International mechanisms to revalue women's work: research

Appendix 4 – Equal Value and Job Evaluation: A Note by Sue Hastings

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Context

The concept of ‘equal value’ is not absolute, although the term sounds as though it should be. Nor is ‘equal value’ clearly defined in UK equality legislation, or in the legislation of any other jurisdiction. All such legislation is premised on the understated understanding that jobs done by women have historically tended to be undervalued, for social, industrial and political reasons.

Under UK legal provisions, which jobs are of equal value is ultimately determined by Employment Tribunals (or occasionally higher courts), in the light of evidence and opinions from independent experts, parties and parties’ own experts. This system inevitably throws up inconsistent decisions on equal value issues.

Because it is not defined, the understanding of what is ‘equal value’ can and has changed over the period since the 1970 Equal Pay Act, and even since the Equal Value Amendment of 1983, effective from January 1984. Arguably, fewer speech and language therapists would have been successful had their substantive cases been heard when they were submitted in 1987 and 1988 than was actually the case when they were resolved in the late 1990s.

Where Does Job Evaluation Come In?

The concepts of equal value and job evaluation have been linked since the ILO Directive (1951). Job evaluation as a means of ‘achieving’ equal pay for work of equal value was written into the ‘work rated as equivalent’ clause of the 1970 EPA, in the form of ‘if women’s and men’s jobs have been evaluated equally in a JES, then the women should have the same pay as the men. This was expanded in the 1983 Equal Value Amendment legislation in two ways:

(1) Using JE terminology as the guidance on how equal value should be determined – comparison under ‘headings such as effort, skill and decision’, further clarified in the 2010 Equality Act to ‘factors such as effort, skill and decision making’;

(2) Allowing a fair and non-discriminatory JES to provide a defence to equal value claims.

Because many women workers are employed in jobs which are historically undervalued and therefore underpaid - such as caring, early years, shop work, catering and cleaning - re-evaluating their work can involve significant costs to employers. For this reason, and because they were encouraged by the legislation to do so, many private and public sector employers implemented job evaluation schemes in the 1970s and 1980s that were designed to replicate the historical status quo as closely as possible, in the knowledge that the schemes would almost certainly provide deterrents and defences to equal pay claims, which they generally did.

Private sector employers also took the approach of evading the UK ‘same employment’ provisions of the legislation by selling off or contracting out to other employers the jobs of either potential claimants or potential comparators.

This approach was copied by public sector organisations when claims against them became more frequent and involved much larger number of claimants than previously from the late 1980s onwards, and public sector finances were severely constrained. Local authorities in particular used various mechanisms for contracting out the jobs of their various large groups of female employees, for example, cleaning staff, care home staff, housing management, leisure centres.

The scope for taking claims under the Equality Act is a legal issue requiring tribunals and courts to take a much broader view of what constitutes same employment or same service. It is not an argument against using job evaluation to move towards equal pay for work of equal value.

Job Evaluation Schemes Designed to Comply with Equal Value Requirements

There are a number of schemes in existence designed to comply with good equal value practice. Whether they still do is considered below. Such schemes have generally, but not exclusively, been developed in the public sector where employers, at least those working in HR, have been somewhat more amenable to the idea. The most prominent of these schemes are:

(1) The Local Government (Single Status) NJCJES;

(2) The (Agenda for Change) NHS JES.

• The features of these schemes, which are intended to move towards equal pay for work of equal value, include:
• Knowledge factors broken down into their component parts, so that previously undervalued skills such as interpersonal skills and physical skills can be measured separately and not undervalued relative to knowledge acquired through qualifications, as tended to be the case in historical JES;
• Acknowledgement of alternative routes to the acquisition of theoretical knowledge, such as experience in current and previous spheres, as well as informal and formal training;
• Similarly, identification of different types of responsibility so that some forms of responsibility are not undervalued relative to others;
• In particular, separate identification of factors measuring responsibilities for providing services to people, whether they be clients, patients, recipients of local government services, including children in schools and nurseries, residents of care homes, users of leisure services;
• Other responsibility factors covering discrete and distinct types of responsibility, for example, for physical resources, information, other employees, and defined to ensure that they measure relevant aspects of typically female jobs as well as those of typically male jobs, for instance, defining physical resource responsibilities to include those belonging to external clients, as well as those belonging to the employing organisation;
• Effort factors that explicitly measure emotional effort; and working conditions factors which explicitly measure people-related working conditions such as body fluids and hazards associated with working with vulnerable people.

Somewhat ironically, because of the widespread contracting out of local government services, the Local Government JES has been used outside the areas for which the NJC is responsible, for example, in housing associations and academy chains in England. The Health Service JES, which has associated nationally determined pay scales, is used fairly commonly among private and charity sector providers of health and related care services, for instance, in private hospitals.

Use for Jobs Other Than Those for Which They Were Designed

The question is whether either or both of these schemes could be used outside such obviously analogous organisations. Although neither has implemented it, for financial and local political reasons, both the States (Governments) of Jersey and Guernsey have separately tested the NJS JES for use across their public sectors, including what in the rest of the UK would be described as Civil Service departments. In both cases, local union and management nominees have been trained in the use of the NHS JES and been asked to try to match local job descriptions for health and social care and a wider range of jobs to the UK nationally agreed profiles – with varying degrees of success. However, those carrying out the training and pilot exercises, including myself, have been satisfied that with some wording changes, additional guidance and training, and some new sets of profiles it would be possible to use this scheme across the public sector.

Perhaps because it is a little older, the Local Government JES seems less attractive as a model for wider application, but there is no obvious reason why, with suitable wording changes and additional guidance, it could not also be used more widely within the public sector. It was the basis for a universal equal value tool developed in New Zealand in the late 1990s to assist in the implementation of that country’s equal pay legislation.

The emphasis above on public sector jobs is because they all provide direct or indirect services to the public and this can be accommodated within the range of Responsibility factors of both schemes, notably because both schemes have a specific factor to measure Responsibilities for People/Patients/Clients/Service Users. Where the concept of service to members of the public is relevant in private sector organisations, either of the schemes might also be applicable, for example, to retail distribution, banking and finance companies, although to my knowledge there has been no testing of either scheme in this way.

I am less convinced that either scheme could easily be adapted for use in private manufacturing or agriculture sectors, as the responsibility factors are not appropriate for jobs involving production, whether of goods or foods.

It should be noted that although the NHS JES (together with the national profiles) is publicly and freely available on the NHS Employers’ Organisation website, it is in effect copyright to the Joint Technical Working Group that oversees it, so there could be legal issues to applying it to a wider range of jobs in the UK.

Would These Schemes Deliver Equal Pay for Work of Equal Value in the Post-Pandemic World?

It is not yet clear whether it will be sustained, but the ‘value’ of ‘keyworker’ jobs, undertaken predominantly, although not exclusively, by women, did appear to increase in the public’s collective mind during the UK pandemic. The key feature of all these jobs, from nurses to home carers to shop workers, is that they were and are providing services direct to members of the public who needed their help in order to sustain anything like ‘normal’ life.

The question is whether such an increase in perceived value could be reflected in job evaluation schemes and in particular in the two schemes mentioned above. I believe it could, by increasing the weighting attributable to factors measuring people-related demands. Currently, both schemes have equal weighting of their respective Responsibility factors, so, for example, in the NHS JES the same number of points are available for the Responsibility for Patient Care factor as for the Responsibility for Financial and Physical Resources factor, as this was seen as a fair way of resolving potential differences of opinion between groups of employees and managers with different types of responsibility. In both cases, this reflected increased implicit weighting of people-related factors compared to previous pay structures, so carried the prospect of pay increases for people-related jobs compared to other jobs. In the Health Service equal weighting of the Responsibility factors reflected what could be afforded at the time and was politically acceptable.

But it would be perfectly possible to give greater weight to people-related factors in people-facing service organisations, justified by the purpose or ‘mission’ of the organisation. This would be the reverse of the position in historical JE schemes. The (Korn Ferry) Hay system, for example, has a complicated weighting system but in practice favours jobs with financial responsibilities; other historical schemes had other methods of achieving similar outcomes. The first version of the Medequate system for the health service did not have any factor to measure responsibilities for patients. When, under pressure, one was introduced it was very lowly weighted, arguably so as not to upset the status quo.

‘Equal value’ implies upsetting the status quo and this could be achieved by re-weighting existing job evaluation schemes to reflect a different perspective on service-providing jobs.

Sue Hastings

10 May 2021