United Kingdom Employment Appeal Tribunal

APPEARANCES

 

EAT/0004/08/CEA
For the 1st Appellants	MS S DREW (of Counsel) Instructed by: Messrs Stefan Cross Solicitors Buddle House Buddle Road Newcastle upon Tyne Tyne & Wear, NE4 8AW
For the Respondent	MR A CLARKE (One of her Majesty's Counsel) MS N ELLENBOGEN (of Counsel) Instructed by: Messrs Dickinson Dees Solicitors St Ann's Wharf 112 Quayside Newcastle upon Tyne, NE99 1SB
EAT/0005/08/CEA
For the 2nd Appellants	MS T GILL MS A PALMER (of Counsel) Instructed by: Messrs Thompsons Solicitors The St Nicholas Building St Nicholas Street Newcastle upon Tyne Tyne and Wear, NE1 1TH
For the Respondent	MR A CLARKE (One of her Majesty's Counsel) MS N ELLENBOGEN (of Counsel) Instructed by: Messrs Dickinson Dees Solicitors St Ann's Wharf 112 Quayside Newcastle upon Tyne, NE99 1SB


 


SUMMARY

EQUAL PAY ACT – Case Management

Multiple equal pay claims - Lead cases - Problem caused by possibility that jobs done by lead Claimants or their comparators might have materially changed over the claim period - Held that it was a proper exercise of the Chairman's discretion initially to limit the experts' consideration to the facts as they stood at the date that the claims were presented and to defer consideration of the issues that might arise if it were subsequently alleged that the facts had been materially different at some earlier date within the claim period - General observations about the proper analysis of an equal pay claim extending over a period and about how cases involving alleged changes during that period may be case-managed (including whether it is necessary for a Tribunal to obtain an expert's report in respect of the entire period, even where it is alleged that changes have occurred).


 


THE HONOURABLE MR JUSTICE UNDERHILL

1. These conjoined appeals concern a procedural dispute which has arisen in the context of the massive litigation in progress in the Newcastle-upon-Tyne Region, in which women employed in the National Health Service are claiming under the equal value provisions of the Equal Pay Act 1970. One "sub-multiple" within that litigation (part of the "Richardson multiple") is a group of claims brought against the Respondents, the North Cumbria Acute Hospitals NHS Trust, by grade D, E and F nurses and by some medical secretaries. There are over 800 Claimants within the sub-multiple, which is referred to under the name of one of the Claimants, Ms. Sheelagh Potter. Claimants within the sub-multiple are mostly represented either by Stefan Cross Solicitors or by Thompsons (on the instructions of UNISON and the GMB): these two groups have been referred to before us, somewhat inelegantly, as "the Cross Claimants" and "the Casson Claimants" – Ms. Casson being one of the Claimants represented by Thompsons. The claims, or the great majority of them, were presented at various dates in 2004 and 2005.
2. There appears to have been a good deal of sensible and intelligent co-operation between the different legal teams – led in the early stages of the litigation by Mr. Brian Langstaff QC for the Claimants and Mr. Andrew Clarke QC for the employers – and the Tribunal in order to put in place workable arrangements for handling this extremely complex litigation. The procedures for equal pay claims set out in Schedule 6 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (as amended) – to which we will refer as "the Equal Value Rules" - have been adopted and adapted over a series of interlocutory hearings. In the case of all the sub-multiples it has, inevitably, been agreed that it is necessary to proceed by way of lead cases. For the purpose of the Potter sub-multiple, thirteen lead Claimants have been selected, comparing themselves to twelve comparators. Twelve of the lead Claimants are from the Cross group and only one, Ms. Casson, is represented by Thompsons (though this is not representative of the proportions of the two groups overall). The periods in respect of which the lead Claimants claim vary; but in some cases at least the claims go back over the full six years permitted by the decision of this Tribunal in Levez v. T.H. Jennings (Harlow Pools) Ltd [2000] ICR 58. There is one refinement which we must mention because it may be relevant to the arguments before us. Some of the lead Claimants who have been selected in respect of a particular job were previously in what is accepted to have been in an entirely different job (albeit within the same grade). Although their claims relate to their periods in those jobs also, in their capacity as lead Claimants only their claim in relation to their most recent job is being determined: claims in relation to earlier jobs will have to be considered in the light of the determination of the claims of the (other) lead Claimants whose case is designed to test the comparison in question.
3. In respect of the thirteen lead cases the Tribunal has directed, in accordance with rule 4 (3) (b) (ii) of the Equal Value Rules, that an independent expert should prepare a report on the question whether the work of each of the Claimants is of equal value to that of the comparators on whom they rely. Two experts have been appointed. In accordance with rule 5 (d–f) the parties sought to agree "job analysis reports" ("JARs") for the job done by each lead Claimant and each comparator. These are extremely full and elaborate documents and are plainly the product of a great deal of work. In most cases, the parties were able to reach full agreement, but in some there were points of factual dispute which fell to be resolved by the Tribunal at a "stage 2 Equal Value hearing" under rule 7 of the Equal Value Rules. That hearing took place before a Tribunal chaired by Mr. N.W. Garside between 11 and 15 June 2007. A decision determining the disputed points was sent to the parties on 9 July 2007.
4. Following the stage 2 decision the parties proceeded to seek to finalise the JARs. However, that crystallised a difference between them as to the date as at which the JARs were intended to set out the facts, and, consequently (since the JAR forms the factual basis for the evaluation by the independent expert: see rule 7 (3)), the date as at which the experts should prepare their reports. The Respondents' position was that the JARs were intended to state the facts only as at the date at which the claim in question was made, i.e. in 2004 or 2005. The Claimants' position was that the JARs should describe the job, and state any relevant facts, in relation to the entire period of the claim. If the content of the jobs in question was the same throughout the claim period the distinction between the two positions would be of no significance; but it is potentially important to the extent that there are asserted to have been material changes in job content – i.e. changes capable of affecting the value of the jobs – over the claim period (that is, the period in respect of which the comparison is relied on in relation to the job in question). The Claimants' advisers say that they did their best to choose lead Claimants and comparators whose jobs had been essentially the same over the entire claim period, and believe that they have succeeded; but the Respondents say that they do not believe that that is so in every case - although they have not to date identified, or been required to identify, what material changes they assert occurred in any particular case.
5. It is perhaps rather surprising that this disagreement only emerged, or at least matured, at so late a stage. Both the Claimants and the Respondents say that they were proceeding on a clear understanding which they believed was shared by the opposite party. We are not in a position to determine the rights and wrongs of this; but we are not disposed to be critical of advisers who have clearly been grappling conscientiously with a series of very complicated substantive and procedural problems.
6. The issue about the date as at which the JARs should state the facts was raised at a pre-hearing review before Mr. Garside sitting alone on 7 September 2007. His decision as originally formulated was expressed as follows (correcting the punctuation, which seems to have gone awry):

"The correct comparison period for the evaluation of equality by the independent experts is at the date of the presentation of the claim if the presentation of the claims is prior to 30^th September 2004. If the presentation of the claim is after 30^th September 2004, the comparison is to be made as at that date taking into account all of the duties and tasks which the claimant carries out as at that date whether or not those duties and tasks are only performed occasionally."

We need not pause to explain the significance of the distinction between claims made pre- and post-30 September 2004, because the formulation was re-visited shortly afterwards^[1] in a decision sent to the parties on 23 October 2007, and it now reads as follows:

"The correct comparison period for the evaluation of equality by the independent expert is at the date of the presentation of the claim."

(The natural reading of that order – in either version – is that it refers to both the Claimant's and the comparator's job. It seems however to have been thought that it might refer only to the former; and on 23 October 2007, a further order was made – again, formally, in the Chalmers sub-multiple (see n. 1) - confirming that "the JARs for the comparators are to be prepared at the date of the presentation of the claim by the Claimant …". Nothing turns on this.)

7. The Claimants appeal against that decision. Before us Ms. Casson was represented by Ms. Tess Gill, leading Ms. Anya Palmer, and the Cross Claimants by Ms. Sandhya Drew: neither Ms. Gill nor Ms. Drew appeared below. The Respondents were represented by Mr. Clarke, leading Ms. Naomi Ellenbogen.
8. Thus the question before us concerns the situation in which there have, or may have, been material changes in a Claimant's or comparator's job, or in its content, over the claim period. We use the term "job", as it is generally used in the case-law, to denote the "work" which requires to be evaluated for the purpose of a claim under sec. 1 (2) (c) of the 1970 Act. The argument proceeded before us on the basis (though we are not sure that the Cross Claimants concede) not only that nurses may (without changing their grades) change jobs from time to time – i.e. the situation referred to at the end of para. 2 above - but also, which is what matters for the purpose of this appeal, that what remains nominally the same job may over time undergo changes in its content to a sufficient extent to affect its "value" for the purpose of the Act. We are not called upon to consider in this appeal any particular instances of this (though changes brought about by technological developments were discussed by way of example in the submissions before us), and we proceed simply on the basis that it is accepted that change of this kind may occur. Determining whether sufficiently major change has in fact occurred in a given case may not always be straightforward, and it is not useful for us to offer any abstract observations (beyond saying that no doubt tribunals will be wary of attempts by either party to complicate the issues by relying on spurious or trivial allegations of changes in job content).
9. It was not always entirely clear from the submissions before us to what extent the parties really differed as to how in principle cases where changes in job content are asserted should be approached – whether as a matter of substantive law or procedurally. The most convenient course is for us to set out what we believe the correct analysis to be, dealing with any disputed (or possibly disputed) points as we go; and then to consider the Chairman's decision in the light of that analysis.
10. The starting point is that as a matter of principle an Employment Tribunal is obliged to consider what is referred to in the Equal Value Rules as "the question" – i.e. whether the claimant's work and the comparator's are of equal value: see rule 2 (1) - in respect of every part of the claim period. That seems to us obviously to follow from the way that the 1970 Act works. The mechanism is contractual, by reference to the equality clause imported by sec. 1 (1) of the Act. In a typical equal pay claim the employee is making a distinct claim of breach of contract – i.e. of a failure to pay a sum due – as at each pay-day over the period to which her claim relates^[2]; and it must follow that it is necessary in principle to establish what her rights were as at each such date.
11. Mr. Clarke appeared to dispute this proposition. The Amended Response to the Amended Master Claim Form of the Potter Claimants pleads squarely, at para. 6.1:

"For the avoidance of doubt, as a matter of law, the relevant date at which the issue of equal value is to be determined is that upon which each Claimant's Claim Form was presented."

And in his skeleton argument before us, at para. 22.1, he asserted:

"As a matter of construction the "work" being compared under sec.1 (2) (c) is the work being undertaken (i.e. the job being performed) as at the date of the claim, unless some other date has been nominated by the claimant^[3]."

But Mr. Clarke was unable, in his otherwise clear and helpful submissions, to explain to us why that should be so, or why the analysis advanced in para. 10 above was wrong. He referred to the distinction between "liability issues" and "remedy issues"; but we could not see what application that distinction had to the issue before us. He also referred to the decisions of this

Tribunal in Dibro Ltd v Hore [1990] ICR 370 and Bainbridge v Redcar & Cleveland Borough Council (no. 2) [2007] IRLR 494 and to the decision of the Court of Appeal in Evesham v North Hertfordshire Health Authority [2000] ICR 612; but, as he was constrained to admit, none of those cases bore directly on the present issue. It was not in any event clear to us what the significance of his submission on this point really was. We understood him to accept that if, notwithstanding that a Claimant and her comparator were found not to be doing work of equal value as at the date that the claim was advanced, it could be shown that they were doing such work at an earlier stage, when the content of the job(s) was different, the Claimant's equal value claim would succeed at least in relation to that earlier period^[4]. If that is so, we do not see any difference of substance between his position and our own analysis. In so far as Mr. Clarke's position at the end of his submissions remained inconsistent with our analysis, we reject it.

12. We should also mention a submission initially made by Ms. Drew, although eventually withdrawn, to the effect that it was necessary for the Tribunal to compare the Claimants' and comparators' jobs over the claim period "as a whole", in the sense that even if during the period there were very substantial changes in job content the facts before and after those changes should in some way be lumped together to create a single composite description. She was right not to pursue this argument. The approach in question seems to us to be both unworkable and wrong in principle.
13. We have thus far been considering the correct approach at the level of theory. Our conclusion does not of course mean that a tribunal has in practice to hear detailed evidence relating to every part of the claim period. In many cases – very likely the great majority – there will be no reason to suppose that the relevant facts are materially different at any point during the period. In such cases the facts will simply be stated as required by rule 5 (and, where necessary, found by the tribunal under rule 7) – and put to the independent expert where one is instructed – on a basis which does not differentiate between the different parts of the period.
14. In some cases, however, either party or both may claim that the facts are materially different in different parts of the claim period. In such cases the facts will have to be stated (and, where necessary, found by the Tribunal) on a distinct basis in respect of the different parts of the period. How the task of stating the facts in such a case should be approached will depend on the circumstances. If the claimed differences are very great, the sensible course may be to have two completely distinct statements. In other cases it will be more convenient for the parties to produce a statement of the facts at a given "base" date but to identify the respects in which they are said to have been different in another part of the period. Usually it will be easier to take as the base date the most recent relevant date – typically, the date at which the claim is presented – because recent facts are most readily accessible, and to identify the variations by looking back. But there is no reason why it could not be done the other way round, taking as a base the facts at the beginning of the claim period and identifying any changes which occurred subsequently. These are simply matters of presentation, which do not affect the task of the tribunal in principle as we have identified it at para. 10 above.
15. It does not follow from the fact that a Tribunal has in principle to decide "the question" in respect of every part of the period that it needs to do so all in one go. It can and should apply ordinary case management approaches, which in an appropriate case permit the splitting of issues in order to allow the manageable conduct of complex litigation. Thus in a case where material changes in job content during the claim period are asserted, it may make sense – depending on the particular case – to consider and decide the question first in relation to one part of the period and to deal later, if necessary, with an earlier or later period pre- or post- the alleged change. Taking this course would have the advantage of keeping the issues more simple at the first stage; and it may be that in the end the issues raised by the allegation of changes in job content never have to be considered – either because the decision in the first round has the effect that they could not make any material difference to the outcome or simply because the parties are able to reach agreement. Alternatively, the point may still have to be decided, but the Tribunal may feel able to do so without the benefit of a report by the independent expert: as to this, see para. 24 below. On either of those alternatives the splitting of the issues will have saved time and costs. Of course, if the point does in the end have to be decided by the tribunal at a further hearing, and particularly if a further expert's report has to be obtained, the process will probably have taken longer and been more expensive than if all the issues had been considered at a single hearing. Tribunals are very familiar with having to make this kind of judgment; and which way the balance tilts in any particular case will depend on a number of factors.
16. In order for the Tribunal to make its case management decisions on the basis of the fullest information, it will, other things being equal, wish to know at an early stage whether any issue is likely to arise about changes in job content over the claim period, and at least the broad nature of any such issue. We have been shown directions made in relation to other sub-multiples in this litigation. These require the parties when preparing a list of lead Claimants to identify, inter alia:

"… whether there have been any changes in the work of the claimant's or comparator's job in the comparison period which would or might materially affect the value of either. If any dispute arises it must be identified. If it is not identified, a party may thereafter be debarred from raising any such point."

No such order was made in the case of the Potter sub-multiple, which was one of the first to be taken forward; but we understand that orders in this form are now standard. That seems entirely sensible, although it must be open to the parties in any case to agree, or argue, that for reasons peculiar to that case giving such particulars at an early stage would be oppressive or otherwise wrong.

THE PRESENT CASE

17. In the present case, as we have noted, the issue of possible changes in job content during the claim period was not identified at an early stage; and the parties were not required to identify any such changes on which they might wish to rely. The JARs as eventually prepared stated the facts only as at the date of presentation of the claim. It is important to note that the Chairman made an express finding to that effect, to which he evidently attached importance. That finding was initially challenged in the Cross Claimants' grounds of appeal. Mr. Clarke proceeded in his oral submissions on the basis that that challenge had been abandoned. We are not clear whether that is correct, though it is fair to say that Ms. Drew did not develop it in her own oral submissions; but in any event the finding seems to us plainly unchallengeable (and indeed, so far as we could judge from our limited perusal, correct).
18. Having set out the history, and the parties' contentions, the Chairman gave his conclusions and reasoning as follows:

"15. I see the approach of the claimants as more complication to an already complicated process. If the independent expert is to prepare a report over a length of period it will cause them difficulties. For instance their methodology may be different for different periods. As I have said, I believe that the JARs prepared are at a fixed period in time. If there was to be an incorporation of variations in job duties over a period of time then the JARs will need to be revisited causing more delay.

16. My understanding is that the test claimants are a guide or yardstick to answer the equality question for that test case and other claimants in the grade being considered. The parties can agree that, if there has been any variation in the test claimants' job duties over the period of her claim that a joint an [sic] appropriate adjustment can be made.

17. It is, of course, for the Tribunal to determine the equality question. The independent expert's report is admitted as evidence. The parties can adduce further evidence, including expert evidence, in accordance with the Equal Pay Rules. It is at the hearing stage that the parties can introduce evidence of the variation in job duties of a test claimant that is considered applicable to the final determination of the equality question.

18. My conclusion is that there needs to be some fixed point at which a claim can be evaluated by the independent expert. The far ranging suggestion by the claimants complicates matters without adding any benefit. If at the date of the claim a JAR is produced setting out all of the bundle or package (or whatever expression one wishes to use) of the job done by the claimant that forms the facts on which the independent expert prepares a report.

19. The independent expert's report is then in accordance with rule 9 admitted as evidence at the hearing. Other evidence can be adduced by the parties subject to prior disclosure. The Tribunal will then reach its own decision on the evidence available to it; Aldridge v British Telecommunications plc [1990] IRLR 10.

20. I do not accept that the Tribunal is limited to determining the equality question as at that date of the presentation of the claim. It has to determine the equality questions over the period of claim be it 6 years or a lesser period."

19. Not every part of that reasoning is perfectly expressed, and we will need to comment on particular passages below. But the central reasoning is clear. The Chairman believed that, given that the 25 JARs had been prepared on the basis that they had been, it would cause undesirable delay and complication for them to have to be revisited in order to include further facts (which might require further findings by the Tribunal) in relation to possible changes over what would in some cases be periods of many years: see in particular paras. 15 and 18. He believed that, starting from where they were, the better course was to allow the independent experts to produce their reports and for the Tribunal to consider the impact of any alleged changes in job content at a later stage in the light of those reports. That was a case management decision of a kind with which, on established principles, this Tribunal should be very slow to interfere. The Chairman had a good understanding of the litigation, in which he had recently conducted a four-day hearing, and was well-placed to make the necessary judgment. We accept that the information before him was less than ideal in one respect, because the Respondents had not identified any particular changes in job content on which they intended to rely. It does not, however, appear that the Claimants had ever asked them to do so or that they made any such request at the hearing itself; and, that being so, we can see no error in his not pursuing the point.^[5]
20. We do not therefore see any error of law in the Chairman's reasoning or conclusion on the central question; and this appeal must be dismissed. However, there are some particular points which we think we should make.
21. First, the formal judgment as pronounced, both in its original and its amended form (see para. 6 above), is capable of being misunderstood if read out of context. The Chairman was not expressing a general conclusion that only the facts as at the date of claim were relevant in law. He was simply specifying what facts the JARs in the lead cases were to cover and, therefore, what facts the independent experts were to consider in the reports which they had been ordered to provide. He explicitly recognised in the body of the Reasons that the question of the effect of any changes at a prior date within the claim period would have to be decided in due course, either by agreement (para. 16) or by the Tribunal (see para. 17); and at para. 20, as we read it, he rejected the submission which Mr. Clarke had made to him, as he did before us, that "the question" fell to be determined only as at the date of the presentation of the claim.
22. Secondly, in paras. 17 and 19 of the Reasons, where the Chairman makes it clear that the question of changes in job content can be addressed at a later stage in the proceedings, he appears to envisage that taking place by way of further evidence being introduced at "the hearing", i.e. at the final hearing provided for by rule 9 of the Equal Value Rules. Ms. Gill and Ms. Drew submitted that such a course could not be procedurally correct. They relied on rule 7 (5) which provides:

"Subject to paragraph (6), the facts relating to the question shall, in relation, to the question, be the only facts on which the tribunal shall rely at the hearing."

(Para. (6) only qualifies that general rule in a very limited respect, which is immaterial for present purposes.) They referred us also to Judge McMullen's description of the statement of the facts for the purpose of the report of the independent expert as "sacrosanct": see Middlesbrough Borough Council v Surtees (no. 2) [2008] ICR 349, at para. 20 (p. 354 F-G).

23. We agree that the Chairman may have painted with too broad a brush here; but the substantial position which he took, namely that any issue arising from asserted changes in job content could be considered at a later stage, is in our view perfectly achievable within the Rules. "The question" as defined in rule 2 and referred to in rule 7 (5) is not indivisible. As a matter of strict analysis, it seems to us that the better view is that a claim covering (as will generally be the case) a series of pay-days involves a distinct "question" as at each date: cf. para. 10 above. Although usually that refinement can be ignored and "the question" be treated as a single question, for case management purposes a Tribunal may decide to break it down so as to allow different issues to be dealt with at different stages of the proceedings. The same result could be reached by simply recognising that "the question", even if regarded as a single question, may give rise to different issues as regards different periods; but we think that the stricter approach is analytically correct. Either way, in our view the effect of the Chairman's decision is that he was directing the expert to consider "the question" only as to the Claimants' and comparators' jobs as stated in the JARs (i.e. as at the date that the claims were made), with the result that the subsequent rule 9 hearing would also, as such, be concerned only with that issue. He was hiving off the theoretically distinct question(s) – or, if you like, parts of the question - relating to the jobs in the early part of the period, prior to any change that might be relied upon.^[6]
24. If in due course an issue does indeed arise about the effect of any changes in job content, it is certainly possible that the Tribunal will have to appoint an independent expert to report on that issue, and thus to follow the prescribed procedure for the ascertainment of the facts relating to that change for the expert's consideration. (There is, of course, no objection to there being two stage 2 hearings: see rule 13 (2).) We do not, however, accept that that would necessarily be the case. It seems to us entirely possible that the Tribunal would feel able, having had the benefit of the independent experts' reports on the "base" facts, to reach a safe conclusion on the impact of any change relied on without requiring a further report: whether it took that course would no doubt depend on the extent to which the evaluation raised questions to which the answers were not clear from the assessment(s) already made by the experts. If it took that course, there would in our view be no technical impediment to it dispensing with a further report. (In that regard, we have noted that rule 4 (3) (b) of the Equal Value Rules requires the Tribunal at the stage 1 hearing to decide "either" to decide the question itself "or" to require a report itself, but if our preferred analysis in para. 23 is correct that gives rise to no difficulty, since each part of the period gives rise to a distinct question. Even if that were not so, we would not, having regard to the over-riding objective, feel obliged to read the language of the rule as precluding a Tribunal from requiring an expert report in respect of the question in respect of one part of the claim period but not another.)
25. If in the end the Tribunal were to dispense with an expert report in respect of any identified changes, then there would indeed be no reason why - as the Chairman seems to have envisaged - the "change issue" could not be decided at the same hearing as the base question on which the independent experts will have reported. In fact, even if an expert were in the end instructed, it is by no means impossible, though no doubt less likely, that the two issues could still be resolved at the same hearing: it would depend on how extensive the work required for the second report or reports turned out to be.
26. In order to assess these options, the Chairman will wish to consider whether to direct the Respondents to plead any case as to changes in job content promptly on receipt of the experts' reports. Mr. Clarke wished to leave open the possibility that the Respondents should not be required to identify such changes until after the Tribunal's final decision on the issues presented by the current JARs: we do not rule that out, but if that course were taken the option of disposing of all issues at a single hearing would be lost.
27. Ms. Drew submitted that even if that was a theoretically possible approach at the start, it had not been followed to date, and procedural history could not be re-written. There had been stage 1 and stage 2 hearings on the basis of a single undifferentiated question, and the question could not now be retrospectively split. We are not in fact sure that it is right to say that the proceedings had previously been conducted on the basis that the independent experts would consider, and the Tribunal would report on, a single undifferentiated question: although we do not have the full picture, it seems that there may have been a latent ambiguity as to precisely what issues were in play, which only came to the surface following the stage 2 hearing. Be that as it may, we can see no objection in principle to procedural orders being revisited where appropriate. That is a general rule of civil procedure and well within the wide terms of rule 10 (1) and 11 (1) of the Employment Tribunal Rules of Procedure, and (if this adds anything) of rule 3 (1) (a) of the Equal Value Rules.
28. Thirdly, we should spell out that the effect of the Chairman's ruling was not to exclude from the experts' consideration tasks that were not actually being performed as at the date of the evaluation but which nevertheless remained part of the jobs in question. There are in many employments – and no doubt in nursing - tasks which fall to be performed only occasionally or at long intervals, but that does not mean that they are not part of the package of tasks and responsibilities that requires to be evaluated (though their infrequency may be important in assessing the weight accorded to them); nor is the job to be regarded as different in the periods when such tasks are actually being performed and when they are not.^[7] Mr. Clarke made it clear in his submissions that the Respondents fully accepted this. It appears that in submissions before the Chairman Ms. Jolly, who was then representing the Cross Claimants, attempted to encapsulate this point by saying that the experts had to evaluate the tasks performed over the "life cycle" of each job; and that that was best achieved by requiring the expert to look at all tasks done over a period of twelve months. As the Chairman observed, at para. 9 of the Reasons, that submission required to be approached with some care. The metaphor of a "cycle" is not wholly unhelpful, in that it recognises that some tasks may come round regularly but at long intervals; but the suggestion of regularity may be misleading in as much as a job may include responsibilities that fall to be performed only irregularly or contingently. And the idea that the experts should consider all tasks performed within the twelve months prior to the date of claim, and none performed outside that window, is artificial and capable of leading to tasks being either wrongly excluded or wrongly included. (They could be wrongly excluded if a task which was a genuine part of the job had, for one reason or another, not happened to be performed in that period; and wrongly included if a genuine change in job content had occurred within those twelve months.)
29. Fourthly, we were shown an order made by a different Chairman – Mr. J.J.L. Hargrove – in the proceedings involving another sub-multiple (Broadhurst) in which he declined to make an order similar to that made in the present case. He drew attention to some problems with what he described (not, we think, very aptly) as "the Potter principle" and pointed out the advantages of having all "changes" issues identified at an early stage and considered by the independent expert as part of his or her initial report, rather than emerging only at the final hearing. We see the force of those arguments – which are not inconsistent with the approach which we have described at paras. 13-16 above - and we certainly would not suggest that the course taken by the Chairman in Broadhurst was wrong. It may indeed be that the Broadhurst approach is generally preferable (though we do not wish to be taken as laying down any general rule, because each case must be decided according to its own particular characteristics). But it does not follow that the Chairman in the instant case was wrong. He was having to decide what course was for the best in the particular circumstances before him, where (a) JARs had already been prepared on a "date of claim" basis and (b) the Respondents had not (unlike in Broadhurst) been called on to identify any changes on which they relied. Our decision is simply that in those circumstances the Chairman's order constituted a proper exercise of his discretion.
30. Finally, Ms. Gill queried the Chairman's observation in para. 15 of the Reasons that the experts' methodologies "may be different for different periods". Like her, we are not sure what he meant by that or whether it is correct. But even if it is wrong it does not undermine his central reasoning.
31. Those points do not affect the outcome of the appeal which, as we have indicated, must be dismissed.

Note 1    Somewhat oddly, in circumstances which we were happy not to have explained to us, this appears to have occurred in proceedings formally concerned with a different sub-multiple (“the Chalmers sub-multiple”); but it is common ground that it applies also in these proceedings.     [Back]

Note 2    NB that she will have had to specify what that period is: see rule 5 (1) (a) (ii).     [Back]

Note 3    The proviso for the case where “some other date has been nominated by the claimant” is directed at the untypical case where the period in respect of which the claimant claims has terminated prior to the presentation of proceedings – most often where the employment has come to an end. That is not the position as regards to any of the lead Claimants in this sub-multiple.     [Back]

Note 4    We say “at least in relation to that period” because Mr. Clarke made clear that it was his case that when a comparator ceases to be doing work of equal value a claimant’s entitlement under the equality clause necessarily lapses at that point. Ms. Gill did not accept this, referring to Sorbie v Trust House Forte Hotels Ltd [1977] ICR 55. This issue was left open by the Court of Appeal in National Power plc v. Young [2001] ICR 238 (see per Smith J at para. 20 (p. 336 B-C), referring back to para. 13 (p. 333 F-G)); and we are not required to determine it here.     [Back]

Note 5    We did in fact ourselves ask Mr. Clarke if he was in a position to identify for us the changes which the Respondents would or might be alleging had occurred. He told us that, although the Respondents had identified some changes, to give a definitive answer would require a good deal of further work which might in the end not be necessary at all. If the question had been focused on at an earlier stage, that might or might not have been regarded by the Chairman as a sufficient reason for not ordering particulars. But it is implicit in the Chairman’s decision that if at the hearing in September 2007 he had asked the same question as we did and received the same answer he would have concluded that there was no point in asking for those particulars now, given the stage that had been reached.     [Back]

Note 6    In fact the decision already made, uncontroversially, in these proceedings that only the most recent jobs done by lead Claimants should be considered at the lead case stage – see para. 2 above – would seem implicitly to recognise that “the question” can indeed be split.     [Back]

Note 7    Of course sometimes a task may last have been required to be performed so long ago that it can no longer be regarded as part of the job at all. If that is really established, there may indeed have been a job change. Drawing the dividing-line between tasks which are rarely performed but still a real part of the job and tasks which have fallen outside the scope of the job through desuetude may not be easy: much will depend on why the task has not in practice been performed.     [Back]