Third Generation Parity Payment

Third Generation Parity Payment Update – BCC/BCT/Acivico

As you know, we have recently learned that Birmingham City Council intends to settle equal pay claims with a no win no fee lawyer for more than the agreed sum with the unions for members via a Memorandum of Understanding (MOU).

Members covered by this MOU will receive an offer from the council. Whether any offer made under the MOU is a better offer or is a reasonable settlement of any potential claim will depend on your individual circumstances. As is always the case, ultimately, you will have to decide whether to take any offer.

We are now writing to you to provide some further advice on this matter.

What is UNISON doing in response to the council’s actions?

We are investigating whether there are potential equal pay claims at Grades 2-5 following the Council admitting that they cannot rely on some of the job evaluations from refuse. It will take UNISON some time to do this. UNISON cannot guarantee what the outcome of the investigations will be.

However, we do know:

  • Members in Grades 1 and 6 are unlikely to have claims using refuse workers as comparators.
  • Equal pay claims take a long time. The previous equal pay claims run by UNISON took about 6 years to full agreement and then the settlements took a long time to implement. The current no win no fee claims have been running for up to 10 years before any agreement was reached.
  • Any claim lodged now can only go back to December 2015 at the earliest as the law restricts the time limit for back pay to 6 years. The offers made under the MOU cover the period from 1st April 2014 – 31st March 2020.
  • Any changes that have occurred in your employment during this period may affect your ability to bring an equal pay claim due to strict legal time limits.

What does this mean for you?

Members covered by this MOU will receive an offer from the council. Whether any offer made under the MOU is a better offer or is a reasonable settlement of any potential claim depends on your individual circumstances. As is always the case, ultimately you will have to decide whether to take any offer.

You may consider, based on the information in this letter that you do not wish to accept the council’s offer.

If you do not wish to accept the offer and believe that you have an equal pay claim, then you should complete a UNISON CASE form to apply for legal services. (Form attached to this email) If you have any evidence that you think will assist UNISON, please enclose it with the CASE form. This can include your job description, hours you work, any allowances you are paid and a brief description of how your work is organised. The more information you provide the easier it will be to assess if you may have a claim.

As stated above, UNISON is undertaking investigations as to whether there are potential equal pay claims at Grades 2-5. It will take us some time to do this. We will run equal pay claims that have a reasonable prospect for success at Employment Tribunal (ET).

UNISON is telling you all of this information so that you are advised to be able to respond to any offer that might be made by the council. The offers will be made from early December onwards and there are 500 claims being piloted to test the process. Offers will then be sent in batches by grade with an invitation to attend a seminar run by ACAS. These will take place between the 16th December and the end of March 2022.

Please read the FAQs below regarding the Parity payment. If you are still unsure of what to do and want to discuss this, please email us at equalpay@birminghamunison.co.uk with your name, workplace, phone number, and with your questions if they have not been answered below. We will get back to you accordingly.

 

Frequently Asked Questions:

Equal pay and the union Memorandum Of Understanding

1. Why is the Council making offers now?

A MOU (Memorandum of Understanding) between the Council and the Unions (Unite, Unison & GMB) was signed on 14th May 2021. The settlement scheme under the MoU provides for a “parity payment” to union members who have not taken so called “third generation” equal pay claims with no-win, no-fee lawyers (except for some Leigh Day clients) against the Council.

2. Who IS eligible for an offer under the terms of the MoU?

Individuals eligible under the terms of the MoU are:
• Employees and former employees who are members of UNISON, GMB and UNITE.
• Who were directly employed by the Council, Birmingham Children’s Trust and Acivico at any time between 31st October 2018 and 14th May 2021. Staff employed at a voluntary aided school, foundation school or academy during the period (31st October 2018 and 14th May 2021) will more than likely not have been legally employed
by the Council and so would not be eligible for an offer.

3. Who IS NOT eligible for an offer under the terms of the MoU?

• An individual whose name does not appear on the lists of union members provided by the unions.
• An individual has brought or lodged a “third generation” equal pay claim with a no-win, no-fee lawyers (except for some Leigh Day clients) against the Council.
• An individual who has already had a settlement payment in relation to the period covered by the MOU.
• An individual who has brought a “third generation” claim and that claim has been dismissed or struck out by the Employment Tribunal.
• An individual who holds a role for which pay is not determined by the Council, e.g. teachers.

4. How are the settlement offers calculated?

Eligible individuals will receive an offer based upon their grade, not earnings or role during the agreed reckonable period of 1st April 2014 to 31st March 2020.

5. Will I get paid an additional payment for every role held during the calculation period?

No – payments are based on grade. Therefore, the offer is based on the grade(s) held irrespective of the type or number of roles held. Example: If an eligible individual held several grade 3 roles during the calculation period, there will be a single grade 3 offer irrespective of the number of grade 3 roles held by the individual. However, where the individual has had successive roles with different grades during the calculation period, the methodology used to calculate the payment will vary according to the dates of the differently graded roles. Example: If an eligible individual held a grade 2 role for 3 years and a grade 3 role for 3 years, this is the information that would be used to calculate the offer covering the eligible 6-year tenure of the individual.

6. What if I have had two concurrent roles at different grades?

Where an eligible individual has held concurrent roles at different grades, the methodology used to calculate the net payment will be whichever methodology produces the highest net payment. Example: If an eligible individual held a grade 2 role and a grade 3 role at the same time and both roles are eligible, the Council will offer the individual a payment calculated using the grade 2 role, as this would produce a higher offer than would be the case if using the grade 3 role.

7. What if the member’s role does/did not have a grade?

If an eligible individual held a role to which no standard grade had been given for any part of the calculation period, the Council will for the purposes of calculating the offer, divide the individual’s pay by the hours worked and match it to the closest grade and then apply the applicable methodology as agreed for that particular grade.

8. What is the calculation period?

The calculation period is the period running between:
• The later of 1st April 2014 and when the individual commenced employment in a relevant
grade, and
• The earlier of 31st March 2020, when that individual ceased to be employed in a relevant grade or when they left the Council.

9. Where did the council get the information to calculate offers?

Payroll is used to establish which grade/s individuals have held between 1st April 2014 and 31st Match 2020.

10. How much money is the Council offering?

Offers are capped – the maximum payment for each grade is based upon 6 years’ service in the calculation period and is as follows:

Grade 1: £1,249.69
Grade 2: £9,675.00
Grade 3: £6,046.88
Grade 4: £3,225.00
Grade 5: £1,804.38
Grade 6: £1,249.69

11. When will members get paid?

Payments will be made within 56 days of ACAS notifying the Council that the individual has accepted the offer and the COT3 agreement has been duly signed by both parties i.e. the individual and the Council.

12. How is the offer calculated?

Example: An individual with an eligible grade 4 role would receive an offer of £537.50 per annum, pro-rata for the calculation period, irrespective of the number of grade 4 roles held by the individual. Any payment calculated using this methodology will be capped at £3,225.00 (i.e. a maximum of 6 years x £537.50).

13. What happens if a member was absent from work during the calculation period due to maternity/paternity leave or sickness? Will this affect the offer?

Yes: if there were periods of time when no salary payment was received by an individual but they remained employed by the Council, the calculation period is not broken and any such periods of time will not be used as triggers to prevent a payment. However, the period/s
where there was no salary paid to the individual will not attract an offer.

14. What about casual workers?

Eligible casual or sessional roles will attract an offer but only for those months in which the individual received pay for hours worked in the casual or sessional grade.

15. If members had more than one contract during the calculation period, will they qualify for more than one payment?

Offers will be pro-rated for each different grade held during the calculation period and consolidated into a single offer, unless roles in different grades were held at the same time, in which case points 5 & 6 above will apply.

16. How will members receive the COT3 Offer payment?

Subject to contract – for individuals who enter a COT3 agreement:

▪ Current employees will have payment made directly into the bank account into which their salaries are paid.
▪ Ex-employees will have payment made into the bank account provided and verified by the Unions/BCC.
▪ In exceptional circumstances, cheques will be paid to individuals. However, this option will take longer to process, as we would need to arrange for secure collection of the cheque by the individual.

17. Overpayments and other deductions

Any past overpayments made to an individual by the Council or any employee debts will be deducted from the payment, but where this would result in a negative, zero or trivial offer, the Council retains the right to recover them using the corporate policy instead.

 

Tax and National Insurance

18. Will members pay Tax and National Insurance on the money?

No, the Council will pay these costs directly, on top of that which is being offered.

19. Do members have to declare the payment to HMRC?

No, an arrangement has been made with HMRC which means members do not need to declare the payment for any reason whatsoever.

20. Will this affect other benefits?

In line with regulation 100 of The Housing Benefit Regulations 2006, the Council is legally obligated to recover any overpayment of Housing Benefit resulting from the payment. Deductions will be made if an individual received Housing Benefit during the calculation period if the awarding authority was Birmingham City Council. If members received Council Tax Credit during the calculation period, any overpayments resulting from the payment will be recovered by way of an adjusted bill. Individuals who live outside of Birmingham should notify their Benefits Office of the receipt of this payment.

 

Pensions

21. Can members choose to make the payment pensionable?

If they are a member of the West Midlands Pension Fund, they will have up to the date of signing a COT3 agreement or settlement agreement the option to make the payment pensionable. If they choose to make the payment pensionable, the Council will deduct contributions from the payment amount and will also make the necessary employer pension contributions to the West Midlands Pension Fund. Members can notify the Council of the election to have the payment made pensionable for the period of membership using the following email address: EqualPay@birmingham.gov.uk with subject line MoU Pensions.

 

Legal Advice

22. What if members are not sure they want to accept the offer?

Some members may now want advice on whether they may have an equal pay claim that could be lodged in an employment tribunal. It is the member’s choice whether to accept the offer and whether to seek further advice. As part of the COT3 process, an ACAS (the
independent government Advisory and Conciliation Service) representative will be available to explain the offer and the consequences of signing a COT3 agreement.

23. What is a COT3?

An ACAS COT3 records the terms of a legally binding agreement, which is intended to settle a dispute between an employee and their employer with the assistance of an ACAS conciliation officer. It can be used to settle an employment tribunal claim, or a potential claim.

24. What does COT3 mean?

The COT3 form is derived from ‘central office of tribunals Form 3’. When an agreement has been reached, the terms will be recorded by the ACAS conciliator on a COT3 form. The COT3 is a legally binding agreement to settle actual or potential claims. Essentially, the COT3 is the document agreed following conciliation by an officer employed by ACAS, the Council, and the Unions (Unite, Unison and GMB) in relation to the offer that has been made.

 

Accepting the COT3 offer

25. How can members accept the offer?

Members can accept your offer following an electronic process during which:

▪ In your ‘Offer letter’ you will be given a link inviting you to book your place at an ACAS led webinar – attendance at an ACAS led webinar is mandatory
▪ Having attended the ACAS webinar, you will have the opportunity of accepting your offer
▪ ACAS will notify the Council of your acceptance
▪ The Council will email you, your COT3 for an electronic signature
▪ Once the Council receives your electronically signed COT3, it will be checked, counter signed and processed for payment into your bank account.

26. What if the member is unable to attend the ACAS webinar they are invited to in their Offer email?

If they are unable to attend the ACAS webinar given in their Offer email, they will be sent regular invitations to attend other webinars until they are able to do so.

27. How can members access the offer if they don’t have access to the internet?

This route will take much longer to process however, individuals who do not have access to the internet or email will have COT3 Offer Packs posted to them. The Offer Packs will have full details for attendance at ACAS signing events together with the processes that will need to be followed, in accepting/signing their COT3 and receiving payment via this route.

28. Will other employees receive an offer?

The Council will make offers to union members (as included in the lists provided by the Unite, Unison & GMB) before making offers to other eligible employees.

29. Will members receive an offer if they already have a claim in the Employment Tribunal or civil courts?

No – employees who have brought a claim in the Employment Tribunal or civil courts are not
eligible in terms of the MoU arrangements. However, if they work in a female-dominated role they may have a further claim at the tribunal and should fill in a UNISON case form to get advice.

30. Do the Council need leavers to provide full bank statements?

No, They only need a redacted statement to show the – Name, address, Sort code & account number.

31. What if leavers do not have the correct ID such as photo ID or utility bill?

If they don’t have a utility bill a GP or hospital letter with their address on is acceptable and I have asked what else might be. BCC have still not responded to what to do if people don’t have photo ID but this has been resolved so members shouldn’t panic if they wish to accept.

32. Once the members have been to the ACAS seminar is there a deadline for accepting the offer.

ACAS – gives a 7 day deadline for people to accept the offer i.e. the ACAS links to accept the offer will expire after the 7 days. However this is not mandatory and people can accept the offer at any time after  having attended an ACAS webinar. They can notify the Council at OfferQueries@birmingham.gov.uk and they will activate the acceptance process.

33. If a member believes that their offer has been wrongly calculated what should they do?

Members should email OfferQueries@birmingham.gov.uk

34. Who may have an Equal Pay claim?

The Council have admitted in an Employment Tribunal case that they cannot rely on the scores for some of the grade 3 & 4 roles in refuse and they would not share any Job Evaluation evidence that was being formally requested by the court. The roles that they are talking about are male dominated roles, this means that they are mainly (70%+) but not exclusively done by men. Therefore in order to take a claim using
these comparators you would have to be a woman in a female dominated role i.e. done predominantly by women (70%+) and compare your role in JE terms with theirs. This means there may be claims for members in grades 2,3 and 4, and possibly 5 who may be able to compare themselves with a grade 4 comparator if they can show they were paid less than the comparator.
This is a complex piece of work and not like the first generation equal pay claims that were based on historic bonuses. No cases based on the second or third generation claims have actually been heard in court – they have all been settled before they got that far. This means that we have no cases to base our claims on – we have to prove the discrimination in pay and terms and conditions exists. Even the latest claims put in by Evans Derry solicitors were not heard in court as they have been settled before the Employment Tribunal cases were heard.

35. What sort of jobs do we know are predominantly female roles (PFR) in BCC, BCT & Acivico?

This list is not an exhaustive list and if you are unsure please call our helpline.

  • Grade 2 care assistants, enablement assistants, general assistants (schools), cleaners, library
    assistants, etc.
  • Grade 3 teaching assistants, cooks, senior case assistants, day centre officers, PSS workers, etc.
  • Grade 4 Social workers, PSS workers, etc.

36. What if a woman in a PFR has already been with another firm and settled in 2015? can they make a further claim now?

Maybe as these claims were settled some years ago, members should fill in a case form and the Equal pay Questionnaire and send these to equalpay@birminghamunison.co.uk to find out. The forms will be sent to the UNISON Regional Equal pay unit which are liaising with the Barrister. Members will be informed as soon as possible whether they may have a claim or not.

37. What if a woman works in a PFR and is not covered by the MOU and hasn’t been with any solicitors?

They should fill in a form referred to above and see if they have a claim.

38. What about men working in predominantly female roles?

If the women doing the same job as them won their cases the men in the group could take what is termed a piggyback claim to the Employment Tribunal? If this had to go to court it could take a very long time. If the case was settled out of court we could argue to agree to a settlement for both the women and the men in the same roles. There is no absolute guarantee that these cases would succeed.

39. What about staff in male-dominated roles that have the same job evaluation (JE) score as women who may go on to win back pay?

Although in theory, it could be possible to try to take a piggyback claim it had never been tested in the UK courts. It would also take a long time to resolve.

40. Why have the Council paid equal pay to men if they do not have a genuine equal pay claim?

The Council has paid out just over £1b in both court and out-of-court settlements has so far has been risk averse. They have paid to settle all second and third-generation claims lodged in court to everyone that lodged whether they have a genuine claim or not. They must believe that it is cheaper to pay everyone a small amount than to fight lengthy and costly court claims that could give higher payments to some of the claimants.

41. What are the time limits for lodging claims?

To take an Equal pay claim to an Employment Tribunal (ET) you have to lodge your claim within 6 months from the date you changed your role or left your employer. This means that if you left your employer or changed roles within the same employer more than 6 months ago you cannot take a claim to a tribunal as you out of time.

42. How far can a claim go back?

A claim can only go back to a maximum of 6 years from the date it is lodged at the ET.

43. Can members do anything if they left more than 6 months ago?

Yes it possible for claims to be lodged at a County Court but UNISON do not normally use the County Courts except in exceptional circumstances. Members can fill in a case form and equal pay questionnaire and the Regional Equal pay unit will assess the cases.

44. What if the member has transferred by TUPE to another employer?

If members worked for BCC between the period 31st Oct 18 and 14th May 2021 they will be included in the councils MOU offer. If they do not want to accept the offer the time periods to make claims talked about elsewhere will apply. If they transferred after April 1st 2014 but before 31st Oct 2018 they may have a county court claim. If you have questions that are not covered in this FAQ please either ring us on 01212007118 or email equalpay@birminghamunison.co.uk we will get back to you as soon as we can but it may take longer than usual due to the huge level of enquiries we are dealing with.

45. What if I leave my employment can I still pursue an ET claim?

You will need to remain a UNISON member if you wish to pursue a claim so please call UNISON reception on 0121 2003331 to discuss what sort of membership is most appropriate for your situation.