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Cite as: [2017] ScotCS CSIH_56, [2017] CSIH 56

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lady Paton

Lord Menzies

OPINION OF THE COURT

[2017] CSIH 56

XA71/16

XA72/16

delivered by LORD MENZIES

in the Appeals

(FIRST) JULIE ARMSTRONG AND OTHERS (“THE HBJ CLAIMANTS”)

Appellants

against

GLASGOW CITY COUNCIL

Respondent

and

(SECOND) JENNIFER McDONALD AND OTHERS (“THE UNISON CLAIMANTS”)

Appellants

against

GLASGOW CITY COUNCIL

Respondent

For the HBJ Claimants: J J Mitchell QC; HBJ Gateley, Solicitors

For the Unison Claimants: Dalgleish; Unison Legal Services

Respondent: Napier QC, Miller (sol adv); Clyde & Co, Solicitors

Page 2 ⇓

18 August 2017

Introduction

[1] These are appeals against a decision of the Employment Appeal Tribunal (“EAT”)

dated 15 March 2016 in which the EAT upheld the decision of the Employment Tribunal

(“ET”) dated 9 December 2013. In that decision, the ET determined that the respondent’s Job

Evaluation Study (“JES”) was valid in terms of the Equal Pay Act 1970 (“EQP”) section 1(5),

and that there were no reasonable grounds for suspecting that it was otherwise unsuitable to

be relied upon in terms of section 2A(2A)(b) of EQP.

[2] These appeals arise out of the same factual background as that discussed in the

earlier decision of this court in Glasgow City Council v Unison Claimants and Others

[2017] CSIH 34. That appeal concerned the respondent’s pay protection provisions, whereas these

appeals are concerned with the validity of the respondent’s JES, which was carried out as

part of its Workforce Pay and Benefits Review (“WPBR”). This was designed to implement

the move to single status for the respondent’s employees so that, following the review,

separate collective agreements would be replaced with one scheme which brought all

Administrative, Professional, Technical and Clerical (“APT&C”) staff and manual workers

together under one pay scheme. To effect this, a JES required to be carried out in order that

the respondent could implement a new, unified pay and grading structure. That involved

creating job “families”, developing role profiles, evaluating role profiles, and allocating role

profiles to job families. Through that process, each job was given a grade score. The

respondent then assessed Work Context Demand (“WCD”) and each job was also given a

score under that heading.

Page 3 ⇓

[3] The appellants brought claims in terms of EQP challenging the design, methodology

and implementation of the JES. They were unsuccessful before the ET and the EAT. They

now appeal to this court. Although the appeals were lodged separately, they were

presented together and the same arguments applied in each case.

The statutory framework

[4] Sections 1 and 2A(2A) of EQP provide the statutory context for the exercise which

required to be carried out by the ET and the EAT. The relevant passages are in the following

terms:

“1.-

(1) If the terms of a contract under which a woman is employed at an

establishment in Great Britain 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.

which paragraph (a) or (b) above applies is, in terms of the demands made on her

(for instance under such headings as effort, skill and decision), of equal value to that

of a man in the same employment –

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

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

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

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

(ii) if (apart from the equality clause) at any time the woman’s contract

does not include a term corresponding to a term benefiting that man included

in the contract under which he is employed, the woman’s contract shall be

treated as including such a term.

…

(5) 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.

...

2A.- Procedure before tribunal in certain cases

…

(2) Subsection (2A) below applies in a case where –

(a) a tribunal is required to determine whether any work is of equal value

as mentioned in section 1(2)(c) above, and

(b) the work of the woman and that of the man in question have been

given different values on a study such as is mentioned in section 1(5) above.

(2A) The tribunal shall determine that the work of the woman and that of the man

are not of equal value unless the tribunal has reasonable grounds for suspecting that

the evaluation contained in the study-

(a) was (within the meaning of subsection (3) below) made on a system

which discriminates on grounds of sex, or

(b) is otherwise unsuitable to be relied upon”.

It should be noted that EQP has now been subsumed into the Equality Act 2010.

The issues before this court

[5] There were numerous issues between the parties in the very lengthy proceedings

before the ET, the hearings in which lasted intermittently from October 2012 until April

2014. Many of these issues were still live in the proceedings before the EAT in December

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2014 and May 2015. However, by the time these appeals were argued before this court there

were three principal issues which required to be determined, as follows:-

1. Does the burden of proving that the respondent’s JES satisfied the requirements of

section 1(5) of EQP rest with the respondent?

2. Did the ET err in law in its treatment of expert evidence (or the lack of it)?

3. Did the ET err in law in finding that although the JES was bespoke, novel and

untested, and that it contained no mechanism to aggregate the two values it produced, no

reasonable grounds arose for suspecting that it was unsuitable to be relied upon in terms of

section 2A(2A) of EQP?

Glossary

APT&C

ATK

EDC

GCC

Blue Book

GLPC

Green Book

JES

NSWP

Administrative, professional, technical and clerical

Allocation Tool Kit

Employee Development Commitment by GCC

Glasgow City Council

Pre-single status national agreement on pay and

conditions of service for APT&C workers

Greater London Provincial Council (factor plan)

Pre-single status national agreement on Pay and

Conditions of Service for Manual Workers, including a

job evaluation scheme rating all manual workers (NB

references in English authorities to the Green Book are to

a different agreement)

Job evaluation study or scheme

Manual workers

Non-standard Working Pattern

Page 6 ⇓

PCS

PES

Red Book

SJC

Single Status Agreement

WCD

WPBR

People Care and Support

Physical and Environmental Services

1999, a framework implementation agreement merging

pay and conditions for MW and APT&C workers and

coming fully into effect on implementation by each local

authority of a valid JES

Scottish Joint Council

Collective Agreement effective April 1999 to wind up

and merge the former MW and APT&C Scottish Councils

to form the SJC

Working context and demands

Workforce Pay and Benefits review

The proceedings before the ET

[6] The ET set out the issues before it for determination (as agreed by parties) at

paragraph 3 of its decision letter dated 9 December 2013. These included whether the

respondent’s JES was a valid job evaluation as defined in section 1(5) of EQP, and if so, was

the respondent entitled to rely upon it for the purposes of section 2A(2A) of EQP, and in

particular: (i) are there reasonable grounds to suspect that it is based upon a system which

discriminates on the grounds of sex? and (ii) are there reasonable grounds to suspect that it

is otherwise unsuitable to be relied upon?

[7] The ET set out the witnesses who gave evidence on behalf of the claimants and the

respondent at paragraphs 8 and 9 of its decision letter. These included Dr Stephen Watson,

who designed the JES for the respondent; there was no independent expert witness for

either the claimants or the respondent as to the suitability of the JES or its compliance with

the requirements of section 1(5) of EQP.

Page 7 ⇓

[8] The decision letter dated 9 December 2013 is a lengthy document extending to

927 paragraphs. The ET held a continued hearing over two days in April 2014, and on

7 May 2014 issued additional reasons containing a further 45 paragraphs. We do not

attempt to summarise these documents here, but the following passages were referred to

frequently in the course of counsels’ submissions to us, and we consider that it will assist in

the understanding of the issues before us to set them out here. (There were many other

paragraphs to which passing reference was made, but the following passages were of central

importance):

“372. The Tribunal accepts Mr Galbraith-Marten’s submission as to the principle in

Springboard Sunderland, however, the facts in that case are distinguishable from those

before this Tribunal. The evaluation in Springboard Sunderland produced a single

points value for each job and it was that points value that was to be fitted into the

available ranges. Here, the Tribunal has to consider the position where each job is

said to have to points values which on the Tribunal’s findings, cannot properly be

aggregated and where each of those points values fit into separate sets of points

ranges and produce two distinct payments.

373. The Tribunal concludes that the points arising from the application of the

grade factor plan and the WCD factor plan cannot properly be aggregated for these

reasons. Firstly, the WCD factor plan was expanded so that points were scored

under five rather than the three headings in the GLPC factor plan with the result that

more points are made available. Further, by the insertion of the points-scoring half-

levels, points became available that were not available in the GLPC scheme. Had

those factors been scored in the way they were under the WCD factor plan and then

simply added back into the scores using the eight headings in the grade factor plan

they would have tended to distort the evaluation by increasing the inherent

weighting of the working context factors.

374. More fundamentally, the grade boundaries were drawn with the points

flowing from the application of the grade factor plan alone in mind. The points

flowing from the application of the WCD factor plan could not be added to the

points flowing from the application of the grade factor plan without redrawing the

grade boundaries. ...

375. In the Tribunal’s judgment, the purpose of job evaluation is, firstly, to arrange

jobs in rank order and then, where ranges of points are used to define pay grades, to

bracket together sections of that rank order so that it can be seen which jobs are to be

regarded as being rated as equivalent so that equal pay can be assigned. In effect,

jobs attracting points values within each range are treated as ranking equally despite

their points values being different.

Page 8 ⇓

376. The Tribunal has been shown no authority in which job evaluation leading to

two separate points values has been considered. That took the Tribunal to consider

whether it was legitimate to employ a methodology that resulted in two separate

points values each determined by the use of job evaluation techniques.

377. In the Tribunal’s judgment, the answer to the question lies within the

technical expertise of an expert in job evaluation. None of the parties have called an

independent expert who could provide the Tribunal with an opinion as to the

legitimacy of using this technique. The absence of expert opinion evidence to assist

the Tribunal and to provide a proper foundation for submissions by counsel was a

frequently recurring issue in the Tribunal’s deliberations as, indeed, it had been in

questions from the bench during the course of the hearing.

378. The Tribunal takes this opportunity to set out its position in relation to expert

evidence. As will be apparent from these Reasons, the Fox claimants and

Thompsons claimants mounted an attack on the respondent’s methodology that was,

at least in part, a rather technical attack on the design and application of that

methodology. The Tribunal has been shown first instance decisions made by

Employment Tribunals in England considering the validity of differently designed

methodologies and written guidance offered by EHRC and the English local

government National Joint Council and the Greater London Provincial Council.

None of those sources have considered the methodology employed by the

respondent. Counsel’s submissions do not amount to evidence. The members of the

Tribunal have an acquaintance with the principles of job evaluation but none of the

members would hold themselves out as experts in the field. The Tribunal can no

more be expected to rely on its own knowledge to reach conclusions about technical

matters within the professional competence of those qualified, trained or experienced

in the practice of job evaluation than would a Court dealing with the nature, extent

and consequences of a personal injury be expected to have sufficient knowledge of

medical matters without the evidence of experts.

379. It is noted that the parties were specifically asked to consider whether they

wished to rely on expert evidence in the course of a Case Management Discussion

and eschewed the opportunity, even when the Employment Judge highlighted his

concern that it may be that the Tribunal hearing the case finds itself facing the

determination of technical matters of job evaluation practice without the assistance of

expert evidence.

380. Dr Watson told the Tribunal of his career history and that he is a member of

the ACAS panel of experts for the determination of equal value. He gave evidence as

a witness of fact and not an independent expert entitled to express an opinion. One

of the facts to which Dr Watson could speak was that Hay, by whom he had

previously been employed, to his knowledge had used the techniques of considering

demands under two separate evaluations. The Tribunal accepted that evidence. The

Tribunal understands Hay to be an important player in the job evaluation world.

The Tribunal regards as significant that Hay has employed the approach of taking

out into a separate evaluation the consideration of working context demand factors

such as those used by the respondent. In the absence of any evidence or authority to

the contrary, the Tribunal drew the inference that the technique of using two points

Page 9 ⇓

scores to produce two elements in the pay package is a legitimate approach to job

evaluation.

...

The parts of the methodology amounting to evaluation

397. The Tribunal asked itself where in the methodology the respondent carried

out a job evaluation leading to the determination of grade pay and WCD pay.

398. In the Tribunal’s judgment, evaluation consisted of the application of the

grade factor plan to each of the role profiles so as to determine the number of points

that would constitute the grade score and the subsequent translation of that grade

score into a pay grade together with the application of the WCD factor plan so as to

determine the WCD score and the subsequent translation of the WCD score into the

WCD pay. Grade and WCD scores and pay represent the value of the job for the

purposes of section 1(2)(b) EQP.

...

442. Having said that, the Tribunal was very conscious that Dr Watson’s evidence

as to what he did was based on his opinion as to the soundness of his judgments

within the field of expertise of a person skilled, qualified and or experienced in the

mysteries of job evaluation. The absence of independent experts able to express an

opinion on Dr Watson’s work left the Tribunal in some difficulty. Whilst the

Tribunal could bring to bear the eye of interested lay people with some

understanding of job evaluation, the Tribunal simply lacked the expertise to fully

evaluate Dr Watson’s judgments in the abstract.

...

470. The decision of the claimants’ solicitors not to call an expert witness to speak

to the evaluations of the role profiles left the Tribunal without cogent evidence to set

against the judgment of those who carried out the evaluations. The Tribunal would

have permitted unhesitatingly the claimants to call an expert witness on the point as

the Tribunal can no more be expected to carry out its own evaluation armed only

with a factor plan and a role profile than could a judge in the civil courts be expected

to make an assessment of the nature and extent of some personal injury armed only

with some x-ray plates and laboratory test results.

...

548. In the Tribunal’s judgment, whether the information contained in the role

profile is properly to be regarded as sufficient to enable an evaluation to be carried

out is a technical matter in respect of which the evidence of an expert was required.

On the one hand, the Tribunal is satisfied that the Evaluators carried out their

evaluations and there was no evidence that any of them considered the information

provided by a role profile to be inadequate for their task. On the other hand, the

Tribunal has no more than the assertions of counsel that the role profile was not fit

for the purpose to which it was put. There was simply no expert evidence called by

the claimants to the effect that the Evaluators were unable to answer even some of

the questions necessary to determine the appropriate factor level under even one of

Page 10 ⇓

the factor headings in respect of even one of the role profiles so as to cause the

Tribunal to suspect the inadequacy of the information in the role profile in any

particular case.

...

666. The assessment of WCD was an exercise in job evaluation. No expert

evidence was led and so there was no one called on behalf of the claimants who was

in a position to express an opinion as to whether any of the scores awarded under

the headings in the WCD factor plan were inappropriate. Attempts were made in

the cross-examination of those who spoke about the claimant jobs for the respondent

to suggest that the scores were not as they should have been.

...

672. The Tribunal considered the question of the demands that were recognised in

the WCD factor plan. In the Tribunal’s judgment, any submission about the

appropriateness of including particular factors in a factor plan or the weight to be

given to such factors is a technical issue within the competence of a job evaluation

practitioner. It is certainly a matter in respect of which the Tribunal would have

permitted expert evidence. There was no such evidence and nothing in which the

Tribunal using its in-expert eyes could find reasonable grounds for suspicion.

...

690. It was open to those acting for the claimants to select sample claimants and

comparators and lead some expert evidence about them to show that those with

equal levels of demand were given equal ratings or that the dividing line between

the levels had been drawn so that an important predominantly female group fell just

under the WCD grade boundary or an important predominantly male group fell just

above it. The Tribunal was left without any such evidence.

...

701. ‘Accurate’ is a difficult word to use in respect of job evaluation. There is not a

universally recognised way of measuring the value of work. There is not a

recognised set of factors to be applied or of definitions of levels under a factor

heading. There is not a recognised methodology. In a typical factor plan, a number

of points is associated with a level; there is a step up in points to the next level; the

points awarded are those associated with the level so that there is no scope to award

a little more than the points for the level because the employee does a little more

than the definition, whilst clearly falling short of the next higher level. In short, just

as the definitions approximate to the demands, the scores also approximate to the

value of the work. The final step is to place the job in the pay grade associated with

the range of aggregate points in which falls the points scored by the job in question.

Within the range of points associated with a grade, all jobs are regarded as equal,

even though they have scored different numbers of points. The Tribunal has seen

nothing to suggest that the evaluations were not accurate according to the

respondent’s methodology or that the respondent’s methodology is not apt to

achieve the degree of accuracy that can be expected in a points-based job evaluation.

...

Page 11 ⇓

713. The allocation toolkit lies at the heart of the evaluation of grade pay but not in

the evaluation of WCD or the determination of NSWP payments. It is true that the

allocation toolkit is novel and untested. It was put to the test in this hearing.

Dr Watson told the Tribunal how the toolkit was designed and how it operated.

Despite his obvious expertise, Dr Watson was not an ‘expert’ witness. The

respondent did not call an expert to express the opinion that Dr Watson’s design was

sound. The claimants did not call an expert to express the opinion to say that the

design was not sound and to show the Tribunal a matrix of fact upon which such an

opinion was based. The urgings of counsel, no matter how skilfully and eloquently

expressed do not amount to evidence.

[9] The following two paragraphs from the ET’s additional reasons dated 7 May 2014 are

also relevant:

“37. The Tribunal accepts Mr Galbraith-Marten’s submission that the respondent’s

methodology does not answer the question as to whether a high score in respect of

the WCD factors would have resulted in a higher grade and higher overall pay had

those factors been brought into account in assessing grade or if there was some

defined mechanism for converting the separate scores under grade and WCD into a

single combined score. That is not the way in which the respondents’ methodology

operates. There is, however, nothing before the Tribunal either by way of binding

authority or an authoritative statement of job evaluation practice to say that a job

evaluation is apt only if it results in a single value. It was urged upon the Tribunal

that it was not to attempt to fill any lacunae in the respondent’s methodology. We

conclude, however, that the effect of the claimants’ submissions is to seek to create a

lacuna – the absence of a mechanism or rule for bringing the grade and WCD scores

together – rather than to work with the methodology as it is. ...

...

40. In the Tribunal’s judgment, it was open to the claimants during the course of

evidence and submissions leading to the judgment promulgated on 9 December 2013

to seek to show that the absence of a mechanism for bringing together the evaluation

leading to grade and the evaluation leading to WCD gave rise to reasonable grounds

for suspicion that the respondent’s methodology was unsuitable to be relied upon.

The Tribunal was not satisfied, on the evidence before it, that, whether on this point

or on the totality of the criticisms of the methodology, there were reasonable grounds

for suspecting discrimination or unsuitability.”

The proceedings before the EAT

[10] In its judgment dated 15 March 2016 the EAT gave the following summary:

“Equal Pay: the claimants challenged the respondent’s Job Evaluation Study. They

argued it was invalid because it produced two separate scores for each job; further, it

Page 12 ⇓

was not shown to be objective. They argued that the ET had inverted the onus of

proof and erred in its treatment of expert evidence. Held: the ET had made findings

it was entitled to make. There was no error of law in the ET’s decision.”

[11] In its discussion and decision on the JES, the EAT observed (at paragraph 97) that the

ET was shown no authority in which job evaluation leading to two separate points values

had been considered. It therefore asked itself whether it was legitimate to employ such a

methodology. No expert witness was led on this matter. The EAT quoted the terms of

paragraph 380 of the ET’s decision and went on to observe:

“98. Having decided that as a matter of fact Hay had used a scheme involving two

separate evaluations, the ET considered the scheme used by the respondent in this

case. It found that that the demands on the employee were not measured by the

grade factor plan alone, at paragraph 383. It was necessary to take into account also

the factors found in the WCD factor plan.

...

103. The way in which the two scores were to be dealt with was clearly an

important part of the scheme and we find it strange that the ET did not have

evidence before it in the first hearing setting out the method, which must have been

known to Dr Watson and to the respondent. The ET having decided that this matter

had not been covered to its satisfaction reconvened and gave parties an opportunity

to address it, and then made its decision. It is a question of fact for the ET firstly as to

how the evaluation is performed, and secondly if the method found to exist is one

which is objective and which enables valuation of demands of work so as to enable

jobs to be graded.

...

105. We find that the ET was entitled to accept Dr Watson’s evidence that his

former employer, Hay, used a scheme with two values. We did not find the

argument about the Interpretation Act 1978 helpful. There are two scores produced

for each employee by this scheme. The ET found that both the grade score and the

WCD score should be taken into account in showing that jobs had been evaluated,

and if two jobs produced scores identical in each category, they were ‘equal’. We

find that the ET was entitled to come to that decision. We can find no error of law in

the decision of the ET.”

[12] The EAT summarised its conclusion on the challenges to the JES at paragraph 188 of

its judgment as follows:

Page 13 ⇓

“188. We find no error in law in the reasons of the ET. It directed itself

appropriately on the onus of proof, and we do not accept that it failed to follow its

own directions. It considered technical challenges to the JES of varying sorts. It was

entitled to decide the validity or otherwise of the scheme in light of the evidence led

before it. In expressing the view that expert evidence might have been helpful, the

ET expressed an opinion it was entitled to hold. The claimants did not lead any

expert evidence to show inadequacy of the JES. The respondent led the designer of

the JES and the council official responsible for its implementation. The ET was

entitled to find facts and draw inferences from that evidence. It was correct to note

that assertions put to witnesses in cross examination did not amount to evidence,

and it was entitled to find that the witnesses led by the respondent were not

successfully challenged in cross examination. The claimants have had a judicial

determination of their claim for equal pay by the ET adjudicating on the claims made

about the scheme, in a pre-hearing review. Individual claims will require to be

proved.”

Submissions for the parties

Submissions for the appellants

[13] Counsel for the appellants suggested that there was little if any disagreement as to

the law. The requirements of Article 119 of the EEC Treaty and the steps necessary to

provide employees with an enforceable right to require the measures necessary to ensure

that the principle of equal pay is applied were considered in Commission of the European

Communities v United Kingdom [1982] ICR 578. The requirements of a valid JES were

considered in Eaton Ltd v Nuttall [1977] ICR 272, particularly at 277H –

“a study satisfying the test of being thorough in analysis and capable of impartial

application. It should be possible by applying the study to arrive at the position of a

particular employee at a particular point in a particular salary grade without taking

other matters into account except those unconnected with the nature of the work”.

In Bromley v Quick Ltd [1988] ICR 623 the Court of Appeal referred to the observations in

Eaton v Nuttall with approval and emphasised the need for a JES to be objective and

analytical. The court stated that it was for the employer to explain how any JES worked and

what was taken into account at each stage. It was necessary to have regard to the full results

of the JES in order to assess whether it complied with section 1(5) of EQP – Springboard

Page 14 ⇓

Sunderland Trust v Robson [1992] ICR 554. The importance of these cases was reiterated in

DEFRA v Robertson [2004] ICR 1289.

[14] By way of background, the Green Book comprised a national agreement which

included a JES, but this was confined only to manual workers. It was updated regularly

during the 1970s, 1980s and 1990s. The Red Book was introduced in 1999 and was a

framework implementation agreement merging pay and conditions for manual and non-

manual workers. Many local authorities adopted the SJC scheme, but this was not

mandatory. Others adopted the GLPC scheme. The respondent chose to develop its own

bespoke scheme, which the ET described as “pioneering, novel and untested”. It was

Commission, it was not subject to peer review, and it was not tested or analysed to confirm

that it met the requirements for a valid scheme before it was implemented. In short, there

was nothing like the careful testing and development by agreement such as was described in

Hartley v Northumbria Healthcare NHS Foundation Trust (ET unreported, April 2009).

[15] Dr Watson was not an expert in equal pay, although he had a background with

Hays, a reputable consulting business which advises on pay and remuneration structures.

The use of role profiles was not novel, but Dr Watson’s allocations were untested. If a role

profile does not properly capture the job it stands for, the JES will not be compliant with

section 1(5). The appellants maintained that the jobs were not adequately and sufficiently

captured in the role profiles because the design of the scheme was fundamentally flawed;

there was a disconnect between the evaluation of particular jobs and the “ghost structure”

which did not represent them sufficiently accurately to capture the jobs. There was a lack of

recording of any allocation process, and no audit trail. There were no job descriptions, and

no input from employees themselves.

Page 15 ⇓

[16] Dr Watson’s scheme took eight grade factor plan points from the GLPC model. The

remaining three factor plan points in that model were expanded into five and used in the

WCD factor plan, but the methodology for assessing those five points was completely

different from the methodology for assessing the other eight points. The grade boundaries

in the WPBR were drawn “with the points flowing from the application of the grade factor

plan alone in mind” – the WCD element was not taken into account in the setting of

boundaries, despite the ET’s finding (at para 384) that both grade and WCD have to be

brought into account in determining the rating of the work and whether the work of one

employee has been rated as equivalent to that of another. “Grade and WCD scores and pay

represent the value of the job for the purposes of section 1(2)(b) EQP” – see paragraph 398 of

the ET’s decision. However, not only were grade boundaries set on the basis of grade factor

plan points alone without taking account of the WCD component, there was no method of

comparing or converting grade factor plan points into WCD points or vice versa – they were

two currencies without any method of conversion. Grade points cannot be used to assess

the WCD component.

[17] The ET were aware of the problems (a) that the two points values cannot properly be

aggregated and (b) that the grade boundaries were drawn with the points flowing from the

application of the grade factor plan alone, without the addition of the WCD factor plan – see

paragraphs 372 and 374. The ET went on to seek and apply a solution to these problems,

which was not provided within the JES itself and on which there was no evidence or

submissions.

[18] As was observed in Bromley v Quick, it is for the employer to explain how the JES

worked and what was taken into account at each stage. The burden of proving that the JES

is valid for the purposes of section 1(5) rests with the respondent, as the party who would

Page 16 ⇓

fail if no evidence were adduced on either side – Dickson on Evidence, Title II, para 25; Walker

& Walker, The Law of Evidence in Scotland (4th ed), para 2.1.1 and 2.2.4. Here the respondent

developed two parallel schemes; the first was the WPBR, which involved a job family

grouping and allocation process, which resulted in role profile factor plan points, and the

second was the WCD scheme, which produced an annual payment. The WCD payment had

no effect on the grade of the job, which was wholly determined and fixed by the WPBR

allocation process. The respondent failed to discharge the burden of proving that its two

schemes together produced a rating and constituted a valid JES that satisfied the

requirements of section 1(5) of EQP.

[19] Time and again the ET appears to have erred in its approach to the burden of proof

in this crucial matter. It observed (at para 548) that it had no more than the assertions of

counsel that the role profile was not fit for the purpose to which it was put – “there was

simply no expert evidence called by the claimants ...”. At paragraph 666 it observed that

“there was no one called on behalf of the claimants who was in a position to express an

opinion as to whether any of the scores awarded under the headings in the WCD factor plan

were inappropriate”. The ET made similar observations about the lack of evidence on behalf

of the claimants at paragraphs 672, 690, 701 and 713 of the principal decision, and at

paragraphs 37 and 40 of the additional reasons. These passages suggest that the ET

considered that there was a burden of proof on the claimants, and that they had failed to

discharge this. They concluded (at para 37 of the additional reasons) that “the effect of the

claimants’ submissions is to seek to create a lacuna – the absence of a mechanism or rule for

bringing the grade and WCD scores together – rather than to work with the methodology as

it is”. This passage highlights the point – the submissions for the claimants did not create a

Page 17 ⇓

lacuna, but merely pointed to the existence of a lacuna because of the respondent’s failure to

discharge the burden of proof.

[20] The issue of the absence of expert evidence, and the result of this absence, is linked to

the issue of burden of proof. On several occasions the Tribunal complained that none of the

parties had called an independent expert who could provide the Tribunal with an opinion as

to the legitimacy of using a methodology that resulted in two separate points values each

determined by the use of job evaluation techniques. Dr Watson gave evidence as a witness

of fact and not an independent expert entitled to express an opinion. None of the members

of the Tribunal would hold themselves out as experts in the field. (See in particular

paras 375 – 380 and 442, 548, 666, 672 and 713 quoted above).

[21] However, the ET then fell into error. Having stated that it required expert evidence

about the technical question as to the legitimacy of using this methodology, and that it could

not be expected to rely on its own knowledge to reach a conclusion, it then answered the

question and reached a conclusion. Although it made it clear that Dr Watson gave evidence

as a witness of fact, and not as an expert, the ET “in the absence of any evidence or authority

to the contrary” drew the inference that the technique of using two points scores to produce

two elements in the pay package is a legitimate approach to job evaluation. It was not open

to the ET to do this. The absence of expert evidence created a lacuna which the ET could not

fill using its own inexpert acquaintance with the principles of job evaluation. This was so,

particularly standing the fact that Dr Watson’s evidence and the soundness of his judgment

were central to the design and compliance of the scheme, and the scheme itself was

pioneering, novel and unchartered. As the ET observed (at para 442):

“the absence of independent experts able to express an opinion on Dr Watson’s work

left the Tribunal in some difficulty. Whilst the Tribunal could bring to bear the eye

Page 18 ⇓

of interested lay people with some understanding of job evaluation, the Tribunal

simply lacked the expertise to fully evaluate Dr Watson’s judgments in the abstract.”

Yet this is what the ET did. It was not for the claimants to fill the gap, nor for the ET itself to

fill the gap. The last sentence of paragraph 380 throws this error into sharp focus; it was not

for the claimants to lead evidence to the contrary, but for the respondent to lead positive

evidence that the scheme is (not could be) compliant. This was central to the validity of the

scheme; it was a technical matter in respect of which the evidence of an expert was required

(para 548). It was for the respondent to lead this evidence, and in the absence of expert

evidence the ET should not have found the JES to be compliant with section 1(5) of the EQP.

[22] With regard to the ground of appeal based on section 2A(2A) (which was presented

as an alternative to the grounds based on section 1(5)), counsel for the appellants made it

clear that it was not suggested that the respondents’ JES deliberately discriminated on

grounds of sex; their position was based on section 2A(2A)(b), namely reasonable grounds

for suspecting that the evaluation contained in the study is otherwise unsuitable to be relied

upon. It was accepted that the onus in this regard was on the claimants to raise this issue,

but it was for the Tribunal to assess whether it had reasonable grounds for suspecting that

the evaluation was unsuitable to be relied on. There is no requirement for “cogent

evidence” to show that the evaluation is definitely unsuitable to be relied upon – all that the

Tribunal requires is reasonable grounds to suspect this.

[23] Counsel for the appellants supported the approach adopted by the ET in Hartley v

Northumbria Healthcare NHS Foundation Trust (at para 584), which was also adopted by the

ET in Russell and Others v South Lanarkshire Council (unreported) ETS/107667/105 at

paragraphs 301/302.

Page 19 ⇓

[24] The ET in the present case erred in requiring “cogent evidence” from the claimants to

show reasonable grounds for suspicion (see eg paras 102, 353, 470 and 696). The ET placed a

formal evidential burden upon the claimants to prove that the JES was not suitable to be

relied upon, as a precondition of the ET considering whether there were any reasonable

grounds. This set a threshold which was not required by EQP and was an error in law.

Indeed, the ET appears to have required not just evidence from the claimants, but expert

evidence on their behalf, to raise even a suspicion (see paras 621 and 718, and para 40 of the

additional reasons).

[25] The ET found that there were no reasonable grounds to suspect that the JES was not

suitable to be relied upon, despite a complete lack of the expert evidence it said it required

to determine crucial validity issues. It was submitted that the ET erred in doing so, as the

total lack of the evidence it said it required to be able to determine crucial technical issues

was itself a reasonable ground for a suspicion that the JES was not suitable to be relied upon.

[26] The ET made the following three important findings:

(1) That the ATK at the heart of the JES was “novel and untested”.

(2) That there was no expert evidence to support the design spoken to by Dr Watson.

(3) That there was no way to aggregate the two values from the two parallel schemes.

Each of these issues goes to the heart of the question before the ET, that of validity. It was

submitted that each raised reasonable grounds for a suspicion of unsuitability and that the

ET, properly directing itself, ought to have found that that was so.

[27] If the ET had not erred in law and if it had directed itself properly, it would have

answered the third question in paragraph 3 of its decision letter in the negative, and the

fourth question in the negative, because there are reasonable grounds to suspect that the JES

is otherwise unsuitable to be relied upon.

Page 20 ⇓

[28] For all these reasons the court should allow these appeals, quash the decisions of the

ET and EAT and remit to the ET to consider the question of equal value.

Submissions for the respondent

[29] In addition to the authorities referred to on behalf of the appellants, counsel for the

respondent drew our attention to Middlesbrough Borough Council v Surtees [2008] ICR 349,

England v Bromley London Borough Council [1978] ICR 1, Dibro Ltd v Hore [1990] ICR 370 and

Diageo plc v Thomson (unreported) EATS/0064/03.

[30] Counsel for the respondent submitted that the ET was entitled to have regard to the

large body of evidence placed before it and to reach the conclusion which it did, namely that

the JES was valid and compliant with section 1(5) of EQP. The ET carefully analysed the

application of the methodology leading to the determination of grade pay (particularly at

paras 290-298), the ATK (particularly at 406 and 421) and whether the WPBR amounted to

an evaluation as envisaged by section 1(5) EQP (particularly at paras 468, 471 and 473). The

claimants had the opportunity to give evidence that an error had occurred, but did not do

so; it can be inferred from this that the method of allocation by senior managers was an

accurate way of proceeding. Looking at these groups of findings (and also paras 556 and

597) it was clear that the ET had worked through the various stages of the scheme and

reached the conclusion that it satisfied the description of a JES for the purpose of section 1(5)

of EQP. The ET also understood why the scheme did not replicate the GLPC scheme, and

considered the effect of two separate evaluations, one under WPBR and one under WCD

(see para 673 et seq).

Page 21 ⇓

[31] With regard to the burden of proof, counsel accepted that this rested on the employer

to show the validity of the scheme in terms of section 1(5), but on the claimants in relation to

section 2A(2A).

[32] What did the burden of proof in terms of section 1(5) require the respondent to

prove? Before the ET, counsel for the claimants suggested (at para 697) that the respondent

required to prove that the WPBR was (a) thorough in analysis, (b) objective, (c) transparent,

(d) accurate, (e) internally sound and consistent, (f) sufficiently detailed and (g) fair.

Counsel for the respondent did not take issue with these tests. The ET considered each of

these at paragraphs 698-704 and was satisfied that they were met.

[33] Counsel for the respondent accepted that there was no “currency converter” or

mechanism to enable comparison between WPBR grade points and WCD points, but there is

no mention of this in the Act, and it is not a requirement. All that is required is a scheme

which creates a mechanism for comparison between two jobs for evaluation purposes. The

ET gave an example of how this might work at paragraphs 387/8. Senior counsel accepted

that this might not be the best way of comparison, but it will satisfy the statute if it works. If

it allows a comparison to be made, it is a working mechanism which meets the requirements

of transparency and objectivity.

[34] So what is required to prove this? Counsel asked where does the “tipping point”

come? This cannot be expressed in absolute terms. It was not suggested for the respondent

that a prima facie case was sufficient, but it will vary according to the context of each case – it

depends on the judgment of the ET in light of the evidence it has heard. The ET in the

present case clearly decided that the tipping point had been reached, because it criticised the

claimants for not having adduced evidence in support of their critique of the methodology

of the scheme. This would not be a valid criticism if the onus still rested on the respondent.

Page 22 ⇓

Part of Dr Watson’s evidence about the scheme was that it was compliant with the Hay

standard. The Tribunal had a mountain of evidence before it and was entitled to decide that

the respondent had discharged the onus.

[35] Turning to the lack of expert evidence, senior counsel accepted that the ET observed

that it was deprived of an expert witness and this impacted on its ability to determine

particular technical questions. The appellants pointed to paragraphs 376/7 and 547/8 and

argued that once the ET had said that it lacked competence, that is the end of the matter – it

cannot make the decision without expert evidence, and the onus of proof then results in

failure for the respondent.

[36] There were good practical reasons for not accepting this argument. There will be

technical considerations and issues in every case where an ET is considering whether a JES

complies with section 1(5). Although the present scheme was novel and innovatory, and

such input might have been helpful, such questions arise in every case, not just in novel

cases. The consequence would be that in every case in which a JES is being tested, the

employer would not be able to succeed without the evidence of an independent expert. If

Parliament had intended that compliance with section 1(5) could only be established with

the approval of an independent expert, it would have said so. Such a result should only

arise from a Parliamentary decision, and not by judicial development.

[37] In the present case, the ET wrestled with the issue of whether it was legitimate to

employ a methodology that resulted in two separate points values in the passage from

paragraph 372 to 380. Although the ET indicated at paragraph 378 that none of its members

would hold themselves out as experts in the field, the ET went on to decide the technical

question itself without expert evidence. Although it was accepted that Dr Watson did not

give evidence as an independent expert, he did have expertise in the field. The Tribunal had

Page 23 ⇓

his evidence before them, and they were entitled to reach the conclusion that the technique

of using two points scores to produce two elements in the pay package was a legitimate

approach to job evaluation, because an expert would not have been able to take the decision

on this matter but could only have assisted the ET. If the ET did not have expert evidence

before it, it had to do the best it could with the evidence it had. The absence of expert

evidence was therefore not necessarily fatal to the ET’s decision that the requirements of

section 1(5) had been met. The ET made no error of law in dealing with the matter in the

absence of expert evidence.

[38] With regard to the third ground of appeal, based on section 2A(2A) of EQP, the ET

made no error of law. It was mindful that the burden of proof in this regard is on the

claimants (para 90). The ET also had regard (at para 80) to the observations of the court in

Fox, Campbell & Hartley v UK (1991) 13 EHRR 157 at para 32, that “reasonable grounds for

suspicion” “presuppose the existence of facts or information which would satisfy an

objective observer that the person concerned may have committed the offence”. On any

view, the decision of the ET was a work of monumental proportions; the court should not go

through it and pick out infelicities or even minor errors to invalidate it – a degree of

indulgence is appropriate.

Discussion and decision

[39] It was not seriously in dispute before this court that the burden of proving that the

JES was valid and compliant with section 1(5) of EQP rested on the respondent. We

consider that this is correct in law (see Bromley v Quick Ltd; Dickson on Evidence; Walker &

Walker, (supra)). Looking to the language of the statute, section 1(5) requires a study to be

undertaken with a view to evaluating the jobs to be done by all or any of the employees in

Page 24 ⇓

an undertaking or group of undertakings, giving an equal value in terms of the demand

made on a worker under various headings. Examples of the headings are effort, skill and

decision, but this is not an exhaustive list. The study must not determine equal value by

reference to settings giving different values for men and women on the same demand under

any heading.

[40] Senior counsel for the respondent did not take issue with the factors which counsel

for the claimants submitted to the ET required to be proved by the respondent (para 697).

These factors were that the JES must be thorough in its analysis, objective, transparent,

accurate, internally sound and consistent, sufficiently detailed, and fair. For our part we

consider that parties’ agreement that these were relevant factors for the ET to consider in

this case was justified.

[41] However, it will not normally be sufficient for an employer, in order to discharge the

burden of proof on it, merely to place a scheme before the ET and leave it to claimants to

pick holes in it or find deficiencies in it. Discharging a burden of proof involves the positive

obligation of leading evidence to justify the scheme against the relevant factors. Counsel for

the respondent at one point submitted that while there was an initial onus on the employer,

all that was required was to show that the JES was a system which prima facie met the

requirements of section 1(5). We do not agree. The burden of proof on an employer is not

satisfied merely by laying a scheme before the ET, nor is it satisfied by an assertion that it is

prima facie compliant with section 1(5). In order for a JES to comply with section 1(5), it

requires to be rigorously tested against the various factors listed above. It is only if, after

rigorous analysis, the scheme is found to meet the requirements of section 1(5) and the

factors listed above, that it will be able to provide the protection envisaged by the Equality

Directive and by EQP for both employer and employee.

Page 25 ⇓

[42] The burden of proving that its JES was compliant with section 1(5) rested on the

respondent throughout the proceedings before the ET. It was not part of the function of the

ET to speculate as to whether aspects of the JES might be made to work in such a way as to

render them compliant. If there was a lacuna in the methodology of the JES, it was not part

of the ET’s function to try to fill that lacuna. If the Tribunal could not be satisfied on the

basis of the evidence led before it that the methodology of the JES was justified and its

analysis thorough, the ET required to find that it was not a valid job evaluation as defined in

section 1(5) of EQP.

[43] The above observations apply to all ETs, but in the context of the particular JES being

considered in these appeals, they are especially important. The scheme which was being put

forward by the respondent was a bespoke scheme; it did not follow the methodology of the

SJC, nor that of the GLPC, nor the advice of the EOC. The respondent was of course entitled

to commission its own bespoke design, and was not obliged to follow the methodology of

other schemes. However, when the ET was considering what it described as a “bespoke,

novel and untested” scheme, it must have evidence before it from the respondent to enable

it to conclude that it was compliant. Where an employer is using a scheme which has

already been used by others and has been considered, tested, analysed and found to be

compliant, it may be that less evidence will be required to discharge the burden of proof of

compliance. There was no suggestion that any scheme using the same or similar

methodology to that of the scheme designed by Dr Watson had ever been considered before.

[44] Moreover, Dr Watson’s scheme could not easily be compared with other schemes,

because different headings were used for different job families, and the scoring of grade

factor plan points was unique, and differed from, for example, the GLPC scheme.

Page 26 ⇓

[45] Another unusual feature of the scheme under consideration was that the WPBR

grade factor plan points were measured on a different scale from the WCD points, and there

was no method of conversion or comparison of the two. The ET observed (at para 398) that

“grade and WCD scores and pay represent the value of the job for the purposes of

section 1(2)(b) EQP”, but “each job is said to have two points values which on the Tribunal’s

findings, cannot properly be aggregated and where each of those points values fit into

separate sets of points ranges and produce two distinct payments.” (para 372). Moreover, as

the Tribunal was aware (para 376) there was no authority in which job evaluation leading to

two separate points values has been considered.

[46] In these circumstances we consider that it was necessary for the ET to keep at the

forefront of its mind where the burden of proof lay (namely, with regard to the issue of

compliance with section 1(5), on the respondent) and only to reach a conclusion on the basis

of the evidence presented to it.

[47] At several points in its decision and in its additional reasons the ET appears to

criticise the claimants for not leading expert evidence (for example, paras 548, 666, 672, 690,

701 and 713 of the decision letter, and paras 37 and 40 of the additional reasons). The

impression is created that there was an onus on the claimants to establish that the scheme

was not compliant with section 1(5). We do not accept that there was any such onus. If the

respondent did not lead sufficient, or sufficiently persuasive, evidence that the scheme met

the relevant tests in order to comply with section 1(5), the ET required to find that the

scheme was not a valid job evaluation as defined in section 1(5) of EQP.

[48] This takes us to the question of expert evidence, or the lack of it. At paragraph 376

the Tribunal observed that the lack of any authority in which job evaluation leading to two

separate points values led the Tribunal to consider whether it was legitimate to employ a

Page 27 ⇓

methodology that resulted in two separate points values, each determined by the use of job

evaluation techniques. The Tribunal went on to state that the answer to the question lies

within the technical expertise of an expert in job evaluation and that none of the parties had

called an independent expert who could provide the Tribunal with an opinion as to the

legitimacy of using this technique (para 377). At paragraph 378 it is stated that “the

members of the Tribunal have an acquaintance with the principles of job evaluation but

none of the members would hold themselves out as experts in this field” and that the

Tribunal can no more be expected to rely on its own knowledge to reach conclusions about

technical matters within the professional competence of those qualified, trained or

experienced in the practice of job evaluation than would a court dealing with the nature,

extent and consequences of a personal injury be expected to have sufficient knowledge of

medical matters without the evidence of experts.

[49] We pause to observe that these observations by the ET are entirely understandable

and legitimate. The Tribunal clearly felt unable to answer this question, which lay within a

particular field of professional expertise which they did not themselves possess, without the

evidence of an independent expert. This was a perfectly proper view to take. The

consequence of it, it seems to us, was that the Tribunal could not answer the question.

[50] Dr Watson (as counsel for the respondent accepted before this court) was not an

independent expert. As the ET noted (at para 380) “he gave evidence as a witness of fact

and not an independent expert entitled to express an opinion”.

[51] Similar complaints about the lack of expert evidence were made by the ET later in

the decision. At paragraph 442 the Tribunal stated that it was:

“very conscious that Dr Watson’s evidence as to what he did was based on his

opinion as to the soundness of his judgments within the field of expertise of a person

skilled, qualified and/or experienced in the mysteries of job evaluation. The absence

Page 28 ⇓

of independent experts able to express an opinion on Dr Watson’s work left the

Tribunal in some difficulty. Whilst the Tribunal could bring to bear the eye of

interested lay people with some understanding of job evaluation, the Tribunal

simply lacked the expertise to fully evaluate Dr Watson’s judgments in the abstract”

(see also paras 548, 666, 672 and 713).

[52] However, having stated that the answer to the question lies within the technical

expertise of an expert and that the Tribunal did not hold themselves out as experts, the

Tribunal proceeded to answer the question. It may have done so on the basis that

Dr Watson stated that to his knowledge his previous employers had used the technique of

considering demands under two separate evaluations, and the Tribunal accepted that

evidence. The Tribunal stated that it regarded this as significant, and in the absence of any

evidence or authority to the contrary, the Tribunal drew the inference that the technique of

using two points scores to produce two elements in the pay package is a legitimate approach

to job evaluation. However, it does not appear that any information was placed before the

ET as to the circumstances in which this technique was used, or whether it resulted in a JES

which worked successfully, or how often the technique had been used by Dr Watson’s

former employers, or how familiar he was with the details of such a scheme or schemes (and

whether he had been involved himself in the design of it or them), or whether or not such a

scheme or schemes contained a method for converting or comparing point scores arising

from the two separate evaluations. All that the ET had was Dr Watson’s general statement,

with no supporting detail.

[53] Having determined that the question lay within the technical expertise of an expert

in job evaluation, which the ET itself did not possess, we do not consider that it was open to

the ET to answer this question. There are many cases in which a specialist tribunal will be

able to rely on its own expertise and experience when reaching a conclusion. However, on

Page 29 ⇓

the basis of the ET’s own expressions that it did not possess the necessary expertise, this was

not such a case. As the ET observed at paragraph 442, “the Tribunal simply lacked the

expertise to fully evaluate Dr Watson’s judgments in the abstract.”

[54] In such a situation, it was not for the ET to decide the matter by “bringing to bear the

eye of interested lay people”. If there was no independent expert evidence on a technical

question which could not be answered without such evidence, the ET should not have

attempted to answer it. It should not have attempted to fill the lacuna. The ET was not

entitled to answer the question on the basis of Dr Watson’s evidence that his former

employers had used the technique, nor to place any reliance on the absence of any evidence

or authority to the contrary.

[55] The EAT considered this issue at paragraph 188 of its judgment. The EAT

considered that the ET:

“was entitled to decide the validity or otherwise of the scheme in light of the

evidence led before it. In expressing the view that expert evidence might have been

helpful, the ET expressed an opinion it was entitled to hold. The claimants did not

lead any expert evidence to show inadequacy of the JES.”

We consider that the EAT were in error in reaching this view. First, the ET did not express

the view that “expert evidence might have been helpful”, but rather that the answer to the

question of legitimacy posed in paragraph 376 lay within the technical expertise of an

expert, which the ET did not possess. The EAT also appeared to have attached weight to the

fact that the claimants did not lead any expert evidence to show inadequacy of the JES – but

this suggests that there was some onus on the claimants to do so. As we have indicated

above, we do not consider that there was any such onus. This was not a case of a specialist

tribunal asserting knowledge, but rather of a tribunal expressly disavowing expertise.

Page 30 ⇓

[56] With regard to the issue of the compliance of the JES with section 1(5), we conclude

that the burden of proof rested throughout with the respondent. Having determined that it

lacked the expertise to answer the issue which it identified in paragraph 376 without

independent expert evidence, and there having been no independent expert evidence, the

ET erred in law in proceeding to answer the question. The absence of such expert evidence

meant that the respondent failed to discharge the burden of proving that its JES was

compliant with section 1(5) of EQP. The decision of the ET in this regard displays an error of

law, and the decision of the EAT to uphold that decision also amounts to an error of law.

[57] That is sufficient to dispose of these appeals. However, we turn briefly to consider

the third (and alternative) ground of appeal, relating to section 2A(2A) of EQP. In this

regard, the burden of proof rested with the claimants. However, there is no suggestion that

this issue involved the technical expertise of an independent expert. All that the claimants

required to do was to persuade the Tribunal, on the basis of all the material before it, that

there were reasonable grounds for suspecting that the evaluation contained in the study was

unsuitable to be relied upon. There is no requirement for particularly cogent evidence, nor

indeed for evidence that an element of the study is actually unsuitable. All that is required

is reasonable grounds for suspicion.

[58] The ET stated (at para 718) that:

“the claimants have chosen not to lead expert evidence with a view to placing an

admissible opinion before the court that shows or provides reasonable grounds to

suspect that jobs have been scored in a way that the WCD factor plan cannot bear, or

that, in some other way, things have gone awry with the result that the Tribunal

should find the required grounds for suspicion, either in individual cases or in

groups of cases or overall.”

We agree with counsel for the appellants that this places too high a threshold on the

claimants. Whilst claimants may choose to lead expert evidence in this regard, we do not

Page 31 ⇓

consider that this is necessary, given that the issue is whether there are reasonable grounds

for a suspicion. Nor do we think that cogent evidence of reasonable grounds for suspicion is

required. What is required is sufficient evidence before the ET to raise such a reasonable

suspicion.

[59] There was in our view sufficient material before the ET to justify such a reasonable

suspicion. In particular, the ATK at the heart of the JES was “novel and untested”. It had

never been considered anywhere. There was no independent expert evidence to support the

design. There was no mechanism to aggregate the two values from the two parallel

schemes, and no method of conversion or calculation. As the ET observed (at para 374) the

grade boundaries were drawn with the points flowing from the application of the grade

factor plan alone in mind, and without taking account of the WCD factor plan. There was

therefore ample material on which a reasonable tribunal might reach the conclusion that it

had reasonable grounds for suspecting that the evaluation contained in the study was

otherwise unsuitable to be relied upon.

[60] We do not suggest that the ET was bound to reach such a conclusion. However, the

ET appears to have required the claimants to provide “cogent evidence” of reasonable

grounds for suspicion (see paras 102, 353 and 696), and also to have required the claimants

to lead expert evidence to justify reasonable grounds for suspicion (see paras 621 and 718,

and para 40 of the additional reasons). This, we consider, sets the bar too high. The

claimants are entitled to point to all the circumstances as disclosed in the evidence, from

whatever source, and to argue that this gives rise to reasonable grounds for suspicion. In

this respect too, we consider that the ET erred in law, and the EAT erred in law in upholding

the decision of the ET.

Page 32 ⇓

Disposal

[61] For the foregoing reasons we shall allow these appeals, quash the judgment of the

Employment Tribunal dated 9 December 2013 and the judgment of the Employment Appeal

Tribunal dated 15 March 2016, and remit to the Employment Tribunal to consider the

question of equal value.