Equal Pay - NorthEast Litigation

There has been an important development in the equal pay litigation to which Thomas Linden QC (who was Counsel for the Claimants) has asked me to draw attention. The appeal in Potter v North Cumbria Acute Hospitals NHS Trust (No 2) [2009] IRLR 900 (now Fox & Others v North Cumbria University NHS Trust (No 2)) has been dismissed.

The issue in the case was whether the introduction of Agenda for Change ("AfC"), of itself, triggered the 6 month limitation period under Section 2ZA Equal Pay 1970. The Employment Appeal Tribunal held that it did not on the basis that the cases in question were standard cases and AfC merely amounted to a variation, rather than a rescission, of the existing contracts of NHS employees.

The Court of Appeal reached the same conclusion by a different and shorter route namely that, applying Slack v Cumbria County Council [2009] ICR 1217, AfC did not, of itself, operate to terminate stable employment relationships in existence at the time of its introduction. Where such employment relationships continued after the introduction of AfC (as will generally have been the case) time only started to run if and when the stable relationship came to an end. The claimants were therefore entitled to rely on Section 2ZA(4) of the 1970 Act as they were at all material times employed on a permanent basis as full time nurses. The finding by the Employment Tribunal that there had been fundamental changes to their terms and conditions as the result of the introduction of AfC did not mean that this stable employment relationship ceased or was interrupted.

The Court did not hear argument on the rescission versus variation issue, or rule on it, as this issue became academic in the light of the ruling on the stable employment relationship case.

The Court's reasons will follow in due course.