United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CHRISTOPHER JEANS (One of Her Majesty's Counsel) MRS JANE CALLAN (of Counsel) Instructed by: Middlesbrough Council Legal Services PO Box 99 A Municipal Buildings Middlesbrough TS1 2QQ
For the Respondents	MR PHLIP ENGELMAN (of Counsel) Instructed by: Messrs Stefan Cross Solicitors Buddle House Buddle Road Newcastle upon Tyne NE4 8AW


 


SUMMARY

Equal Pay Act – Equal value

When an Independent Expert has been appointed by an Employment Tribunal to report on an equal value question, rule 11(4) of Sched 6 to Employment Tribunal Regulations 2004 allows a party to call another expert provided this evidence does not challenge the facts. When an IE did not disclose his full methodology until he published his report, the Respondent was entitled to call an expert to challenge the IE's methodology on weighting of factors and conventions to avoid double counting. Employment Tribunal Chairman's Judgment set aside.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the exercise of powers by an Employment Tribunal in refusing to allow expert evidence to be adduced. It forms part of the major set piece litigation known as the North East Equal Pay cases. The judgment is urgently sought as an Employment Tribunal hearing beckons.
2. I will refer to the parties as the Claimants and the Respondent, or the Council. I will refer to the independent expert appointed by the Employment Tribunal pursuant to Schedule 6 to the Employment Tribunal Regulations 2004 dealing with equal pay as the IE and the person sought to be called as an expert by a party as a party expert (PE), in this case, Mr Penn.

Introduction

3. It is an appeal by the Respondent in those proceedings against an order of Mr JJL Hargrove, Employment Tribunal Chairman sitting alone at a CMD at Newcastle-upon-Tyne on 18 July 2007 for which undated reasons were subsequently sent to the parties. The Claimants were represented there by Mrs Jane Callan and she is now led by Mr Christopher Jeans QC. The Respondent was represented there by different Counsel and today by Mr Philip Engelman.
4. The twelve test case female Claimants claimed equal pay with two male comparators employed by the Respondent said to be doing work of equal value. Directly or indirectly this case affects 1500 workers. I will not rehearse the facts as they are widely known through, for example, the judgment of Elias P and members in Middlesbrough v Ms M Surtees UKEAT/0077/07 handed down on 17 July 2007.
5. The Respondent contends that the claimants are not doing work of equal value. The essential issue raised by this Appeal is whether expert evidence from Mr Penn on behalf of the Respondent should be admissible at its instance. The Chairman refused the application. The Respondent appeals. Directions sending this to an expedited full hearing were given in chambers by HHJ Ansell.

The legislation

6. By section 2A(4) of the Equal Pay Act 1970, an Employment Tribunal hearing a work of equal value claim can appoint an independent expert from the panel designated by ACAS. The relevant rules are found in the in Schedule 6: to the Employment Tribunal Regulations 2004

"…

2. -(1) In this Schedule and in relation to proceedings to which this Schedule applies:

"comparator" means the person of the opposite sex to the claimant in relation to whom the claimant claims that his work is of equal value as described in section 1(2)(c) of the Equal Pay Act;

…

"equal value claim" means a claim by a claimant which rests upon entitlement to the benefit of an equality clause by virtue of the operation of section l(2)(c) of the Equal Pay Act;

"the facts relating to the question" has the meaning in rule 7(3); "independent expert" means a member of the panel of independent experts mentioned in section 2A(4) of the Equal Pay Act;

…

"the question" means whether the claimant's work is of equal value to that of the comparator as described in section l(2)(c) of the Equal Pay Act; and "report" means a report required by a tribunal to be prepared by an independent expert, in accordance with section 2A(1)(b) of the Equal Pay Act.

3. -(1) In addition to the power to make orders described in rule 10 of Schedule 1, the tribunal or chairman shall have power (subject to rules 4(3) and 7(4)) to make the following orders:

(a) the standard orders set out in rules 5 or 8, with such addition to, omission or variation of those orders (including specifically variations as to the periods within which actions are to be taken by the parties) as the chairman or tribunal considers is appropriate;

(b) that no new facts shall be admitted in evidence by the tribunal unless they have been disclosed to all other parties in writing before a date specified by the tribunal (unless it was not reasonably practicable for a party to have done so);

…

(e) when more than one expert is to give evidence in the proceedings, that those experts present to the tribunal a joint statement of matters which are agreed between them and those matters on which they disagree;

…

4. -(1) When in an equal value claim there is a dispute as to whether any work is of equal value as mentioned in section 1(2)(c) of the Equal Pay Act, the tribunal shall conduct a "stage 1 equal value hearing" in accordance with both this rule and the rules applicable to pre-hearing reviews in Schedule 1.

…

(3) At the stage 1 equal value hearing the tribunal shall:

…

(b) decide, in accordance with section 2A(1) of the Equal Pay Act, either that:

(i) the tribunal shall determine the question; or

(ii) it shall require a member of the panel of independent experts to prepare a report with respect to the question;

…

7. -(3) At the stage 2 equal value hearing the tribunal shall make a determination of facts on which the parties cannot agree which relate to the question and shall require the independent expert to prepare his report on the basis of facts which have (at any stage of the proceedings) either been agreed between the parties or determined by the tribunal (referred to as "the facts relating to the question").

11. - (1) Expert evidence shall be restricted to that which, in the opinion of the tribunal, is reasonably required to resolve the proceedings.

(2) An expert shall have a duty to assist the tribunal on matters within his expertise. This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

(3) No party may call an expert or put in evidence an expert's report without the permission of the tribunal. No expert report shall be put in evidence unless it has been disclosed to all other parties and any independent expert at least 28 days prior to the Hearing.

(4) In proceedings in which an independent expert has been required to prepare a report on the question, the tribunal shall not admit evidence of another expert on the question unless such evidence is based on the facts relating to the question. Unless the tribunal considers it inappropriate to do so, any such expert report shall be disclosed to all parties and to the tribunal on the same date on which the independent expert is required to send his report to the parties and to the tribunal.

(5) If an expert (other than an independent expert) does not comply with these rules or an order made by the tribunal or a chairman, the tribunal may order that the evidence of that expert shall not be admitted.

(6) Where two or more parties wish to submit expert evidence on a particular issue, the tribunal may order that the evidence on that issue is to be given by one joint expert only. When such an order has been made, if the parties wishing to instruct the joint expert cannot agree who should be the expert, the tribunal may select the expert."

The issue

7. The dispute centres upon whether or not a report should be admitted from Mr Penn. The claims are of long standing dating back to July 2003. By 2006 an appointment was made of Mr Joe Magee, an IE taking the place of a previous expert to report on the question which is whether the twelve claimants were doing work of equal value with either or both of the comparators.
8. The IE was required to notify in advance certain steps he was taking and he sent a list of Possible job elements (there were 20) and then in greater detail on 2 September 2006 sent what he described as his Review of job descriptions against a possible and tentative factor plan. Already that indicates a number of arcane terms. Job evaluation is a system, it is not science, it is not arithmetic nor is it an art. It is simply a system of classifying the components taken analytically from one job as against another job to determine the statutory question as to whether they are of equal value. It involves a methodology, that is the word used throughout these proceedings. It is apt. A method is a way of proceeding or doing something, especially a systematic or regular one and it involves techniques of work for a particular field. Methodology is the system of methods and principles used in a particular discipline.
9. The IE in this case began his approach by looking at certain factors. That is part of the methodology of job evaluation and they were disclosed at an early stage. In his final report, which was made available on 28 May 2007, the IE isolated 21 factors and attributed 7 levels to the jobs and scorings for them. Breaking down a factor according to levels and allocating scores is part of the methodology.
10. Mr Penn has identified two aspects of methodology not included within the earlier provisional statements. There has been no dispute following Mr Jeans' assertion, based upon Mr Penn's report, that the methodology did not deal with the weightings to be given to particular factors and conventions which the IE would use to prevent double counting. The Tribunal has accepted that the full methodology to be deployed was not made known when the original statements were made.
11. The methodology advanced by Mr Penn indicates not disagreement on numbers but a principles disagreement having a substantial impact on the decision. This is not an academic dispute between experts but is what Mr Penn puts forward as being failures in the report of the IE. I find there is a substantial issue as the two examples worked through by Mr Penn indicate to show that by the deployment of a different methodology dealing with weighting and with conventions for avoiding double counting a different result would be achieved. As it happened, the IE found equal value for 11 of the Claimants against one comparator and for four of them against the other. Provision was made by the Tribunal for the Claimants to have a PE in case the Chairman's judgment were overturned today and steps were taken to allow the adduction of a report; but the Claimants have told the Respondent that they will not be so relying.
12. The Claimants have also indicated (for the purpose, at least of today's hearing) that they will as presently advised take no issue with the IE's rejection of their work as being of equal value in respect of the women whose cases failed before the IE.
13. The Chairman decided that the rules did not give him power to admit Mr Penn's report. He had "limited power" and "scope". He then went on to decide, lest he were wrong about that, that he would not allow the discretion to be exercised to introduce the report. He did so by reference, for example to two matters, principally timing.

The Respondent's case

14. On behalf of the Respondent it is contended that as a simple matter of construction of Rule 11(4) the Tribunal did have power to allow the adduction of a PE report and that the Chairman wrongly construed this rule.
15. The four bases upon which the Chairman approached this narrow construction were unsustainable. First, the Chairman had paid attention to what he described as the layout of the rules and contrasted that with the previous rules. That indicated that while the PE must confine himself to the facts, the party may call such an expert using a different methodology.
16. Secondly the Chairman erred, in relation to the construction of the words "on the same date" for on this basis the Chairman had decided that there must be simultaneous exchange which could not work in the present system.
17. Thirdly while the power has been limited in respect of the questions procedure, that does not affect the other matters. Finally, it makes no sense to deprive an employment tribunal as a matter of principle of the opportunity to consider criticisms of its own appointed IE. In any event there is injustice for there ought to be, as a consistent component of any fair trial, the opportunity for a party not only to put points in cross-examination to a witness, here an IE, but also to call evidence to support the cross-examination.
18. If the Respondent succeeded on the construction point then the Chairman's reasons for declining to exercise discretion were not sustainable

The Claimants' case

19. On behalf of the Claimants, it is contended that this case bears an echo of the judgment of the Industrial Tribunal in Hayward v Cammell Laird Shipbuilders Ltd [1984] IRLR 463, a judgment which was not the subject of any of the appeals which ultimately ended in the House of Lords [1988] IRLR 257. The IE put forward his list of Possible job elements or his Review of job descriptions against a possible and tentative factor plan. That was the opportunity for the Respondent to produce its own expert opinion so that, had it done so then, Mr Penn would have alerted the IE to the points he now makes, for example about comparison with the existing job evaluation scheme, which has fewer factors and so on.

Discussion and conclusions

20. In my judgment the correct construction of Rule 11(4) does not deprive the Tribunal of power to hear an expert called by a party. First this rule is a procedure for allowing the adduction of a PE. The rule positively envisages expert evidence but restricts its reach. What the PE can give evidence about must exclude the facts which are not to be challenged and which represent a sacrosanct position following findings or agreement at an earlier stage in the proceedings. That is the meaning of the words "unless such evidence is based on the facts". An expert can come and give evidence provided that evidence does not seek to challenge the facts which have already been found. What then can the expert do?
21. Plainly an expert is there to challenge methodology given the restricted scope of challenge to facts. There is no meaning to be given to Rule 11(4), unless it is acknowledged that a challenge can be made to methodology. The system of job evaluation, for which there is uniquely by statue the designation of an expert, is one which is susceptible to different methodologies. That much was made plain in the Hayward case; but it must be remembered that Hayward was about a previous form of the rules which included a further layer for challenging admissibility of an expert's report based upon, for example, differences of method.
22. However once it is acknowledged that there is scope for a PE to be called and that the PE's attention is so narrowed by the facts, the only thing to challenge is the methodology, or, I suppose, the arithmetic. The question here is whether, as a matter of construction, the power to call such an expert is precluded by this rule. In my judgment it is not.
23. I think as a matter of practical forensic advocacy is it impossible for this rule to work on the basis of its application by the Tribunal Chairman. He acknowledges that it is still open to the Respondent to have an expert there and to make challenges. But as Mr Jeans correctly points out, obvious to anybody who has seen any expert in court, if a challenge is met by a denial there is little basis upon which the argument can be taken further without evidence. True it is a specious answer by an IE would give the Tribunal the opportunity for it to disbelieve him. But in my experience, the reality in this field where job evaluation experts are called is that there needs to be additional evidence. Using the athletic metaphors advanced by Mr Jeans, without evidence the Respondent would be both hamstrung and fighting with an arm behind its back doublly restricted in its operation of the rules of fair play.
24. I acknowledge that there has been an interesting development in the rules relating to the admission of evidence in equal value cases. This was as a response to the outcry about the length of time equal value cases were taking, the protracted nature of them, and the cri de coeur issued by Wood P and members from the bench in Aldridge and Telecommunications Plc [1989] ICR 790. Steps were taken in 2001 and 2004 to make the procedure more user-friendly and more streamlined. One was to prevent a further hearing on admissibility - as in Hayward - and another was to exclude a challenge to the facts.
25. Nor do I consider that this construction is defeated by the use of the words "on the same date" because that qualifies challenges in relation to the expert report. The timing here is important. It has been found that full methodology was not disclosed in 2006 but only became available on 28 May 2007. It would not be provident for a public authority to spend money well in advance of the IE's disclosure in circumstances where it did not consider it was necessary. In this case it did not become necessary to do so until the IE disclosed his methodology and the Respondent's expert said that such methodology was in his opinion suspect. Where full methodology has been disclosed by the IE, a PE can disclose his "on the same date". Where this is not done, it would be "inappropriate" for the Employment Tribunal to require disclosure of the PE on the same date.
26. Since the outcome of this case is that there has been a misconstruction of the rules both Counsel invite me to make my own decision. It is that the Penn report was admissible and there was power to admit it. The next question is whether as a matter of discretion it should be admitted. Given the misdirection on the rules, that discretion now falls to me to exercise. In this respect I have a unique advantage over the Chairman as I was myself an IE on the ACAS panel. In deference to the Chairman I will first examine his reasons for refusing to admit it.
27. In my judgment the approach of the Tribunal Chairman paid to much attention to what occurred in September 2006. He acknowledged that full methodology was not disclosed and so the failure to exercise discretion because of a delay by the Respondent until disclosure cannot be sustained.
28. Nor it is rescued by the fact that there may be a general criticism by Mr Penn of the IE's approach to the factors. The Tribunal had power to admit it and it ought to have admitted it in order to do what the Chairman acknowledged was an important function: to have an expert available to assist in the challenge to the IE. As a matter consistency it was necessary to be able to call evidence to that effect to support the challenge. As a matter of fact, the PE focuses the general criticism on two particular aspects of methodology. The hearing fixed in January 2007 for September 2007 is not at risk.
29. In those circumstances I will allow the Appeal and set aside the Chairman's order in Paragraph 1 of the judgment. No other paragraph is the subject of an appeal and in particular there is no appeal against the Chairman's judgment in relation to questions. The Penn report will be admitted and he is to be produced at the hearing.