Under equal pay legislation workers must bring a claim within 6 months (or 9 months with the aid of a grievance) from termination of their employment or from the date they entered a new contract of employment.

In Potter v North Cumbria Acute Hospitals NHS Trust the Employment Appeal Tribunal considered the issue of whether the NHS's radical overhaul of pay, terms and condition of service, Agenda for Change (AFC), represented a termination of contracts of employment based on the old Whitley Council system (from which time would start to run) or whether the change would only amount to a variation (from which time would not start to run).

The issue has important repercussions as it determines whether some Claimants (who lodged their claims more than 9 months after assimilation to AFC) can pursue their claims in respect of their pre-AFC terms and conditions.

The EAT considered the impact AFC had on the Claimants' employment, their pay and their terms and conditions. It particularly focussed on the Knowledge and Skills Framework as this did not apply to employees under the Whitley system and considered what the intention behind the introduction of the terms and conditions was. In short, the question was:-

"Is AFC a fundamental change of terms and conditions from those that applied under Whitley Council?"

At first instance, the Employment Tribunal in Newcastle decided that AFC did represent a fundamental change. However, the EAT has reversed that decision and held that assimilation to AFC did not amount to a radical change to employment terms such as to equate to a new contract of employment and raise a time point. This means that Claimants will be able to pursue claims for the pre-AFC period as well as the post-AFC period. The decision will come as a major disappointment to NHS Trusts against whom equal pay claims have been lodged. However, we have it on good authority that this decision will be appealed further.

There was, though, some better news in that the EAT also decided that: 

  • the addition of a new comparator is a new cause of action ie a new claim. Claimants will, therefore, be subject to new time points and will have to apply to amend their claims rather than have the comparator added automatically; and 
  • any amendment to comparators applies from the date of amendment and is not backdated to the date of claim. This will, we hope, limit the employer's liability, in the event that the claim is successful.

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