Appeal No.UKEAT/0163/08/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 June 2008
	   Judgment handed down on 13 August 2008

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

MRS F A HOVELL	APPELLANT

ASHFORD & ST PETER’S HOSPITAL NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ANTONY WHITE 
(One of Her Majesty’s Counsel)
Instructed by:
Thompsons Solicitors
Congress House 
Gt Russell Street
London Central WC1B 3LW	
For the Respondent	MR JOHN BOWERS 
(One of Her Majesty’s Counsel)

MS KIRTI JERAM
(of Counsel)

Instructed by:
Messrs Beachcroft LLP Solicitors
100 Fetter Lane
London 
EC4A 1BN	

SUMMARY

EQUAL PAY ACT:  Equal value
Equal Pay Act 1970 s1(2)(c) claim in respect of period prior to implementation of JES which banded Claimant together with her male comparators.  Effect of that banding on s1(2)(c) claim.  Whether requirement for Independent Expert ought to be withdrawn.  Proper exercise of discretion by Employment Judge.  Appeal against refusal to withdraw requirement dismissed.

HIS HONOUR JUDGE PETER CLARK
1.	This appeal represents a further step in the complex equal pay litigation proceeding in the Newcastle Employment Tribunal.  In this case the Claimant is Mrs Hovell and the Respondent, her employer, Ashford & St Peter’s Hospitals NHS Trust, as I shall describe them.  The appeal is brought by the Claimant against a decision of Employment Judge Malone, sitting alone at a pre-hearing review (PHR) held on 12 February 2008.  By his reserved judgment promulgated with reasons on 21 February the Judge declined to withdraw the requirement for an independent expert (I.E.) to prepare a report on the question of equal value, on the application of the Claimant, such report having been ordered, without dissent from either party, at a stage 1 hearing held on 9 August 2007.  No I.E. had been nominated by the time of the 12 February PHR.

Factual background
2.	The relevant PHR proceeded on the basis of agreed facts.  In summary the Claimant was employed by the Respondent as a Social Services Administrator.  Under the NHS Agenda for Change (AfC) reorganisation of pay and conditions a valid Job Evaluation Study (JES) produced 9 pay bands, band 8 being sub-divided into 4.  The Claimant was placed into Band 4, 271 - 325 points, along with her three named male comparators.  In that exercise she scored 274 points;  her comparators respectively scored 296, 298 and 305 points.

3.	The Agenda for Change was implemented with effect from 1 October 2004.  After that date, it is common ground, the jobs of the Claimant and her male comparators have been rated as equivalent within the meaning of s1(2)(b) Equal Pay Act 1970.  The question to which this appeal relates is whether the Claimant was employed on work of equal value, s1(2)(c), prior to that date, to that of her comparators, it having been held by the Employment Appeal Tribunal (Elias P presiding) in Bainbridge v Redcar & Cleveland Borough Council (No. 2) [2007] IRLR 494 that implementation of a valid JES does not retrospectively determine a claimant’s right to equal pay under s1(2)(b).

4.	It is common ground in the present case that there had been no material changes in the job content of the Claimant and her comparators’ posts during the six years preceding presentation of her claim to the Employment Tribunal on 21 January 2007 and that the JES was untainted with sex discrimination either nationally or locally.

The Parties’ cases at the PHR
5.	At a telephone Case Management Discussion (CMD) held before Employment Judge Dr Watt on 8 November 2007 both parties were directed to prepare a position statement for the purposes of the PHR.  Put shortly, the Claimant’s position was that the banding of the Claimant and her comparators in band 4 was determinative evidence that their jobs were of equal value (paragraph 1).  At paragraph 13 it was said that the same banding was ‘sufficient evidence of equal value to determine the question’. The proposition that equal banding following a completed valid JES is determinative of the equal value question is repeated at paragraphs 14 and 16.

6.	The Respondent’s position was that a difference exists between the exercise carried out in a JES and that performed by the I.E.  The Respondent did not accept that where the Claimant scored lower than her comparators following a valid JES, the fact that all were placed in the same band determined the question of equal value under s1(2)(c).  At best the results of the JES were admissible evidence of equal value (EV).  It did not obviate the need for an I.E.

7.	Looking at Employment Judge Malone’s reasons for refusing the Claimant’s application that the requirement for an I.E. be withdrawn it is clear to me that those positions were maintained by junior counsel then appearing for the parties.  Mr Morgan, for the Claimant, confirmed (Reasons paragraph 8.2) that same banding under the JES was determinative evidence of EV.  It was conclusive.  Ms Jeram, for the Respondent, did not accept that the JES was reliable evidence one way or the other of equal value, albeit such evidence was admissible in relation to that question (Reasons paragraph 9.6).

8.	It was common ground that the Employment Tribunal has a wide discretion when considering whether to withdraw the requirement for an I.E.

The PHR decision
9.	In short, having considered the authorities, Employment Judge Malone concluded that same banding of the Claimant and her comparators was neither determinative nor sufficient evidence of equal value where the points score for the Claimant’s work under the JES is lower than the points score for her comparators (Reasons para. 29).  In an earlier case, Jones v Wirral Hospital NHS Trust (Case Number ET 2508201 (06. 5 November 2007), an Employment Tribunal sitting at Newcastle and chaired by Judge Malone had withdrawn the requirement for an I.E. where the Claimant had scored higher than her male comparator in the AfC JES.

10.	In these circumstances the Judge was satisfied that it was not appropriate to withdraw the requirement for the I.E. in the present case.

The appeal
11.	In this appeal I have had the advantage of hearing full argument from leading counsel, Mr Antony White QC for the Claimant and Mr John Bowers QC for the Respondent.  I accept that the point raised in the appeal is of considerable practical importance in the mass equal pay litigation presently proceeding in the Newcastle Region.  The practical problem lies in a shortage of I.Es to report in these cases.  Hence delay and expense will follow if the approach of Employment Judge Malone in the present case is upheld.  That is a factor which goes to proportionality, but in my view it cannot override the duty to do justice according to law as between the parties.  If same banding is determinative of the pre-JES equal value question, then the Judge fell materially into error as a matter of law and in my judgment the appeal should succeed for there will be no need for an I.E.  The Claimant will succeed on her claim put under s1(2)(c) Equal Pay Act.  If, however, it is not determinative of that question, but is of evidential value only, then it will be difficult for the Claimant to show a wrong exercise of discretion by the Employment Tribunal given the high hurdle faced by appellants in these circumstances as demonstrated by the test formulated by Wood P in Adams v W. Sussex County Council [1990] ICR 546, 550 H, to which Mr Bowers has referred.  The Wednesbury approach was affirmed by the Court of Appeal in Noorani v Merseyside TEC [1999] IRLR 184.

The statutory framework
12.	The basic concept of equal pay is a simple one.  Men and women doing the same job should receive the same level of pay.  That principle is reflected in the ‘like work’ provision contained in s1(2)(a) Equal Pay Act.   Similarly, where a valid JES is carried out, leading to different jobs being banded or graded together, those post-holders, whether men or women should receive the same pay.  That is s1(2)(b) of the Act.  That is how the Equal Pay Act started life.  However, that was not good enough for the European Court of Justice.  The Court held in EC Commission v UK 61/81 [1982] IRLR 333 that a further strand was required in our domestic legislation in order to comply with the Equal Pay Directive (No. 75/117/EEC), to allow a woman to claim equality for work which is of equal value to that performed by her male comparator.  Hence s1(2)(c) of the Act was added with effect from 1 January 1984.

13.	Leaving aside like work under s1(2)(a), what is the relationship between equality under s1(2)(b) and (c)?  

14.	s1(5) defines work rated as equivalent for the purposes of s1(2)(b).
“A woman is to be regarded as employed on work rated as equivalent with that of any man if, but only if, her job and their job have  been given an equal value, in terms of the demand made on a worker under various headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those items the jobs to be done by all or any of the employees in an undertaking or group of undertakings …”

15.	s1(2)(c) begins
“where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) above applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision) of equal value to that of a man in the same employment … “

16.	Pausing there, on the facts of the present case, applying the rationale in Bainbridge No. 2 (Elias P), although Mrs Hovell was employed on work rated as equivalent following the JES banding with her comparators from 1 October 2004, the same is not true for the relevant period (going back 6 years from presentation of her Form ET1) prior to implementation.  Thus she is not precluded from bringing a claim in respect of that earlier period under s1(2)(c).

17.	Mr White draws my attention to s2A of the Act.  Section 2A is concerned with equal value claims brought under s1(2)(c).  In order to assist the reader, s2A follows Sections 2ZA, 2ZB and 2ZC in the layout of the statute, and within s2A is a sub-section itself numbered (2A).

18.	Section 2A(1) deals with the appointment of an I.E. in s1(2)(c) cases, something to which I shall return.  

19.	Mr White submits that s1(5) must be read with s2A(2)(b).

20.	Section 2A(2)provides:
“(2)  Subsection 2A below applies in a case where –
	(a)	 a tribunal is required to determine whether any work if of equal value as mentioned in s1(2)(c) above, and
	 (b) 	the work of the woman and that of the man in question have been given different values on a study such as is mentioned in Section 1(5) above.”

21.	Sub-section (2A) goes on to provide that the tribunal shall determine that the work of the woman and that of the man are not of equal value unless the tribunal has reasonable grounds for suspecting that the evaluation contained in the study was, in short, discriminatory or otherwise unsuitable.

22.	Pausing again, I repeat, on the facts of the present case the Claimant was banded with her comparators by a valid, non-discriminatory JES, thus satisfying s1(2)(b) from 1 October 2004.  This is not a case in which the Claimant has been banded below her comparators following an allegedly invalid JES, which is the situation with which sub-section 2A is concerned.

23.	Mr White argues that here the Judge below has necessarily concluded that where the points score of the Claimant’s job is lower than that of her comparators those jobs have not been given equal value in the JES.  I disagree.  The Claimant’s job was given equal value in the JES;  her problem is that such equal value (as that expression is used in s1(5)) does not apply retrospectively:  see Bainbridge (No. 2).
24.	In these circumstances, it seems to me, what the Claimant sought to do was to circumvent the lack of retrospective effect for the purposes of s1(2)(b) by contending that equal banding following a valid JES determines the question of equal value under s1(2)(c).  That was the real question for the Judge to decide.

25.	Finally, I am reminded of the statutory process for determining equal value claims under s1(2)(c).  The power to appoint an I.E. is founded in s2A(1) Equal Pay Act.  Under that provision the Employment Tribunal may proceed to determine the s1(2)(c) equal value question with or without an I.E. report.  Schedule 6 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 sets out detailed rules for determining the equal value question.  An I.E. may be ordered by the Employment Tribunal at a stage 1 Equal Value hearing (Rule 4(3)(b));  having been so ordered the Employment Tribunal may, at any stage of the proceedings, withdraw the requirement on the independent expert to prepare a report (Rule 10(4)).  That rule provides that the I.E. should first be given an opportunity to make representations but since no expert has yet been appointed in this case that requirement does not arise.

Discussion
26.	I detect a subtle but important shift in the argument presented to me by Mr White from that advanced on behalf of the Claimant below.  Whereas before Judge Malone it was principally contended that same banding of the Claimant and her male comparators in the JES constituted determinative (or sufficient) evidence of equal value for the period prior to implementation, Mr White prefers to put his case on appeal in this way;  that absent contrary evidence  from the employer, same banding constitutes sufficient evidence of equal value for the purposes of s1(2)(c) during the earlier period.  He does not now contend that same banding in the JES is determinative of the s1(2)(c) question for the earlier period.

27.	In developing his theme Mr White seeks to highlight a comparison between Judge Malone’s decision in the instant case and the same Judge’s decision in the case of Jones v Wirral Hospitals NHS Trust (ET case no. 2508201/06 5 November 2007).  In that case a full Employment Tribunal chaired by Judge Malone withdrew the requirement on the I.E. to report in circumstances  where Ms Jones’ job was scored 23 points above that of her male comparator in the AfC JES, albeit that both jobs fell within the same band.  As with the present case there had been no material change in job content and the JES was untainted by sex discrimination.  In these circumstances the Employment Tribunal was satisfied, on the basis of the points difference in favour of Ms Jones’ job and in the absence of any good reason for discounting that points difference, that it was a proper case for withdrawing the requirement for an I.E. to report.

28.	Mr White relies on cases decided under s1(2)(b), such as Arnold v Beecham Group Ltd [1982] IRLR 307 and Springboard Sunderland Trust Ltd v Robson [1992] IRLR 261, that it is same banding, not the respective points scores, which determines whether the jobs have been given equal value under a JES.  On the facts, in Arnold the claimant scored more than her comparator, in Robson it was the other way round.  But in both cases the Employment Appeal Tribunal reached the same result.  Since, Mr White submits, Jones v Wirral was correctly decided, it must follow that despite scoring less than her male comparators Ms Hovell was placed in the same band as those comparators and the principle in Arnold and in Robson should be applied to this s1(2)(c) claim.

29.	I cannot accept that submission.  First, because Mr Bowers does not accept that Jones v Wirrall was correctly decided and I do not propose to rule on that issue. But more substantively, I do not accept that the same banding principle as applied to a claim under s1(2)(b), which is concerned with work rated as equivalent under a JES, necessarily applies to a claim under s1(2)(c).

30.	I shall follow the approach of Elias P in Bainbridge No. 2 which I am satisfied was correctly identified by Judge Malone in the present case, as Mr Bowers contends.  As the President pointed out in that case (paragraphs 38 - 45), the fact that jobs have been rated as equivalent under a JES will be evidence that those jobs were of equal value at an earlier stage, on the assumptions made in this case.   See Dibro Ltd v Hore [1990] IRLR 129 (EAT; not CA.  See Bainbridge No. 2, para. 39).  However, for the reasons thereafter given by the President, it does not follow that the employer is bound to accept that the jobs are of equal value for a period prior to implementation of the JES.

31.	The difficulty I have with Mr White’s submission is that whereas he purports not to espouse the ‘determinative’ line pursued below, his argument as developed seeks to lead me to that conclusion.  I am not persuaded to do so.

32.	Instead, I find myself in this position.  The JES banding in the present case is some evidence that the Claimant’s job and that of her comparators are of equal value pre 1 October 2004.  I agree with Mr Bowers that the onus of proving equal value rests on the Claimant;  I reject Mr White’s contention that same banding raises a presumption that the jobs are of equal value, which presumption the Respondent must displace.  In terms of proportionality, whilst I recognise the shortage of I.Es available to report on the plethora of cases now running in the North-East (and increasingly elsewhere) the fact remains that if the I.E. requirement in the present case is discharged it may be necessary for both parties to instruct ‘partisan’ experts to report in this case.  That will put the parties to added expense;  I am told that the ACAS expert to be appointed will be free of charge to the parties.  In these circumstances I am unable to say that Judge Malone’s exercise of discretion in declining to discharge the requirement for an I.E. in this case was wrong in law, in the Wednesbury sense identified b y Wood P. in Adams.

33.	Finally and for the avoidance of doubt, I agree with Mr White that Judge Malone was wrong to regard himself as bound by our decision in Home Office v Bailey [2005] IRLR 757 (Reasons paragraphs 27 - 28) to conclude that it would be an error of law to decide that two jobs are of equal value on the basis that the difference in points following a JES was very small.  Bailey was a s1(2)(b) case, in which the employer had conceded that, where the results of a JES had not been implemented, the work of a Claimant who had been scored higher in the JES than her male comparator should be regarded as employed on work rated as equivalent whereas a Claimant scored lower should not.  In the case of two Claimants who fell into the latter category we held that they were not to be regarded as employed on work rated as equivalent for the purposes of s1(2)(b).  That decision does not determine the outcome of this s1(2)(c) claim.  However, I also agree with Mr Bowers that those observations by Judge Malone in the present case do not vitiate his exercise of discretion for the other reasons which he gives for not discharging the I.E. requirement.

Conclusion
34.	For these reasons I shall dismiss this appeal.