Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 01776/00

CLAIMANT: Janet Chadwick

RESPONDENT: Morton Newspapers

DECISION

The unanimous decision of the tribunal is that the claimant has proved that her work is of equal value to that of her male comparator and she should benefit from an equality clause in her contract of employment.

Appearances:

The claimant was represented by Mr M. Potter, Barrister-at-Law, instructed by Basil Glass & Co., Solicitors.

The respondent was represented by Mr B. Mulqueen, Barrister-at-Law, instructed by Arthur Cox, Solicitors.

This case has been presented by the parties using reports from their respective experts namely, Mr Alister Joynes for the respondent and Mr R. Beddoe for the claimant. The claimant had originally presented an originating application on 1 July 2000, in which she compared herself with four male supervisors including the advertising make-up supervisor. As the case progressed, she acknowledged that her comparator was the advertising make-up supervisor. This was not known to the respondent until the morning of the hearing.

Issues for the tribunal

1. The two issues which concerned the tribunal were:-

(i) Whether the claimant carried out work of equal value to that of her comparator who was the advertising make-up supervisor.

(ii) Whether the difference in pay between the two supervisor posts had nothing to do with the sex of the claimant i.e. that it was a material factor defence under Section 1(3) of the Equal Pay Act (Northern Ireland) 1970 as amended.

Mr Beddoe, the expert for the claimant, undertook a job evaluation study of the claimant and her comparators during visits to the company premises on 19 June and 6 August 2003. He acknowledged that the relevant date for comparative purposes is July 2000. The tribunal accepted that the newspaper industry had changed considerably during the last five years and in particular Morton Newspapers in their Craigavon plant had restructured the type setting and the advertising make-up departments and had reduced numbers of personnel accordingly. The period that the tribunal focused on was July 2000.

Factual background

2. The claimant was employed by the respondent from 1987. She started as a type setter and was the first female in that department. There was a re-organisation of the department in 1989 and from having been an all male department apart from the claimant, it became an all female department in 2000 with twelve people and one male employee. The claimant became a supervisor of the two departments namely type setting and proof reading. The claimant was responsible to Mr Leslie White the production manager. It was agreed that the departments in the production area were type setting and proof reading supervised by the claimant, advertising make-up supervised by Mr Lawrence Cinnamon, camera room and page make-up departments. There were approximately fourteen people in the advertising make-up and they were predominately male with one female in that department called Valerie. There was a night shift as well but that was not a comparative position for the claimant.

The claimant's duties

3. The claimant gave detailed evidence in relation to her job and this was not challenged to any extent by the respondent. She drew attention to the following tasks:-

(i) She was responsible for a range of duties including training, recruitment, news items, sport, classified and TV listings. She managed two departments namely typesetting and proof reading whereas Mr Cinnamon managed one.

(ii) She worked very closely with the ad make-up department. If there were mistakes in the advertisements passed to her department she had a responsibility to rectify them and to get more adequate instructions.

(iii) She was responsible for training proof readers.

(vi) She had to delegate and prioritise work to ensure that deadlines for the various regional papers were met.

The tribunal accepted that the advertising make up and typesetting departments were part of a continuous production process to ensure that newspapers were printed and delivered to tight deadlines.

(v) She had responsibility for prioritising the different types of copy that came in for twenty three papers and journals each week.

(vi) The typesetting department have to style the copy for the papers and size it they style advertisements for cars, by font and by size. She acknowledged that ad make up do the layout and the typesetting department does the type.

(vii) There was an issue between the parties in relation to outside contacts between the claimant and Mr Cinnamon. The claimant stated that she had many contacts outside with journalists, advertising managers' representatives, receptionists and that she had to make these contacts if the advertising make up department had not sorted out any problems with the advertisements because the typesetting was the important part of the process of getting the newspaper to print. The claimant emphasised her role in training her staff and said that it took six months to train up a proof reader. She drew attention to the fact that the ad make up supervisor does not recruit or train his staff.

4. The tribunal accepted evidence from Mr Leslie White who was the production manager and supervised all the departments. He stated that the claimant had two more years' supervisory experience than the advertising make up supervisor but the tribunal acknowledged that both the claimant and her comparator had many years of supervisory experience. Mr White emphasised that the work flow was very important and the claimant had to be aware of what was required in her department and the advertising make up department. He said that Mr Cinnamon was responsible for servicing and finishing the advertising page make up and he stressed that there was an inter relationship between the two departments as they work very closely together. She had to be able to typeset late advertisements which came in. He acknowledged that the advertising department depends solely on proof reading/typesetting for the final version of the papers. He acknowledged that many of the large advertisements are produced by outside agencies and are sent by computer to the paper for insertion. There is no input from the advertising make up department on those other than passed to the quality control supervisor who does the marking up and typesetting for the claimant's department. Mr White acknowledged the claimant's role of dividing work when the couriers came to the office with inserts for the various papers.

Mr White drew attention to the advertising make up supervisor's responsibility to know the various clients and the way that the advertisements should look. Mr Cinnamon has to pass the advertisements into the typesetting department which in turn will proof read them, make any corrections and check with the advertising make up department.

He acknowledged that he did not have to spend much time in typesetting/proof reading departments and most of his time was spent in the advertising make up department because problems in that department resulted in lack of advertising revenue for the papers. He acknowledged that the claimant received all the stop press editorial copy which had to be typed up urgently to get into a paper. He also acknowledged that Mr Cinnamon acted up when Mr White went on holiday.

The job evaluation studies

5. The tribunal did not appoint an independent expert in this case. It had never been requested by either party and the tribunal was satisfied it could consider the evidence of the two job evaluation schemes put forward by each party. Mr Joyne's report was commissioned by the managing director of the company, Helene Hanna. She was aware that the claimant had a grievance and that she was taking a claim to a tribunal. The respondent stated that there had never been a job evaluation exercise done for the Morton Newspaper Group. The tribunal accepted that Mr Joynes was a management consultant. He agreed that this was the first equal value exercise that he had done. He decided to use three different schemes to ensure as fair a result as possible. In his experience with job evaluation schemes the results can be criticised if there was only one scheme followed. To use his words he said that "he used three to leave no stone unturned on the factors". He stated that they were all schemes he had used before but he did agree that they had been used to evaluate jobs in a work force rather than in an exercise to compare specific jobs. He was quite clear that he should be using weighting and scoring, because weighting gives an additional value to some areas rather than others.
6. He decided that there would be a committee to evaluate the jobs and he asked Mr McManus, who was the operations director, and Mr White, who was the production director, to conduct this exercise with him. It was acknowledged that neither Mr White nor Mr McManus had ever undertaken an exercise like this before and they had never received training other than the morning they spent with Mr Joynes. He stated that they used a number of practice marking sheets but the tribunal did not see any of those practice marking sheets. Mr Joynes spent an hour talking to the claimant and her comparators trying to get a feel for their jobs. He stated that he worked in a number of newspapers previously to this. Mr McManus had given the comparators and the claimant a pro forma job description form and they had filled them in in their own writing. Mr White showed Mr Joynes the work place and explained the various jobs that were going on.
7. The procedure was that Mr White and Mr McManus scored and then they came to a consensus mark with Mr Joynes on each of the categories. Mr McManus recorded the committee score. The scores were agreed and then there was a discussion about the way that the scores had turned out. Mr Joynes took away the score sheets and produced the report. In his report, using three different methods of assessing the two persons it found that under scheme one, there was a difference of twenty six per cent, scheme two twenty eight per cent, and scheme three twenty one per cent. Mr Joynes stated, "In overall terms the post of supervisor in advertising and make-up evaluates at a higher level of some twenty five per cent than the post of supervisor in type setting/proof reading". In his summary he stated that although it has never been formalised as such, the supervisor in advertising and make-up is generally accepted as the deputy to the pre-press manager whenever he is on leave. This has not been taken into account in the foregoing

evaluation process. The tribunal did question why that phrase was put into the report if not to highlight the question of people's "worth" to the company which seems to have been the basis for Mr Joynes' report. It is noted that there was no such phrase put in about the claimant's extra responsibilities at times, and the tribunal concludes that it was put in to explain Mr Cinnamon's "worth" to the company.

8. Mr White gave evidence to the tribunal in relation to his role in the committee scoring system which was undertaken. Whilst we accepted that Mr White was a truthful witness in terms of his work and what he did in the company we were not impressed by his lack of recall in relation to this job evaluation exercise. It became apparent that although he was one of two people scoring at this time there were no records of his participation in the scores and he really had very scant recall of anything in relation to it. Having given evidence on the first day he asked to be recalled to change some of that evidence. We state that we do not put weight on Mr White's evidence in relation to this job evaluation exercise. It is a clear example of why notes and score sheets should be retained if people are scoring independently.
9. Mr Joynes used three different systems to evaluate the jobs of the claimant and her comparators (and in the end the one comparator, Mr Cinnamon). He stated to the tribunal that this was done in an effort to be thorough and fair and he stated that his experience with job evaluation is that people can be criticised for using one scheme only. He used three schemes to "leave no stone unturned on the factors". In scheme one he used the factors of –

education and experience;

human relations and contacts;

variety of tasks undertaken and number of tasks in hand;

supervision received and nature of decisions required

financial responsibilities

degrees of influence under which there was

(a) direct

(b) joint

(c) advisory

(d) indirect.

Scheme two used a different job evaluation plan which was divided into –

(i) Supervisory and managerial responsibility with nine different levels of responsibility.

(ii) Decisions made with nine different levels.

(iii) Supervision received with seven different levels.

(iv) Work complexity with seven different levels.

(v) Special conditions with one level.

(vi) Contacts with eight levels.

(vii) Creative work with eight levels.

(viii) Education with nine levels.

(ix) Experience with nine levels.

Scheme three was based on –

(i) Complexity of duties which was a factor scored by means of grades from

A-F.

(ii) Educational requirements which was scored on a grade from A-F.

(iii) Experience required scored from A-G.

(iv) Accuracy on grades A-E.

(v) Contacts on grades A-E.

(vi) Physical application on grades A-C.

(vii) Job conditions on grades A-E.

(viii) Supervision of others on grades A-F.

These three different schemes were all scored based on the job descriptions filled in by the two comparators and interviews held with the post holders. Mr Joynes three schemes all produced points of scoring based on the various job evaluation factors weightings and ratings. There were a number of scoring sheets produced most of which had been filled in but it was noted by the tribunal that it was a consensus mark reached by all three people. Mr Joynes stated that Mr White and Mr McManus scored but then all three agreed to discuss the scores and a consensus position was agreed. To quote Mr Joynes he said "we looked at respective views, if there was a difference then we discussed it to get a consensus and then to find out why they had allocated that score". Mr McManus recorded the committee score. Mr White stated that he was guided through a system of scoring by Mr Joynes. He did not ask the questions at the interview, Mr Joynes did, and he stated to the tribunal "we were advised what was important on the scoring aspect Mr Joynes did this". He also stated "this was all new to me" and "questions were on worth to Morton Newspapers". He also stated "Alistair (Joynes) gave me advice on what we should be looking for". He stated at one point that he wrote down his own scores on a form a bit like the ones that were exhibited to the tribunal. He said that they did not necessarily reflect the scores that were before the tribunal but there was no documentation available in relation to Mr White's scores. Mr White stated that there were a few meetings with Mr Joynes to deal with the job evaluation exercise and he knew Mr Joynes as he had been a consultant with the company for trade union matters.

Mr McManus gave evidence and we accepted that he filled in the scores. He had drawn up the job descriptions which the comparators had completed. He stated that they spent three to four hours on the job evaluation schemes. He stated that there were no interviews carried out on that day or any other day whereas Mr White seemed to remember that there were interviews carried out with the claimant and her comparator. Mr Joynes who was in charge of the schemes stated that he had the opportunity to meet the people concerned and he had spent time with Mr White as well as the claimant and her comparator trying to get a feel for the job. His evidence was that they did the job evaluation exercise using documentation provided by the comparators and using a series of factors as outlined in his three schemes.

Mr Beddoe's report

10. Mr Beddoe has considerable experience of preparing equal value reports. He based his report on a framework which identified the main tasks and activities for the claimant and the comparator. He interviewed the claimant and her comparators in relation to the work that they did in July 2000. The interviews took place on 19 June and 6 August 2003. His report was based on –

(i) The identification of the main tasks and activities for the claimant and her comparators.

(ii) Analysis of the data to identify appropriate factors and sub factors.

(iii) Development of a relevant rating scale/scoring system.

He considered the question of gender bias in this selection of factors and he then set out the job demands which provided a basis for sub factors. The four demands were –

(A) Knowledge and skill which then had three sub factors –

(a) subject knowledge;

(b) organisational knowledge;

(c) operational skills.

(B) Responsibilities sub divided into –

(a) supervision;

(b) for resources;

(c) initiative and independence.

(C) Effort divided into –

(a) mental effort;

(b) physical effort.

(D) Environmental/working conditions –

(a) avoidable hazards;

(b) working conditions.

Using his sub factor definitions and by evaluating the claimant's job and that of her comparators he came to the conclusion that the claimant's job was of at least equal value to both the ad make up supervisor and the quality controller.

11. Mr Beddoe stressed to the tribunal that a job evaluation for an equal value claim has to be a value judgment therefore there is a subjective element inherent in any scheme. In order to overcome this as far as possible the expert conducting the report must consider the job holders themselves and the demands put upon them in the work place. He stated categorically that one does not look at the value to the business but on the demands to the claimant and the comparator.

The tribunal's preference for Mr Beddoe's report

12. The tribunal has examined the various reports and the markings carefully. We do not intend to go into each category in detail because we are concentrating on the overall basis of the two reports. The respondent prepared a report, having been approached by the Newspaper's Managing Director, in the full knowledge that there was a potential equal value claim by the claimant. Whilst we do not criticise the schemes used as such, it was the basis on which they were commenced that has caused the tribunal to prefer

Mr Beddoe's report.

a. Mr Joynes did not consider the gender break down of the relevant departments before he commenced his scheme, but Mr Beddoe did.

b. Mr Joynes used a committee approach with two senior managers who were also aware that there was a claim for equal pay and the ramifications that this would have for the newspaper plant.

c. There was no explanation of the thirty per cent differential between supervisors pay and that of their staff in the two departments.

As this had resulted in a differential in pay, it would have been incumbent upon the respondent to look at it because it has not proved to be a genuine material factor in the defence.

d. The tribunal was concerned that Mr White was not fully trained in the scoring of these comparators. We conclude that Mr Joynes was the person with the experience and he and Mr McManus had the control of the committee in terms of scoring. The three people did not sign off the marks, it was only one person who signed off their conclusions. We accept that Mr Joynes did not explain this scoring system to the claimant. He did not allow her to see her scores and we accept her evidence that he was in effect trying to put her off bringing an equal pay claim when he had an interview with her at the conclusion of his report. One of the most important pieces of evidence in this case is that Mr Joynes was concerned to look at the jobs from the basis of what they were worth to Morton Newspapers. Mr White confirmed this in his evidence as well. Mr McManus, who had scored on sheets which were produced to the tribunal did not complete a circling exercise in relation to the advertising make-up supervisor, and the tribunal is left to conclude that this may not have been done because the three persons were looking for a way to protect the difference between the scoring for the advertising make-up person and the claimant.

e. The respondent's expert criticised Mr Beddoe's report on the basis that it was too subjective. He stated that he had never seen a non weighted approach such as Mr Beddoe's and he drew attention to some of the areas that Mr Beddoe had left out in the work place. Again in criticising Mr Beddoe's report he drew attention to the fact that Mr Beddoe did not tie up the demands of the post and degree to which the post is valued to the organisation.

f. We did not accept the explanation put forward by the respondent in relation to the way the scoring was conducted and we concluded that Mr McManus, and to a much greater extent, Mr White were capable of being influenced in their scoring by Mr Joynes. We were not satisfied that Mr Joynes' report was focused on the demands of the two jobs as closely as Mr Beddoe's report was. In a job evaluation exercise there is always subjectivity because one is looking at the value of the jobs and the demands placed upon the post holders. We concluded that the value of the jobs in relation to Mr Joynes reports were the value to the company rather than assessing the value on the basis of the demands and skills required for each post holder.

The tribunal was not satisfied on a balance of probabilities that the job evaluation conducted by the respondent was completely transparent or as objective as it might have been if it was based on the demands of the job rather than worth to the company. Accordingly, the tribunal has concluded that the jobs were rated of an equal value as set out in Mr Beddoe's report.

g. The law states at section 1(2)(c) of the Equal Pay Act 1970 that the claimant must establish that she is employed in work which is "in terms of the demands made on her (for instance under such headings as effort, skill and decision) is of equal value to that of a man in the same employment".

h. The tribunal is satisfied that both the parties' experts conducted different job

evaluations, both of which they thought were applicable to the question which had to be resolved. The EAT in Department for Environment Food & Rural Affairs -v- Robertson decision given in October 2003 has recently confirmed that the tests which have to be met before a job evaluation study may be relied upon are strict. An employment tribunal must be satisfied, not only that the scheme is thorough in analysis and capable of impartial application, but also that it is sufficiently detailed to allow the identification of a particular employee at a particular point in a particular salary grade. The burden of showing that such a scheme exists is on the applicant who is seeking to rely on a study for the purposes of claiming equal pay. It may also be necessary to show that in addition to being internally sound and consistent the scheme was actually applied in fair and objective way to produce the evaluations on which reliance is placed. In Harvey on Industrial Relations and Employment Law vol. 3 at K para 101 - 109 the EAT drew attention to the main types of schemes by adding an appendix to its judgement in Eaton Limited -v- Nuttall [1977] IRLR 71 and they set out the various methods which could be used, and the tribunal is satisfied that both experts presented schemes which could be evaluated for the purposes of comparison. The tribunal considered the cases of British Road Services Ltd -v- Loughran and Others 1997 IRLR 92 and Glasgow City Council -v- Maxwell & Others 2000 IRLR 272.

Relevant law

14. The tribunal considered Sections 1(2)(c) of the Equal Pay Act (Northern

Ireland) 1970 as amended:-

1(2)(c) -

"where a woman is employed on work which, not being work in relation

to which paragraph (a) or (b) 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 –

(i) if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and

(ii) if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term".

and Section 2(a) of the Equal Pay Act:

2(a) -

"where the woman is employed on like work with a man in the same employment –

(i) if (apart from the equality clause) any term of the woman's contract is or

becomes less favourable to the woman than a term of a similar kind in the

contract under which that man is employed, that term of the woman's

contract shall be treated as so modified as not to be less favourable, and

(ii) if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term".

as well as Section 1(3) of the same Act:-

1(3) -

"An equality clause shall not operate in relation to a variation between the

woman's contract and the man's contract if the employer proves that the

variation is genuinely due to a material factor which is not the difference of sex

and that factor –

(a) in the case of an equality clause falling within subsection (2)(a) or (b), must be a material difference between the woman's case and the man's; and

(b) in the case of an equality clause falling within subsection (2)(c), may be

such a material difference".

Genuine material factor defence

13. We have accepted Mr Beddoe's findings that the claimant's job was of equal value to that of the advertising make up supervisor in July 2000. The questions then for the tribunal are why the two persons were paid differently. The respondent has put forward the factual situation that all supervisors were paid thirty per cent more than the highest employees' salary whom they supervised. They acknowledged that there was such disparity in the pay rates in July 2000. The tribunal accepted the evidence that the claimant's department was predominately female i.e. all women apart from one male, similarly the advertising make up department was predominately male. We accepted that Mr Joynes did not consider this gender difference and it is a factor which should have been taken into consideration to make sure that those assessing the jobs were aware of this difference. The respondent did set it out in a notice of appearance. An explanation for inequality of pay can justify gender differential where –

(a) the variation is genuinely due to a material factor and,

(b) the factor is not tainted by sex.

14. In order to be able to rely upon the thirty per cent rule as a material factor for the pay difference the respondent has to show by evidence that it was not tainted with sex discrimination. They have not been able to do this because the evidence has shown that the departments were predominately male and female respectively and the pay of the two persons in comparison was different. The difference does not relate to the demands of the job holder and her comparator, rather it relates to the pay of the persons whom the claimant and her comparator supervise so this thirty per cent difference had nothing to do with the demands her job. Accordingly, the tribunal does not find that the thirty per cent differential in pay constitutes a genuine material factor on which the respondent can rely. In conclusion the tribunal has found that the claimant's job was of equal value to that of the advertising make up supervisor in July 2000. She is entitled to the benefit of an equality clause in relation to her contract of employment. We have not considered any other remedy at this stage and it is hoped that the parties will be able to address this issue without further recourse to the tribunal.

Vice President:

Date and place of hearing: 6-10 June 2005, Belfast.

Date decision recorded in register and issued to parties: