1. Equal pay claim admissible despite written grievance not identifying comparator

Employers cannot get an equal pay tribunal claim thrown out simply because the employee has failed to identify his comparators in the written grievance.

Where the statutory grievance procedure applies, employees must comply with Step 1 or their claim will be inadmissible. The Court of Appeal has ruled that Step 1 only requires the written grievance to state that the complaint relates to equal pay. (Suffolk Mental Health Partnership v Hurst, CA)

The employee would need to provide further details (including any alleged comparators) prior to the Step 2 meeting, but this could be done orally. A failure to comply with Step 2 is only penalised by a potential 50% decrease in the compensation awarded.

In contrast, the new Acas Code requires an employee to state the nature of his complaint (which could include the identity of alleged comparators) in the initial written grievance. However, under the new regime, claims cannot be barred for failure to comply. The only penalty for an unreasonable failure is a potential 25% decrease to compensation.

The transitional provisions mean that the statutory grievance procedure will continue to apply to some cases for a number of months.  

  1. More employees able to claim equal pay for longer period

Employees on successive employment contracts have until six months after the last contract to claim equal pay in respect of the earlier contracts, provided the employment relationship remains stable throughout.

Equal pay claims normally have to be brought within six months of the end of the relevant contract or, if the employee has worked under a number of contracts which amount to a stable employment, within six months of the end of that employment. Claims can be made for up to six years' back pay.

Previously the stable employment rules have only been applied to a series of short term contracts with breaks in between. The Court of Appeal has now ruled that they can also apply where there are successive contracts without any breaks. Employees who performed the same job but were given a new contract to reflect reduced working hours had a stable employment relationship throughout. (Slack v Cumbria County Council, CA)  

  1. Use of national profiles and job clusters for job evaluation scheme may be lawful

Large employers can use national job profiles and cluster similar jobs together when applying a job evaluation scheme.

A valid job evaluation scheme provides a defence to an equal pay claim unless the evaluations are discriminatory or otherwise unsuitable.

A tribunal has rejected a challenge to the NHS job evaluation scheme based on its use of matching local jobs to national profiles and grouping jobs into clusters of individuals with slightly different functions.

These methods were acceptable for such a large employer, provided any differences in clustered jobs were small and of no practical importance. A more rigorous approach is likely to be required from small employers.

The tribunal also ruled that the pay protection arrangements which cushioned employees against any loss of pay for 6½ years were lawful. It found that there was no discriminatory impact but, even if there were, the scheme was objectively justified.

The legitimate aim was to cushion employees against pay cuts required under a new pay structure introduced to eliminate future discrimination. The particular scheme was a proportionate means of achieving that aim.

Although the period of protection was long and the employer had failed to consider including women who had been underpaid prior to the job evaluation, this was outweighed by the level of union approval for the scheme and the fact that no-one knew who those women were or how to assess the merits of their claims.

The decision is only at first instance tribunal level and so is not binding on other tribunals. (Hartley v Northumbria Healthcare NHS Foundation Trust, ET)