Mitigating equal pay risks following the end of CAJE

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Mitigating equal pay risks

following the end of CAJE

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The contract for the provision of the centrally-funded Computer Aided Job Evaluation system (CAJE) is due to come to a close on 31 December 2012. Northern Ireland, Scotland and Wales are procuring a replacement for the current system after the end of the contract, but the position for England is different as there are no plans to procure centrally. The following guidance is aimed mostly at English employers, but its principles apply to all NHS employers in the UK.

This guidance describes the equal pay risks for organisations and how to mitigate these risks once CAJE provision comes to an end in December 2012. It sets out what employers should seek from any replacement computer aided job evaluation tool, signposts specific advice about

consistency checking of job matching and evaluation outcomes and advises on how to manage the data currently within the CAJE system once it has been returned to employers.

2. Background

Agenda for Change was introduced in 2004 in order to ensure the principle of equal pay for work of equal value and every effort was made to ensure that the NHS Job Evaluation Scheme was fair and non-discriminatory both in design and implementation.

The Health and Social Care Act 2012 sets out radical reform of the NHS in England. An element of the reform offers some freedom to move towards pay and conditions negotiated by

employers. A new independent NHS Commissioning Board and new local authority health and well-being boards are set to be established by April 2012 and expected to be in place by April 2013 by which time strategic health authorities (SHAs) and primary care trusts (PCTs) will be abolished.

3. The equal pay risks for organisations currently are as follows:

a. The employment tribunal judgement in Hartley (Hartley and others v Northumbria Healthcare NHS Foundation Trust) was not appealed, as such it is possible that the issues may be raised in future employment tribunals in respect of the national aspects of the scheme. Issues may be raised at tribunal in respect of local

implementation of the scheme where it is felt the organisation has not complied with nationally-agreed standards and therefore opens the possibility of pay inequality.

b. Reorganisation and merger of organisations and services presents a risk that similar jobs may have been evaluated differently and resulted in a lack of consistency across the staff group. There is a need to ensure consistent outcomes of jobs coming from legacy organisations and the new organisation will need to

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investigate identified inconsistencies. There is guidance on this in the third edition of the Job evaluation handbook.

c. Failure of organisations to keep good records of job matching or job evaluation and any subsequent processes, including review and re-evaluation is a significant risk. Evidence for banding outcomes should be documented and audit trails of decisions be accessible should any clarification be required. Failure to produce records recently resulted in a tribunal dismissing a defence.

d. Absence of consistency – consistency checking is one of the crucial ways of

ensuring that outcomes are robust and defendable and should be carried out after initial matching or evaluating, after review and following desktopping and

subsequent full evaluation or match of the job. Advice and national guidance on consistency checking is contained in the Job evaluation handbook.

e. Departure from a national job evaluation (JE) scheme carries with it the risks associated with equality proofing methods of pay determination replacing the scheme, as well as possible risks arising from changes in legislation around the single source situation (for example, if it becomes possible for claimants to cite comparators from across the NHS). The Equality and Human Rights Commission makes it clear that an equality-proofed job evaluation scheme can be used as a defence in an equal pay claim, providing it has been implemented robustly at local level. The NHS JE Scheme and national processes for implementation have been found to have been designed in line with equality standards, but it is essential that great care is taken at local level so that implementation also complies with equality standards.

f. The changes in skill mix needed to achieve efficiency savings should be supported by adherence to the JE scheme and equality impact processes. These processes should be followed completely and not be subject to local interpretation.

4. The way forward – mitigating the risk

The national JE scheme will continue to be supported nationally, with guidance, briefings,

advice and assistance from the NHS Staff Council and the NHS Employers organisation, as at present. If the JE scheme is implemented robustly in accordance with the rules set out in the JE Handbook, there will be little risk of equal pay claims. The NHS Staff Council Job Evaluation Group (JEG) has plans to roll out a short briefing to organisations, outlining the connection between robust job evaluation and equal pay, which it plans to provide in partnership.

The JEG has had much success in delivery of training courses in job evaluation and plans to build further on this with continued development of training materials (and delivery of courses) on the importance of JE and managing equal pay risk. It is important that all job matchers, job

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evaluators and job analysts are trained and up-to-date. Further details about training courses can be obtained from [email protected]

The NHS equal pay audit toolkit on the NHS Employers website will assist organisations in identifying any anomalies in pay and we recommend that all organisations should use this.

5. An electronic computer aided job evaluation tool should:

 record matching and evaluation outcomes for each organisation, together with information on jobs, for example, department, job title, etc.

 hold and store all relevant documents, for example, job description, JAQs, further information

 provide reports

 enable those with access to interrogate the information in a number of ways to assist consistency checking.

Without a robust system, there will be an increased risk of the wrong type of information being recorded or information not being recorded robustly enough to allow good consistency

checking. The lack of a method of ensuring good information storage will substantially increase the risks of organisations finding it difficult to defend any equal pay claims in the future.

Organisations will need to consider including provisions in line with the above bullet points in any system developed locally.

6. The importance of consistency checking

There is specific advice on how to consistency check job matching and evaluation outcomes in the Job evaluation handbook (third edition), chapter 14. There will also be an NHS Staff Council consistency checking course available later in the year. Organisations need to do the following to ensure processes are robust:

 Ensure that all panel members are fully trained in job evaluation and the avoidance of bias; and the panel is joint and representative of the workforce in composition.

 You need to match or evaluate jobs in family groups, for example, all finance jobs, as this allows for ongoing comparisons and provides some immediate internal consistency checks.

 Prior to matching or evaluation, you may find it helpful to read the most relevant national profiles (for example, finance profiles for finance jobs, nursing profiles for nursing jobs), noting features which are similar to those of jobs to be matched or evaluated locally.

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 Avoid being influenced by current or anticipated pay levels.

 Check individual factor outcomes against national profile jobs with similar features during the process.

 After a matching or evaluation session, ensure that the panel itself carries out a check of any outcomes it has reached.

 You need to carry out a quality check by a consistency checking panel of each outcome to ensure that the original panel have got it right the first time, identifying anomalies or inaccuracies and then referring these back to the original panel for justification or amendment.

 You should check evaluations on a factor by factor basis by ranking a batch of around five to ten outcomes from top to bottom for each factor in turn, identifying and reviewing any apparent oddities.

 Carry out a consistency check against all relevant national profiles (i.e. all those in the same job group and same job band) and other local matching and evaluated outcomes, both vertically within an occupational group and horizontally by grade.

 Useful questions to ask include:

o do manager and supervisor jobs come out higher than the jobs they manage or supervise on those factors where this is to be expected, for example, responsibility for policy and service development, responsibility for human resources, freedom to act? If not, is there a good reason for this?

o do specialist jobs come out higher than the relevant practitioner jobs on those factors where this is to be expected, for example, knowledge, analytical and judgemental skills? If not, is there a good reason for this?

o do practical manual jobs match or evaluate higher than managerial or other jobs in factors such as physical skills, physical effort, working conditions? If not, is there a good reason for this.

 When a sufficiently large number of local matching or evaluation outcomes are available, you should undertake some statistical consistency checks.

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7. Tips on handling information returned at the end of the CAJE contract

Organisations who do not continue to contract with NorthgateArinso for the continuation of CAJE will have their job evaluation data returned to them at the earliest opportunity. These records are important as they evidence historical job evaluation processes and decision making and will need to be stored appropriately.

How will organisations get the data back?

Data will be provided back to the organisations in an XML zip file that will be hosted on one of NorthgateArinso’s secure file transfer servers. A link and a password will be supplied to the trust for them to download the data.

How will the data be set out?

The data will be laid out in the formats that have been agreed with the NHS Employers

organisation – there will be one or more (depending on the size) xml files containing all of the job data – and a folder containing all of the attachments, for example, job descriptions, JAQs, and the national profiles.

What do organisations need to do with the data?

The data can be handled in a number of ways:

 Loaded into an Access (or any other type of) database with the appropriate forms created to query and/or modify the data.

 The simplistic data (job details) can be loaded into Excel using Excel’s data import tools.  A custom application can be written to interrogate the xml files and present data back to

the user or allow them to modify the data.

XML is an industry standard data format. However, there is a requirement for some technical knowledge to be able to do anything with it. Assistance should be sought from organisations’ IT departments.

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Summary

 The NHS Job Evaluation Scheme is a key underpinning element of Agenda for Change that helps NHS organisations protect themselves against equal pay challenges.

 Before UK central funding ends, careful consideration will be needed to manage the transition from CAJE to other local arrangements. NHS Employers and the NHS Staff Council will continue to be provide appropriate support and guidance.

 The ending of the central UK funding for CAJE will mean that local employers will have to decide how best to record JE outcomes and undertake consistency checking across their organisations.

 National support will continue to be available for employers, providing the products that help them use the JE system, offering advice and guidance in managing equal pay risk and promoting the NHS JE scheme, including training and briefings on the importance of using the scheme robustly in order to minimise the risk of equal pay claims.

 Changes to the structure of the NHS in England and the ongoing need for employers to review skill mix and ensure the workforce profile is fit for purpose mean that adherence to robust JE processes will be essential.

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Published October 2012. © NHS Employers 2012.This document may not be reproduced in whole or in part without permission. The NHS Confederation (Employers) Company Ltd Registered in England. Company limited by guarantee: number 5252407 Ref: EGUI21301

Mitigating equal pay risks following the end of CAJE