Tribunal rejects challenge to Agenda for Change validity
An employment tribunal has rejected claims that the Agenda for Change job evaluation scheme was invalid. Consultant editor Darren Newman explains what the claimants were hoping to achieve, and considers the inherent complexity of assessing the value of jobs under such schemes.
In Hartley and others v Northumbria Healthcare NHS Foundation Trust and others, a large number of claimants represented by Stefan Cross Solicitors sought to argue that Agenda for Change did not entail a valid job evaluation study (JES) under the Equal Pay Act 1970.
Success would have allowed them to claim equal pay with comparators who had been assigned to a higher grade under the scheme on the basis that they were actually employed on work of equal value. However, the tribunal has comprehensively rejected their claims, holding that Agenda for Change did involve a valid JES (although the issue may not end there, as Cross has said that he is considering an appeal).
Had the decision gone the other way, pay in the NHS would have been thrown into chaos. Agenda for Change is a comprehensive reform of pay within the NHS that took years to negotiate and implement. It replaced a plethora of pay scales and bargaining arrangements with a single pay system. This involved a huge JES, which resulted in around 16,000 equal pay claims by employees in roles traditionally held by women who found that they were on work rated as equivalent to better-paid roles traditionally held by men. In those claims, the claimants were seeking to rely on the JES to establish that they were employed on equal work with their comparators.
In Hartley, however, the employer was the one seeking to rely on the JES. Under s.2A(2A) of the Equal Pay Act 1970, two jobs will not be regarded as being of equal value if they have been given different values under a JES - unless the tribunal has "reasonable grounds for suspecting" that the evaluation was made on a system that discriminates on the grounds of sex or is otherwise unsuitable to be relied on. Essentially, the tribunal in Hartley has held that it does not have reasonable grounds for suspecting either of these issues. The result is that the employer will be able to defeat the employees' equal value claims by relying on the grades given to the relevant jobs under the Agenda for Change JES.
The legal point at stake is quite straightforward. What interests me about the case is the difficulty inherent in "rating" two completely different jobs and deciding whether or not they are of the same "value". It takes a great deal of expertise and experience to make the assessments involved in a process as complicated as Agenda for Change. The fact that the tribunal in Hartley heard evidence over a period of 24 days, and that the judgment runs to more than 100,000 words (the length of some novels), is testament to the intricacy of the process. However, there is no avoiding the fact that, ultimately, a subjective judgment has to be made about the value of a job. For example, there is no objective way of deciding on the relative value of work that requires specialist knowledge and work that involves harsh physical conditions. Even a process as rigorous as Agenda for Change will have to rely on negotiation and subjective judgment to a certain extent.
The Equality Bill will not fundamentally change things. The Government's proposals on equal pay are modest and essentially involve banning secrecy clauses in contracts of employment, so that employees are not prevented from disclosing details of their pay to colleagues. While transparency is obviously important, it is sheer fantasy to suggest that a measure such as this will make any practical difference. A culture of confidentiality about pay will not be broken merely because it is no longer backed up by a contractual term. Neither will knowing what other people earn make it any easier to determine whether or not two people are employed on equal work.
Figures on the gender pay gap tend to sidestep this difficulty. Showing that, on average, men are paid more than women is not the same as showing that men and women employed on equal work are paid differently. In fact, the gender pay gap tells us much more about gender segregation in the workplace than it does about equal pay. Equality legislation has only a limited role to play in the issue, and the pay gap will not be closed by the complicated equal pay cases that we will no doubt continue to see in the coming years.
