United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr G Wong (of Counsel) Instructed by: UNISON Legal Services Employment Rights Unit 1 Mabledon Place London WC1H 9AJ
For the Respondents	Mr P Nicholls (of Counsel) Instructed by: Messrs Mace & Jones Solicitors Pall Mall Court 61-67 King Street Manchester M2 4PD


 


SUMMARY

Equal pay act – Equal value/Material factor defence

Tribunal Chairman correct in refusing to allow an equal value expert on a GMF hearing.


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal against a decision of a Manchester Employment Tribunal, Mrs Feeney, Chairman sitting alone who following a hearing in April 2007 in reasons sent to the parties on 19 June 2007 dismissed the Appellant's application for permission to adduce expert evidence from an equal value expert at a Genuine Material Factor Defence (GMFD) hearing.
2. In March 2006 the Appellant bought a claim of equal pay with other new employees of the Respondent Council. She had commenced employment on 27 October 1997 as a principal solicitor managing the property and commercial section in the legal services department. In December 2001 she was regraded as assistant head of legal services and on 9 September 2002 she was appointed chief solicitor. The Appellant claimed that she did work of equal value to a number of named male comparators who were employed in jobs which were graded as Chief Officer appointments being a higher grade then the Appellant's job graded as Principal Officer. Those employed at Chief Officer grade were paid more then those employed at Principal Officer grade.
3. The Respondent Council has three main departments, one of which is the business services directorate. The directorates are sub-divided into sub-groups and a sub-group of the business services directorate is entitled Legal and Democratic. The sub-groups are headed by either a director or head of service/assistant director. Mr Lewis is head of Legal and Democratic services and the Claimant is chief solicitor and reports to him. The directors/head of service have a Chief Officer grade.
4. The Respondents deny that the Appellant's work is of equal value to that carried out by her comparators and also relies on the defence contained in section 1(3) of the Equal Pay Act 1970, namely that the difference in pay between the Appellant and her comparators is "genuinely due to material factor which is not the difference of sex".
5. On 31 October 2006 the matter was listed for a case management discussion and equal value stage one hearing and the Tribunal determined that it would hear and determine the Respondent's GMF defence and if that defence succeeded it obviously would not be necessary to determine whether the work was of equal value. The defence was based on the contention that those employed in Chief Officer grade were by reason of that appointment accorded particular responsibilities which were not accorded to employees at lower grades. In particular the Chief Officers were responsible for the delivery of particular functions including matters such as budgets and staff and it was also the Chief Officers who were accountable to elected members of the local authority. Further the Respondents had decided to limit the number of Chief Officers which it employed usually having only one Chief Officer for each function. Since, within the Appellants department, there was already one Chief Officer as head of Legal and Democratic services, it left no scope for anyone else at Chief Officer in that service.
6. At that hearing the Tribunal noted that the Appellant might require some expert evidence to ascertain whether the GMF was tainted with sex discrimination and could therefore have an expert "behind the scenes" in order to assist with preparing for the hearing.
7. By letter dated 12 January 2007 the Appellant applied for permission to adduce expert evidence for the GMF defence hearing. The Respondents commented upon that letter by their letter of 16 January, and a further letter was sent by the Appellant's union UNISON to the Tribunal on 30 January 2007. The contentions advanced in that letter are similar to the matters raised both before the Tribunal Chairman and before me on this appeal.
8. By letter dated 6 February 2007 the Chairman agreed to the use of an expert by the Appellant on the basis that the issues addressed by the expert were those described in the letter of 31 January and on the basis no more than three comparators were interviewed.
9. The issues to be determined by the expert were (1) to examine the process of appointment to Chief Officer as to whether there were meaningful criteria, (2) to show that this was not complied with in any event, (3) to show that the Claimant satisfied the Chief Officer criteria and (4) that the comparators did not meet the criteria. The Respondents sought a review of that decision which led to the oral hearing on 12 April.
10. Having set out the law and in particular reminded herself of the guidance given in Glasgow City Council v Marshall [2000] IRLR 272 the Chairman set out the submissions of both parties. The Chairman's conclusions followed in paragraphs 16 and 17 of the judgment as follows:

16. The Chairman finds the following. The issue of the GMFD defence is

(i) Whether the process used by the Respondents to determine whether the claimant should be a Chief Officer or not was the true reason for her grading, i.e. .that it was causative and genuine and

(ii) whether that process was ostensibly free from sex bias. Part of establishing this would be whether the process or criteria used was so irrelevant to the proper determination of these matters as to raise an inference of sex discrimination.

In respect of these matters I asked myself can these matters be properly, expeditiously and proportionately dealt with by the Tribunal.

17. I find that they can and that expert evidence to the Tribunal is not required. I find this because.

(i) in respect of issue (i) above this is essentially a question of fact to be determined by evidence and documentation, for example the documentation does not substantiate the process was first put in training in 2000 to achieve the re-organisation of the authority in line with the process and ethos described or that there was no intention to reduce the numbers of Chief Officer then the genuine nature of the defence might be called into doubt or, if when the witnesses are cross-examined their evidence is inconsistent, unreliable etc.

(ii) in respect of issue (ii) the burden is on the respondent to establish that the GMFD is not tainted by sex discrimination, if they do not satisfy the Tribunal on their own evidence they will fail although of course the claimant can submit evidence which positively shows the GMFD is tainted with sex discrimination although this is not absolutely necessary.

(iii) whether the respondent satisfies the Tribunal can be determined by reference to witness evidence and documentation and does not require the Tribunal to hear the expert evidence, for example can it be shown that the job role undertaken by the comparators do meet the criteria of Chief Officers — that can be established by cross-examination of the witnesses, examination of job descriptions and by virtue of the claimant's knowledge of the comparators role and the respondent's knowledge of the comparator's role.

The Chairman concluded by confirming that there was nothing to prevent the Appellant using an expert to assist in the preparation of cross-examination of the witnesses or in analysing documentation.

11. On behalf of the Appellant Mr Wong argued that the Tribunal had erred in four respects.

(1) He contended that expert evidence was necessary to show that the Appellant satisfied Chief Officer criteria whereas some of her comparators did not. Success in this area would seriously undermine the GMF defence. He contended the Tribunal had either failed to deal with this or that its decision that expert evidence was not necessary for this purpose was perverse.

(2) There was an overlap between the criteria that would be relevant for considering the GMF defence and those relevant to the equal value issue. The process in determining whether the criteria were met would be an evaluative one more suited to expert input. Again he contended that the Tribunal did not have regard to this and therefore ignored relevant matters.

(3) There would be an unfairness in the hearing without such an expert because the Respondents did not intend to call the Appellant's comparators or any other witness from HR and the Appellant would therefore be at a disadvantage in showing that her male comparators did not satisfy the Chief Officer criteria. Again it was contended that the Tribunal did not take this into account or if it did then its conclusion was perverse.

(4) Finally the Appellant wished to call expert evidence to show that the criteria relied on was so "amorphous and generalised" as to be incapable of distinguishing between Chief Officer and other posts. Again the Tribunal did not take this into account or if it did its conclusion was perverse.

12. In further support of these submissions Mr Wong took me firstly to the Respondents' response before the Tribunal which set out the relevant criteria for Chief Officer posts in paragraphs 30 to 35:

"30. There are objectively justified reasons why Heads of Service and Assistant Directors are designated as Chief Officers. For the avoidance of doubt the same criteria was applied When grading the posts of those comparators who are no longer employed by the Respondents (at the time of their appointments) and are applied irrespective of gender.

31. Chief Officers are responsible for all management and operational matters within their jurisdiction. They are required to take responsibility for the day to day management of their particular services within the overall direction provided for by the Director or Strategic Director to whom they report.

32. For these purposes "day to day management" generally includes service delivery, budget control, performance management and best value.

33. Chief Officers also generally contribute towards the Council's strategic and corporate objectives through their links with Directors or Strategic Directors as appropriate.

34. The Claimant's duties and responsibilities do not meet the above criteria. Further, her position in her own departmental structure is at a level lower than that of Chief Officer. She does not report to a Director or strategic Director but to Mr Lewis (who reports to Mr Kearsley). The Claimant's role does not involve any comparable budgetary or other management responsibilities or the degree of policy formation or development. Her responsibility is delivery of important professional services. Her principal role is to deliver these important professional services either in person or through a team that she leads.

35. The Respondents attaches significant importance to the role of Heads of Service (and Assistant Directors) in terms of their management of and contribution towards the achievement of the Respondent's' corporate and strategic objectives through their links with the Directors to whom they report. The Respondents is objectively justified in attaching particular importance to these matters."

13. In other documents before the Tribunal the Respondents had put emphasis on Chief Officer responsibilities in terms of their "functions". He argued that the criteria were subjective and that any assessment as to whether a particular post holder met these criteria involved measure of judgment and an assignment of value to the work done by the post holder and would also involve a comparison between the range of responsibilities of those holding a Chief Officer post as compared with a non- Chief Officer. He contrasted the criteria set out in the Respondents' document as opposed to a hypothetical comparison which would be based solely on more tangible or quantifiable matters such as budget, staff and time in service. He pointed in particular to paragraph 34 of the response which asserted that the Claimant's duties and responsibilities did not meet the above criteria which again clearly pointed to the necessity of a value-driven comparison.
14. He contended that the Tribunal was not the appropriate person to carry out an assessment of degrees of responsibility which could not be achieved simply by looking at documents comparing responsibilities or by considering job descriptions or indeed by cross-examination of witnesses. He argued that that process was inherently unfair to the Appellant who was not in possession of all the relevant information as to the various employees and would have difficulty in being able to establish the complete picture before a Tribunal. The only available course would be to call a considerable number of witnesses both comparators and non comparators to try and establish their responsibilities which would be extremely costly. Mr Wong contended that if the Respondents attempted to prove matters simply by putting in a schedule of roles and responsibilities it would be extremely difficult for the Appellant to disprove such document in the absence of outside evidence. He argued that the subjective comparison required by these criteria bore many of the hallmarks of an equal value assessment and there would therefore be a substantial overlap as between the GMF defence and the equal value exercise which he contended was appreciated by the Tribunal at the directions hearing in October 2006, when the Tribunal envisaged that the Appellant may need an expert behind the scenes to assist. He argued that the courts had recognised that there could well be an overlap between the issues at both the equal value and GMF stage: see Davies v McCartneys [1989] IRLR 439. He argued that other than her own role or possibly those comparators (2) in her department she would be unable to assist with regard to the roles of other comparators.
15. Mr Wong further argued that the whole process of assessing whether the criteria were or not met by any particular individual would necessitate a consideration of a wide range of documentation, a good knowledge of the day to day tasks in duty of the post holder which may well not be exhaustively set out in documentation. Having assessed that material it was necessary to conduct a subjective exercise of comparing the responsibilities. Again an exercise which he contended was more appropriate for an equal value expert.
16. Finally he contended that the criteria themselves were so generalised as to be incapable of utilisation thereby casting grave doubt as to whether they were genuine or merely a sham which could therefore give rise to an adverse inference of sex discrimination. He contended that that aspect of the Appellant's case was not dealt with in the Tribunal's conclusions. As to perversity Mr Wong contended that the refusal to allow expert evidence was one that no reasonable Tribunal properly having regard to the various factors and arguments could have come to particularly in the light of the comment made by the Tribunal at the hearing of 31 October that "some expert evidence might still be required in respect of the way the process was tainted with sex discrimination".
17. In response Mr Nicholls on behalf of the Respondents reminded me that consideration of the GMF defence starts from the proposition that the jobs under comparison are of equal value and the employer is required to show firstly that the factors relied on in its defence are genuine and not a sham or pretence. Secondly that the difference in pay is due to or caused by this factor and lastly that the factor in question is not the difference in sex. Further there is no obligation on the employer in general to justify his reason or show it is a good reason unless it is contended that the factor is indirectly discriminatory in which case the employer has to objectively justify the factor. In Glasgow City Council v Marshall Lord Nicholls set out the position thus at paragraphs 18 and 19:

"18. I do not believe the Equal Pay Act 1970 was intended to have this effect. Nor does the statutory language compel this result. The scheme of the Act is that a rebuttable presumption of sex discrimination arises once the gender-based comparison shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man. The variation between her contract and the man's contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex. In order to discharge this burden the employer must satisfy the tribunal on several matters. First, that the proffered explanation, or reason, is genuine, and not a sham or pretence. Second, that the less favourable treatment is due to this reason. The factor relied upon must be the cause of the disparity. In this regard, and in this sense, the factor must be a 'material' factor, that is, a significant and relevant factor Third, that the reason is not 'the difference of sex'. This phrase is apt to embrace any form of sex discrimination, whether direct or indirect. Fourth, that the factor relied upon is or, in a case within s.1(2)(c), may be a 'material' difference, that is, a significant and relevant difference, between the woman's case and the man's case.

19. When s.1 is thus analysed, it is apparent that an employer who satisfies the third of these requirements is under no obligation to prove a 'good' reason for the pay disparity. In order to fulfil the third requirement he must prove the absence of sex discrimination, direct or indirect. If there is any evidence of sex discrimination, such as evidence that the difference in pay has a disparately adverse impact on women, the employer will be called upon to satisfy the tribunal that the difference in pay is objectively justifiable. But if the employer proves the absence of sex discrimination he is not obliged to justify the pay disparity."

18. Accordingly Mr Nicholls argued that the factors to be considered in the evaluation of the GMF defence turn on findings of fact to be made by the Employment Tribunal i.e. (1) is the explanation of above employer genuine or sham, (2) does the factor explain the difference – is there a causative link between the factor relied on by the employer and the difference in pay, (3) is the factor not the difference of sex. By way of example Mr Nicholls referred me to the Appellant's letter of 30 January setting out their contentions and argued that most if not all of the issues raised in that letter were issues of fact which a Tribunal was well equipped to answer, for example in para (1) of the letter it was alleged that the council "does not and did not at any relevant time had meaningful criteria for the grading of Chief Officer posts." He submitted that this was a factual issue to be determined by the Tribunal. Similarly in para (2) it was contended that "there has been no assessment against the stated Chief Officer grading criteria" in relation to the Claimant, again an issue of fact. Again in para 5 the question of whether the comparators "meet the criteria in all respects" was again an issue that the Tribunal were perfectly able to deal with.
19. He sought to draw distinction with an equal value assessment. Such an assessment has to be a complete evaluation of the respective jobs of the Claimant and comparator whereas a s.1(3) defence would often focus on a particular skill or qualification which an employer rated especially highly or in particular managerial responsibility. The importance of a particular factor thereby becomes a matter of fact rather than an overall evaluation by an expert. In Christie v John E Haith Ltd [2003] IRLR 670 the EAT held that the mere fact that a particular factor may be relevant in the evaluation exercise to determine the question of equal value was no ground for excluding it as a defence which might be relied on by the employer under s.1(3). In that case the physical effort and unpleasantness involved in the work of the male comparators was a genuine material difference accounting for the differential in pay.
20. I agree with Mr Nicholls analysis highlighting the essential difference between an overall evaluation as to whether the Appellant and comparators jobs were of equal value as compared with the factual analysis that has to take place in relation to the s.1(3) defence. I am satisfied that the Chairman in paragraph 16 of her decision appreciated that difference and in particular the requirement to decide whether the process used by the Respondents to determine whether the Claimant should be a Chief Officer or not was the true reason for her grading i.e. was it causative and genuine.
21. As to the alleged disadvantage in cross-examination Mr Nicholls pointed out that the Claimant in choosing particular comparators must have some idea of the work they carry out and indeed she was able to serve a counter schedule in response to that served by the Respondents setting out details for responsibilities of the relevant employees i.e. the Appellant and her comparators. He contends that it would be open to the Appellant to seek witness orders if so advised and in any event there would be documents by reference to which the Appellant would be able to make her argument and witnesses that she can cross-examine. Mr Nicholls reminded me that even when the court made its provisional ruling on 6 February no more than three comparators were to be interviewed. He also contended that the issue of unfairness was not really an issue before the Tribunal. Again I am persuaded by Mr Nicholls that the Respondents' approach is correct. It is clear from paragraph 17(3) of the decision that the Chairman was very much alive to the issue of how the Appellant might be able to challenge the material advanced by the Respondents and she was satisfied that it could be established by combination of cross-examination of witnesses, examination of job descriptions together with the knowledge of the Appellant and the Respondents.
22. As to the Appellant's complaint that the factors relied on by the Respondents were too "amorphous and generalised" to be capable of distinguishing between posts, Mr Nicholls argued that when considering the GMF defence the question was not whether the differences could justify the different values according to jobs but whether those differences in fact explain them. He argued that it would be open to the Appellant to challenge the Respondents' witnesses on the grounds that the criteria were too vague and therefore could not as a matter of fact explain the differences. Such as submission made in the context of s.1(3) would again be a submission on the facts. In other words was the employer genuine in relying on those criteria for the purposes of differentiating between the posts. Again I am satisfied that the Tribunal Chairman was alert to this issue, she referred to it when dealing with the Claimant's submissions at paragraph 15(2) and was correct in my view in coming to the conclusion that this issue was one of the factual questions that would have to be decided.
23. In conclusion I am quite satisfied that the Appellant does not begin to make out a case of perversity. This court is always reluctant to interfere with a case management decision taken by a Chairman who has considerable day to day experience of dealing with these issues. This decision had carefully set out the background facts to the case, the history of the litigation and the legal principles involved as well as the submissions advanced by both parties. In my view her conclusions cannot be faulted and as such this appeal is dismissed.