An employment tribunal has, at a pre-hearing review, rejected a challenge to the introduction into the NHS of the "Agenda for Change" (AfC) pay structure and, in particular, the three pay protection arrangements that the Trusts have put in place in order to provide a cushion for employees who would otherwise have suffered a pay reduction (Hartley and others v Northumbria NHS Foundation Trust and others).
The Tribunal rejected the majority of the claims made against the Trust and found that:
- the job evaluation study upon which AfC was based satisfied the requirements of the Equal Pay Act and did not discriminate on the grounds of sex;
- there was no evidence of historic and endemic pay discrimination in the NHS prior to the introduction of AfC. The tribunal therefore could not conclude that the pay protection arrangements unlawfully continued historic pay discrimination;
- the majority of the pay protection arrangements were neither directly nor indirectly discriminatory as they applied equally to men and women and did not have a disparate impact on women; and
- one of the pay protection schemes (involving the payment of recruitment and retention premiums to predominantly male groups of employees) did have a disparate impact on women. However, in respect of one group of male workers (chaplains) no justification was required because there was sufficient evidence to show the reasons for the arrangements were not tainted by sex discrimination. In relation to a second group of maintenance workers, the indirect discrimination could be objectively justified but only up until 31 March 2011.