A landmark ruling in the Employment Appeal Tribunal could pave the way for extra income for thousands of low paid women in the NHS such as nurses, health care assistants and medical secretaries. Thousands more equal pay claims will now proceed.

The ruling was made yesterday in the equal pay test case North Cumbria Acute NHS Trust v Ms Potter and others (18th December).

The critical case examined whether an NHS trust could defend pay inequality between female and male staff doing comparable work because of the impact of historical differences in collective bargaining - women being represented by one bargaining unit; men being represented by another.

The case is significant because, historically, terms and conditions for workers in the NHS have been set by the collective bargaining process. The claims of 1000s more women nationwide will now proceed.

North Cumbria Acute NHS Trust, the women's employer, had tried to argue that all of their claims were invalid because any disparity in pay had arisen as a result of the parallel collective bargaining systems. In short, the Trust tried to distance itself from the collective bargaining machinery, to which it was a party, so that it could claim that it bore no responsibility for the pay differences that existed amongst its own staff.
Nelson J, giving judgment for the Employment Appeal Tribunal, roundly rejected this argument together with other unmeritorious technical points designed to prevent the women from progressing their claims. He concluded that the Trust was responsible and accountable for any inequality of pay that existed. Indeed, the Trust had paid out compensation to nurses in the past, in similar circumstances, when equal pay claims had been pursued.

Speaking after the ruling, equal pay specialist, Cloisters' barrister Anna Beale, said:
"The court's ruling, that NHS employers cannot hide behind collective bargaining arrangements to avoid liability for equal pay claims is a significant victory for women in low paid jobs in the public sector, such as the NHS.

"Prior to the introduction of Agenda for Change in 2004, the NHS pay negotiating structure was divided along gender lines under the Whitley Council system. Male dominated jobs, like manual work, were subject to one negotiating process, whereas the terms and conditions of female dominated professions, like nursing, were regulated by a different process altogether. These collective bargaining processes operated in parallel without any real attention being paid as to whether women and men were being treated fairly. Unsurprisingly, huge differences in pay and pay practices evolved from the 1940's onwards.

"In recent years, members of female dominated professions, like nurses, have slowly become aware that they have been receiving a raw deal from the NHS in comparison with their male colleagues. This has led to a proliferation in equal pay claims against the NHS.

"Many NHS employers have been trying to avoid liability for these claims by relying on technical legal arguments.

"Ms Potter's claim is a good example. North Cumbria Acute NHS Trust tried to argue that it was in no way responsible for any pay differences that existed as between its own employees. This frankly incredible argument proceeded on the basis that any inequality was attributable, in part, to the gender segregated collective bargaining process which existed under the Whitley Council system. The logical conclusion of this contention was that women in the NHS who performed female dominated jobs would never be able to bring an equal pay claim.

"This bizarre argument was roundly rejected by the Employment Appeal Tribunal which found that the Trust was certainly responsible and accountable for the pay of its own employees. In particular, the court placed emphasis on the fact that the Trust had paid out compensation to nurses, in a similar position to Ms Potter in the past, when equal pay claims had been lodged.

"This case confirms that 2008 has been an amazing year for women in low paid professions in the public sector. Earlier this year, Ms Bainbridge and her colleagues, all of whom worked for local authorities, successfully persuaded the Court of Appeal that pay protection arrangements which perpetrated unequal pay were unlawful, a decision which allowed thousands of women to bring claims against their employers. Now Ms Potter has been successful, women in the NHS have been given the green light to pursue claims so they too can receive the generous payments which their male colleagues have been receiving for decades."

The women made their claims under the Equal Pay Act 1970 and Article 141 EC (formerly Article 119 of the Treaty of Rome).