Age Discrimination and Equal Pay in the Ministry of Justice

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To:   Branch Secretaries
      Group Executive Committee

18 March 2008                                                                                     MoJ/BB/13/08

             Age Discrimination and Equal Pay in the
                       Ministry of Justice

Please find attached detailed guidance on                     and seeking cost of living increases in line
claiming Age Discrimination and Equal                         with inflation.
Pay within the MoJ. Age Discrimination
and Equal Pay are key themes of our pay                               Claims can be lodged with PCS
campaigning work within the MoJ, which                                 using      the    group    website:
is aimed to bring pressure to bear on the                    
department to improve the Deal. Key                                   We will be writing to all members
objectives for the Group are; pay                                      informing them of our advice and
coherence, or equal pay with the Prison                                how to claim in April.
Service, reduction in the length of                                   We      are    organising  regional
progression, equal pay for key groups of                               briefings on equal pay from branch
staff within the Deal. The process we                                  representatives in April so that
have developed will allow for thousands of                             branches can advise members.
members to lodge claims with the MoJ.                                 We will be producing specific
We hope that this will increase the                                    recruitment literature which is
pressure on the department during                                      linked to this campaign.
negotiation and, if negotiations do not
achieve our objectives then the legal                         Nick McCarthy
processes can be used.                                        Senior National Officer

This campaign is intended to compliment                       If you require this publication in any other
not replace the use of political and                          format such as Braille or large print,
industrial pressure. We are committed to                      please contact HQ2 and this service can
continue to campaign against regional pay                     be arranged for you.

       Law & Justice (HQ2, PCS, 160 Falcon Road, London SW11 2LN Tel: 020 7801 2625 Fax: 020 7801 2620

Age Discrimination and Equal Pay in the Ministry of

1.       Introduction

2.       What is Age Discrimination?

3.       Our Advice on Age Discrimination

4.       What is Equal Pay?

5.       Our Advice on Equal Pay

6.       Equal Pay with a MOJ (ex DCA Comparator, and Equal Pay for
         Magistrates Court Legal Advisers

7.       Equal Pay using a Prison Service Comparator

8.       The Stages of an Equal Pay and/or Age Discrimination Claim

9.       Making an Equal Pay and/or Age Discrimination Claim

10.      Join the Public and Commercial Services Union

         Annex A            Flow Chart for Equal Pay and Age Discrimination Claims

         Annex B            Equal Pay using MoJ (DCA) pay systems comparators

1.        Introduction

      1.1. 95% of staff in the Ministry of Justice have opted into the new pay
          system, known as the Deal. However we have always maintained that the
          pay system is seriously flawed. In feedback from members, 92% of staff
          believe that the options exercise was not a fair choice between two
          reasonable alternatives. Major concerns have been raised about the pay
          system; over 80% of respondents to the survey believe that equal pay is a
          very important issue for the union to raise, and 80% of members
          responded that increasing the speed of progression to the band maximum
          is either very important or important.

      1.2. We intend to challenge the introduction of the new pay system in a
          number of ways: we will be submitting a pay claim in May 2008, to
          challenge the 2% increases to the maxima of the pay bands. We are
          continuing a political campaign to challenge the unfairness of regional

        Law & Justice (HQ2, PCS, 160 Falcon Road, London SW11 2LN Tel: 020 7801 2625 Fax: 020 7801 2620

         pay. We also believe that MOJ pay potentially falls foul of the Equal Pay
         and Age Discrimination legislation and intend to make legal challenges
         wherever our advice is that they will be effective.

     1.3. Therefore PCS intends to submit claims for a number of grades under
         Equal Pay and/or Age Regulations. This circular explains our approach,
         which is based on close examination of pay evidence and discussions
         with our Solicitors. We will not commence frivolous claims, but will
         support and develop claims which have reasonable prospects of success.

     1.4. Litigation alone will not repair the MOJ Pay system; this can only be
         addressed as part of the union’s national campaign on Civil Service pay.
         However we do believe that our legal work will force management to
         make improvements, correct inequalities and at least address some

     1.5. During April PCS will be writing to all members at their ballot address
          informing them of the process for submitting claims. We will also be using
          this campaign to recruit new members and activists. We will be running
          briefing sessions for branches to inform them about equal pay and enable
          them to advise members on equal pay and age discrimination claims. We
          have attached the link to the form at the end of this circular.

2.      What is Age Discrimination?

     2.1. Legislation outlawing age discrimination came into effect in October
        2006. This means it may be possible to challenge the MOJ’s pay
        progression system, the time taken to move from the pay minima to the
        pay maxima. Any challenge is only possible for benefits based on more
        then five years service, as the Age Regulations protect the employer for
        time periods less then this. The MoJ pay progression system results in
        staff taking many years and in some cases an undefined period before
        they reach the maximum salary. PCS believes that this may leave the
        MOJ vulnerable under Age Regulations.

3.      Our Advice on Age Discrimination

     3.1. Our advice suggests that any member who has five or more years
        service in their current job and is not at the maximum of their pay band
        can make a claim for age discrimination; however the younger the
        member the greater the prospects of success. It is also worth bearing in
        mind that this is new legislation and has not been tested by the courts.
        Our advice may change as the case law develops.

4.      What is Equal Pay?

       Law & Justice (HQ2, PCS, 160 Falcon Road, London SW11 2LN Tel: 020 7801 2625 Fax: 020 7801 2620

     4.1. The Equal Pay Act 1970 entitles women and men to have equal pay and
        sadly unequal pay and sexism against women remains prevalent in our
        society. In the Civil Service women earn on average 19% less than men.
        Women are often paid less than men for doing the same job, or doing
        work of equivalent value. The reality is that unless there are exceptional
        circumstances, successful equal pay claims will be claims from women
        using male comparators, and not claims from men using female
        comparators. Nevertheless, men who are working in predominantly female
        grades or jobs categories, can make equal pay claims against male
        comparators working in predominantly male grades or job categories.
        These claims will not be the lead claims, but once we are able to
        determine if the female claims have merit, the male claims can be joined
        to the female claims. Therefore at this early stage we will not be pursing
        claims from men, but men can complete the claim form and lodge their
        details with the union and we may submit the claims in due course.

5.       Our Advice on Equal Pay

     5.1. The majority of employees covered by the MoJ pay system known as the
        Deal are women. Table 1 below gives the breakdown of pay band by
        gender. We can make equal pay comparisons with predominantly male
        pay bands for MoJ employees in the event that we can find comparators.
        Our legal advice also suggests it may also be possible to make claims
        against comparators within the same Government department, but within
        a different pay system.

Table 1: MoJ Core staff by band and gender

 Gender            Band A       Band B       Band C        Band D       Band E       Band F        Total
 Female                  618         1507         1213         3300          8454         2539        17631
 Male                    695          894           668        1344          3093         1560            8254
 % Female               47%        62.7%         64.5%        71.1%        73.2%         61.9%        68.1%

6.       Equal Pay with a MOJ (ex DCA Comparator, and Equal Pay for
         Magistrates Court Legal Advisers

     6.1. Equal Pay with a MoJ (ex DCA) Comparator: These cases can be
        made by any member as long as an equal pay comparator can be
        identified. Claims can be made by individual post holders or job categories
        using comparator individual post holders or job categories from which are
        wholly or predominantly from a different gender. These cases are more
        complex as they require the individual or group or the union to seek to
        identify a comparator. As previously stated these claims are only likely to
        be successful if they are claims from women using higher paid male

        Law & Justice (HQ2, PCS, 160 Falcon Road, London SW11 2LN Tel: 020 7801 2625 Fax: 020 7801 2620

     6.2. Equal Pay for Magistrates Courts Legal Advisers: We have already
        started the process of seeking a comparator for magistrates’ courts legal
        advisers. Magistrates’ courts tier 1 and tier 2 legal advisers are
        predominantly female and have been placed in Band B. We are seeking a
        predominantly male comparator job category in Band A. We have started
        process is using a statutory equal pay questionnaire and Freedom of
        Information Act applications. We have established that MoJ Government
        Legal Service lawyers are predominantly female and therefore can not be
        used as a comparator. However as you will see from table 1(above) Band
        A is the only MoJ pay band which is predominantly male therefore we
        believe that it will be possible to identify a suitable comparator.

7.      Equal Pay using a Prison Service Comparator

     7.1. Equal Pay using a Prison Service Comparator: These cases can be
        made by staff within bands C, D and E. Comparisons are with the Prison
        Officer, Senior Prison Officer and Principal Prison Officer Grades (see
        table 2 below). These Grades are mostly male and the MoJ Bands C-E
        mostly female (see table 1 above). Table 2 gives a comparison between
        MoJ and prison service pay scales and shows that for employees in pay
        bands C-E MoJ pay scales are lower than Prison service pay scales. It
        may be possible for comparators to be identified in bands A, B and F.
        Further work is taking place to identify the comparators.

Table 2          Prison Service          Pay               MoJ (Deal - National+)            Pay
AO Type          Prison Officer          £20,850.16        Band E                            £17,500.00
EO type          Senior                  £23,342.34        Band D (Target Max)               £20,304.00
HEO type         Principal               £25,362.57        Band C (Target Max)               £25,145.00

     7.2. Please note that the Prison Officer pay table 2 has been estimated using
        a formula known as Standard Formula. This formula allows for shift
        working and the 39 hour week of prison officers. This formula was used for
        the Prison Service PCS equal pay claims in 2000 and we have used it to
        estimate current pay differences. We have used the target maximum for
        bands C and D as an Effective Performer cannot move above the Target
        Maxima. There is not a higher paid male comparator within the Prison
        Service for those in MoJ Deal Band F.

     7.3. Table 2 uses the National+ pay range. Clearly those in the National pay
        range the pay difference with comparable prison service grades will be
        greater. The Prison Service uses its own system of local pay additions for
        London, the South east and cities such as Bristol and Birmingham. These
        are significantly different than the application of Hotspot and the London
        pay ranges. However this difference should not stop members in Hotspot
        and London pay ranges from making claims. However there may be

       Law & Justice (HQ2, PCS, 160 Falcon Road, London SW11 2LN Tel: 020 7801 2625 Fax: 020 7801 2620

        implications of the different approaches to regional / local pay on the
        success of the claims or the level of compensation.

     7.4. Members can make both age discrimination and an equal pay claim if
        they are in the groups eligible to make these claims.

8.      The stages of an Equal Pay and/or Age Discrimination Claim

     8.1. There are time limits for the different stages. The first stage is to lodge a
        formal grievance, which PCS will do on your behalf. Alongside the
        grievance, PCS will issue an Equal Pay questionnaire or Age
        Discrimination questionnaire as appropriate, which the MoJ are obliged to
        respond to. The questions chosen will fully flush out the information
        needed to make an informed judgement on your chances of success. If at
        all possible PCS will resolve your claim at this stage.

     8.2. If however the MOJ is unwilling to settle your claim, Equal Pay and Age
        Discrimination claims are considered by an Employment Tribunal.
        Employment Tribunal applications can only be made 28 days after a
        formal grievance is lodged. PCS prefer to wait until we have the response
        to the Equal Pay or Age Discrimination questionnaire before we submit
        Employment Tribunal claims. This is because we only want to submit the
        claims when we are confident we have the necessary background
        information, and we do not want to form the habit of submitting and then
        withdrawing claims.

     8.3. PCS will supply legal representation at Employment Tribunal hearings,
        provided that we have assessed them as having reasonable prospects of

9.      Making an equal pay and/or age discrimination claim

     9.1. Age discrimination claims, equal pay claims using prison service
        comparators and equal pay claims for legal advisers: These claims
        are very simple to make. PCS has produced a quick and easy electronic
        application form. Individual members will need to complete this on-line.
        The link is displayed on the home page of the PCS MoJ Group website at .

     9.2. We can only accept claims made on-line as we will be able to track and
        group these claims, without inputting thousands of individual claims. If a
        member has a genuine problem in accessing the internet to complete the
        form then:

       Law & Justice (HQ2, PCS, 160 Falcon Road, London SW11 2LN Tel: 020 7801 2625 Fax: 020 7801 2620

              a. A branch or workplace rep should assist them making the claim on-
              b. It may be possible for members to access the internet at an internet
                 cafe or library.
              c. If an individual member cannot access the internet or complete the
                 form then they should contact email and we
                 can email a copy of the form.
              d. If a member does not have access to the internet or email and you
                 or another branch rep are not able to help then email
        for advice
              e. A member has special needs or a disability which prevents him or
                 her from completing the on-line claim form then please email
        for advice about how to advise the member.
              f. If a member is on a career break or maternity or adoption leave
                 then branches should attempt to contact them to ensure that they
                 are aware of the advice and the process for making claims.

      9.3. Equal Pay with a MoJ (ex DCA) Comparator: the union or individual or
         groups of members will need to find a comparator of a different gender. If
         a member believes that he or she has this type of claim, then please read
         the attached guidance (annex B) carefully, and then please email and we will advise you further.

10.      Join the Public and Commercial Services Union

      10.1. PCS will only pursue claims from members. However we recognise that
         the more members we have the more we can pressurise the MoJ to make
         the key changes we need to our pay system, and to protect members from
         compulsory redundancy and privatisation. A special membership form has
         been developed to support the campaign. We will be seeking new
         members and new activists to support this equal pay campaign.

Nick McCarthy
Senior National Officer

        Law & Justice (HQ2, PCS, 160 Falcon Road, London SW11 2LN Tel: 020 7801 2625 Fax: 020 7801 2620

Annex A
Flow chart for equal pay and age discrimination claims

   Age                  Been in grade 5                                                                      PCS will lodge a
   Discrimination       years or more and                                                                    grievance and age
                        not at the band                            Log onto the MoJ                          discrimination claim.
                        maxima                                     Group website at                          Cases for younger
                                                                                members will be
                                                                                                             lodged first.
   Equal Pay            Mapped into MoJ                            Complete the
   Prisons              Deal band C-E, or                          electronic claim form
   Comparator           an AO, EO or HEO                           on the home page
                                                                   following the advice                      PCS will lodge an
                                                                   and instructions and                      equal pay
                                                                   completing all the                        questionnaire to
                                                                   relevant sections.                        attempt top find a
   Equal Pay Legal      A magistrates’                                                                       predominantly male
   Adviser              courts legal adviser                                                                 comparator.
   Comparator           Tier 1 and Tier 2

                        None of the above                        Contact local union rep                  Questionnaire process
   Equal Pay            but I am female                          for advice. Union rep                    used to identify
   Comparator not       have identified a                        should contact                           comparator. If viable
   as yet identified    higher paid male                                       PCS will lodge
                        comparator                               for advice on identifying                grievance and equal
                                                                 a comparator.                            pay claim

                        Male band A or                           No viable legal action available at this stage. PCS will
                        Band F with less                         pursue cases through negotiation or through the new
                        than 5 years in                          procedures to deal with pay anomalies.
                        current job.

                       Law & Justice (HQ2, PCS, 160 Falcon Road, London SW11 2LN Tel: 020 7801 2625 Fax: 020 7801 2620

Annex B
Equal Pay using MoJ (DCA) pay system comparators
How do I know if I have a case for Equal Pay?

To establish Equal Pay you need to show;

The person receiving more pay then you is of the opposite sex. (Note that an
actual person(s) who will be the comparator(s) must be identified and named).

       That you are doing the same or similar work, or work of equal value.

       That the pay discrimination is based on gender.

       That if based on gender, your employer cannot justify the pay difference.

Can I compare my work with that done by someone of the same sex?

No – it must be someone of the opposite sex. Note the issue is pay
discrimination based upon gender.

I am male can I claim equal pay using a higher paid a female comparator?

This can be difficult as a successful equal pay claim must show that the pay
discrimination is based on gender; that the reason why you are paid less than the
comparable woman is because you are male.

If I think I have a possible Equal Pay case, what should I do?

Contact local union rep for advice. Union rep should contact
for advice on identifying a comparator.

PCS will provide you with sensible and professional advice, wherever possible
commence the action, and represent you at every stage.

I am a tier 1 or 2 legal adviser what should I do?

Tier 1 or Tier 2 legal advisers are predominantly female. We are already seeking
a comparator for these groups of legal advisers from Band A. We have already
established that lawyers working in the Government Legal Service are
predominantly female, therefore will not provide a viable comparator. Legal
Advisers who wish to make a claim for age discrimination or equal pay should
complete the on-line claim form and PCS will submit a questionnaire to find a
comparator. Until we have found a viable comparator we will not submit a claim.

       Law & Justice (HQ2, PCS, 160 Falcon Road, London SW11 2LN Tel: 020 7801 2625 Fax: 020 7801 2620

What could I achieve via a successful claim?

Firstly the MOJ would have to equalise the pay with that of the comparator,
including equal pay for the future. Also you would be entitled to up to six years
back pay from the date of the employment tribunal application.

     Law & Justice (HQ2, PCS, 160 Falcon Road, London SW11 2LN Tel: 020 7801 2625 Fax: 020 7801 2620