A new briefing is out now on Job evaluation: Concerns, negotiations, TUPE and law. See also below briefing on legal issues affecting job evaluation.
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