The test case, Hartley v Northumberland Healthcare NHS Foundation Trust, was due to be presented on Monday to a tribunal in Newcastle upon Tyne by no-win no-fee lawyer Stefan Cross.
Mr Cross argues that Agenda for Change is inherently sexist as thousands of mainly male technical staff were placed in higher pay bands during AfC’s initial job evaluation process. This compounded previous pay band discrimination inherent under the old Whitley scales that preceded AfC, he says.
If the case is successful, it could open the door to thousands of similar claims, costing the NHS millions of pounds in back-pay claims.
Around half the potential 13,700 cases would be brought by nursing staff, according to Mr Cross.
Action against local councils, led by Mr Cross, forced the government to act last month to settle claims worth a total of £450m in back pay.
Mr Cross said: ‘Our argument is that the discriminatory pay differentials that existed before AfC were effectively recast in a different way under AfC.
‘What should happen is that the DH gets round the table and agrees proper compensation schemes for the staff in the same way local government is doing.’
Representatives of the government, unions and NHS organisations will join forces to defend AfC.
Mike Jackson, Unison senior national officer, is set to give evidence in the case, which is likely to last until the end of November. ‘We as unions will be strongly defending AfC as delivering equal pay to NHS staff,’ he told NT.
Gill Bellord, NHS Employers director of pay, pensions and employment relations, said: ‘NHS Employers supports equal pay for work of equal value. We devised the AfC system in partnership with the trade unions and believe that it is fair and consistent with the principles of equal pay.
‘The NHS has a good record on equal pay. However, we are aware that there are a number of equal pay claims under way. The law relating to employment and equal pay is complex and there are a number of legal issues that will be tested in the Hartley case, and it would be inappropriate to comment.’