Yovonie v East Sussex Healthcare NHS Trust (Equal Pay Act)

An initial contractual pay error does not establish an equal-pay or continuing wages claim where it made no difference to the employee’s assimilation and pay point under a later pay structure. An unchallenged finding that a male comparator was paid more because of materially greater experience and responsibilities independently defeats the equal-pay claim.

Even if an earlier contractual shortfall were an unauthorised deduction, the series ends when the employee is correctly assimilated. A claim must then be presented within the statutory three-month period. A notice-pay claim also fails where no evidential basis for underpayment was advanced.

The Claimant appealed from the judgment of the London (South) Employment Tribunal, sent to the parties on 17 June 2015. Permission was granted on one ground concerning an alleged unilateral variation of pay, unauthorised deductions, equal pay and notice entitlement.

Her 2005 contract stated a salary higher than that actually paid. The Tribunal found that the stated figure was an error, that she had been paid the correct Whitley rate, and that the discrepancy did not affect her later assimilation to Band 7 under Agenda for Change. It also found that her male comparator’s higher pay was justified by greater NHS experience and responsibilities.

The central issue was whether the initial discrepancy could support the claims pursued on appeal.

1. Appeal dismissed. No error of law was shown in the Employment Tribunal’s conclusions.

2. The alleged contractual error did not form the basis on which the equal-pay case had been put below. In any event, it was irrelevant to that claim. The Tribunal’s unchallenged findings established that the Claimant had been correctly placed on the Agenda for Change scale and that the comparator’s higher pay was justified by genuine material differences, namely his greater NHS experience and additional responsibilities.

3. Even assuming that the contractual figure created an entitlement to the small earlier shortfall and that the shortfall was an unauthorised deduction, it ended when the Claimant was assimilated onto Agenda for Change. Any complaint therefore had to be brought within three months of the last deduction under section 23 of the Employment Rights Act 1996. No such timely claim had been made.

4. This conclusion was additionally supported by the Tribunal’s findings that the actually paid Whitley salary was correct and that the Claimant had impliedly accepted it. The earlier discrepancy had no detrimental effect on her later pay point.

5. The notice-pay complaint failed because the Claimant had produced no evidence to establish an underpayment. The initial discrepancy had ceased long before termination and could not found a contractual claim arising on termination.

• Employment Appeal Tribunal: Appeal dismissed: [2016] UKEAT 0240_15_2502.
• London (South) Employment Tribunal: Judgment sent to the parties on 17 June 2015. The relevant equal-pay, unauthorised-deduction and notice-pay complaints were dismissed.