set aside about £40m to fund settlements.
In Joss v Cumbria County Council, the Court of Appeal rejected the council’s argument that because it required the female claimants to sign new contracts incorporating changes to their working conditions, they were new employees. This would have meant the women, mainly low-paid staff working as carers, kitchen hands and cleaners, were not entitled to full back pay on their claims – set at up to six years before the date of the claim.
Following the ruling, Cumbria Council said it is “in constructive talks with trade unions in a bid to settle equal pay claims”.
The council will offer a total of £40m to deal with outstanding claims, which, according to union Unison, affect about 5,000 female staff.
Council leader Stewart Young said: “It is in nobody’s interest for these cases to drag on through the employment tribunals. Low-paid workers need the certainty of cash in their pockets now, not the possibility of a pay-out more than one year away.”
In two other equal pay cases heard this week – Hurst v Suffolk Mental Health Trust and Arnold and others v Sandwell Metropolitan Borough Council – the Court of Appeal ruled that there was no requirement to specify male comparators when filing an equal pay grievance. Some 5,000 equal pay claims are affected by the Hurst ruling and 2,000 by Arnold.
Bronwyn McKenna, director of organising and membership at Unison, said: “I am very pleased that commonsense has prevailed. These employers were trying to deliver a knockout blow to the women’s genuine equal pay claims by concocting this get-out clause.
“It would seem glaringly obvious to all that it would be nearly impossible for women just starting their battle for equal pay to name their male comparator.”
She added that it would be the taxpayer who would bear the cost of the cases.
Commenting on these cases, Lisa Mayhew, employment partner at Jones Day, said: “The Court of Appeal’s decision has major implications for all employers, not just the public sector. It means that all that a woman has to say at the point of starting the grievance process is that she believes that she has been underpaid by reason of her sex without naming an actual male comparator.”
Bob Fahy, solicitor at Matthew Arnold & Baldwin, added: “The Court of Appeal appears to have been swayed in particular by the draconian consequences of finding that a letter which did not identify a comparator in an equal pay claims would not count as a statutory grievance. If the court had reached that conclusion, the 7,000 individuals whose grievance letters are affected by this judgment would be likely to have their equal pay claims barred as a result.”
Meanwhile, another roadblock to NHS equal pay implementation through Agenda for Change (AfC) was removed when the Newcastle Employment Tribunal ruled last week, in Hartley v Northumbria Healthcare, that AfC did not breach anti-discrimination legislation.
The test case was presented by no-win no-fee lawyer Stefan Cross, who is said to believe that AfC is inherently sexist as thousands of male NHS staff were placed in higher pay bands during an initial AfC job evaluation process.