Any trust involved in the NHS equal pay litigation will need to act with far greater haste if they want to avoid costly appeal hearings.
At a recent Tribunal in Newcastle North Tyneside primary care trust (North Tyneside PCT v Ansyley & Others) was directed to provide a wealth of information for a number of potential comparators in the proceedings. It had to provide start dates, pay and grade histories together with evidence of any changes in job roles and Agenda for Change documentation and for a six-year period.
The PCT was ordered by the Tribunal to comply with these directions by given dates in March and April 2008 but the deadlines were missed.
The Tribunal ordered the PCT to comply by a date in May or face its response being struck out. By the final date the PCT’s solicitors were able to send some information but not enough to comply with the earlier orders in full and the PCT’s response was automatically struck out. At a hearing to review that decision, the Tribunal was dissatisfied with the explanation that the documentation was difficult to collate and did not alter its decision.
The Employment Judge had clearly been exasperated by the earlier apparent lack of effort on the part of the PCT or its solicitors to comply with the order. However the PCT’s appeal was eventually allowed as it was able to show later compliance and its response to the claims was reinstated.
This case emphasises, in a very stark way, the real need for respondents to comply with directions given by the Tribunal or, where compliance has not been possible, to be able to demonstrate, clearly and in some detail, what the difficulties are.
But consider for a moment what the outcome would have been if the original decision to strike out the Response had been allowed to stand. In equal pay cases the claimant can only pursue a case if the employer provides the wealth of information previously mentioned. Preventing a respondent trust from being able to run its defence to the case and be actively involved could, in fact, hinder progress for the claimants, rather than assist them. A respondent could be ordered to produce documents, but as many know there is rather more to an equal pay case than that.
The lesson to be learned from this case is clear. Although there is often inconvenience and difficulty encountered in meeting these orders, it is important to avoid the Tribunal’s displeasure and possible sanction, as happened in this case, by providing full information. In doing so it allows those of us who act for the NHS in this litigation to apply pressure upon the Claimants who can often have similar difficulties with the Tribunal process.
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Andrew Gibson, a partner in Hill Dickinson LLP and a specialist in equal pay law