Pay-gradings: Are you able to challenge them?

We have recently been encountering several cases in which employees have been trying to argue that they have not been placed in the right pay grade and that they should be getting a higher salary. They have then gone on to express a desire to submit an unlawful deduction of wages claim for all the time that they have been on the lower grade when they feel they should have been earning more.

During our research for these claims we have unfortunately encountered some fairly recent case law, which for the most part prevents these employees from making their claim. The case in point is that of Kingston Upon Hull City Council v Schofield & Others UKEAT/0616/11/DM.[1]

The Claimants in this case had disputed the grades at which they had been evaluated and after losing internal appeals to remedy it they took the council to the Employment Tribunal. Their primary argument was that the difference in pay between the grades was an unlawful deduction from wages and they wanted the tribunal to evaluate the jobs properly. The Tribunal agreed with the employees and put forward that they would need to put itself in the place of the employer.

On appeal however, this decision was unfortunately overturned. The Appeal Tribunal ruled that the Employment Tribunal does not have the jurisdiction to undertake the exercise of job evaluation assessment to ensure it had been carried out properly.

It is also important to note that in unlawful deductions from wages you need to be able to claim a specific ascertainable sum of wages which was payable.[2] If the amount that you want to claim is unquantifiable due to not knowing what specifically you would be paid (which is often the case when you think you should be a pay grade higher) then the claim will be for damages that the Employment Tribunal has no jurisdiction over in these instances.

So it appears that unfortunately if you feel you are on the wrong pay grade unless you can resolve the situation informally it is unlikely that you will be able to challenge the decision.