Mrs E Desert v North Cumbria Integrated Care NHS Foundation Trust: 2410657/2019
| Jurisdiction | England & Wales |
| Judgment Date | 04 December 2023 |
| Date | 04 December 2023 |
| Published date | 20 December 2023 |
| Court | Employment Tribunal |
| Subject Matter | Equal Pay Act |
| Citation | 2410657/2019 |
RESERVED JUDGMENT
Case No. 2410657/2019
1
EMPLOYMENT TRIBUNALS
Claimant:
Mrs E Desert
Respondent:
North Cumbria Integrated Care NHS Foundation Trust
Heard at:
Manchester
On: 6 and 7 November 2023
(in person)
8, 10 and 11 November 2023
(by CVP)
21 November 2023
(in Chambers)
Before:
Employment Judge K M Ross
(sitting alone)
REPRESENTATION:
Claimant: Mr Walker (Solicitor)
Respondent: Mr Stubbs (Counsel)
JUDGMENT
Stage 1 Equal Value Hearing pursuant to Employment Tribunals (Equal Value)
Rules of Procedure 2013
The judgment of the Tribunal is that:
1. The Tribunal does not have reasonable grounds for suspecting that the
evaluation contained in the Job Evaluation Study NHS Job Evaluation Scheme
is unreliable pursuant to section 131(6)(b) Equality Act 2010.
2. In the alternative, the respondent can show that any difference in terms is due
to a material factor which is relevant and significant and does not directly or
indirectly discriminate against the worker because of her sex pursuant to
section 69 Equality Act 2010.
3. Accordingly, the claimant’s claim of equal value is struck out.
RESERVED JUDGMENT
Case No. 2410657/2019
2
REASONS
Introduction
1. This case has an unfortunate procedural history.
2. The claimant remains employed by the respondent as a Consultant Clinical
Psychologist. She is a highly regarded and valued employee. She began working
for the respondent’s predecessors in 1991.
3. Within the NHS, employees are banded in accordance with the Job Evaluation
Study referred to as “Agenda for Change” or “AFC”. Under the job evaluation process
Agenda for Change the claimant was categorised as a Band 8D in 2005. As time
passed, the claimant became concerned that she was inaccurately banded under the
respondent’s Job Evaluation Study. The clamant formally raised a request for re-
banding in September 2016. The process was concluded in 2018 when the claimant
was re-banded to Band 9. In accordance with Agenda for Change, the claimant’s pay
was backdated to the date a new job description was agreed in 2018.
4. This claim relates to the period August 2013 to October 2018. The claimant
says that she was engaged on work of equal value to her comparators, Professor
Dagnan and his predecessor Mr Roberts. They were both assessed at Band 9 under
AFC.
5. The claimant presented her claim in the Employment Tribunal on 8 August
2019. There was a case management hearing on 11 March 2020 and at that stage it
was brought as both a “like work” and/or a “work of equal value” claim. There were
two further case management hearings in 2020. By 9 October 2020 Mr Walker, the
claimant’s representative, clarified that the claim was an equal value claim only.
6. A further case management hearing was heard before me on 10 June 2021. At
that stage there was a misunderstanding as to how the parties put the case. I recorded
that the respondent was not running a material factor defence argument, that both
parties had agreed there was no need for an independent expert and that the issue
was a purely factual one for the Tribunal to decide, namely what were the additional
duties that the claimant took on and when. Regretfully, clarification that these issues
were inaccurate from the respondent’s perspective was not provided by the
respondent until just before the final hearing which was listed before Employment
Judge Leach, Ms Berkeley Hill and Ms Dowling on 9 and 10 January 2023.
7. At that point it was clarified that the respondent was running a material factor
defence argument and that there should be a stage one equal value hearing in
accordance with the Employment Tribunals (Equal Value) Rules of Procedure, as
normally required in equal value claims.
8. The issues were clarified by Employment Judge Leach (see paragraphs 12.1
to 12.6 of his case management order – pages 68-69 of the bundle for this hearing).
9. By the outset of this hearing the issues were further refined between the parties
and agreed before me as follows:
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