15 August 2014
Job Evaluation: The legal context
NOTE: This is not a legal briefing
or definitive statement of the law. It is an explanation
of the current situation in Edinburgh College with
links to resources. UNISON is currently taking legal
advice and members will be updated.
UNISON – or indeed any other union –
cannot avoid the whole job evaluation process. If
we were to agree a scheme that continued gender
inequality, we could be sued by our own members.
Like the employer we have a legal duty to ensure
we do not agree to a system that would continue
gender inequality.
A job evaluation scheme that ensures gender equality
will typically result in some people gaining, many
staying the same and some losing as it irons out
inequalities. The job of the union is to get the
benchmark set as high as possible and that is what
UNISON has been doing.
In terms of the accuracy of the scheme, UNISON
is aware of problems and that is why we have pushed
for and achieved a 100% re-checking of data (as
opposed to the normal sample method), effectively
putting things on hold until that is achieved.
In any job evaluation scheme there are a number
of issues that can complicate matters outwith the
scheme itself, eg acting up arrangements, protected
salaries from previous reorganisations, bonus etc.
Lots of equal pay case law affects bonus arrangements
and limits protected salaries, for example.
Pay protection:
This is a complicated issue and case law has developed.
See here for the case that pay protection may be
discriminatory http://uk.practicallaw.com/1-382-8756
However, in light of more recent case lay, the
Equality and Human Rights Commission says "Recent
cases suggest, however, that indefinite pay protection
arrangements may be justified where there is no
evidence of sex discrimination at the inception
of the scheme or subsequently i.e. where the composition
of the protected group is not disproportionately
gender dominated in comparison to the workforce
as a whole and/or the female comparator group in
particular. However, where there is evidence of
disparate impact on one sex, it is suggested that
the practice may only be justified for a limited
period of time in order to cushion the effect of
the drop in pay. Because there is a risk that indefinite
pay protection agreements may become discriminatory
over time, such arrangements are generally considered
to be contrary to good practice." http://www.equalityhumanrights.com/private-and-public-sector-guidance/employing-people/equal-pay/equality-impact-assessments/step-4-reviewing-pay-policies
TUPE:
It is further complicated by TUPE which offers
protections for employees in transfers to new employers
but it is not yet clear how that would affect equality
legislation if the conditions themselves were discrimnatory.
TUPE refers to the "Transfer of Undertakings
(Protection of Employment) Regulations 2006"
as amended by the "Collective Redundancies
and Transfer of Undertakings (Protection of Employment)
(Amendment) Regulations 2014". The TUPE rules
apply to organisations of all sizes and protect
employees' rights when the organisation or service
they work for transfers to a new employer.
Employees from the newly-acquired business, service
or contract will transfer automatically to the incoming
employer. Their terms and conditions of employment
(apart from occupational pensions) and continuity
of service transfer with them and they also receive
certain protections around dismissal and redundancy.
These can be renegotiated after a year. See the
ACAS guide http://www.acas.org.uk/media/pdf/d/r/Handling-TUPE-Transfers-The-Acas-Guide.pdf
Suggestions that the union should reject any job
evaluation is just not possible within current equality
legislation. If the union obstructed a job evaluation
scheme designed to deliver on gender equality (even
if there are losers) it would be in legal jeopardy.
It is important that our members are not misled
on this issue and we will be issuing further briefings
to explain that.
See also the ACAS guide http://www.acas.org.uk/media/pdf/9/t/job-evaluation-considerations-risks-accessible-version-July-2011.pdf