United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellants	Ms A Jones, Solicitor Of- Messrs Maclay Murray & Spens Solicitors 3 Glenfinlas Street EDINBURGH EH3 6AQ
For the Respondent	Mr B Napier, QC Instructed by- Equal Opportunities Commission St Stephen's House 279 Bath Street GLASGOW G2 4JL

SUMMARY EQUAL PAY ACT

Appeal against Employment Tribunal's Decision that Respondent's 2000 job evaluation study not within s1(5) (and therefore no bar to Applicant's claim by reference to s2A) of the Equal Pay Act 1970 dismissed by reference to Eaton v Nuttall [1977] ICR 272. Tribunal did not deal with effect of the earlier (1996) evaluation study: order that fresh tribunal deal with that and other matters by way of preliminary issues within Rule 10A in relation to the equal value claim.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT):

1.                  This has been the hearing of an appeal by Diageo plc, the Respondent to an Equal Pay Act application, against the decision of the Employment Tribunal at Aberdeen after a hearing on 26, 27 and 28 March and 7 May 2003, by Reasons handed down on 17 June 2003, that there was no valid job evaluation study in terms of s1(5) of the Equal Pay Act 1970. The statutory context of this is that there has been a case made on behalf of Ms Thomson, the Applicant, who is an employee, as Management Systems Co-ordinator, of the Respondent, that her claim was of equal value to the work of the Environmental Compliance Manager ("the ECM post") carried out by a male employee, Steve Hunter.
2.                  By virtue of s2A of the Equal Pay Act 1970 as amended ("the Act"), such a claim is excluded from the ambit of the Employment Tribunal if there is a valid job evaluation study within s1(5) of the Act. S2A reads as follows:-

"(1) Where on a complaint or reference made to an [employment tribunal] under section 2 above, a dispute arises as to whether any work is of equal value as mentioned in section 1(2)(c) above the tribunal [may either-

(a) proceed to determine that question; or

(b) unless it is satisfied that there are no reasonable grounds for determining that the work is of equal value as so mentioned, require a member of the panel of independent experts to prepare a report with respect to that question;

and, if it requires the preparation of a report under paragraph (b) of this subsection, it shall not determine that question unless it has received the report].

(2) Without prejudice to the generality of … subsection (1) above, there shall be taken, for the purposes of [that subsection], to be no reasonable ground for determining that the work of a woman is of equal value as mentioned in section 1(2)(c) above if-

(a) that work and the work of the man in question have been given different values on a study such as is mentioned in section 1(5) above: and

(b) there are no reasonable grounds for determining that the evaluation contained in the study was (within the meaning of subsection (3) below) made on a system which discriminates on grounds of sex."

We do not need to refer to the terms of subsection (3), because no suggestion has been made in this case that the evaluation, which has been put in issue before us, is one which is invalidated by s2A(3) by virtue of discrimination on grounds of sex.

3.                  The effect, therefore, of there being such a study as is referred to within s1(5) of the Act, can be, by virtue of s2A(2), to rule out any further proceedings before the Employment Tribunal either by way of determination by the Tribunal itself under s2A(1)(a) or by the appointment of an expert under s2A(1)(b). S1(5) reads as follows:-

"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 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 or a system setting different values for men and women on the same demand under any heading."

4.                  The Respondent, and its predecessors, adopted for some 20 years the well-known Hay Evaluation, the Hay MSL Job Evaluation Scheme, among others, such evaluation being primarily for those in management. Two of the Respondent's witnesses, who gave evidence before the Tribunal, Mr Morrison, who retired in 1998, and Mr Campbell, were trained Hay Evaluation analysts and evaluators. They explained to the Tribunal what the Tribunal would no doubt already have known, namely the processes of the Hay Evaluation. The 1996 job evaluation was one which was carried out under the Hay Evaluation, and, subject to what we shall say hereafter, there was no criticism of the 1996 evaluation laid before the Tribunal, nor any determination made by the Tribunal about it.
5.                  The evaluation, which was the subject matter of consideration by the Tribunal at the hearing to which we have referred, was carried out in 2000, and, by reference to that evaluation, the Respondent asserted that it fell within s1(5), such that there was no purpose or future in the application made by the Respondent, and that s2A(2) operated so as effectively to strike out the Applicant's claim by virtue of s2A(1), to which we have referred.
6.                  It is common ground that by 2000 the Hay Evaluation Scheme was no longer operated by the Respondent.
7.                  There was a merger or takeover involving the Respondent in April 1999, and it was, according to the findings of the Tribunal at the paragraph which we have numbered 6 in its Decision, necessary in April 1999 for the Respondent to update the terms and conditions of its employees. The Applicant wrote a letter on 11 May 1999 asserting that her salary did not reflect the going rate, and asked for re-consideration of her position before she accepted her new terms and conditions of employment, and this led on, in due course, to the response by Mr Irwin, the Human Resources Manager, dated 15 June, that, with regard to her concerns about her salary, the situation would be reviewed in October, and through the job evaluation programme that was due to commence shortly. Such a job evaluation programme did commence and was completed in 2000 and it was that study which was relied upon by the Respondent, as we have stated.
8.                  The Central Evaluation Panel for the purposes of the Hay Evaluation Scheme had disbanded in 1996, and the Respondent then ceased subscribing to Hay, being audited by them or obtaining updates from them. The Tribunal, at our numbered paragraph 7, records that the reason for this was that the Respondent had decided to replace the Hay Evaluation Scheme, and the other evaluations which it had been operating, with its own job evaluation scheme. That was not yet in place in June 1999. In paragraph 9 of the Tribunal's Decision, it finds as follows:-

"Mr Irwin met with Ms Thomson again and, as the new JES had still not commenced, and although the respondent was no longer using the Hay Scheme and the central panel had been disbanded, it was agreed that to progress matters an evaluation using the Hay Scheme process, as far as possible, would be carried out."

The Applicant confirmed what had been agreed in her letter of 9 November saying:-

"2- Job Evaluation against the "HAY" system was to be carried out in order to resolve my complaint about my salary."

9.                  The Respondent then was, pursuant to its promise to the Applicant, to launch into a evaluation based on the Hay system at a time when it had no longer the full trappings of the Hay Evaluation still available, and before it had introduced its new system. At paragraph 13 the Tribunal records as follows:-

"Iain Campbell was the only remaining Hay trained evaluator and he was charged with the task, therefore, in December 2000 of evaluating Ms Thomson's MSC job using the Hay Scheme process, to the extent that it still existed. Following the decision to introduce its own JES and to disband the central evaluation panel in 1996, the respondent had been moving from job descriptions to "role profiles" and in 1999 such a profile was prepared for Ms Thomson."

Mr Campbell then worked, together with Mr Irwin, on the evaluation which was completed in December 2000. The application therefore to strike out, as in essence it was, was put in general terms by the Respondent on the basis that the 2000 report foreclosed any fresh consideration by the Tribunal.

10.              Although there was no mention in its pleadings, it was, at any rate by the time of the hearing, part of the Respondent's case that not only was the 2000 evaluation valid but the 1996 evaluation was too, and, even if the 2000 evaluation was not valid, reliance would be placed on the 1996 evaluation.
11.              Although that was a part of the submissions that were made before the Tribunal, and we have seen the written submissions by the Respondent to this end, the Tribunal did not reach any conclusion about the 1996 evaluation, and we shall return to that later in this judgment. It did, however, reach a conclusion about the 2000 evaluation, to which we shall now turn.
12.              We have read s2A of the 1970 Act, and it is plain that, subject only to the express exclusion of a study which is vitiated on grounds of sex discrimination pursuant to s2A(2)(b) and(3), which is expressly not asserted to apply here, there is, on the face of the statute, no caveat or condition other than that there should simply have been a study such is as mentioned in s1(5). At all times before the Tribunal and before us, what has been referred to is the existence of a valid study. But that word is not used in the Act. There is, however, a very helpful decision of this Appeal Tribunal given by Phillips P as long ago as 1977, and this formed the basis of the argument before the Tribunal, as it has before us. We commend the extremely clear and concise statement of Phillips P in Eaton Limited v Nuttall [1977] ICR 272, at 277H, which was as follows;-

"It seems to us that sub-section (5) can only apply to what may be called a valid evaluation study. By that, we mean 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. It will be in order to take into account such matters as merit or seniority, etc., but any matters concerning the work (e.g., responsibility) one would expect to find taken care of in the evaluation study. One which does not satisfy that test, and requires the management to make a subjective judgment concerning the nature of the work before the employee can be fitted into the appropriate place in the appropriate salary grade, would seem to us not to be a valid study for the purpose of subsection (5)."

13.              Apart, therefore, from the statutory conditions of non-discrimination of grounds of sex, the headings which arise of out of Phillips P's clear exegesis are:-

(i) such a study must be thorough in analysis, and,

(ii) it must be capable of impartial application.

Both those two requirements, as Ms Jones, solicitor for the Respondent, has rightly pointed out, apply to the study itself, and not to the way in which it is applied. Of course if it is not capable of impartial application, then it will be unlikely to be impartially applied. But of course, equally, if it is, in practice, partially applied but was capable of impartial application, then the study itself is not invalid.

14.              It is also plain and this was not, in essence, contrary to the submission which Ms Jones was making to us, that in order to arrive at a conclusion that the study is not thorough in analysis, it is not necessary to look at its workings, or, not necessary to find mathematical errors, or respects in which the reasoning is faulty. Of course if there are such errors or faulty reasoning, then that will of itself go to show that the study is not thorough in its analysis. But because of the inevitably complicated thought processes which are involved in this kind of study, and the expertise of those who carry them out, if, in fact, a study, and this is not of course suggested to be such a one, has been tossed off in a matter of moments, or rushed through, this will not necessarily show up in inaccurate mathematics or faulty reasoning, and, yet, if such were the case, it would clearly be capable of being shown that that report was invalid through lack of thorough analysis, as a result of the circumstantial evidence to which we have referred. Equally, of course, if there are experts working away in accordance with a well-established system, who produce a report in a period of time which looks miraculous, and which is much faster than many others would have achieved, then the simple fact that it is being done with speed would not lead to any conclusion that it has not been done with thorough analysis. All will depend upon the precise facts of any given case.
15.              Mr Napier QC, for the Applicant, has sought to show us, and we have looked at by reference to his written submissions, European authorities and other references, which indicate that we should be looking, and Courts generally should be looking, at the Equal Pay Act purposively, in order to ensure a result consistent with the intentions of the European legislators to achieve equal pay and fairness at work. That is of course, all well and good, and, it does mean that when we come to statutory construction, or when we come to apply case law, we will do so in that frame of mind. But it is, as we see it, absolutely essential that employment tribunals, carrying out the job of the industrial jury, are not left without guidance or assistance; are not left simply to look at a job evaluation study and ask themselves in the round whether it is a good one or a bad one, or one which looks as though it ought to be capable of blocking out a s2 application or not; nor, indeed, either on the one hand start with a presumption that an existing job evaluation study should not stand in the way of a fresh consideration, or on the other hand, regard the availability of the exemptive block as too easily to hand.
16.              We believe that the formula for such guidance, enunciated by Phillips J, which has stood the test of time, is one which is to be welcomed, and which can be operated by an employment tribunal. So far as the decision of this Employment Tribunal is concerned, the Tribunal correctly referred to the test in the paragraph which we have numbered as paragraph 44 of its Decision. Before it arrived at that recital, it had set out a number of matters, persuaded by the evidence it had heard, including evidence from an expert called on behalf of the Applicant, a Ms Hastings, of what it concluded to be concerns about the 2000 report, or defects in it. Having recited those defects, it set out its conclusion in the following way, in paragraph 46:-

"While we appreciate that job evaluation is not an exact science, we identified a number of defects in the process which the respondent followed in this case, in particular in relation to the re-evaluation of the MSC job in December 2000. Further, we found support for our views in the expert evidence of Sue Hastings. Ms Hastings was also of the view that there were further defects in the process, including a real risk of bias. We accepted her evidence in this regard and accepted the conclusions in her report, in particular that the 2000 re-evaluation of the MSC post could not be relied upon as a basis for a comparative assessment."

If that stood alone, it would not be helpful guidance for future employment tribunals, or a clear indication as to the thinking of this Tribunal. The Tribunal did however, in the next paragraph, refer to Eaton as follows:-

"On the basis of Eaton, in particular, therefore, we arrived at the view that these defects in the process which the respondent adopted invalidated the alleged JES. It was not a valid job evaluation study, for the purposes of Section 1(5) of the 1970 Act. Accordingly, the respondent cannot rely on it to block the applicant's equal value claim at this preliminary stage.

17.              We consider it unfortunate that the Tribunal did not construct its decision the other way round, namely, to set out the issues from the outset, by reference to the very helpful test of Phillips P in Eaton Limited v Nuttall, as being whether the 2000 evaluation, which was before it, fell foul or not of that formula; then recite the defects which it found, and then conclude, in relation to each defect, whether, either individually or collectively, it caused the study in question either not to be thorough in analysis, or not to be capable of impartial application, or both. There was a very real risk, without following that approach, of the Tribunal being left with a much more difficult question, and probably the wrong one, to answer, namely whether this looked like a good study, or whether it had defects in it. Almost every study is going to be capable of being suggested to have some defects, but it will only be a study which is invalid, and, invalid in accordance with proper and rigorous assessment, that will fall foul of the Phillips test and will not be available under the statute as a block to a s2 Equal Pay Act application.
18.              What we have therefore had to do is to look at the defects which the Tribunal found and see whether, by reference to the very general conclusions that it reached in paragraph 46 and 47, it has indeed reached a conclusion, by virtue of the defects that it found as a matter of fact, that the 2000 study is not valid within the Phillips test. Those defects are set out in the following paragraphs (as numbered by us), as relied upon by Mr Napier QC. The first is in paragraph 25 of the Decision which reads as follows:-

"The central evaluation panel had been disbanded in 1996 as the respondent was moving towards its own JES. Iain Morrison who was a trained evaluator and a member of the panel himself, at one time, said that it was "the main part of the system". He described it as being "integral" and that it "was there to ensure consistency". Further, the importance of the panel was increased by the fact that there was no right of appeal from its evaluation. The Hay Scheme was there to provide a consistent and uniform method of evaluating management jobs across the Company and Mr Morrison accepted that it was automatic that the panel would consider comparability. Mr Campbell, himself, accepted that there had been a "falling off of standards" as a consequence of the disbandment of the panel. Mr Irwin said "What we were doing was not ideal" and that it was "with reluctance" that he had decided to embark on an evaluation of the MSC post, using the Hay Scheme, in December 2000."

In general terms, therefore, what is there referred to is the deficiency of the study as compared with a proper Hay Evaluation, in particular by reference to the absence of the central point of the Evaluation Panel.

19.              The second defect identified by the Tribunal, on the evidence, is set out in paragraph 26 and it is very much interrelated. The Tribunal's finding is as follows:-

"When the system was fully operational there were at least 12 trained evaluators. Normally two evaluators would carry out the evaluation and make a recommendation to the panel. As at December 2000, however, Iain Campbell was the only trained evaluator remaining in the respondent Company. Kenny Irwin was "involved" in the evaluation, but although he is an experienced HR professional and had some limited experience of other job evaluation evaluations, he has not been trained in the Hay Scheme. In our view he could offer no more than very limited assistance. It was maintained by Mr Campbell that when he prepared the documents which explained the evaluations of the applicant's post and that of her comparator, Steve Hunter, he did so "blind" i.e. without being aware of the original evaluations. However, although his re-evaluation of the MSC had been done in December 2000, the documents which he produced to explain the evaluations were only prepared in October 2001 (JI 2/10 and 2/11), after these Tribunal proceedings had commenced."

We interpolate that this is because, unfortunately, the documents underlying the 2000 job study had been mislaid or lost, and Mr Campbell had to put together those workings, and it is not suggested he did not do so both with integrity and with efficiency, for the purposes of the Tribunal hearing itself.

20.              Paragraph 27 is an annexure, effectively, to paragraph 26, because it moves on to make a finding that, in the Tribunal's view, it was, in fact, highly likely that Mr Irwin did make Mr Campbell aware of the 1996 evaluation of the MSC post, contrary to their evidence. Paragraphs 26 and 27 fall to be added to the criticism in paragraph 25 about the difference between what was done and the normal Hay Evaluation in this case, adding the fact that there was only one trained evaluator. This is not, of course, only a matter which goes to the personnel involved and their individual training, but it also goes to the fact that, as we understand it, it is an integral part of the Hay Scheme to have input from more than one trained person to each decision, in order to ensure the best practice and the greatest amount of impartiality. That is part of what was described, in the course of the hearing, by Miss Gaskell, as the checks and balances in the Hay System.
21.              The Tribunal, then, in paragraphs 28 and 29, refers to the next matter which it describes as "another factor which caused us concern". That is the fact that, by December 2000, the Respondent was no longer using job descriptions which would have fitted with what was used in a Hay Scheme, but documents that were called "role profiles". The preface to the Hay Job Analysis Guide referred to the fact that the job description was a vital part of the overall evaluation programme, and Mr Campbell accepted that the role profile was not tailored to the Hay Scheme in the same way that the job description was. That said,there is no specific indication in the findings of the Tribunal as to what material difference there is between a job description and a role profile, or as to what difficulty would have been caused to the evaluator or evaluators carrying out their task.
22.              The next matter which the Tribunal referred to is in paragraph 30 of its Decision which reads as follows:-

"Another factor which caused us concern about the reliability of Mr Campbell's re-evaluation was that since 1996 the respondent had ceased subscribing to Hay. Hay is a commercial organisation and when the respondent was paying the annual subscription and fully utilising its services, in exchange Hay would provide "audits" and "regular updates" including annual pay structure details. According to Mr Campbell Hay provided "fairly rigorous monitoring". However, this had not been the case for some four years before Mr Campbell carried out the re-evaluation of the MSC post in December 2000."

No specific identification was made, or, if made, was found by the Tribunal, of any actual area in which this caused any problem in the relation to the 2000 study.

23.              In paragraph 31 of the decision there is criticism by the Tribunal of the fact that there were no contemporaneous records surviving of the 2000 evaluation. The Tribunal also indicates that there were no records available for the 1994 or 1996 evaluations, but that (a) appears to be incorrect, on what we have been instructed, and (b) would not in any event be relevant, given the matters to which we have already referred, namely, the case that it was the 2000 study which was of relevance, on the basis of these considerations by the Tribunal. The Tribunal said in paragraph 31:-

"it was incomprehensible that the respondent could not produce records of Mr Campbell's 2000 re-evaluation. Mr Irwin accepted that as HR Manager he was ultimately responsible for the loss of the paperwork for the 2000 re-evaluation. There was no satisfactory explanation however as to why such valuable documentation was not available."

Of course we understand that it must be a matter of surprise, in relation to a large company such as the Respondent, that such paperwork has been lost, but we find it difficult to see what inference is to be drawn, or was being drawn by the Tribunal, in relation to the loss of such paperwork. Sometimes, of course, in sex discrimination or race discrimination cases, inferences can be drawn. There is no inference however here that we can see available to be drawn, nor was any drawn by the Tribunal, and significantly there does not appear to have been any criticism of Mr Campbell's reconstruction of those records. This does not appear, therefore, to be a factor which could have been relevant one way or the other to whether the 2000 study, when made, was valid, on either of the two bases addressed by Phillips P.

24.              At paragraph 39 the Tribunal refers to the conclusions of Ms Hastings in her report, which it adopts, as can be seen from paragraph 46 of its Decision as follows:-

"Her view was that the manner in which Mr Campbell carried out the evaluations and the lack of rigour "meant that there was considerably more scope for unconscious bias". She also said that good evaluation practice was not followed in that there was no "rationale sheet" to explain the different evaluations."

Lack of rigour is of course only another way - perhaps this is the first time there has been an indication in the Decision of it - of referring, at any rate implicitly, to the need, of which mention is not made until paragraph 44 of the Decision, for such a study to be thorough in analysis in order to accord with the Phillips test.

25.              The Tribunal therefore set out those criticisms, and we have already indicated that, at least so far as concerns the absence of the underlying documents, and, also to an extent, the change from job descriptions to role profiles, we do not see how those matters come within the Phillips test. However, the real nub of the criticism was the respect in which this study was deficient, as compared with a proper Hay Scheme. Of course, it is not the case that any job evaluation study must be a Hay study, albeit that it is a well established one; and it would be clearly unhelpful for the courts ever to refer to one particular kind of study as the only or best way of setting about job evaluation. But the problem here was that the Respondent had run down the methodology of compliance with its own Hay Scheme, before introducing any new scheme, and was doing its best, with the assistance of only one trained evaluator, to hold the fort.
26.              We are satisfied that the Tribunal was entitled to find, with the benefit of Miss Hastings' evidence, that, by virtue of the absence of the Central Evaluation Panel, the presence of only one trained evaluator, and, consequently, the absence of the checks and balances of a second evaluator, and, to an extent, the absence of the audit reports or continuing monitoring provided by the Hay system, and the lack of rationale sheets which normally form part of the Hay system, and notwithstanding that no particular calculations or rationale could be shown to be in error, this evaluation fell outside the Phillips test, on the grounds of being insufficiently rigorous, or not being thorough in its analysis, as it should have been had a proper system been used.
27.              We are not at the moment persuaded that there would have been sufficient to have failed the second part of the test, although it may be that, had the Tribunal analysed the position more fully than it did, it might also have reached the conclusion, particularly given the absence of the second evaluator, that this evaluation was not capable of impartial application. But there was no error of law, albeit, as we have indicated, that clarity would have been achieved by asking the question and setting out the issue first, and then referring to the evidence and indicating whether, by virtue of the evidence, the test was satisfied. We have, with the assistance of the parties, carried out that exercise, and we are clear that this is a conclusion to which this Tribunal was in law entitled to come, that the Phillips test was in its mind, and, was, in those circumstances, applied, and that the Tribunal cannot be shown to have erred in law in its conclusion.
28.              That disposes of the main appeal before us.
29.              There is however a second and important question that still remains, arising out of the impact, if any, of the 1996 evaluation. In the written submissions that were before the Tribunal, to which we have referred, the Respondents said this:-

"The Applicant does not challenge the evaluations made of her and her comparator by the Central Panel. Therefore, should the Applicant ultimately be successful in her claim, compensation should be limited to any difference in pay from 14 December 2000 until the termination of her employment."

14 December 2000 was the date on which the effect of the 1996 evaluation came to an end, because it was replaced by the 2000 evaluation.

30.              The further submission made by the Respondent was as follows:-

"The tribunal has heard no evidence at all that the first evaluation of the applicant and her comparator were applied in a discriminatory manner. There was a Central Panel still in existence at the time. The only criticism made by Ms Hasting was that there was no evaluation sheet completed. However it is submitted that this would have been no more than a recording of the decision which had been reached. Further the Central Panel was chaired by a woman and had other female representatives."

And further in the same document:-

"It is submitted that if it is accepted that the Hay scheme is analytical and there are no reasonable grounds for determining that the system was discriminatory, the applicant's claim must be dismissed. If the tribunal come to the view that there are reasonable grounds for determining that the system was discriminatory, but only in its 2000 application, then the claim can proceed to the next stage, but only from the date of the evaluation."

The response by the Applicant was simply that there can be no basis for restricting the independent experts' report to the period after 14 December 2000.

31.              A number of questions must be unravelled from the argument before us. The Respondent, in the light of the absence of any findings by the Tribunal in its Decision, referred the matter back to the same Employment Tribunal, by way of Review, and that was done with the co-operation of the Applicant. It is perhaps unfortunate in those circumstances that, in Reasons handed down on 18 December 2003, after a Review hearing on 9 December, no further clarification was given by the Tribunal. We understand that, perhaps, as appears from that Decision itself, this was in the light of the existence of this appeal, alleging, as one of its grounds, that the Tribunal erred by failing to dismiss the Applicant's claim insofar as it predated the job evaluation of her post which was carried out on 14 December 2000. The fact is however that we are now, notwithstanding that Review, having to deal with the point.
32.              The first such question relates to whether in fact this was, or could have been, an application to strike out, pursuant to s2A of the 1970 Act, on the basis first, of the 2000 report, and then, secondly, if such were unsuccessful, on the basis at least of the 1996 report. S2A(2) which we have already quoted, refers to the block to such an application being that "that work and the work of the man in question have been given different values on a study such as is mentioned in s1(5) above".
33.              The obvious understanding of that would appear to be, particularly interpolating the word valid, as Phillips P would have us do, and as we have done, a valid and subsisting such study. If, for example, there was no study still in existence at all, but the only issue was to be how far back a fresh evaluation should now go, then it would hardly seem likely that s2A(2)(a) would apply so as to found a strike out. We agree with that proposition, and that in effect this could not have been a strike out by reference to the existence of an earlier, or now lapsed, study.
34.              Consequently, the time for consideration of this question would not be at the date of the strike out, unless of course the issue was expressly raised, as it was. We consider it unfortunate that the matter was not dealt with, either at the time of the hearing, or on the review. Because, as both sides accepted before us, the nettle must be grasped. By s2(5) of the Act the following is provided:-

"(5) A woman shall not be entitled, in proceedings brought in respect of a failure to comply with an [equality clause] (including proceedings before an [employment tribunal]), to be awarded any payment by way of arrears of remuneration or damages in respect of a time earlier than two years before the date on which the proceedings were instituted."

35.              It has, we are told, been suggested that this is inconsistent with European legislation, and, that, notwithstanding the terms of s2(5), the same limitation period as applicable to contract, in Scotland, five years or possibly some other period, if any, should be applied, and that that subsection should be ignored.
36.              But on any basis, whatever the period, there is to be some backdating applicable, at any rate, arguably applicable, to any successful Equal Pay Act application. In this case, the originating application was lodged in April 2001, and, even if it is simply the two-year period, that would take the Applicant back to April 1999, or perhaps the letter of complaint of May 1999. Of course if there is an unlimited period, or a five year period, available, then a longer period would, at least, arguably, be available by reference to that date.
37.              Someone has to decide, what, if anything, is the impact of the following matters:-

(i)                 The 1996 study – possibly, if matters have to go even further back, the 1994 study - in respect of which – neither of which - as we understand it, any material complaint has yet been made, or certainly was made in any document that we have seen.

(ii)                Any changes since those dates and in particular since the 1996 study.

(iii)              Insofar as it is separately relevant, either the merger or takeover, or the contract of employment negotiations, or, as we have indicated, the May 1999 complaint.

38.              It would have been, as we believe, helpful for such matters to be decided at the hearing which took place in this case, and, it was certainly, as we see clearly, the expectation of the Respondent that it would be so decided. The Applicant did not, it seems, address the matter in terms, and was not in those circumstances surprised by the failure of the Tribunal to deal with it, and, now, through Mr Napier QC, submits that it would be quite inappropriate for us to substitute any kind of decision such as the Tribunal might, or ought to, have made in relation to such matters, without giving the Applicant the opportunity to raise arguments, even if it has not raised them before, and, even if those arguments may, in the end, not be forthcoming.
39.              Because of our view that this could not be a strike out on the basis of a no longer subsisting report, we take the view that the Applicant should not be debarred from raising arguments, even though, certainly, we do agree that it would have been appropriate for those arguments, if properly understood, to have been resolved on this one occasion; and in future cases they should be, because it is quite plain that it will not be helpful to have what we now anticipate to have to occur in this case, namely, a second hearing before a Tribunal, when this matter could have been dealt with, particularly given the instruction of experts and such like, on the first occasion.
40.              But what now needs to occur, given the conclusion that this application is not wholly debarred, is consideration of whether the Employment Tribunal is to carry out itself a job evaluation, pursuant to the originating application, and, therefore, presumably, at the date of that originating application in 2001, or refers the matter in accordance with the procedure laid down in Rule 10A of the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001, to an expert. However, it is quite plain that, whether an expert is to be instructed or the Tribunal is to do the job itself, before that occurs, appropriate directions must be given, either to itself or to such expert, by the Employment Tribunal. It cannot be left open as to whether the expert, or the Tribunal itself, must operate an evaluation study as at 2001 on the basis that there was a valid 1996 report or was not. Before the expert to be instructed, if that is what is to occur, clear guidelines must be given.
41.              In those circumstances, although we would have preferred this to have occurred at the first hearing, there must now be a further hearing, and at that further hearing, any critique by the Applicant of the 1996 evaluation (or indeed that of 1994) must be put forward. We do not anticipate that such will be an easy task for the Applicant, because there has been none such to date, and because we suspect that Ms Hastings would have noticed any problem, if there had been any, and because there has been no apparent complaint since 1996, or indeed even after 1999, so far as we can see, about it.
42.              But, nevertheless, if there is now to be such an attack on the 1996 study, on the basis that it, like the 2000, is or was not a valid s1(5) study, then that should now be done. Equally, any arguments which go to the ambit of the report should be articulated, going to any of the points which we have already indicated. For example, what the Applicant's case is as to whether, assuming that the 1996 study was valid, any changes occurred thereafter, and if so when, so as to render it no longer valid and subsisting – whether by reference to events in 1999, or prior or subsequent thereto.
43.              In that way, when the expert or the Tribunal carries out its study as at 2001, which it will now do, it will be apparent whether it is looking at that snapshot only, or whether and how it is also looking at the earlier events, simply to ask the question as to whether there have been any changes since those events, or also as to whether those events themselves or studies themselves should be reconsidered.
44.              We hope that that will not be the case, and clearly the task of the expert or Tribunal will be much easier if it is not. But such directions must now be addressed by the Employment Tribunal. With that in mind, we think it appropriate that the Applicant should, within a timescale to be agreed, lodge with the Employment Tribunal its submissions as to the ambit of the expert's report, if expert there is to be, in accordance with this judgment, and, in particular, if it is to challenge the 1996 study as not being within s1(5), the basis for such challenge, and then the Respondent should respond in writing to those submissions, so that that will then clarify what issues are to be resolved by the Employment Tribunal.
45.              The result will be that, in giving its directions to itself or to the expert, this Tribunal will not only create the appropriate context for the evaluation which is to take place, but will, in our judgment, almost certainly also decide in advance how far the effect of that job evaluation, if it is come out with any sum in the Applicant's favour, should be backdated, if at all.
46.              In those circumstances, to that extent, the appeal on this second ground is allowed so that this issue can now be appropriately dealt with by the Tribunal. We shall invite argument from the parties as to whether the Tribunal, to give the relevant directions under paragraph 10A, should be the same Tribunal or a different one.

[SUBMISSIONS FOLLOWED.]

47.              This appeal will be remitted to a different Employment Tribunal.