Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McLaughlin v University of Ulster [2010] NIIT 04767_09IT (01 February 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/04767_09IT.html
Cite as: [2010] NIIT 04767_09IT, [2010] NIIT 4767_9IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REF: 4767/09

CLAIMANT: Rose Marie McLaughlin

RESPONDENT: University of Ulster

DECISION

The unanimous decision of the tribunal is that the equal pay claim under Section 1(2)(b) and (6) of the Equal Pay Act (Northern Ireland) 1970 (the rated as equivalent claim) is dismissed.

Constitution of Tribunal:

Vice President: Mr Noel Kelly

Members: Mr Norman Wilkinson

Mrs Theresa Madden

Appearances:

The claimant was represented by Mr Michael Potter, Barrister-at-Law, instructed by Thompsons Solicitors.

The respondent was represented by Mr John O’Hara, Queen’s Counsel, and Mr B Mulqueen, Barrister-at-Law, instructed by the University of Ulster Legal Service.

THE ISSUES

1. This is an equal pay claim in which the claimant alleges that she is doing work which has been rated as equivalent with that of her comparators and that she is doing work of equal value with that of her comparators. The respondent denies each claim and in the alternative argues that it has a genuine material factor defence for the purposes of the Equal Pay (Northern Ireland) Act 1970 (‘the Act’).

In the course of Case Management Discussions, it was decided that the rated as equivalent claim together with the genuine material factor defence to that claim should be heard first and this decision relates only to those issues. The issues for determination in this decision are therefore:-

(i) whether a document which was ‘leaked’ to Unite and which purports to show the scores awarded for certain bench marked posts under the HERA methodology, including the score awarded for the claimant’s post and for her comparators’ posts, should be admitted in evidence?

(ii) if so, whether on the basis of that leaked document the claimant should be regarded for the purposes of Section 1(6) of the Act as having been employed on work rated as equivalent to that of her male comparators?

(iii) if so, whether the respondent has established a genuine material factor defence to the rated as equivalent claim for the purposes of Section 1(3) of the 1970 Act?

THE HEARING

2. Over four days, the tribunal heard evidence from the claimant, Mr Richard Fox, the Chair of Unite in the UUJ, Mr James Shaw, a Unite shop steward who participated in the bench mark scoring exercise, Mr Ronnie Magee, the respondent’s Director of Human Resources, Ms Roisin Cowan, the respondent’s Human Resources Systems Manager and Mr Philip Perlan, an independent consultant who had been engaged by the respondent in relation to pay and grading. The tribunal was also taken through two lever arch folders comprising some 1,800 pages of documentation. The claimant and the respondent lodged written submissions. Copies of those submissions are appended to this decision. A panel meeting considered those submissions on 7 January 2011.

GENERAL BACKGROUND

3. There was no significant dispute between the parties as to the basic facts underlying this claim.

4. The respondent is a Higher Education Institution which at all relevant times employed both the claimant and the comparators who were named by the claimant for the purposes of her equal pay claim.

5. The claimant has been employed by the respondent since 19 November 2001. Her substantive post, at all relevant times, was Nursery Assistant. In November 2008 the claimant was temporarily promoted to Room Leader, the next highest post in the line management chain.

6. The comparators named by the claimant were security guards.

7. The relevant trade union during the build up to this claim was Amicus. Amicus later merged with another union to form Unite the Union and, for ease of reference, the trade union will be referred to as Unite throughout this decision.

8. Before April 2006, the respondent, like other Higher Educational Institutions in the UK, had a variety of separate grades which were each subject to separate national pay bargaining structures.

9. A National Framework Agreement (‘NFA’) had been negotiated between management and several trade unions, including Unite. It was published in July 2003. The NFA was intended to modernise pay arrangements throughout the Higher Educational Sector in the United Kingdom, and to achieve various aims, including ensuring equal pay for equal value.

10. The NFA proposed a single pay spine to cover all staff (with limited exceptions which are not relevant to this decision) previously covered by separate national pay bargaining structures.

11. The Framework Agreement provided that ‘every Institution covered by this agreement will adopt pay and grading structures which’ apply principles which inter alia , were described in the following manner:-

“Have been developed in partnership with the recognised trade unions, working to reach negotiated agreements on a timely basis.

Link with the nationally determined pay spine in a clearly defined rational and orderly manner.

Support the achievement of equal pay for work of equal value, with the application of pay points to staff being transparent, consistent and fair.

Base the allocation of staff to grades on the outcomes of job evaluation/role analysis arrangements which enable equitable, consistent and transparent judgements to be made about the relevant value or size of jobs, apply institution wide, covering all groups of staff, reflect the JNCHES guidance on job evaluation/role analysis, have been administered in consultation with the recognised unions, provide access to appropriate review procedures in the event of disputes about creating outcomes.

Have regard to the resources likely to be available to the institution.”

12. The proposed new national pay scale comprised 51 points. It was agreed between management and all the trade unions, including Unite, that this 51 point pay scale should be divided into nine separate grades.

13. The next issue to be agreed was the positions of the grade boundaries on that 51 point scale, ie the top and bottom points for each of the nine grades. In accordance with the NFA, the respondent decided to conduct a bench marking exercise in relation to certain posts. It was agreed between the respondent and all the trade unions that the bench mark posts would be placed on a pay spine in accordance with the bench mark scores awarded during the job evaluation exercise and that the non bench mark scores would then be matched with the bench mark posts and assimilated on to the new pay spine accordingly.

14. Two hundred and twenty-three representative posts including the claimant’s post and the posts of her comparators, were bench marked using the HERA methodology. That methodology will be described later in this decision.

15. When the results of the bench marking exercise started to come through, in the course of May 2006, the respondent was concerned that they did not demonstrate sufficient ‘grade clustering’. In other words the results emerging from the bench marking exercise demonstrated that different post holders, who were at that point on the same pay scales, were receiving significantly different scores when their posts were bench marked. The existing grading structure did not seem to reflect relative job weights to any significant degree and the respondent concluded that there was a significant risk of a large number of staff being red circled.

16. ‘Red circling’ would occur when points scores for particular posts justified a pay point on the new scale which was lower than the current rate of pay. The pay of those post holders would then be protected over a four year period. Those post holders would be ‘red circled’.

17. The bench mark results for three separate groups of staff, the academic related staff, the clerical/secretarial staff and the technical staff showed a potential for 30% of the posts to be red circled.

18. The respondent identified two different ways of dealing with the problem:-

(i) To apply the bench marked outcomes as previously agreed, ie to move the bench marked posts on to the new pay spine as indicated by the HERA scores; to red circle accordingly and then to match all non bench marked posts by a process of assimilation with, again, red circling as appropriate.

(ii) To agree a separate and new process of matching all existing posts, including the bench marked posts, to the proposed 51 point scale on the basis of each post holder’s existing salary. Over the subsequent four year period efforts would be made to ensure that those posts would be altered as necessary so that the posts held by each individual, at the end of that four year period, properly matched the job weight and pay accorded to them on the new pay spine. (For ease of reference, this will be referred to in this decision as ‘the alternative option’.)

19. The respondent’s evidence was that management and the trade unions, including Unite, had agreed to take the alternative option, ie that all posts, including the bench marked posts, would be assimilated on the basis of existing pay and then modified as necessary over a four year period to achieve a proper result. The evidence from the claimant’s witnesses and, in particular, Mr Fox, was that Unite had not agreed to that option. Given the importance of this issue, it appeared somewhat surprising to the tribunal that neither party could produce definitive documentary evidence to support their differing positions on this crucial issue. However, it is important to remember that whether or not Unite agreed, disagreed or participated in the alternative option does not bear directly on the issues to be determined in this decision.

20. Mr Fox had been a member of the Joint Steering Group which had been tasked to implement the NFA. That Group contained representatives from the respondent’s HR Department and from each of three trade unions, Unite, AUT and Unison. The benchmarking process using HERA methodology had been agreed by the group. A subsequent matching process whereby non-benchmarked posts were to be matched with benchmarked posts and placed on the new pay spine had also been agreed between the unions and the respondent.

Mr Fox’s evidence was that the respondent had, in May 2006, proposed a ‘fudge’, ie the alternative option of assimilating staff on the new spine on the basis of existing salary and correcting anomalies over a four year period.

It is clear from the correspondence, to which the tribunal has been referred, that Unite wanted grade boundaries to be defined before participating in the matching exercise (the alternative option). Mr Fox’s evidence and the submissions of the claimant were that Unite refused to accept the alternative option because it did not address the equal pay issue and because it could perpetuate pay inequality. It is however clear that the other two trade unions involved in the process did accept the alternative option and did fully participate in the process.

Unite adopted the initial position of participating in the matching panels for posts held by other trade union members but not for posts held by members of Unite. They then participated fully in the appeal processes following the decisions of the matching panels.

From the correspondence it seems that Unite did not oppose the alternative option in principle; that their dispute was primarily in relation to the fixing of grade boundaries. That does not correspond with the evidence given by Mr Fox. In the course of his evidence, Mr Fox also emphasised what he saw as a breach of a national agreement (‘the NFA’) in introducing the alternative option in the place of the original agreement. That principled view does not appear to have been raised by Unite’s full-time official in 2006 as the reason for Unite’s partial participation in the alternative option.

21. The HERA process had produced firstly a point score for each bench marked post and secondly a role profile, expressed in general terms for each of the nine grades to be implemented in August 2006. The HERA point scores were used by the respondent to provide a ‘line of best fit’ for existing grades on to the new 51 point scale.

22. During the bench marking process, the relevant posts had been assessed against 14 elements, with the assistance of answers to 50 questions.

23. The assimilation/matching process under the alternative option took place in early 2006. Existing posts were matched with the role profile of the grade corresponding with the post holder’s current salary. If that was not considered a good match, the matching panel (sometimes referred to as the profiling panel) would consider other role profiles (grades). This happened in some instances but there was no specific evidence before the tribunal to indicate how often this had occurred in reality.

24. Matching panels were comprised of two people who were trained in the HERA methodology, one from the management side and one from the relevant trade union. As indicated above, Unite participated in this process in respect of posts held by members of other unions. It is perhaps surprising that they did so, given that Mr Fox’s evidence before this tribunal was that Unite had opposed the introduction of the alternative option put forward by management.

25. The post holders were moved across to the 51 point scale on the salary point which was next highest to their current salary. Therefore the claimant together with all her colleagues received a small pay increase. The technical grades and the clerical grades fared particularly well in that part of the exercise.

26. Each post holder, once they had moved across to the new 50 point pay spine could:-

(i) challenge the suitability of the role profile used and approximately 50 post holders did so;

(ii) appeal formally against their grading on the new pay spine and approximately 118 post holders did so;

The alternative option provided for a four year period during which the position would be reviewed and during which red circled post holders would be enabled to either move to more appropriate posts or to have their existing posts enhanced to justify the red circled salary.

27. An equal pay audit was conducted in 2006 on the implementation of the assimilation process and then again in 2010, after the end of the four year period. That latter audit was conducted jointly by the trade unions and management. The Unite representative was a Mr Devine. It concluded that there was no further need for red circling. It gave a clean bill of health in terms of the gender mix in each of the nine grades and in terms of the salary differential between males and females.

28. It seems clear from the documentation that Unite took part in the preparation of the report in the 2010 pay audit and it seems equally clear that this was a unanimous report with no dissent from the Unite representative.

This is significant because Mr Fox’s evidence was that the Unite representative on the working party which produced the report dissented from the conclusion in that report. Mr Fox stated that adequate data had not been provided to Unite and that his ‘understanding’ was that Mr Devine, the Unite representative had disagreed with the outcome of the 2010 pay audit.

Mr Fox’s evidence on this point appeared to the tribunal to be vague and evasive, and frankly not credible. In relation to almost every other part of this case, Mr Fox possessed an encyclopaedic knowledge of the documentation, being able to refer the tribunal, from memory, to individual documents in the two substantial lever arch folders. Mr Fox was the Chairman of Unite in the respondent’s organisation. If there had been dissent on an issue as important as the outcome of that audit, he would have been in a position to be more specific than simply indicating his ‘understanding’. Furthermore, Mr Devine was not called to give evidence and there was no documentary evidence of dissent.

THE LEAKED DATA

29. The claimant, in her own right, participated in the equal pay audit in 2010. It was made clear to the claimant that the purpose of the audit was to ensure that her post had the correct generic role profile, ie that her post was currently graded. In respect of both her substantive post and her acting-up post she confirmed that the post matched the generic role profile. Mr Fox, somewhat grudgingly, accepted in cross-examination that ‘in theory’ the claimant could have argued that her substantive post and indeed her acting-up post should have been graded higher. The claimant was not a long-term Unite member and in fact had only joined Unite when she was shown the ‘leaked data’ by Unite and the possibility of a ‘rated as equivalent’ claim was raised. However, she was a member of Unite and had access to advice from Unite at the time she participated in the equal pay audit, and this was some time after her equal pay claim had been lodged. While this issue is not directly relevant to the issues to be determined in this decision, it is simply extraordinary that an equal pay claimant should, in clear terms, and shortly before the tribunal hearing, state that her post was correctly graded. One of the issues that has to be determined is whether the ‘leaked data’ can be trusted. The circumstances outlined above strongly suggest to the tribunal that this is not a genuine equal pay claim and that must impact on how the tribunal views the ‘leaked data’.

30. That leaked data included the staff number, work area, name and HERA point score of each of the 223 bench marked post holders.

31. It also included the staff number, work area, name and HERA point score for a William Morton whose post was not part of the bench marking process.

32. The claimant’s post and the comparators’ posts were included and the document indicated that the bench mark score for the claimant’s post was 219 points and 208 points for the comparators.

33. The respondent became aware that Unite had received this anonymous document and Mr Magee stated in evidence that the respondent had then decided to destroy the link between the names of the individual post holders and the bench mark scores and other data in relation to the bench mark posts. Mr Magee stated that this was done by the respondent to protect the integrity of individual employees’ personal data. The link was destroyed ‘some time in May 2007’. The result of this decision was that the respondent was no longer able to identify the HERA point score awarded to any individual post and therefore awarded in respect of any individual post holder. In particular it meant that the respondent could not verify, or indeed deny, that the claimant’s post had been awarded a HERA point score of 219 points.

34. Various bench marked post holders sought release of the bench mark scores under the Data Protection Act and the respondent was no longer able to provide that information.

35. The decision to destroy the link was criticised by the Information Commissioners Office (ICO). On 9 September 2006, the ICO held that the information sought was “likely to constitute personal data”. The ICO had been unable to establish precisely when the link had been destroyed. That in itself appears surprising to the tribunal. The tribunal would have thought that a decision of this importance ie a decision to effectively anonymise data obtained in the course of a job evaluation exercise would have been properly documented and that it would therefore have been relatively easy to determine when and in precisely what circumstances the link had been destroyed. The ICO further held that it was ‘unlikely that the University of Ulster had acted in compliance with the Sixth Data Protection Principle’.

36. If indeed it had been the case that the respondent was solely concerned about the integrity of personal data and that this concern had been its motivation in destroying the link between individual posts and the bench mark scores, it would appear that there was nothing which would have prevented the respondent from destroying that link but at the same time, retaining a hard copy or a separate electronic record on disk of the entire bench mark data, in a secure place. No satisfactory explanation was given by the respondent for its failure to take what would appear to have been an elementary step.

37. The respondent’s document retention scheme made it plain that job evaluation data was normally to be retained for five years. This clearly was not done.

38. The decision to destroy the link was taken by Mr Magee, the respondent’s Human Resources Director, after consulting with two colleagues in the Planning and Governance Department in the course of May 2007. One of those colleagues consulted by Mr Magee was Ms Irene Aston, who was responsible for data protection queries within the respondent’s organisation. Mr Magee told Ms Aston that he was going to destroy the link at some point during May 2007.

39. Another trade union member, a Mr Alexander, submitted a data protection act subject access request which was refused. The subsequent appeal was submitted to the respondent in August 2007, some three months after Ms Aston had been told by Mr Magee that the link was to be destroyed. Ms Aston responded a further month later on 17 September 2007 and communicated her decision to Mr Alexander that the information sought by him did not ‘constitute personal data’ for the purposes of the Data Protection Act. That decision was clearly wrong on its merits but what is perhaps more noteworthy is that Ms Aston, who did not give evidence to the tribunal, did not disclose in that letter to Mr Alexander that, some four months previously, she had been informed that the link between individual post holders and their bench mark scores was to have been destroyed by the respondent. It would have been simpler, it would appear, for Ms Aston to have simply said that the data sought by Mr Alexander was no longer in existence. She chose not to do so. It was in fact not until 1 November 2007 that the respondent, through Ms Aston, advised Mr Alexander that the bench marking information had been effectively anonymised and that the personal data he sought was no longer in existence.

40. In a detailed letter of 6 June 2008 to the ICO, Ms Aston set out the background to the job evaluation of the bench mark posts and the decision to destroy the link between individual bench mark post holders and the HERA point scores. It was not suggested anywhere in that letter that the decision to destroy the link was taken by the respondent as a reaction to an unauthorised link of documentation to Unite. No mention is made of that link anywhere in that letter. The letter simply states:-

“Following the closure of the project in April 2007, HR reviewed its records and, to protect anonymity and confidentiality in relation to the sample roles evaluated during the bench marking exercise, data were (sic) anonymised by HR by deleting any electronic information that could potentially identify individuals against specific roles or HERA scores.”

41. This letter was a considered response to a regulatory body. Ms Aston was familiar with the Data Protection Act and familiar with the responsibilities placed upon a large public sector employer such as the respondent. Ms Aston stated in the letter that she felt “it is important to set out in some detail the context to aid your assessment”. It is therefore surprising, to say the least, if the leak was the trigger for the destruction of the link, and therefore the anonymisation of the data, that it was not mentioned anywhere in a carefully drafted letter written almost a year later to a regulatory body.

42. Ms Aston in later correspondence with the ICO on 26 June 2008 stated:-

“I am advised by HR that in or around May 2007, other alleged bench mark data began to appear from an unknown source or sources within the University. Since the origins or the originators of the data could not be ascertained, the decision was taken by HR to destroy the links between the bench mark scores and the individuals to protect the individual’s data from unauthorised access/misuse and thus to mitigate against any risk of breach of the data protection principles.”

This is the first time the leak was put forward by the respondent as the reason for the destruction of the link between individuals and HERA scores.

43. It would also appear that in 2009, the previous Vice President of this tribunal directed the respondent in unrelated litigation to conduct a thorough search for bench marking data. An early set of bench marking data was found to have been accidentally retained in the Information Services Department of the respondent. That contained the bench mark scores for approximately 60 posts including those held by three security guards including two of the three comparators originally named by the claimant. Each of those two comparators had scored 209 HERA points, ie a lower score than the score awarded, according to the leaked data, to the claimant.

44. It is clear that in May 2007, the respondent was concerned at the results emerging from the bench marking exercise. It is also clear that Mr Magee, following a discussion with Ms Aston and one other colleague, decided to destroy the link and to anonymise the bench mark scores. The respondent did not disclose to bench mark post holders who had lodged data protection act subject access requests that the information they sought no longer existed. The respondent chose to assert that the information was not personal data when they must have known that this simply was not the case. It took over a year for the respondent to disclose that the link had in fact been destroyed. It took a further year before the respondent alleged to the ICO that it had destroyed the link because of the leak of information to Unite. The action taken by the respondent in this regard seems extraordinary. It destroyed what it must have known was personal data in circumstances where that data was normally retained for five years under its documentation retention policy. Mr Magee acknowledged in evidence that talk of equal pay litigation was commonplace within the University. It knew that litigation in relation to equal pay was a possibility, if not a probability. The respondent’s assertion that it was only trying to protect the anonymity of bench mark role holders in response to a leak of that data to Unite does not seem credible. If that was all the respondent was seeking to achieve, it could have done that by removing the link on the University data base but at the same time, holding on to a hard copy or a copy on disk in a secure location. Again, if their sole motivation was a desire to protect personal data, that could and should have been disclosed at the time to the trade union and to any individual who sought disclosure of that data. Equally a complete explanation could and should have been provided to the ICO at the earliest opportunity. This was not done. Furthermore, the explanation put forward by the respondent simply does not make sense. If, as they assert, they were concerned at the release of the leaked document, they must equally have realised that the document was already in the public domain. Destroying the link between the individual post holders and the bench mark scores on the University’s database would have achieved nothing in relation to the protection of personal data. That horse had already bolted. If, on the other hand, they were going to assert that the data which was contained in the leaked document was inaccurate, or falsified, or an early draft, then it would have been entirely in their interests to have retained the original data in some form, so that any inaccuracies could be properly rebutted. They chose not to do so.

45. Mr Shaw, a trade union shop steward who participated in the original bench mark scoring exercise retained his notes of the workings of the scoring panel which assessed various posts, including the claimant’s, against the 14 elements and 50 questions of the HERA methodology. He disclosed his markings in relation to the claimant to Mr Fox. Mr Fox’s evidence was that he ran those markings through the HERA software to produce a score of 219 points. That matched the score given to the claimant’s post in the leaked document.

46. The 209 point scores for the two security guard comparators which were released separately from information held by the Information Services Department also accorded with the scores awarded to those posts within the leaked data.

HERA Methodology

47. The claimant’s substantive post and the other 222 bench mark posts were scored under the HERA methodology in early May 2007.

48. HERA stands for Higher Education Role Analysis. It is a tool used in 70% of UK higher education institutions to analyse the job weight of posts. It creates role descriptions and role profiles (also described as job profiles) and produces point scores for individual posts. This, according to the respondent’s briefing material for managers, allows the institution to:-

“Assess the relative value of the roles in a consistent and equitable manner. This score can be used to assign posts to appropriate grades or bands in a salary structure.”

49. HERA was created by the University’s competencies consortium in 1994. That consortium comprises some 100 higher educational institutions. The scheme is still in widespread use in the higher educational system.

50. The HERA methodology contains 14 elements which are assessed against the answers to 50 questions.

51. The 14 elements are:-

1. Communication

2. Team work and Motivation

3. Liaison and networking

4. Service delivery

5. Decision making processes and outcomes

6. Planning and organising resources

7. Initiative and problem solving

8. Analysis and research

9. Sensory and physical demands

10. Work environment

11. Pastoral care and welfare

12. Team development

13. Teaching and learning support

14. Knowledge and experience.

Each element has a detailed definition accorded to it under the HERA scheme, eg communication is defined in the following way:-

Communication: covers communication in both formal and informal situations. May include the need to convey basic factual information clearly and accurately; conveying information in the most appropriate format; and explaining complex or detailed specialist information.

52. There is no dispute between the parties that the claimant’s substantive post and the posts of her security guard comparators were evaluated under this methodology and that each was accorded a point score.

RELEVANT LAW

53. This claim raised two distinct legal issues:-

(i) Whether the leaked document which contained the points score for the claimant and her comparators is admissible in evidence;

(ii) whether the initial bench mark score of the claimant (if it can be admitted in evidence) in the leaked data and the bench mark scores of the two comparators (those scores being admitted by the respondent) are sufficient to ground a rated as equivalent claim within the meaning of Section 1(2) of the 1970 Act.

54. Admissibility of evidence

Rule 14(2) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (the Rules) provides that:-

“So far as it appears appropriate to do so, the chairman or tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any statutory provision or rule of law relating to the admissibility of evidence in proceedings before the courts.”

55. That Rule gives the tribunal a wide discretion to admit in evidence information even if that information or evidence is ordinarily inadmissible in other types of proceedings. There appears to be no decided case directly on the point but as an example of how courts have reviewed the exercise of this discretion, the EAT, in Chairman and Governors of Amwell View School v Dougherty [2007] IRLR 198 held that a tribunal was correct to exclude from evidence the recording of the private deliberations of school governors, holding that the recording infringed the “ground rules” at disciplinary hearings which required a respect for the privacy of private deliberations. In contrast, the EAT determined that the tribunal should have admitted the secret recording of an open disciplinary hearing because that open disciplinary hearing was intended to be held in public and it was intended to be the subject of a record.

56. Mr Recorder Luba QC said in paragraph 73 of the Dougherty decision:-

“In our judgement there is an important public interest in parties before disciplinary and appeal proceedings complying with the ground rules upon which proceedings in question are based. No ground rule could be more essential to ensuring full and frank exchange of views between members of the adjudicating body (in their attempt to reach the right decision) and the understanding that their deliberations would be conducted in private and remain private.”

That decision was cited and approved in Williamson v Chief Constable of Greater Manchester [UKEAT/0346/09/DM].

57. In CIBC v Beck [2009] IRLR 740, the Court of Appeal upheld a decision to allow the disclosure of confidential documents in a race discrimination case. In doing so they relied upon the decision of the House of Lords in NASSE v Science Research Council [1979] IRLR 465 and especially the judgement of Lord Salmond at paragraph 34. In CIBE v Beck, Wall LJ (given the judgment of the Court) said this at paragraph 22:-

“22. In our judgement, the law on disclosure of documents is very clear, and of universal application. The test is whether or not an Order for Discovery is ‘necessary for fairly disposing of the proceedings’. Relevance is a factor, but is not, of itself, sufficient to warrant the making of an order. The document must be of such relevance the disclosure is necessary for the fair disposal of the proceedings. Equally, confidentiality is not, of itself, sufficient to warrant the refusal of an order and does not render documents immune from disclosure. ‘Fishing expeditions’ are impermissible.”

RATED AS EQUIVALENT CLAIM

Relevant Law

58. Section 1 of the Equal Pay (Northern Ireland) Act 1970 provides that:-

(1) If the terms of a contract under which a woman is employed at an establishment in Northern Ireland do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.

(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the “woman's contract”), and has the effect that -

(b) where the woman is employed on work rated as equivalent with that of a man in the same employment -

(i) if (apart from the equality clause) any term of the woman's contract determined by the rating of the work 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 and determined by the rating of the work, the woman's contract shall be treated as including such a term.

(6) A woman is to be regarded as employed on work rated as equivalent with that of any men 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 terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value but for the evaluation being made on a system setting different values for men and women on the same demand under any heading.”

59. The Court of Appeal in Redcar and Cleveland Borough Council v Bainbridge [2007] EWCA Civ 929 held that the equivalent GB provision, ie Section 1(5) of the Equal Pay Act 1970 should be interpreted as reading:-

“(5) 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 or her job has been given a higher 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 terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value, or her job would have been given a higher value, but for the evaluation being made on a system setting different values for men and women on the same demand under any heading.”

60. The Employment Appeal Tribunal in Department for the Environment, Food & Rural Affairs v Robertson UKEAT/0273/03 stated that the tests that have to be met before a job evaluation study may be relied upon for the purposes of Section 1 are strict. The 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 proving that such a scheme exists is of course on the claimant who is seeking to rely on the 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 is actually applied in a fair, objective way to produce the evaluations on which reliance was placed.

61. In Eaton Limited v Nuttall [1977] IRLR 71 the EAT set out, in an Appendix to its judgement the main types of job evaluation scheme:-

Appendix

As not all concerned are familiar with job evaluation we set out below a note on the principal methods (see ACAS guide No 1).

Job Ranking

This is commonly thought to be the simplest method. Each job was considered as a whole and is then given a ranking in relation to all other jobs. A ranking table is then drawn up and the ranked jobs are grouped into grades. Pay levels can then be fixed for each grade.

Paired Comparisons

This is also a simple method. Each job is compared as a whole with each other job in turn and points (0, 1 or 2) awarded accorded to whether its overall importance is judged to be less than, equal to or more than the other. Points awarded for each job are then totalled and a ranking order produced.

Job Classification

This is similar to ranking except that it starts from the opposite end; the grading structure is established first and individual jobs fitted into it. A broad description of each grade is then drawn up and the individual jobs considered typical of each grade are selected as bench marks. The other jobs are then compared with these bench marks in a general description and placed in their appropriate grade.

Points Assessment

This is the most common system in use. It is an analytical method, which, instead of comparing whole jobs, breaks down each job into a number of factors – for example, skills, responsibility, physical and mental requirements and working conditions. Each of these factors may be analysed further. Points are awarded for each factor according to a predetermined scale and the total points decide a job’s place in the ranking order. Usually, the factors are weighted so that, for example, more or less weight may be given to hard physical conditions or to a higher degree of skill.

Factor Comparison

This is also an analytical method, employing the same principles as points assessment but using only a limited number of factors, such as skill, responsibility and working conditions. A number of key jobs are selected because their wage rates are generally agreed to be fair. The proportion of the total wage attributable to each factor is then decided and a scale produced showing the rate for each factor for each key job. The other jobs were then compared with this scale, factor by factor, so that a rate is finally obtained for each factor of each job. The total pay for each job is reached by adding together the rates for its individual factors.”

62. It is not necessary for two posts to be rated as equivalent for the two posts to receive identical points scores under any job evaluation system. In Springboard Sunderland Trust v Robson [1992] IRLR 261, the EAT held that two posts have been rated as equivalent for the purposes of the Act even though one post received 410 points and the other post received 428 points. Because of the way in which the job evaluation process was structured, each post was allocated to the same grade which spanned posts which had been awarded between 410 and 449 points. The EAT held that in determining whether two posts had been given an equal value within the meaning of the Act, it is necessary to have regard to the full results of the job evaluation scheme, including the allocation to grade or scale at the end of the evaluation process.

63. In Bromley v H & J Quick Ltd [1987] IRLR 456, the Court of Appeal held that the GB equivalent provision to Section 1(6) of the Act required a study which necessitated the evaluation of both the complainant’s work and that of her male comparator. It was not good enough that the bench mark jobs had been evaluated if there had been no evaluation of the claimant’s and her comparators’ jobs in the process. In this sense the use of the description ‘analytical’ was not a gloss on the statutory provision but a convenient way of summarising the need for the study to value in terms of demand under various relevant headings, each worker’s job – not just some. It had to be shown not only that a job evaluation scheme had been carried out but also that it was a scheme which fulfilled the necessary criteria.

64. In O’Brien v Sim-Chem Ltd [1980] IRLR 373 the employer had carried out a job evaluation exercise in co-operation with the trade unions. The claimant and the comparators had been rated as equivalent in the course of this exercise and the employer had failed to implement the scheme because of Government pay policy. The issue was therefore whether the claimant could regard herself for the purposes of the Act as rated as equivalent with her comparator when the scheme had not been implemented. The House of Lords determined that she could. Lord Russell stated:-

“In summary, therefore, I am of the opinion that the words in dispute cannot have the result extended for by the employers. We are offered a number of dictionary substitutes for “determine” none of which appeal to me. The best that I can do is to take the phrase as an indication that the very outcome of the equivalent job rating is to show the term to be less favourable. The next best I can do is to echo the words of Lord Bramwell in Bank of England v Vagliano Bros [1981] AC 107 at 139: “This beats me”, and jettison the words in dispute as making no contribution to the manifest intention of Parliament.”

65. In Arnold v Beecham Group Ltd [1982] IRLR 307, the claimant had been rated as equivalent with their comparator in a job evaluation exercise. However on the facts of that particular case the scheme was never implemented because of an adverse reaction amongst staff in the respondent’s employment. The EAT held that a job evaluation scheme is not complete unless and until the parties have accepted that it is a valid study. On the facts of that particular case the EAT concluded that the employer and the relevant trade union had accepted that the study was substantially valid even though it had not been implemented and the claimant was therefore, for the purposes of the Act, rated as equivalent to her comparator.

66. Harvey at paragraphs 140 to 150 states:-

“It is respectfully submitted that, contrary to Arnold, the better view is that the test and the validity of a job evaluation study is essentially an objective test – even granted that job evaluation is not an exact science (as the EAT remarked in the case). The ultimate judgement of validity must, it is submitted, rest with the Courts and tribunals and not with the employer and unions.”

DECISION

(i) Admissibility of evidence

67. This issue generated a great deal of sound and fury during the hearing and this continued into the written submissions which are annexed to this decision. The claimant accused the respondent of contempt of court and perverting the course of justice in destroying or attempting to destroy the benchmark data. The respondent accuses Unite of misusing personal data in breach of the Data Protection Act and of abuse of process.

68. The guiding principle for an industrial tribunal assessing admissibility is relevance. That said, the discretion to admit evidence must not be exercised capriciously and evidence may be excluded on grounds of public policy as in the Dougherty and Williamson decisions.

69. The relevant factors appear to the tribunal to be:-

(i) The benchmarking data was the outcome of a process originally agreed between the respondent and the relevant trade unions. It had been intended that this data would be used to fix the job weight of the claimant’s post and those of her comparators, and therefore to determine their proper rate of pay.

(ii) The data was not used by the respondent because the respondent thought it showed that too many post holders were overpaid and therefore it would be too expensive to implement the original plan. Pay difficulties, including equal pay, could be better resolved by the alternative option.

(iii) The reason for the destruction of the data was not satisfactorily explained by the respondent and was in breach of its normal documentation retention policy.

(iv) The benchmarking data is potentially relevant to the ‘rated as equivalent’ claim.

(v) If bench marking data had not been destroyed by the respondent, it would have been discoverable at an early stage in these proceedings.

(vi) The issue of public policy which arises on the facts of the present case has not, apparently, been litigated before. On the one hand, the respondent argues that it is contrary to public policy to admit as evidence data which has been unlawfully processed in terms of the Data Protection Act. On the other hand, if an employer conducts a job evaluation exercise but chooses not to implement it, it can still ground a ‘rated as equivalent’ claim – O’Brien v Sim-Chem. It does not appear consistent with public policy that such an employer should be able to avoid that situation by simply destroying the relevant data on its systems and then arguing that a leaked copy is inadmissible.

(vii) In the tribunal’s view the benchmarking data leaked to Unite passes the test of relevance and while it is clearly undesirable that any organisation should process personal data otherwise than in accordance with the Data Protection Act 1998, these issues raised in this case are such that the balance of public policy issues resolve in favour of admitting the evidence.

70. The decision of the tribunal is therefore that the leaked data is admissible in evidence.

71. It is however clear that neither party emerges from this episode with much credit. Unite knowingly possessed and used personal data relating to non-members and that was clearly outside the scope of their registration under the 1998 Act. The respondent, for its part, destroyed the bench marking data in circumstances which have not been satisfactorily explained.

(ii) Whether, on the basis of the leaked data, the claimant should be regarded for the purposes of Section 1(6)of the Act as having been employed in work rated as equivalent to that of her two comparators.

72. The first issue to be considered is whether the leaked data can be trusted; is it a reliable record of points scores given to the claimant and her comparators?

73. This issue has to be determined in the proper context. Section 1(6) only applies where there has been a proper job evaluation exercise. The onus of proof is on the claimant to establish that such an exercise has been completed and to produce the results of that exercise.

74. Whatever view one might take of the respondent’s actions in destroying the link between the data and individual post holders, the claimant faces considerable difficulty in this respect. It is not enough for the claimant to raise a possibility or even a probability that, at one point in the process, certain point scores, had been recorded on a document in respect of the claimant and her comparators. Section 1(6) can only apply to the results of a proper job evaluation exercise and not to work in progress or scores which are not final.

75. It is clear that the respondent, with the agreement of the two other unions, and with some active participation in the process from Unite, chose not to implement the original agreement when initial results began to emerge from the benchmarking exercise. However there is no true analogy with the decision in O’Brien (above) or Arnold (above). In each of those cases the result of the job evaluation was on record. The issue was the failure to implement those results. The situation in the present case is different. There is no undisputed record of the final result of the exercise.

76. The claimant has sought to rely on various matters which she argues corroborate the authenticity of the leaked data. Inter alia, she refers to Mr Shaw’s notes of the scoring panel in which he participated and asserts that Mr Fox ran those records through HERA software to produce point scores which corresponded to those contained in the leaked data. The claimant also refers to the data disclosed in unrelated litigation. That data was itself incomplete and therefore probably an early draft. Reference is also made to the anonymised scores released by the respondent by letter dated 1 November 2007 which indicate that two employees in the same category as the claimant received 219 points. This, the claimant argues, supports the leaked data in that the claimant is shown as having received 219 points.

77. However, the leaked data contains data relating to a post held by a Mr Morton, which was not a benchmarked post. Mr Fox gave evidence in that Mr Morton had a job evaluation grievance but no satisfactory evidence emerged for the inclusion of this post in data which the claimant invites the tribunal to conclude is sufficient to ground a rated as equivalent claim.

78. The inclusion of a non-benchmarked post in the data is, in the opinion of the tribunal, fatal to the rated as equivalent claim. The leaked data cannot be the final result of the job evaluation exercise. If it is to be trusted at all, it is, at best, a mixture of benchmarking data and other data, and therefore, again at best, a draft or an early working document.

79. There is another issue. The leaked data, according to Mr Fox’s evidence, was left anonymously in his internal mailbox. Its provenance is unknown. It could have been altered by the unknown person or persons who supplied the document. The motivation of that person or persons in leaking the data is unlikely to have been sympathetic to the respondent or even that of a disinterested neutral. The possibility of alteration is therefore real.

80. The tribunal has significant doubts about Mr Fox’s credibility. The evidence given by Mr Fox in relation to the 2010 equal pay audit was not credible. There is no evidence that Mr Fox has in any way altered the leaked data to support the claim. However, given the circumstances in which this document emerged, there is no evidence that he did not do so. The fact that the claimant did not join Unite until she was advised of the possibility of a claim arising out of the leaked data did not emerge until the claimant’s cross-examination. Furthermore, the claimant when asked why she had stated in 2010 that she accepted her posts (both substantive and temporary) were correctly graded, said she “didn’t think it had anything to do with equal pay”. Given that the claimant had, before the 2010 equal pay audit, already sought advice from her trade union, this answer struck the tribunal as particularly unconvincing and evasive.

81. After listening carefully to the evidence of Mr Fox and that of the claimant, the tribunal has significant doubts about the motives underlying this claim. It does not seem to be a genuine equal pay claim from a claimant who feels that she has been incorrectly paid less than her male comparators.

82. The other issue therefore is; is the leaked data genuine and unaltered? The tribunal, even if it were not already satisfied that the leaked data could not be regarded as the final results of a job evaluation exercise, would have concluded that the claimant had not discharged the onus of proof placed on her in this respect. The tribunal cannot know who had access to this document before it came into Mr Fox’s possession. Before it came into Mr Fox’s possession, there is at least a significant possibility that it had been altered. The tribunal is not content, again even if it had been satisfied on the balance of probabilities that the leaked data purported to be the final results of the job evaluation exercise, that it could safely rely on the accuracy of the data.

83. A rated as equivalent claim under Section 1(6) depends on the claimant’s and her comparators’ posts being given an equal value in a proper job evaluation exercise. That can only refer to the final and definitive scoring in that exercise. Those results are determinative of job rating and therefore pay and bind both employer and employee. The jurisdiction of the tribunal to determine an equal value claim is removed. Such a result cannot properly rest on leaked draft, or less than final, data of doubtful provenance which the claimant then attempts to underpin by a variety of corroborative evidence. The onus is on the claimant to establish that a job evaluation exercise which satisfies Section 1(6), has been completed and that the claimant’s post has, in that exercise, been given a point score equal to, or higher than, that of the posts held by her comparators. She has failed to do so.

84. The rated as equivalent claim must therefore fail and the issue of a genuine material factor defence does not arise. The equal value claim remains and will be listed for hearing.

Vice President:

Date and place of hearing: 29 November 2010 – 2 December 2010, Belfast

Date decision recorded in register and issued to parties:

OFFICE OF THE INDUSTRIAL TRIBUNAL AND THE
FAIR EMPLOMENT TRIBUNAL

CASE NO 4767/09

BETWEEN

ROSE MARIE McLAUGHLIN

CLAIMANT

AND

UNIVERSITY OF ULSTER

RESPONDENT

CLOSING SUBMISSION ON BEHALF OF THE RESPONDENT

COUNSEL: JOHN O’HARA QC
BARRY MULQUEEN

17 December2010

INTRODUCTION

1. At this stage of the proceedings, there are two questions before the tribunal:

(a) Has the Claimant established that her work has been rated as equivalent (or better) with that of her comparators in terms of, the demands of the job?

(b) If so, has the University established that the difference in pay is genuinely due to a material factor which is not the difference of sex and which is not tainted by sex discrimination as the Claimant contends?

2. If the answer to question 1 is negative, the Claimant has to decide whether to pursue an equal value claim. If the answer to question 2 is affirmative, she can bring no claim under the equal pay legislation.

BACKGROUND

3. Before turning to the specific legal questions, it is necessary to set out the background to the case because it is only against that background that the questions can be properly considered.

4. It is common case that the University, like many others, decided to rationalise the different schemes under which different groups of employees were graded and paid. This was done under the national framework agreement for the modernisation of pay structures (Vol 1, Tab B, page 1, i.e. 1/B/1) agreed in July 2003 by the Joint Negotiating Committee for Higher Education Staff. The Respondent, in consultation with the three recognised Trade Unions, chose to proceed by using the HERA Scheme, i.e. Higher Education Role Analysis. devised and owned by Educational Competences Consortium Ltd.

5. The intended process, agreed with the unions, was to select a range of jobs, score them by reference to identified elements and come up with a result
2

which would lead to grades being identified (for example, hypothetically, Grade 5 might run from 250 - 300 points). The holders of the benchmark posts which had been scored under this process were then to be slotted into the appropriate grade while other employees would then be assessed and also assigned to the appropriate grade.

6. In the event, the benchmark scores were used to fix the grade boundaries but the individual post-holders were then assessed under a generic role profile (GRP), a process which was agreed with the three unions. They were then matched in at the appropriate grade by reference to how they fared under the generic role profile rather than by reference to the original benchmark scores. This came about because, in the judgement of the University, the benchmark scores did not show any clusters around which jobs could be graded. This was primarily to protect the benchmark role holders from any detriment which may result from them having participated in the benchmark process. The Claimant’s union, Unite (and only her union) challenges this development but frankly it is neither here nor there whether Unite agrees with what happened. The legitimacy of the process is not dependent upon this change from the original intention.

7. Unite contends, through Mr Fox’s evidence, that in late Spring 2006, it withdrew from the matching panels because of the decision by the University not to assign the benchmark post holders to grades by reference to their points and, instead, to assign them by application of the GRPs by the matching panels. It is submitted that this is obviously untrue because while Unite did indeed withdraw from matching panels for the jobs of its own members, (even though Mr Fox himself participated fully in the matching of staff members from the other two recognised Trade Unions, including that of benchmark role holders in the manner above). Unite then joined in again at. each of the two stages which were devised to allow for appeals from the matching panels. These stages are described in detail in the letter written by Mr Magee, the University’s Director of Human Resources, which is at 1/C/32 — 38 and, in particular, in the penultimate paragraph at page 34. It is submitted that Mr Fox’s evidence is clearly false — there is simply no rationale from

withdrawing from the matching panels for his given reason and then joining in again at the appeal stage as he accepts he did.

8. On this analysis, the University submits that it is much more likely that the evidence given by Mr Magee is true, i.e. that contrary to Mr Fox’s contentions, Unite did not participate in the matching panels because Unite did not agree on grade boundaries rather than because of the matching process applying to all post including benchmark posts.

9. In any exercise, the unions are likely to do the best they can on grade boundaries for the simple reason that the lower the boundaries are, the higher the grades of their members are likely to be. There is nothing wrong with this - they are simply trying to achieve the best result that they can in the same way as the University, with a limited budget, will inevitably have to have its eye on the financial consequences of lowering grade boundaries and thereby increasing the number of people who are paid higher salaries. What is wrong is the pretence by Mr Fox that Unite withdrew for one reason when, in fact, it withdrew for another, notwithstanding the fact that it then joined in again on the SPD and appeals processes. In fact, he himself personally took part in the appeals processes.

10. A further complication in this case arises from the contradiction between Mr Fox’s evidence and the reality of what happened on the issues of equal pay audits and the Claimant’s acceptance in 2010 of a verification of her grading.

11. The University carried out two equal pay audits, one in 2006 and the other in
2010. Such audits are recommended by the Equality Commission because they are likely to alert employers to problems of discriminatory pay within organisations. They are not mandatory nor required by law but are regarded as good practice. It is submitted that these audits and, in particular, the 2010 audit, are powerful evidence for the University that there is widespread pay equality as a result of the introduction of the new scheme because men and:
women are represented on all grades and because within each grade there is

a mixture of jobs and men and women are paid within a small percentage of each other. The audits do not represent unequivocal evidence that there is no pay discrimination but they point strongly against it. It is submitted that it is significant that in his evidence Mr Fox pretended that the 2010 audit was somehow unreliable because his union did not go along with the finding of the working party. His evidence to that effect is simply not true, a fact which the University submits that Mr Fox well knows. It is regrettably submitted that Mr Fox has deliberately misled the tribunal. The relevant report is at 1/B/257 - 265. The working group included a Unite representative, a Mr Devine. The conclusion is found at page 258 under the heading “Outcome’ and states without any dissent that:

“The working group agreed that from the analysis which had been undertaken during the course of the equal pay audit there were no areas which would give cause for concern or for which further data was required to be provided. Human Resources has however given an undertaken to conduct a regular review of starting salaries to ensure that the University’s pay systems remain free of sex bias. It is also the intention to publicise the final outcomes of the equal pay audit to the wider university community.”

12. In an effort to defeat this point or deflect attention from it, the union relies instead on an article which is in 2/J/6 — 22 from the The Times Higher Education Magazine. This article is dated 13 March 2008 and is based on figures which were available at 2006. In other words, it comes at the start of the process which the University was changing with the introduction of the new pay scales. The evidence of Mr Perlin has dealt with the flaws in this article and questions how significant its contribution is to the debate, if any. It is noted that in the penultimate paragraph in page 6 the article states:

“Thanks to the implementation of the pay framework over the past two years, average pay is higher than the most recent

HESA figures show. It will take a year or two for the full effects
of the framework pay rises to show up in the HESA record.”

In fact, even this statement is liable to cause confusion because while the concession is made about the effect of the new framework pay, the article is based on information from two years earlier. In any event, however one analysis the value of this article and its contribution to the debate, the Respondent submits that there is one basic question which the Claimant and her union cannot answer — why on earth does the union rely on that article rather than the equal pay audit to which it contributed? The answer is obvious - it is trying to escape the reality of the findings of the equal pay audit and is scratching around for any evidence at all which will enable it to do so.

13. In a similar vein, the Claimant herself had her post subject to role verification in 2010. Mr Fox’s evidence was that Unite did not agree with or approve this exercise. In direct contrast, the Claimant’s evidence was that she was advised by her union to take part in it. When she did so, she accepted that her acting-up post was properly graded at Grade 3 (2/F/49 - 65) while her substantive post was properly graded at Grade 2 (21F/66 — 83). This evidence is truly remarkable — on the eve of a hearing of her equal pay claim, the Claimant has agreed in writing, having consulted with her union that she is properly graded at Grade 2. And in an effort to explain this away, Mr Fox has had to lie about the position of Unite on this verification exercise.

14. There is another aspect of the background which the tribunal will have to consider, namely the anonymising by the University of the scores from the benchmarking process. It is not denied that this whole episode is messy. The union will submit on behalf of the Claimant that the University was underhand and dishonest in the way in which it behaved. The University submits that that submission should be rejected and that it should be considered against the following:

(i) The scores were to be kept confidential.

(ii) The University respected that confidentiality.

(iii) Mr Fox asserts that some scores (2/G/1 - 5) were anonymously left in his locker/pigeon hole but he is not exactly sure when that happened.

(iv) Mr Fox accepts that on at least one aspect the document which he has referred to is incorrect, i.e. the presence at the top of 2/G/4 of the name of William Morton who was not the holder of a benchmark post.

(v) The union relies on Mr Shaw’s notes at 2/G/G which were kept outside the process and which are presented as evidence of the Claimant’s actual score, evidence which the University submits as dubious.

(vi) The University provided at 2/G/l 3 the scores for the comparators which were found in a document which had been kept on an old backup record, and therefore is incomplete and cannot be dated or verified.

(vii) The University produced the scores in another case coming from Unite, Scott v University of Ulster, the scores of both the Claimant and her comparators. If the University was being dishonest, it would not produce all of the scores in the Scott case and only some of them in the present case. This simple fact points away from the University being dishonest.

15. It may well have been preferable if the University had not destroyed the benchmark scores but the University’s reasons for doing so are perfectly logical and understandable — the confidentiality which those involved in the process had been assured of and those working the process were supposed to respect had been breached. It now appears from the evidence in this case that Unite is more than willing to take advantage of such dishonest conduct and then, without blushing, accuse the University of dishonesty.

16. It is rich indeed for the representatives of the Claimant to complain about breaches of data protection when Unite has handled, copied and distributed

information which, it accepts, is personal to hundreds of people, including many who are not members of Unite. At the date of the preparation of this submission, the University does not yet have detailed information from Unite about the registration of AMICUS or Unite, an issue to which the University will have to return in a subsequent submission.

17. In any event, the critical point about this evidence is two-fold:

(i) It was part of the process that scores could be and were reviewed and revised as more information came through with other jobs being assessed and scored.

(ii) There is simply no proof before the tribunal of the final agreed benchmark scores for the benchmark post-holders. The documents which have been produced by the Claimant, or on her behalf, through various dubious means, do not include a definitive list of the benchmark scores.

WORK RATED AS EQUIVALENT

18. It is the University’s contention that the tribunal has only fragments of information which are unreliable, inconclusive and which have been vulnerable to tampering and alteration. To the extent that the Claimant’s case that her work has been rated as equivalent to that of her comparators depends on this evidence, the University urges the tribunal to dismiss the case.

19. The University repeats the submission made at paragraph 16 above that there is simply no evidence that the scores which have been produced are the final scores for the benchmark post-holders. Unless that is the case, the Claimant cannot prove that her job has, in fact, been rated as equivalent at the end of the process. Even if they were the final benchmark scores, they could still have been subject to change in the light of further consistency checks when

other evaluations were carried out and before all the evaluations were implemented.

20. If the tribunal is against the University on that point, the University further contends that any scores were not scores assigned at the end of an evaluation process. This is submitted for two reasons. The first is that, as is clear from the evidence in general and that of Mr Magee and Mr Perlin in particular, the process did not, in fact, end until 2010. It certainly did not end in 2006. Only in 2010, after the verification exercise, was the introduction of the new scheme complete (insofar as it could ever be regarded as complete). Indeed, when Mr Perlin was giving his evidence on Thursday, 2 December 2010 to the tribunal, he explained the difference between job evaluation and role analysis and how, once benchmark scores were obtained, those involved may change them by looking at other jobs and vary the scores for entirely legitimate reasons. As the Vice President observed and Mr Perlin agreed, the University would contend that the process is a continuum_while the Claimant would say that the assigning of a score is the final point for job evaluation.

21. The second reason is that even in August 2006, and allowing for SPD and appeal challenges, nothing was decided until everything was decided, i.e. after the verification exercise in 2010. See the evidence of Mr Perlin. During the period from 2006 until 2010 the claimant had four opportunities to have her post evaluated. She chose not to take any of these opportunities and the verification process in 2010 confirmed her substantive Grade 2 status. The University accepts that the process had started but not that it had ended. Accordingly, the work has not been rated as equivalent.

22. In opening the case at the start of the hearing, Mr Potter BL on behalf of the Claimant referred the tribunal to the decision of the House of Lords in O’Brien and Others v Sim-Chem Ltd [19801 1 WLR 1011. It was put forward to the tribunal as authority for the proposition that there is a job evaluation scheme when a score has been assigned to a claimant and to a comparator.
9

23. The University does not and cannot challenge the decision of the House of Lords but it is a decision which depends inevitably on the facts which were before the House and which does not, in the submission of the University, truly answer the question in the present case. In O’Brien, it was accepted that all clerical grades should be graded into one of six grades with individual salaries within each grade depending on the quality of job performance by each individual. The proposed gradings were accepted by the employer and the unions, following which a salary range appropriate to each grade was negotiated. The company then wrote to each employee informing them of the new grade that they were being placed in and the salary range. However, because of government pay policy and pay restraint at the time, the new salaries were not agreed.

24. Against that background, it is entirely understandable that the House of Lords decided that the work of the appellant and her colleagues had been evaluated as being equivalent to that of others who were placed in the same grade. Indeed, such a finding is unavoidable. When an employer tells an employee what their grade is and what their salary range is following an analysis of the jobs, there is a completed scheme for the purposes the Equal Pay Act. That is not the present case, however rather in this case, on the evidence, there was no final assignment of individuals to grades until the matching panels met and reached that decision.

25. Accordingly, while O’Brien is undoubtedly correctly decided, it simply does not cover this case. As Mr Perlin emphasised, benchmark scores are a step towards job evaluation and they contribute to a scheme but unless and until that scheme is complete, the statutory requirements are not met. This is different from saying that the scheme has to be implemented in order for the statutory requirements to be met and that is, in effect, the precise point which is made in O’Brien. It is not open to an employer to prepare, work on and finalise a scheme and then decide not to implement it. If an employer behaves in that way, then women who have been or should be assigned to a certain grade along with higher paid men can legitimately complain that their work has been rated as equivalent and that their pay is therefore to be

equalised. If that were not the law, an employer could shy away froth the result of a job evaluation scheme because it would cost him too much. On any view of the evidence in this case, that is not what happened. Accordingly, the reliance on O’Brien is misplaced and the work done by the Claimant has not been rated as equivalent with that of her comparators.

GENUINE MATERIAL FACTOR DEFENCE

26. If the tribunal accepts the contention set out above in relation to work rated as equivalent, that claim must fail. If, however, it rejects the University’s submission, the tribunal, must consider the genuine material factor defence. In fact, the tribunal must consider that defence in any event because if the work rated as equivalent claim fails, the Claimant can also pursue an equal value claim.

27. The University’s position is that it began to implement in 2006 and completed in 2010 a non-discriminatory scheme for the assignment of grades and salaries to its various employees. In doing so, it adopted and applied the HERA scheme. The University relies in this regard on the evidence of Mr .Perlin which is to the effect that there is any number of variations in the ways in which HERA can be applied and nothing in this case which he has scrutinised invalidates the way in which the University carried the scheme through.

28. This evidence is of great significance because as Mr Perlin has said, HERA is widely used in universities in the United Kingdom, and has never to ‘his extensive knowledge been challenged at tribunals as being discriminatory.

29. The attack on the scheme used in the University of Ulster, as explained by Mr Potter on behalf of the Claimant, is that the scheme is tainted by sex so that the University has no valid genuine material factor defence. This argument is advanced on behalf of the Claimant on the basis that employees are moved from the different old pay scales to the single new pay scale at the next salary point up. Accordingly, it is claimed on her behalf, any pre-existing

sex discrimination is simply carried over into the new scheme and invalidates
it.

30. The University submits that this attack on the scheme is hopelessly flawed for the following reasons:

(a) There is simply no evidence of previous pay discrimination. Therefore, the foundation of the attack on the new scheme fails.

(b) It is a fact that manual staff for example, were all on spot points under the old grading structure and therefore had no incremental progression (male and female) .Under the new Pay and Grading structure all staff in each grade have now the same incremental Pay progression

(c) Even if the tribunal accepts that there is somehow discrimination in the old schemes, it is a deliberate and serious misrepresentation of the work done at the matching panel process to pretend that employees were only moved over to the new scale at the next highest point. That was only the start of the process. The whole purpose of the matching panels; and the reason why their membership included representatives from each of the three relevant unions, was to see if that Grade was actually appropriate in each case or whether a lower or higher Grade was more appropriate. Posts were moved for this reason at initial matching panel and then by SPD and by the appeal process, whether up or down.

(d) The Claimant accepts that she is properly graded at Grade 2.

(e) The Equal Pay Audits, in particular the 2010 audit, have confirmed that the grades are mixed in terms of gender, that they are mixed in terms of jobs done and that the salaries within each grade vary only by a few percentage points between men and women. Those variations in percentage points are within the 5% limit identified by the
12

Equality Commission as being the point at which concerns arise which
have to be further investigated and addressed.

CONCLUSION

31. The case advanced on behalf of Ms McLaughlin is not in reality confined to her. It is an attempt by Unite to undermine and de-stabilise the whole scheme which was introduced between 2006 and 2016. The University contends that the scheme has resulted from a painfully detailed and fair process with many safeguards having been built into it, both in terms of union participation and appeal opportunities. It has resulted in this particular Claimant being appropriately graded at Grade 3 in her acting-up post and at Grade 2 in her substantive post. That is not the University’s contention. That is the Claimant’s own position following advice from her union. In all the circumstances, the University respectfully invites the tribunal to dismiss this case which is of no merit and in which Ms McLaughlin has, in effect, been used by Unite. She was not a member of Unite until the union went to her and she joined the union only after being advised by it of its version of the documents which Unite purports as having been leaked to it. A clearer and more disreputable case of ambulance chasing would be difficult to identify.

OFFICE OF THE INDUSTRIAL TRIBUNAL AND THE
FAIR EMPLOYMENT TRIBUNALS
CASE NO: 4767/09

BETWEEN

ROSE MARIE MCLAUGHLIN

CLAIMANT

AND

UNIVERSITY OF ULSTER

RESPONDENT

CLAIMANT’S REPLYING SUBMISSION

1. The Claimant side reference the original submission which appears to address most of the points made by the Respondent in its submission.

2. These supplementary submissions are confined to discrete points raised which appear to merit some response and the method chosen is simply to respond on a paragraph by paragraph basis.

Paragraph 5

Notwithstanding what was contended up to the hearing, it now appears that the Respondent accepts that the original agreement with all three unions involving matching the non benchmark scores.

Paragraph 6

The agreement with all three unions was that benchmark scores and generic role profiles would be used to determine grade and salary. There was no such agreement that only generic role profiles would determine grade/salary: the Respondent has failed to point to any document confirming such agreement that counters the original agreement.

The proposition that the Respondent reneged on the original agreement because ‘the benchmark scores did not show any clusters around which jobs could be graded’ was not explained in evidence.

Amicus entered into an agreement with the other unions and the Respondent on matching (see page B215). The process was supposed to be an agreed or partnership process.(See pages B2 and B6)

Paragraph 7

Mr Fox was involved in matching panels prior to the introduction of the Magee Fudge (May / June 2006). The Union withdrew from the matching process in July 2006 once the Respondent had clarified its intention to renege on the agreed process.
As Mr Fox explained, Unite withdrew from the Matching Process as a result of the removal of transparency in the process and HR’s unilateral creation of HERA point boundaries with such an apparent high degree of red-circling — this was a breach of

the National Framework Agreement. Also, Unite rejected the proposed “fudge” of Mr Magee to assimilate all staff based on salary, as this would simply perpetuate any inequalities already present in the pay system, and was non-analytical in nature.

The Union acted responsibility on behalf of its members in assisting in appeals etc notwithstanding its opposition to the reversion to assimilation on previous salary.

Paragraph 8

The issues of matching and grade boundaries are inextricably linked. Grade boundaries were to be determined by a line of best fit based on benchmark and non benchmark scores. The Respondent’s abandonment of the agreed process included both an abandonment of a matching process premised on the HERA JES and an abandonment of determining grade boundaries based on the benchmark and matching
data.

To characterise the Union as untruthful based on an illusory distinction between matching and grade boundaries is to misunderstand and or misrepresent the evidence.

In any event Mr Fox’s evidence was that he was only involved in matching non Amicus job categories prior to the fudge (eg on 15 May 2006).

Paragraph 9

It was the decision of Amicus membership that Amicus trained role analysts should take part in appeals.

Paragraphs 10-12

The case is based on the HERA JES. There has been no such detailed analysis of roles since. The adequacy of the Equal Pay Audits is thrown into question by the failure to identify discrimination as illuminated by HERA.

Mr Fox gave evidence that he was aware that Gerry Devine had submitted a letter of concern to the Equal Pay working group regarding the lack of information available to the group. It was Mr Fox’s belief that this was rejected by the Chair of the group.

Paragraph 12

Mr Perlins made the important point that the information in the TES was pre HERA. The point to make is that salaries have remained ‘pre HERA’ in that the HERA JES was not implemented and rather everyone assimilated on the basis of existing salary.

Paragraph 13

Here again Mr Fox unjustifiably gets it in the neck. There is no anomaly or inconsistency between the fact that Unite did not approve or agree the role verification process earlier this year and the fact that the union was content for its members to take part in the process.
At J44 is a memo from Mr Magee to Deans, Directors and PVCs and the third paragraph states that it is not a promotional exercise. This was an exercise to look at whether in HR’s view staff were fulfilling the duties of the grade assigned. It did not allow for those staff who were working beyond the grade assigned. It was a process

which had not been agreed with any of the unions and was in fact only laid out at the start of 2010. The Union did not advise it members one way or the other regarding participation, however it did warn of the dangers of the threatened full-blown job evaluation for those who did not agree their forms, given what had been witnessed in the Appeals process with staff scoring consistently lower than they had as benchmarks.

Paragraph 14

For “messy” one can more accurately insert unlawful.

(iv) Mr Fox provided a compelling explanation as to why Mr Morton was included in the table of benchmark scores as he was being separately assessed as part of a discrete equal pay claim at the relevant time.

(v) This was not put. As indicated in our submission, save as to the validity of the document at G1-5, the evidence on scores was largely unchallenged.

Paragraph 15

“It may well have been preferable if the University had not destroyed the benchmark
scores” implicitly recognises the illegality set out in our submission.

Paragraph 16

It was necessary for the Union to disclose all the names of the benchmark holders in these proceedings for evidential purposes. In particular it was to demonstrate that these were indeed the HERA benchmark scores. It was used for this purpose in evidence.

Further the Respondent relied upon a name in the document in an attempt to undermine that assertion i.e. Morton.

Without the full disclosure neither side would have been able to fully ventilate its arguments on the question of the validity of the evidence as to the Claimant and her comparators’ scores.

Paragraph 17

(ii) The Claimant has established the validity of the scores on the balance of probabilities.

There was no further change of scores following the meeting of the four rote analysts involved in scoring a post, as detailed in Jim Shaw’s evidence. Any such change would have been a breach of process.

Also, the document released late by the University, Gl3-30, shows that in the rank order of UCNS posts the two UCNS1s beside each other fell at positions 14 and 15. Comparison with the document released by the University under freedom of information shows that the worst possible score for this position was 216— still comfortably within the grade 3 boundary and higher than the security guards. The University also highlighted the three UCNS1 posts green-circled in this document at
G28.

Paragraph 18

The assertions made in the first sentence are not based on cross examination — as already indicated, save as to the validity of the document at G1-5, the evidence on scores was largely unchallenged.

Paragraph 19

The Respondent’s witness, Mr Magee, did not challenge the potential or apparent accuracy of the evidence on the scores. His focus was on the disclosure issue. The Respondent’s counsel chose not to challenge the evidence on the scores far beyond questioning the validity of the document at G1-5.

The possibility of alteration of HERA scores was raised in re-examination of Mr Perlin. This is not relevant to this case as there was no such alteration.

Actually there is a long process of verification prior to the letter scores being settled to ensure the final numerical outcome is as accurate as possible.

Paragraphs 20-21

The Respondent case on the pay review process is reminiscent of and as fantastical as “The Never Ending Story”.

The distinction between the HERA JES and either:

(a) the originally agreed process for matching and setting the grade boundaries;
(b) the Respondent’s assimilation based on previous salary;
(c) the subsequent appeals, reviews, audits and verification processes
has already been explained in our submission.

Paragraphs 22-24

We refer to our analysis of the relevant law contained in our submission.

Paragraph 25

Sentence 2 — along with the generic role profile, the benchmark scores are the outcome for the 1-IERA job evaluation scheme. (See B97) Mr Perlin’s accepted this when put. Mr Perlin also accepted that the HERA scheme complied with Section 1(6)

Sentence 3 — A scheme does not have to be implemented.

Sentence 4 from “It is not open to an employer .... “to the end of sentence 6 which ends “... cost him too much.”. These sentences do not appear to ineluctably follow from the previous three sentences. Indeed the reasoning in these three sentences (4-6) appears more probative to the Claimant’s case. One further caveat - surely it is open to an employer to decide not to implement a scheme if it has a valid GMF or an objective justification for taking such a course?

I Paragraph 29
Unite has in no way attacked the HERA scheme, as alluded to here. The HERA scheme is recognised nationally as a job evaluation scheme free from sex bias. The point is that the University used the scheme and then decided to ignore it’s outcomes. The HERA scheme had demonstrated inequalities existing within the University of Ulster but these were ignored. The processes followed locally by HR after the completion of HERA to replicate what had been there previously is what Unite has attacked.

Paragraph 30

The reasoning in this paragraph is threadbare and bizarre. The evidence of previous pay discrimination is substantive i.e. A 49 and the material in the Times Education Supplement.

Most importantly is the HERA JES evidence of discrimination.

The proposition that assimilation was based on existing salary is based on the Respondent’s pleadings — to characterise it as ‘deliberate and serious
misrepresentation’ is somewhat odd.

Indeed it was Mr Magee who stated, including in writing, that all staffs were assimilated based on salary. He also took part in the Matching Panel for the Claimant and awarded a grade 3 profile to her at this panel but later assimilated her based on previous salary as detailed in the letters sent to the Claimant around F29.

To say that the Claimant accepts that she is properly graded at Grade 2 is to twist and mischaracterise evidence. The Claimant has simply accepted that the grade 2 profile requirements are part of her post but has had no opportunity to address the additional requirements of her post over and above grade 2.

The audits have only demonstrated the results of mixing pay scales previously occupied by mainly one or other gender into a single pay scheme without addressing where women have, been working at a higher level than the grade previously prescribed.

The Respondent has spent much of its submission attacking the Union rather than engaging in the customary analysis of relevant law and evidence. As regards the position of the Union, it is submitted that the Union undertook, along with the Respondent and other unions to address the issue of equal pay for work of equal value in higher education. Notwithstanding the Respondent’s departure from the agreed scheme, the Union refused to ignore blatant issues of pay inequality highlighted by the HERA job evaluation scheme.

For and on behalf of the Claimant

21 December2010

IN THE OFFICE OF INDUSTRIAL TRIBUNALS AND THE FAIR EMPLOYMENT TRIBUNAL

Rose Marie McLaughlin

And

The University of Ulster

CLAIMANT SUBMISSION

It is submitted on behalf of the Claimant that she was rated as equivalent with her male comparators in a job evaluation scheme which is valid for the purposes of section 1(6) of the Equal Pay (NI) Act 1970 despite the fact that the scheme was not implemented.¹

It is submitted that Arnold v Beecham Group Ltd [1982] IRLR 307 is wrongly decided and has no application in this case.²

The submission falls into two main parts:

(a) Is there a valid and complete job evaluation scheme? (This includes a discussion of the destruction of data and the validity of data before the tribunal)

(b) Is there a defence?

Is there a valid and complete job evaluation scheme

1. Section 1(6) provides as follows:

“[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 or her job has been given a higher value, in terms of the demand made on a worker under various

___________________
¹Bromley v Quick Limited [1988] IRLR 249; O’Brien v Sim-Chem Limited [1980] IRLR 151; Bailey v
Home Office [2005] 1RLR 369; Greene v Broxtowe District Council [1977] ICR 241; IDS Handbook
Equal Pay pages 144-148.
² Greene v Broxtowe District Council [1977] 1CR 241;1 see Harvey on Industrial Relations and
Employment Law at Part K and paragraphs 134— 150; and IDS Handbook Equal Pay pages 144-148;

headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value, or her job would have been given a higher value, but for the evaluation being made on a system setting different values for men and women on the same demand under any heading’.’

2. To be valid for the purposes of establishing whether work is rated as equivalent for the purposes of the legislation, there are a number of legal requirements:

(a) the job of the woman and her comparator must have been evaluated in the
JES;

(b) the JES does not have to evaluate all the jobs in the undertaking or group of undertakings as long as it evaluates the jobs of the Claimant and her comparator;.

3. Pay must be ‘determined by the rating of the work’, i.e. through a JES.(Section 1 (2)(b)(i))

4. At what point does the rating of the work determine the comparative pay?

(a) The requirements of the legislation, and in particular section 1 (2)(b), bite at the moment when the evaluation study and exercise has made available a comparison which can show discrimination. In O’Brien v Sim-Chem Limited [1980] IRLR 151, a case where a study had not been implemented, at paragraph 19 Lord Russell stated

It seems to be eminently sensible that Parliament should impose the requirements of para (b) [work rated as equivalent] at the moment when the evaluation study and exercise has made available a comparison which can show discrimination.

(b) It is submitted as a matter of law that where JES points totals reveal a Claimant’s job to have scored higher than the comparator’s job, at that point the comparative pay has been rated as equivalent. Translation into a grade is not necessary for completion. However where a Claimant has scored slightly less than the comparator, translation into a grade may be required before equivalency is established in law.³

(i) In Springboard Sunderland Trust v Robson [1992] 1CR 554 the
Claimant scored less than the comparator but her score fell into
the same salary grade. The EAT held that when determining
scores the full results including the grade results were relevant;

________________
³Springboard Sunderland Trust v Robson [1992] 1CR 554; Bailey v Home Office [2005] IRLR 369; IDS; Handbook Equal Pay pages 146-148.
2

(ii) In Home Office v Bailey [2005] IRLR 757 the Home Office conceded that those Claimants with scores equal to or higher than the comparators were RAE (rated as equivalent). The EAT affirmed the finding on the concession and stated that:

The short question is whether the JES has resulted in a conclusion that the job of these ... claimants has been evaluated under section 12(5) as of equal value with the job of the man... [para 32]

(iii) In the IDS Handbook at page 147 the commentary states as follows:

The EAT (in Bailey) seemed to attach some significance to the fact that the Home Office had conceded that claimants who had received scores equal to or higher than their male comparators were engaged on work RAE, intimating that this concession rendered the JES complete. However, we suggest that as it is the tribunal which is the final arbiter of whether or not a JES is valid, the Home Office‘s concession should not be seen as crucial to the EAT’s decision. Thus it appears that if a JES concludes with points scored, that will be a complete study and job value will be assessed by reference to those points.

(c) It is irrational and contrary to European Law and the purposes of the Equal Pay legislation to premise validity on an employer’s acceptance of the results of a study as found in Arnold; this is made clear in the European case footnoted and by the commentatary in Harvey also footnoted.⁴

5. Where there is evidence of a properly constituted job evaluation study having been carried out in an establishment the employment tribunal must act on its conclusions.⁵

6.The case before the tribunal is premised upon the contention that the
Claimant’s job was rated as equivalent following a Higher Education Role
Analysis (HERA) job evaluation study which is valid for the purposes of the
Equal Pay Act (NI) 1970 (as amended). HERA is accepted by the Respondent
as a valid JES (see reply 2 at page A45).

7. The HERA study involves analysing jobs or roles under 14 categories with 50 questions and gaining information from the role holder. The information

_______________________

⁴Greene v Broxtow District Council [1977] ICR 241; EC v United Kingdom of Great Britain and Northern Ireland[1982] IRLR 333; see Harvey on industrial Relations and Employment Law at Part K and paragraphs 134 150; and IDS Handbook Equal Pay pages 144-148.
⁵Halsbury’s Laws of England; Volume 7(2) Paragraph 427;

obtained goes through a process of verification and once settled is graded A-D for each of the fifty questions. The grades are put into the HERA software to give a points total. This total provides the rating of the post.⁶

8. In this case it is alleged that the Claimant’s job was rated as 219 and her comparators’ scores at 208. Consequently it is submitted that the Claimant’s job has been rated as equivalent (and indeed of greater value) as compared with her comparators jobs.

9. HERA evaluated ‘benchmark’ posts. The University in conjunction with the Unions had agreed upon a mechanism for ‘matching’ the rest of the posts ie. those non-benchmark posts which had not been evaluated.⁷

10. At a meeting in April 2006 Mr Fox was informed that benchmark posts were to be matched. This was contrary to agreement as set out at page B215.

11. A meeting was arranged to discuss this development. On 17 May 2006 Mr Magee indicated there could be an issue regarding red circling. Mr Fox queried how grade point boundaries had been formulated and set. The setting of point boundaries was supposed to be done by agreement once the benchmark scoring had finished. The scoring had not yet been completed. Amicus could not understand how the University was setting the boundaries at this point. Mr Magee indicated a proposed alternative or ‘fudge’ assimilating all staff on existing salary. Amicus regarded this as contrary to agreement. They immediately were aware of the dangers in perpetuating pay inequality.

12. A further meeting with Steve Tweed (Full time official with Amicus) was held in June and the University explained that given their placement of the ‘line of best fit’ there were 38 red circled posts and 4 green. Mr Magee refused to explain the science underpinning this placement and the drawing of the pay boundaries. Amicus was in the dark as to how the University had reached this outcome. Amicus refused to agree the proposed fudge because it did not address the equal pay issue and setting the boundaries without their agreement breached the local agreements reached between the University and the three unions. Whilst Unison and UCU decided to go along with the fudge - Amicus did not.

13. On the 1 August 2006 all staff assimilated to the new spine based on existing salary. The Unions met the Vice Chancellor and expressed their concerns in correspondence (see Section Dl of the bundle.)

14. There were two meetings between the Unions and the University in November
2006. The University provided information on how pay boundaries had been drawn. Amicus subsequently was able to put together its own analysis of the HERA benchmark scores in relation to how that could translate into pay.(This analysis was based on the information anonymously received and the analysis is found at page C66.) At these meetings Amicus officials raised the prospect

_____________________

⁶The HERA scheme is summarised by the University at page C 15 I paragraph 3.2.
⁷See page C 215.

of equal pay claims arising out of the University’s approach once the benchmark scores had been obtained and analysed.(This is accepted and indeed Mr Magee amplified the Claimant’s contention that the Respondent was on notice of equal pay claims.)

15. Pay review can manifest as a continuing process involving ongoing equal pay reviews and audits, job evaluation studies, development of job profiles and review of job descriptions and profiles.

16. There is however a fundamental distinction between a Job Evaluation Study, as defined within the Equal Pay Act (NI) 1970, and pay review as a continuing process in all its various manifestations. There is further a distinction between a Job Evaluation Study, as defined within the Equal Pay Act (NI) 1970, which evaluates jobs and the ultimate determination of grade and pay in an organisation.

17. Mr Perlins indicated the HERA scheme finishes with a role profile and a score. The next stage of the pay review or pay and grading process (as opposed to a job evaluation study (as prescribed in the Equal Pay Act (NI) 1970 (as amended)) was not part of the HERA process. Rather it was part of the Respondent’s pay and grading review and was supposed to proceed on the basis of various local agreements.⁸ There appears little or nothing controversial in that. Indeed it appears common case that the University departed from the agreed matching process when it decided in or about April / June 2006 to assimilate all employees to a higher point based on previous salary.

18. Once an employer has evaluated jobs, it can construct grading structures and use pay modelling software to assist. Mr Magee’s evidence in this context was wrong and misleading. Mr Perlins stated that was wrong. Mr Magee would
have been well aware that the HERA software is not used to determine ‘lines of best fit’. This was an attempt to muddy the waters and create an impression that the HERA part of the process did not finish when scores and role profiles were obtained.

19. Mr Perlins further attempted to muddy the water and obfuscate by arguing that the HERA score was only ‘a’ HERA score rather than ‘the’ HERA score. But his example of a changed HERA score in re-examination involved adjustment to the material upon which the A to D scoring is based. Obviously there is the possibility after a matching process to query whether a role has been properly evaluated and to revisit the answers to the 50 questions. A HERA score can be changed in this way. This however is not applicable in this case on the basis of the evidence before the Tribunal.

20. As indicated above Amicus came up with their own system for drawing the boundaries. Mr Magee accepted that his ‘line of best fit’ was not set in stone and that there was no right or wrong methodology on this. Mr Perlins indicated that the LINK pay modelling software enabled the line of best fit to

_____________________
⁸The HERA documentation is found at pages C 96 to 136. Please note page 97.

be moved around and that the relative cost could be ascertained from the software. The Amicus proposal accorded closely to the textbook example outline by Mr Perlin (whereby the majority stay the same e.g. 70%, with approximately equal numbers going up and down e.g. 15% go to a higher grade and 15% to a lower grade.)

21. Some of the main points of Mr Perlin’s evidence are as follows. He accepted that the score reflected the demands of the role based on an analytical approach. He indicated that the HERA scheme finishes at looking at the role and coming up with the role profile and the score. He further indicated that it was unusual not to use the benchmark posts to determine grade and pay. (This is because the HERA score is normally regarded as the rating for the job and determinative of pay and grade.) The approach in this case was described as unusual in not implementing the HERA scores — unusual but “far from unheard of’.(Mr Perlin) He was however able to give only one example.

22. Mr Perlins indicated he was uncomfortable with a scenario of people moving on existing salary, if that was the end of the process, as it perpetuated what was there before. However he indicated that he was comfortable in this case because of all that accompanied the assimilation including appeals, reviews audits etc.

23. Role profiles were created at some stage. It is unclear whether they are HERA role profiles or University role profiles (possibly based totally or partially on HERA generated profiles) although page F29 footnote seems to indicate that these role profiles were generated out of the HERA JES.

24. There is some confusion in relation to documents Hl 16 and F29/23. On one reading the Claimant is graded at 3 and given a profile H116. This is a University document discovered along with H115. However, one can see how it is possible that F23 accompanied F29. It is equally conceivable that H116 was the initial profile and grade but following the fudge F23 was created and attached to F29.

25. The Claimant contention is that H115 demonstrates that the Claimant was being graded at grade 3 as a result of the HERA mark. Another illustration of an initial grading is the document with the red and green shading (G29).

26. Normally the HERA scores are used to determine the pay and grade of the role holder. However this did not happen as in this case the HERA JES benchmark scores were not implemented in conjunction with the locally agreed matching process.

27. To revert to existing salary instead of using job evaluation scores appears unprecedented or virtually unprecedented. Bizarrely Mr Perlin suggested that he had no difficulty with the use of existing salary given the appeals and reviews mechanisms including the 2010 review. Notwithstanding, he made the Claimant’s point that the danger in utilising pre-existing salary is to perpetuate what was there before. It is difficult to see what confidence anyone could have in the University appeals process in the light of C89. This case is

premised on the fact that by reverting to previous salary the Respondent perpetuated the discrimination that the HERA JES identified as regards ‘male and ‘female’ roles, i.e. security guard and nursery assistant.

28. Mr Perlin sought to present Job Evaluation as an ongoing process but was patently unable to identify a point of finality. His evidence in this regard was transparently obfuscatory, difficult to follow and not candid. By over-egging the pudding he highlighted the Claimant’s point that there is a difference between (a) an Equal Pay Act (NI) 1970 compliant job evaluation scheme like HERA which results in profiles and points totals; (b) how an organisation actually determines grade and pay; (c) how an organisation on an ongoing basis keeps pay and grading under review to secure inter alia equality in the workplace. We are only interested in (a) in this case.

29. In conclusion it is our submission, that the Claimant’s job was rated as equivalent (in fact more than equivalent) than the comparators’ jobs at the conclusion of the HERA JES at the point that the HERA software processed the scoring of the accumulated and verified evidence into a numerical score:
219 for the Claimant and 208 for her comparators.

The destruction of the data

1. Where litigation is anticipated to destroy information potentially relevant thereto potentially amounts to contempt of court and/or the perversion of the course of justice.⁹

2. A data holder is required by the Data Protection Act 1984 to process data in accordance with the legislation including the principles contained in schedule 1 thereof. This includes the requirement to disclose personal data to the data subject where it is requested by the data subject.

3. The Respondent’s retention policy provided for the retention of the job evaluation reports and the benchmark scores for a period of five years.(E1)

4. Specifically there was clearly contention over the University’s decision to deviate from the process that had been agreed with three unions in 2005 (page B215) and in particular its decision to (a) set the line of best fit unilaterally; (b) ditch the JES benchmark data; (c) assimilate on the basis of existing salary.

5. It seems clear that the University and in particular Mr Magee was aware of the possibility of equal pay litigation arising in relation to the job evaluation study! HERA study:
(a) Mr Fox gave evidence that the prospect of litigation was raised in November 2006 meetings and Mr Magee not only accepted but amplified this evidence;

⁹Arlidge Eady and Smith, Contempt, paragraph 11.84— 11.87

(b) there was a letter in February 2007 to Mr Magee raising the prospect of talcing the matter externally; (C85)

(c) The University was able to compare the Claimant with the comparators after the 7 June 2007 (page F6) and this could not be done without the benchmark material / with anonymised material;

(d) significantly the Claimant’s union, Amicus (now Unite the Union) lodged a grievance on 7 June 2007 (a pre requisite under the Statutory Grievance Procedure before any equal pay claim can be brought) as well as serving a statutory questionnaire on behalf of the Claimant and her colleagues;

(e) Mrs Irene Aston responded to Mr Alexander in 17 September 2007 indicating that the data was not personal data and as such non-disclosable (page E6). (This view was not shared by the Information Commissioner’s Office (page E26));

(f) In November 2007 Mr Alexander was informed (page E8).that the material had been “anonymised”, in effect, destroyed. This point was not made in Mrs Aston’s letter of 17 September, but surely it would have been if the information had really been destroyed in May 2007 as alleged;

(g) In December 2007 or January 2008 Mr Fox was informed by Human Resources during an appeal that the benchmark scores had been destroyed a ‘few months ago.

(h) The destruction of the benchmark material after November 2006 was it is argued an act of contempt of court and perversion of the course of justice;

(i) Mr Magee states that he destroyed the link thereby anonymising the material in May 2007, but that does not comport with the evidence set out above at sub paragraphs c-g;

(j) Mr Magee further stated that he was well acquainted with Data Protection legislation. However the designation of the material as ‘not personal data’ following consultation between Mr Magee and Ms Aston raises the spectre of the University authorities taking a pragmatic or convenient approach which they knew was not in accordance with the legislation;

(k) Destruction of the link / material was in breach of the University retention policy. It seems incredible that Mr Magee took the step of destroying or ordering the destruction of the material which was (i) evidence (ii)
personal data (iii) material which ought to be retained for five years without documenting such a major decision. Moreover he alleges he did so in May 2007 without making any documentary record of same;

(l) It is submitted that the available evidence points towards a scenario that is damning as far as the Respondent and Mr Magee is concerned — i.e. that the material was destroyed in or about October 2007 and that it was

destroyed in the full knowledge that it was personal data and relevant evidence for prospective equal pay litigation;

(m) Further there is a lingering question over the destruction of the material - some benchmark scores emerged during interlocutory proceedings in Mrs Scott’s case last year. This information confirmed the scores of two of the three comparators. Nursery Assistants, like the Claimant, were interviewed before Technicians like Mrs Scott . Consequently it seems strange that material apparently compiled at a mid-way point in the benchmark process including scores of people who were some of the last to be assessed but excluding scores of people who were some of the first to be assessed remained extant with the rest of the information destroyed;

(n) Amicus were furnished with material purportedly the final benchmark scores in or about September / October 2006 (page G1-5). Their receipt of this material raises Data Protection issues. The disputed material has been used in this litigation. The retention and use of the ‘disputed material’ falls within a backdrop as set out above. The disputed material appears to be the only complete source of the benchmark scores - material which ought to have been retained and disclosed by the Respondent. Whilst the Tribunal can find for the Claimant without the material, its existence is of evidential import and serves to corroborate and substantiate the other material.

6. Mr Fox indicated that he was dumbfounded when he learned that the data had been destroyed. It contravened the retention policy. Moreover if the University did not regard the material as personal data (see the response in September at E5) then there was no reason to anonymise it (see E8).

7. Mr Magee did not appear to demur from the proposition that Gl-5 was gathered in HERA and seemingly accurate. Mr Magee indicated he destroyed the data for sound reasons because of the breach of confidentiality.

The validity of the data

1. The University apparently attempted to destroy the benchmark material apparently in an attempt to protect the confidentiality of the benchmark holders; however the University could have efficiently protected confidentiality without destroying the material which was an unlawful act.

2. Consequently in attempting to succeed in her claim the Claimant has had to cast around for information which can substantiate the JES/HERA scores

3. It is alleged that the HERA JES gave 219 points to the Claimant’s job and 208 points to the jobs of her comparators. The basis for this contention is as follows:
(i) Jim Shaw’s score sheet (page 06) - when put through the HERA software - comes out at 219: as confirmed by Mr Fox’s unchallenged evidence;

(ii) the information obtained from Ms Aston (E l2) when re-arranged in terms of category scores in ascending order substantiates two 219 scores in the relevant category of employee - and comports with the disputed material;

(iii) the recently released information setting out red and green circling indicates three green circled posts at grade 3 (page 029) - only the Claimant and her nursery colleagues could be these employees because grade 3 was equivalent to UCNS Grade 2 and therefore the only posts that could be green were UCNS1 and they were the only staff previously at UCNS 1]; the only positions at grade 2 were red circled so that could not be the nursery assistants as they were never in jeopardy of down-grading.

(iv) the University provided document G13 in or about April 2009 which shows that two of the comparators scored 208 points;

(v) page H 116 appears to indicate that the Claimant was graded at Grade 3 — with the generic role profile being assigned a grade, grade 3. It is submitted that these grade profiles were available to the matching panels. However following the fudge it seems that a new grade, grade 2 was superimposed onto the said role profile — see pages F29 and F23; it appears that the graded profiles were available to the matching panels;

(vi) the disputed material confirms all of the above;

4. The Respondent barely challenged the evidence given by Mr Fox or Mr Shaw in relation to the scores and the referenced documentation save in relation to Mr Fox and the origination of the disputed material at page 01. However it was alleged that the inclusion of Mr Morton’s score at 05 cast doubt on the validity of the material. Mr Fox explained that Mr Morton had his job evaluated separately because of a discrete equal pay issue; that he was present at a meeting with the member and the outcome was consistent with the score on the disputed document.

5. Mr Magee seemed to accept the contention (and certainly did not dissent) that Mr Shaw’s scores when put through the HERA software amounted to 219. Neither did he seek to challenge the plausibility of the proposition that the comparators scored less, at 208.

6. It is submitted that on the balance of probabilities, even leaving out of account the
disputed material, the Claimant has proven that she obtained 219 and her comparators
208.

7. These are HERA scores connoting the points total in a JES where the demands of the job have been analysed analytically, scored and the scores processed through the HERA software. The points totals are final HERA scores and confirm, for the purposes of section 1(6) of the Equal Pay Act (NI) 1970, that the Claimant’s job has been rated as equivalent (indeed higher) than that of her Comparators.

8. There is a job evaluation study — HERA. It is acknowledged as valid for the purposes of the legislation by the respondent and is self evidently analytical as required. Though not implemented, it is integrally complete. And, the evidence on the
10

balance of probabilities establishes that the Claimant was scored higher than her comparators.

The Union’s registration for the purposes of Data Protection Legislation

1. Amicus was registered with the Information Commissioner’s Office (ICO). This would have been in or around 2002 when Amicus was formed following a merger of two separate trade unions - AEEU and MSF.

2. Amicus then ceased to exist as a separate trade union following its merger with the
Transport and General Worker’s Union in May 2007 when the newly merged union
became known as Unite the Union. The Amicus entry was deleted by the ICO and we
have no copy of the original entry. From recollection the Amicus entry was deleted by
ICO in or around December 2007.

3. Unite the Union registered with the Information Commissioner’s Office on 17 December 2007 and a copy of that entry is available from the ICO.

The Union’s use of the data

1. The data at G l-5 was provided anonymously to the Union in late September early October 2006.

2. The Union retained the data and used it solely in connection with litigation.

3. Personal data is exempt from the non-disclosure provisions where the disclosure of
the data is necessary:

-for or in connection with any legal proceedings (including prospective legal
proceedings);

- for obtaining legal advice;

- for establishing, exercising or defending legal rights.¹⁰

4. In Mensah v Jones the disclosure of personal data for the purpose and in connection with legal proceedings was considered by the Chancery Court in London.” An incident occurred involving Doctor and Patient and the patient was suing the Doctor for assault. The Doctor sent the Plaintiffs medical notes to his legal advisers to obtain advice on whether some or all of same should be disclosed. The Plaintiff (patient) in this action alleged that disclosure of his medical records was unlawful and a breach of his personal data protection under the legislation. Mr Justice Lightman stated:

In my view ... the disclosure was indeed necessary for it was indeed necessary to enable Dr Jones to have legal advice as to the extent of his obligation to make disclosure in a case where the full surrounding circumstances relating to the incident may be relevant.

___________________________
¹⁰Data Protection Act 1998 section 35 and schedules 2 and 3. See Data Protection Law and Practice
by Rosemary Jay (third edition) at page 565.
¹¹Mensah v Jones [2004] EWHC 2699 (19 November 2004) 11

5. In this case the Union has held onto the material to protect the rights of data
subjects. It and has only used the material in connection with the equal pay litigation arising out of the Respondent’s conduct since May 2006.

6. It is submitted that in using the material to put together the information at C66 and substantiate the claim in relation to the HERA scores, the Union has simply utilised the material as necessary for establishing legal rights, in relation to prospective legal proceedings and in the course of legal proceedings.

7. The Union has further held onto the material because the Respondent its servants and agents have perverted the course of justice and acted in contempt of court by
destroying the data and the material remains a potentially important source of
evidence as regards the HERA outcomes for benchmarked job holders. Indeed the
only reason that the question arises is the unlawful conduct of the Respondent its
servants and agents. –

Is there a defence?

There are two possible defences open to the Respondent:
(a) The genuine, material factor defence;
(b) The justification defence;

The genuine material factor defence

1 .An employer who can put forward as the reason for the pay differential a reason which is (a) genuine and not a sham; (b) a material factor — i.e. significant and
relevant; (c) and which causes the disputed variation in pay, will successfully be able to rely on Section 1(3) unless the reason is tainted by sex discrimination
(usually indirect discrimination).¹²

2. In Ministry of Defence v Armstrong and others [2004] IRLR 672 Cox J stated that:

“in approaching these issues technicalities should be eschewed. The fundamental question for the tribunal is whether there is a causative link between the [claimant’s] sex and the fact that she is paid less than the true value of her job as reflected in the pay of her named
comparator”.

3. , Where ‘tainting’ is raised, it is open to an employer to establish that the pay differential was not due-to the difference of sex directly or indirectly or was not tainted by sex.13 However where women as a group are affected it will be difficult for the employer to show that the reason is not tainted. ¹⁴

_________________________
¹² Villalba v Merril Lynch and Co Inc [2007] ICR 469; IDS Handbook Equal Pay pages 222

¹³Redcar and Cleveland Borough Council v Bainbridge and others [2009] ICR 133;
¹⁴^“ Surtees and others v Middlesborough Borough Council [2008] IRLR 124; IDS Handbook Equal Pay pages 207.
12

4. A collectively bargained agreement may constitute a GMF. Where the agreement is tainted the employer will have to justify the practice.¹⁵

5. Collective agreements must observe the principle enshrined in Article 141. It remains the employer’s obligation to remove the inequality.¹⁶(Nicholls v Coventry CC [2009] IRLR 345.) In the recent Grundy case the fact that the pay discrepancy flowed from a collective agreement was no bar to a finding of discrimination. Harvey on Industrial Relations and Employment Law at Part K states as follows:

255 Under Community law it is now clear (Kowalska v Freie and Hansestadt Hambuirg [1990] IRLR 447 ECJ) that an indirectly discriminatory collective agreement may be challenged by an individual relying on article 141 unless the employer can show that the provision in question is justified by objective factors unrelated to any discrimination on grounds of sex. In the light of this ruling it is difficult to see how a collective agreement which had a discriminatory impact could ever provide the basis for a good section 1(3) defence. [However in rejecting a defence on the ground of tainting a Tribunal must set out the basis for its finding clearly. (paraphrased)]

6. If the Respondent’s GMF is tainted, the Respondent can seek to objectively justify the indirectly discriminatory pay practice.¹⁷

7. The first question to ask is what is the Respondent’s genuine material factor defence? In response to a Tribunal Direction, the Respondent’s genuine material factor defence “GMF” was set out at page A50. It was not clear to the Claimant side what the defence actually was. A letter was written asking for clarification (A69) and the Respondent responded in A72. It appears that page A73 paragraph 3 may constitute a further outlining of the GMF. (It is notable that this paragraph refers to ‘the’ HERA scores and LinkHR software as opposed to HERA software.)

8. The GMF as set out in pleadings is unclear. The Respondent’s oral evidence as to what their GMF was equally unclear in our view.

9. As appears to ourselves, the GMF revolves around a contention that when the University started considering the benchmark data in or about March / April 2006 it became concerned that there was too much red circling and decided that it needed to change its approach in relation to matching and assimilation for determining pay and grading. Mr Magee indicated he wanted to avoid upset where a large number of workers were potentially being down graded.

10. It is indisputable that the data the University was analysing in March was incomplete as the benchmark process had not finished. As confirmed in the Respondent’s own time line, the benchmarking scoring process for the last

¹⁵Enderby v Frenchay Health Authority [1994] ICR 112 British Airway’s p/c v Grundy [2008] IRLR 815; IDS Handbook Equal pay pages 232 / 286
16 Nicholls v Coventry CC [2009] IRLR 345; Grundy v British Airways [2008] TRLR 74 & 815

¹⁷IDS Handbook Equal Pay pages 252 onwards
13

type of employees was taking place in May 2006 (page B 190). However it is
unclear precisely what data it was analysing.

11. As regards the question of ‘too much’ red circling, and the use of software to determine lines of best fit, it is submitted that the University’s knee-jerk conclusion that the HERA LIES scores were giving rise to too much red
circling was premature, arbitrary, lacking in considered judgment, unusual/odd and lacking in rationality and their subsequent refusal to consider a different approach arbitrary, intransigent and inflexible.

12. As for avoidance of upset, it is submitted that there was not even anecdotal evidence as to ‘upset’. High numbers of red circling is indicative of jobs previously being too highly graded and/or remunerated. To set aside an
objective JES because there is too much red circling and simply assimilate on existing salary appears wholly at odds with the purpose of job evaluation and equalisation of pay. It is potentially to perpetuate inequality particularly where equal value jobs were differently graded.

13. The reason or reasons underpinning the Respondent’s decision to ditch the benchmark material and the matching process as locally agreed and instead
opt for assimilation on existing salary remains a mystery:
(a) the amount of red circling identified by the University was not set in stone - see page C66;
(b) the University did not give evidence as to the reason why the line of best fit had to be set where it was set. Rather Mr Magee
indicated that it was set by HERA software - apparently a
justification - but Mr Perlins indicated that was wrong and other software (Link) had been used;

14. The University’s statistical information appears bizarre whereas the union’s point outcomes appears balanced. (C66)

15. The University had various options
(a) consider different lines of best fit;
(b) consider how the properly benchmarked and matched scores would fare with the software;
(c) consider with the unions what different ways the issue could be tackled or addressed - not go with a fait accompli.

16. It is submitted that the Respondent adopted an arbitrary knee-jerk and
inflexible position in or about May / June 2006 — deciding to set aside the benchmark data, abort from the agreed matching process and assimilate on previous salary. It is difficult to consider the position adopted rational or
reasonable. It is submitted that it does not readily surmount the relatively low bar for a material factor.

17. The lack of clarity and ambiguous nature of the GMF raises a question as to whether the GMF fulfils either of the requirements set out by the House of
Lords in Glasgow City Council v Marshall [2000] ICR 196,.that it is genuine
14

rather than a sham and material insofar as it is significant, relevant and caused the variation.

18. Even if the Respondent can show a GMF, it is submitted that it is tainted by sex discrimination. A GMF is nullified where it is tainted by sex
discrimination.

19. The Respondent concedes at A49 that it had not undertaken an equal pay
review prior to the introduction of HERA, i.e. it could not say if there was sex
discrimination in the pay systems before then.

20. The figures referenced on A49 indicate lower pay as between security officers in a predominantly male role and nursing assistants in a predominantly or
exclusively female role and this raises the spectre of sex discrimination. In our submission the existence of pay inequality is identified and confirmed by the HERA evaluation which rated ‘female’ nursery assistance work higher than ‘male’ security guard work.

21. Reverting to existing salary undermined the pay and grading review as it
abandoned the JES / HERA study and simply perpetuated the existing salary
system.

22. It is submitted that reliance on previous salary is tainted given (a) the gender composition of nursery and security roles (page A49); (b) the pay accorded to nursery and security pre HERA (page A49); (c) the pay accorded to nursery and security post HERA on the basis of salary pre HERA; (d) the ongoing
disparity in pay amongst non academic posts as demonstrated by the Times
Higher Education statistics as at 2006/2007 (page J22).

23. Finally the Claimant has suffered ‘Enderby’ type discrimination as she has
suffered as a result of defacto gender based job segregation which has
resulted in nursery assistants — a female dominated role being paid less than security guards — a male dominated role, despite the value of the jobs being
the same.

Justification

Law

1. In equal pay law indirect discrimination is re-codified in the Recast Equal
Treatment Directive 2006/54 (previously found in the EC Burden of Proof
Directive 97/80) However even where there is no provision criteria or practice allegedly causing disparate impact, Enderby establishes a basis for
establishing indirect discrimination where statistical evidence shows
sufficiently compelling disparate impact as between men and women)¹⁸

_________________________
¹⁸Enderby v Frenchay Health Authority [1994] ICR 112

2. The European Court of Justice in Bilba Kaufhaus seminally stated the core elements in justification in indirect discrimination cases: “if the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119,” (Paragraph 26¹⁹)

3. There are three elements in Bilba Kaufhaus:

(a) the discriminatory policy corresponds to a real need on the part of the employer;
(b) the policy is appropriate given the employer’s objective;
(c) the policy is necessary for that purpose.

4. The prevailing United Kingdom approach involves considering whether the Respondent was pursuing a legitimate aim and if so whether the measures adopted were proportionate to the achievement of that aim. In Hampson v Department of Education [1989] ICR Balcombe LJ attempted to nutshell the test in Bilba Kaufhaus stating that what the test required was:
An objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.

5. In the Elias case at para 165 a three stage approach to determining proportionality was identified:²⁰
(a) was the objective sufficiently important to justify limiting a fundamental right;
(b) was the measure challenged rationally connected to the objective? (c) were the means chosen no more than was necessary to accomplish the objective?

6. Where a Claimant puts forward a non-discriminatory alternative for achieving the same objective a tribunal may take the view that the alternative ought to have been adopted and justification has not been made out.²¹

7. It is more difficult to justify indirect discrimination where there was a failure to properly consider the proportionality question at the relevant time.(Elias paragraphs 175 and 176 and Redcar and Cleveland BC paragraphs 123, 136) In Pulham Underhill J at para 32 stated:
It would be wrong in principle to exclude a defence of justification on the basis that the employer had not himself articulated or recognised the matters relied on at the time that he did the act complained of…

_____________________
¹⁹Bilba Kauthaus GmbH v Weber Von Hartz [1986] IRLR 317

²⁰R (on the application of Elias) v Secretary of State for Defence [2006] IRLR 934

²¹Hardys and Hansons v Lax; IDS Handbook Equal Pay 256

The evidential weight to be given to attempts at retrospective justification is another matter. The fact that a justification is produced long after the event may entitle a tribunal to treat it with some scepticism but even that must depend on the circumstances of the particular case.²²

8. In the recent Supreme Court decision in the case of JFS (which found the admissions criterion to be directly discriminatory and therefore did not need to adjudicate upon the question of indirect discrimination) Lady Hale stated (obiter) as follows:

97. The standard set in s.1 (1A) (c) is a high one, adopting “the more exacting EC test of proportionality”: R (Elias) v Secretary of St ate for Defence [2006] 1 WLR 3213, para. 151, per Mummery LJ. The Directive also provides, in article 2(2)(b) that any indirectly discriminatory provision, criterion or practice is only justifiable of it is “objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary “, but it refers to the European Convention on Human Rights and the language used equates with the test of proportionality which appears in s.](IA)(c) of the 1976 Act. An ex post facto justification for a measure which is prima facie indirectly discriminatory can prove difficult to show: Elias, para. 129 per Mummery LJ. It is for the school to show, in the circumstances, that its aim or objective corresponds to a real need and that the means used are appropriate and necessary to achieving that aim, and any decision on these points must “weigh the need against the seriousness of the detriment to the disadvantaged group “: Elias, para. 151 per Mummery LJ. The interests of society must also be considered: Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para. 19, per Lord Bingham of Cornhill²³

9. Where indirect discrimination is prima facie established, the Respondent must establish evidentially that the discriminatory means challenged are a justified way of achieving the end goal.

10. Evidence to justify prima facie indirect discrimination can include:

evidence as to how the Respondent applied its mind to the discriminatory effect of the factor in question;

evidence elucidating the reasoning behind the decision to impose the said factor. i.e. why the factor was proportionate, appropriate and necessary notwithstanding the discriminatory effect;

________________________
²² Pulham and others v London Borough of Barking and Dagenham; 28 October 2009; Employment Appeal Tribunal
²³ R (on the application of E) v The Governing Body of JFS and the Admissions Appeal Panel of IFS and others [2009] UKSC 15

evidence as to how much it would have cost to avoid discrimination and the relative financial burden of such cost on the employer.(Redcar and Cleveland BC paragraphs 123, 136)

11. Whether or not a discriminatory factor was introduced with formal or tacit union agreement or approval is far from determinative.(Fulham paras 40-41; Redcar and Cleveland BC; British Airways plc v Grundy [2008] IRLR 815)

Evidential submission

12. A frill scheme had been agreed in relation to the reform or modernisation of pay and grading in the University as set out in bundle 1 at section B 1-227. In this case there was a premature abandonment of the basis for determining salary and the University reverted to existing salary as the foundational basis for assimilation.

13. In so doing it is submitted in this case the University perpetuated past pay inequality such as that as between nursery assistants and security officers. Consequently as outlined above any GMF is tainted and the University must look to objective justification to avoid a finding of discrimination.

14. The justification defence advanced relies upon a rainbow of explanations:

(a) The high amount of red circling identified in April / May indicated a potentially negative effect on staff moral;
(b) The line of best fit was giving rise, to lots of red circling which could/would have increased the wage bill; (This point was not put to Richard Fox.)
(c) By reverting to existing salary most/all employees enjoyed a pay increase.
(d) The Claimant had the right to appeal her generic role profile and grade. She failed to appeal.
(e) The Claimant has had the right to opt for a Simplified Preparation Document SPD, a form of appeal. She did not exercise this option. (e) The Claimant verified her grade two job profile in June 2010.
(f) There have been a number of subsequent equal pay audits and these have not identified significant disparity in pay between the genders.
(g) The Union raised no specific concerns in relation to equal pay during the equal pay audit 2010.
(h) The Unions participated in matching and appeals in 2006 and 2007; matching and appeals have union imprimatur.
(i) Straight assimilation was the most cost effective option.

15. The rainbow (or ‘kitchen sink’) justifications can (possibly and respectfully) be reduced to the following:
(a) assimilation on existing salary reduced cost, prevented a negative impact on staff morale given scale of red circling, and allowed for all staff to benefit from a wage increase;

(b) employees could challenge the grading and pay allocated in various ways
through appeals, reviews and verification processes;
(c) the unions legitimatised the process by their involvement;
(d) subsequent equal pay audits have failed to identify gender pay anomalies.

16. Addressing each of the points at a to d above,

(a) The University had budgeted for a 7% increase in salary to cover the outcome of the Pay Review and it is submitted that there is no evidence that this target could not have been met had they proceeded with the original agreements in relation to benchmarking and matching. etc. (Mr Fox indicated that 7% of payroll had been set aside for the pay review. He further indicated that straight assimilation to the next point cost 1.8%. He was not challenged on this.)

The amount of red circling identified by the University was a maverick and anomalous statistic which was not set in stone. The Unions evidence on how the points boundaries could have been set has never been challenged in this case.(See C 66) This was close to the Perlin ‘textbook’ example.

To take comfort from the proposition that all staff benefited therefore it was a good thing is a utilitarian argument which pays no attention to the discriminatory pay discrepancies such as those raised in this case.

(b) The statistics at C68 cast doubt on the veracity of the appeals processes.

There have been no job evaluation schemes of the nature or magnitude of HERA in 2005/6. Myriad reviews audits etc have failed to analyse and evaluate roles in the manner afforded by HERA. The Claimant simply wants to rely upon the original HERA evaluation — the only comprehensive review of jobs such as hers.

The Claimant has at no point expressly indicated that irrespective of the HERA evaluation she accepts that her job is a grade 2 job as compared with the security officers grade 3 jobs. Indeed her continued pursuit of the case obviously is evidence to the contrary.

(c) Amicus (now Unite) made it abundantly clear that they were opposed to the Magee fudge. It is entirely unclear what influence the unions exercised in matching and appeals in relation to Amicus employees. It is irrelevant to the question the Tribunal is addressing.

(d) It is telling that the Equal Pay Audits have failed to identify the structural discrimination identified by HERA. The unions have at no time accepted that the gender disparities identified by HERA no longer exist.

17. The Union advocated the originally agreed approach which would have led to a satisfactory pay and grading process.

18.Mr Perlin’ s evidence was that the text book expectation for (HERA) job evaluations was 70% the same, 15% go up i.e. green and 15% go down i.e. red. The Union’s approach (as set out at C66) would have been much closer to the text book approach and, in the Claimant’s case, removed the pay gap.

19. The University’s decision to abandon the agreed process appears to have been made prematurely (before all the information was available) and arbitrarily given that the line of best fit can be moved to ensure the best solution is found for the organisation.

20. There were many alternatives, all of which were patently more satisfactory:
- continuing with the agreed process;
- considering how the line of best fit could best be struck;
- negotiating with the unions.

21. The chances of an analytical JES causing sex discrimination must be slim, particularly as HERA was agreed as the appropriate system to address the question of equal pay? There is no evidence that by applying HERA as agreed there would have been an overspend.

22. The Respondent’s approach did nothing to address the gender pay gap. It is submitted that it is not legitimate to avoid upset to red circled staff by using previous / existing salary for assimilation where that perpetuates sex discrimination.

23. If the subsequent equal pay audits have not identified unequal pay, that reflects on their inadequacy.

24. It is accepted that had the Claimant opted for an alternative process the case might not be in the Tribunal. However the Claimant’s job was properly evaluated under HERA and those results have not been impugned by the University — simply not implemented. The 2010 role verification was not a job evaluation such as HERA but simply the Claimant going through role profiles with her manager.

25. The Respondent further relies upon equal pay audits undertaken since 2006. (There were none prior to HERA.) Said audits were limited in scope and did not involve job evaluation.

26. In this case the Union put forward a feasible alternative in February 2007. The proposal sought to implement the HERA JES and indicated how a line of best fit could be identified which virtually equalised red and green circling. It achieved the objective of proper job evaluation eliminating inter alia unequal pay and accorded with good practice.

27. It is difficult to see how the proportionality defence can successfully be made out in this case where a painstaking JES study is arbitrarily jettisoned with little discussion and without agreement amongst partners in a substantial pay and grading process, and a solution imposed involving a bizarre reversion to

previous salary apparently perpetuating gender disparity in pay where many alternatives existed.

28. It is submitted that the Claimant has proven that her job (a predominantly female role) was rated as equivalent with the jobs of men in a predominantly male role; the GMF is tainted; and the justifications put forward are insufficient to justify the failure to recognise the HERA valuation as regards the Claimant’s job and pay her the true value as indicated by the comparator salary.

For and on behalf of the Claimant
Tuesday 17th December 2010

OFFICE OF THE INDUSTRIAL TRIBUNAL AND THE
FAIR EMPLOMENT TRIBUNAL

CASE NO 4767/09

BETWEEN

ROSEMARY McLAUGHLIN

CLAIMANT

AND

UNIVERSITY OF ULSTER

RESPONDENT

CLOSING SUBMISSION ON BEHALF OF THE RESPONDENT
PART II
RESPONSE TO THE SUBMISSION ON BEHALF OF THE CLAIMANT

COUNSEL: JOHN O’HARA QC
BARRY MULQUEEN

21 December 2010

INTRODUCTION

1. The submission presented on behalf of the Claimant extends to 21 pages and is divided into a number of sections. It is assumed on behalf of the Respondent that the tribunal does not want each and every point which has been made responded to but rather that the purpose of this replying submission is to identify the main areas of dispute. Taking that approach, the response below will identify the relevant section in the Claimant’s submission and the respond to it.

Section 1 — Is there a valid and complete job evaluation scheme - pages 1—7—paragraphs 1—29

2. In this section, the Claimant presents a submission based on an analysis and interpretation of some legal authorities and her interpretation of the facts. The Respondent has already set out its position on the legal issue in its main paper at paragraphs 22 — 25. As is clear from that, the Respondent rejects the legal analysis advanced on behalf of the Claimant.

3. The Respondent emphasises one repeated and fundamental misrepresentation of the facts of the case which is found throughout the Claimant’s submission. By way of example, it is found in this section at paragraphs 13 and 17. At paragraph 13, the Claimant states:

“On 1 August 2006 all staff assimilated to the new spine based on existing salary

At paragraph 17, the Claimant states:

“Indeed it appears common case that the University departed from the agreed matching process when it decided in or about April/June 2006 to assimilate all employees to a higher point based on previous salary….”

(This contention re-emerges later in the submission on behalf of the Claimant, notably at page 15, paragraphs 21 and 22),

4. This factual contention is simply wrong. It is a significant, recurring and surprising error which can only be intended to mislead the tribunal. As the tribunal has heard at length, the matching panels which were comprised of employer and employee representatives, with each union being represented, were set up to look at each post and decide whether that post should be assimilated at the next point on the new pay spine. Some posts were so assimilated and some were not. That process was followed by the options of appeal which were given to the employees. It appears to be essential to the Claimant’s case to omit this element of the process because once’ it is conceded by the Claimant that it occurred, the Claimant can no longer contend that the old pay rates were simply merged into the new system at the next point. Had that happened, the case would have been entirely different. It is no accident that it did not happen. The fact it did not happen means that, contrary to the Claimant’s case, any pre-existing problems or difficulties which existed in the various pay scheme were not simply absorbed into the new one.

5. It is a matter for the tribunal to decide whether to accept or reject the attack on Mr Perlin which is made in the Claimant’s submission, especially at paragraph
28. (Quite how the Claimant’s representatives were able to hear or record his evidence is something of a mystery since Mr Potter heckled Mr Perlin during his own cross-examination of Mr Perlin with “that is nonsense, that is nonsense” as Mr Perlin answered his questions.) The Respondent submits that Mr. Perlin’s evidence is substantial and significant in helping to understand the complex and difficult world of role analysis and job evaluation. It is, of course, no accident that there should be such an attack on Mr Perlin. He is hugely experienced in the HERA system, he was able to explain its operation to the tribunal and his evidence is supportive to the Respondent.

Section 2 - the destruction of the data - pages 7 - 9, paragraphs 1 – 7

6. This issue has already been dealt with at paragraph 14 - 17 of the Respondent’s submission. As was anticipated then (at paragraph 14) the Claimant has submitted that the University was dishonest. The University contends that it was not. It invited the tribunal to note and take into account the following points:

(a) The Claimant’s representatives concede no embarrassment or apology for the breach of confidentiality which the so-called leaking of data to the union involves.

(b) The Claimant assumes that if all the data were available, it would inevitably be damaging to the University. There is simply no basis for such an assumption.

(c) The allegation of contempt of court or perversion of the course of justice is simply ridiculous but entirely consistent with the way in which the Claimant’s case has been made out to the tribunal. Mr Magee’s evidence was to the effect that the University is so regularly threatened with litigation that he can no longer taken threats seriously. There is no reason why in 2006 or 2007 he should have taken Unite’s threat seriously — after all it took the Claimant until 2009 to issue proceedings.

(d) At paragraph 5(n) the Claimant’s representatives do not even try to justify the use of the so-called bench mark scores or suggest that their use of the documents is legitimate. They simply ignore the fact that they have obtained, copied and distributed information which, on their case; is confidential personal data which they have no right to hold or use.

Section 3— the validity of the data — pages 9 – 11, paragraphs I - 8

7. The University’s submissions on this point have already been made at paragraphs 14 — 17. The Respondent stands by those submissions and submits that there is extensive doubt about the reliability and integrity of the

documentation which has been put before the tribunal by people who are clearly acting outside the process, i..e. Mr Fox in recycling so-called leaked information and Mr Shaw who maintains that he for some reason kept a personal record of the scoring of posts in which he was involved.

Section 4 — the Union’s registration for the purpose of data protection legislation — page 11, paragraphs 1 —3

8. It is clear that no steps whatever have been taken by Unite to search the AMICUS files on registration for data protection. All it has done in this submission is refer to the AMICUS entry being deleted by the Information Commissioner’s Office at some point in 2007. This does not exempt or excuse Unite for its failure to provide the information which the tribunal directed it to provide. Is it seriously contended that there is no record of the AMICUS registration? The lack of effort on the Claimant’s part to provide the information is striking.

Section 5 - the Union’s use of the data— pages 11 - 12, paragraphs 1 —7

9. The Chair of the Industrial Tribunal sought comments with regard to the documentation found at G1-5 of the trial bundle and the implication of the Data Protection Act 1998 on same. In particular, the tribunal sought clarification as to whether Unite the Union had processed personal data “outside the ambit of its registration” as contained within its Date Protection Register.

10. The Respondent would respectfully refer the tribunal to the Data Protection Register entry details for Unite the Union which highlights 13 purposes for which personal data ban be held [See Appendix 1]. Such purposes range from staff administration to crime prevention and prosecution of offenders. Further, the data subjects are defined as primarily members, supporters and/or employees.

11. As this Tribunal will be aware the Claimant suggests that the data

contained within the subject documentation at G1—5 of the trail bundle was left in the pigeon hole of Mr Fox at the University campus in Jordanstown in or about late September/early October 2006. This personal data relating to 248 Respondent employees was then processed and reviewed by Unite the Union without the consent and/or authority of these employees. Further, a significant number of these Respondent employees were and are not data subjects of Unite the Union under the terms of its registration.

12. The evidence as presented by the Claimant at Tribunal was that she was contacted by Unite the Union and informed of the subject data. The Claimant only then became a member of Unite the Union. Legal support and assistance was on foot of obtaining membership of Unite the Union, then provided to the Claimant in presenting this application to the Industrial Tribunal.

13. Schedule 1 (Part I & 2) of the Data Protection Act 1998 makes specific reference to the fact that personal data shall be processed fairly and lawfully. The Respondent respectfully suggests that the subject data was not processed fairly and lawfully given the manner in which it was allegedly obtained in the manner it was reviewed without the consent of the data subjects and finally in its use to induce this Claimant to become a Unite member with the ultimate offer of legal assistance to present this application to the Industrial Tribunal.

14. It is stated on behalf of the Claimant that Unite the Union used the subject data “solely in connection with litigation”. The Respondent would respectfully disagree and would suggest that Unite the Union used the subject data to review and eventually challenge the evaluation process adopted by the Respondent. The Union further used the data to encourage the Claimant, then a non data subject, to be a Trade Union member.

15. It is further suggested by Unite the Union that they are entitled to rely on the exemption provided at Article 35 of the Data Protection Act 1998 in

that:

(1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.

(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary—

(a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or

(b) for the purpose of obtaining legal advice,
or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

16. Reference is made by the Claimant to the case of Matthew Yeboah Mensah —v- Dr Robert H Jones [2004] EWHC 2699 (Ch). To put this case in context the Plaintiff had issued proceedings for assault after an incident in the Defendants surgery. The Defendant then sent the Plaintiff’s medical records to his Solicitor at the Medical Defence Union to ascertain his obligations regarding discovery to the Plaintiff in the course of the said proceedings. The Plaintiff argued that the disclosure of his medical records to the Defendants Solicitor was in breach of provisions of the Data Protection 1998 Act.

17. The High Court concluded that that the data referred to was sensitive personal data within the meaning of Section 2 of the 1998 Ac and therefore entitled to protection. Further, the Defendant was held to be the data controller The decision taken by the High Court was that the Defendant was entitled to advise as to the extent of his obligations regarding discovery to the Plaintiff and therefore was entitled to rely on. the exemption contained at Article 35.

18. The Respondent would respectfully suggest that the factual circumstances

surrounding these present proceedings to the Industrial Tribunal are fundamentally different in that:

a) Unite the Union was not at any stage the registered data controller of the subject data. A “data controller” means a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;

b) The data retained related to 248 employees. No consideration was given by unite the Union to the rights of the other Respondent employees regarding the use of such confidential data.

c) The information related to persons who were not the registered data subjects of Unite the Union.

d) The data was used to induce the Claimant to become a Trade Union.
19. The Respondent respectfully contends that Unite the Union has obtained the subject data unlawfully in breach of the provisions of the Data Protection Act 1998 and to allow the consideration of such data in these present proceedings would be an abuse of process.

Section 6 - the general material factor defence - pages 12 - 15, paragraphs 1 —23

20. The suggestion of the Claimant is that the Respondent’s defence is somehow tainted as a result of the debate about red circling and as a result of the nursery assistants being lower paid than security officers.
21. On the red circling issue, the tribunal is referred again to Mr Magee’s letter
at 1/D/32 and in particular to the penultimate paragraph on page 33. In this paragraph he states:

“As I indicated to you and to local Unite representatives and the other trade unions it was immediately obvious that three categories in particular, academic related, technical and UCNS (clerical/secretarial) had not fared well and potential red circling for these groups was in the order of almost 30%”.

In his oral evidence, Mr Magee confirmed that the academic related group was mixed in gender, that the technical group was male and that the clerical/secretarial group was female. In other words, the red circling concerns which were identified affected a range of groups but not exclusively or even predominantly male groups. This evidence was not challenged. Accordingly, the entirely reasonable and rational conclusion drawn by the University was that it should vary the process in the way in which it then went on to do. This alternative method was agreed by the other two unions. Unite then adopted its schizophrenic approach of withdrawing at some points and re-engaging at other points. For instance, Unite did not play any part in the matching panels for its own members but bizarrely re-engaged during the appeals process. It is hard to think of any logical conclusion for this other than that Unite was opting out of playing a constructive role in the whole process and was instead trying to set up claims for some point in the future.

22. As the Respondent has already recognised at paragraph 9 of its main submission, unions will do the best they can on grade boundaries for the benefit of their members. Unions will legitimately represent their members to the best effect that they can throughout the process but there is something deeply disturbing and unappealing about the way in which Mr Fox led Unite within the Respondent University in this process.

23. It is further submitted that none of the evidence supports the proposition that there is gender-based job segregation resulting in women being paid less than men who are doing male-dominated roles — see the Claimant’s submission at page 15, paragraph 23 which follows on from paragraph 20. Again, Mr Magee’s evidence on this area is relevant. He gave unchallenged evidence to the tribunal that at each grade in the new system there is a
9

mixture of men and women and also a mixture of jobs. Accordingly what the new pay scheme shows is a hierarchy of posts with men and women being represented at every different level in the hierarchy and with a variety of jobs being represented at each different stage of the hierarchy. All of this is
consistent with the existence of a new non-discriminatory pay scale.

Section 7—Justification — pages 15— 21, paragraphs 1 -28

24. This section of the submission on behalf of the Claimant is based on the premise that the employer has a discriminatory policy but the quote from the decision of the European Justice in Bilka Kaufhaus at paragraph 2 shows how this element of the submission is not actually relevant to the present case. That quote is as follows:

“If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119.”

25. In this case, there is simply no evidence to support the proposition that the measures affect a far greater number of women than men. Accordingly, the fundamental submission of the Respondent in response to the contention advanced by the Claimant is that the contention is unfounded on the facts and does not merit a response.

26. On the basis of the unchallenged evidence of Mr Magee, there are groups of men and women and mixed groups at all stages through the different grades. That means that in the same way as nursery assistants can show that there is a male group of workers at a higher grade, so also are there male groups of workers who can show that there are female groups at a higher grade. This does not equate to pay discrimination which then has to be justified. It simply shows that there are areas of work which have been graded at

different levels and that those areas of work are either done by mixed groups, by male groups or by female groups.

27. In its evidential submission at this part of the paper, the Claimant reverts again at paragraph 12 to the perpetuation of the lie that ‘the University reverted to existing salary as the foundational basis for assimilation”. It is striking that this false assertion is made at the end of the paper and in exactly the same way as it was made at the start.

28. In the course of the evidential submission, the Claimant refers to the University’s equal pay audits at paragraph 16d, 23 and 25. She suggests that the audits are inadequate because they have not identified unequal pay. The Respondent has to remind the tribunal, once again, that the 2010 audit was participated in by Unite (despite Mr Fox’s denial) and that it presented a unanimous report which confirms, insofar as an audit can confirm, that there are no concerns about the new structure. The reality is that the audits have revealed the truth and that the new system is fair and non-discriminatory. This is undoubtedly inconvenient for the Claimant as is the fact that she engaged in a verification process in 2010 for both her substantive post and for her acting up position, confirming that each of the two gradings was appropriate.

29. At paragraph 27 on page 20, the Claimant contends that a painstaking job evaluation study was “arbitrarily jettisoned with little discussion and without agreement among partners in a substantial pay and grading process”. In fact, as the tribunal has heard, there was extensive discussion and negotiation at all stages between the University and the unions. The variation in the original process was agreed with two of the unions which fully participated in it and while Unite maintains it disagreement on paper, it opted in and out of the very process as and when suited it. This true description of the facts is not remotely reflected in the Claimant’s wording at paragraph 27 and it is submitted that the Respondent has shown that the extensive efforts which it engaged in have resulted in a non-discriminatory, thorough and legitimate pay scheme which now operates throughout the University. This

was a process which started in or about 2003 and did not end until 2010. The Respondent respectfully invites the tribunal to reject the efforts of Unite, through its use of the Claimant, to subvert what happened and what was achieved during those years.