SUMMARY
EQUAL PAY ACT – Work rated equivalent
The Judgment of the Employment Tribunal concluded work had been
rated as equivalent because it could be inferred that the male comparators’ job
had been evaluated under a job evaluation study; that conclusion was
inadequately reasoned. It was implicit in the Judgment that the evidence of
the Respondent’s witnesses there had never been such an evaluation had been
rejected but no reasons for arriving at such a conclusion were stated and the
inferential basis for the conclusion that there must have been such a study
rested on a series of speculative assumptions. Alternatively the conclusion
was one that no reasonable Tribunal properly directing itself on the evidence
could have reached.
HIS HONOUR JUDGE HAND QC
Introduction
1.
This is an appeal from the Judgment of an Employment Tribunal sitting at
Newcastle upon Tyne on 15 January 2009. The Judgment was
sent to the parties on 2 April 2009. The case has taken some time to
come before us because, as we understand it, there have been a number of stays
in what is an equal pay case involving some 3,000 or so people, not all of whom
will be Claimants, but will be beneficiaries, in the event that the claim is
successful. There are, we have been told, millions of pounds at stake.
The Employment Tribunal
2.
The hearing on 15 January 2009 was a pre‑hearing review
on a preliminary point. The Employment Tribunal held that the Respondents
(that is to say, the employees) had been employed on work rated as equivalent
with those of male comparators. It is against that finding the Appellant (employer)
now appeals.
3.
The issue arises in relation to section 1(5) of the Equal Pay Act 1970
as amended. In order to invoke section 1(2)(b) of the Act as triggering
the equality clause defined by section 1(1) of the Act, the Respondents
had compared themselves with temporary road workers or labourers.
Historically, their terms and conditions, like those of the Respondents, were
governed by a document called the ‘White Book’, and both groups were graded
MG1. This was a manual workers’ grade under the 1987 National Joint Council
Job Evaluation Scheme, which, it was common ground at the Employment Tribunal,
was a “valid job evaluation scheme” (see paragraph 8 of the Judgment).
4.
Our understanding is that ordinarily that would lead to an acceptance,
for the purposes of section 1(5), that there had been:
“[...] a study undertaken with a view to evaluating in [...]
terms of the demand made on a worker under various headings (for instance effort,
skill, decision) [...] the jobs to be done by all or any of the employees in an
undertaking...”
5.
But the Appellant’s position both at the Employment Tribunal and here
was that temporary road workers or labourers, although they had been placed in
the MG1 grade, had arrived there without any of the job evaluation procedures
set out in the White Book being followed. Whether or not this is an unusual
position or even, as has been said both here and below, an unattractive one the
Appellant to adopt, it could arise only because of the characteristics of the
Job Evaluation Scheme, the nature of which is explained by paragraphs 8 and
9 of the Judgment of the Employment Tribunal at page 5 of the bundle:
“8. It is accepted by both parties that the 1987 job evaluation
scheme, the White Book, is a valid job evaluation scheme. It has eight common
factors being skill, responsibility for people, responsibility for resources,
responsibility for supervision, initiative and independent action, mental
effort, physical effort and working conditions. These factors are then
weighted within the job evaluation scheme. The total scores allocated to an
individual determine the appropriate grade which range from grade MG1 to MG6.
MG1 requires 1 to 269 points. Mr Stephenson’s evidence is that at the
time of the introduction of the White Book, 90% of the manual workers within
the respondent’s work force were evaluated. If a particular job had not been
evaluated using the White Book the evaluation took place on a local basis. Job
outlines for the White Book were agreed and amounted to 37 in total. These are
set out at 2/660. For MG grade 1 the only job profile for employees working on
roads is road sweeper. There are national job outlines for road workers at MG3
road worker 1 at MG4 road worker 2 at MG5 road worker 3.
9. The evaluation of the various jobs initially required the
comparison between the duties, responsibilities and the conditions of the job
within the national job profile. If there were no major differences the job
was graded at that level. If there was disparity, assessment was carried by a
factor comparison.”
As can be seen from paragraph 8, 90 per cent of
the manual workers, according to Mr Stephenson’s evidence, had been
evaluated after the introduction of the White Book in about 1987 or 1988.
Paragraph 7 of the Judgment refers to the date of the scheme as having
been 1987.
6.
The process is further described in paragraph 10:
“Assimilation of manual workers into the White Book terms and
conditions was carried out in latter part of 1987. A job description was
drafted for each manual job. This was agreed with the trade union
representatives. A panel was convened of two of the respondent’s officers and
two trade union representatives who assimilated the job into the grading
structure. This was then considered by the central grading panel. Files were
apparently kept.”
7.
The files that should have related to this particular group of manual
workers have been lost. They are said to have “clearly been mislaid” by
Mr Stephenson, who gave evidence on behalf of the Appellant at the
Employment Tribunal (see paragraph 11). Mr Nicholson, who was the General
Manager of the Highways Division, took up that post in 1992. Paragraph 12
explains that compulsory competitive tendering, which had started around the
end of the 1980s, had caused some difficulties to the Appellant. His evidence
was reported by the Tribunal in these terms at paragraph 12:
“Mr Nicholson became general manager of the highways
division in 1992. The highways division had to operate a profit and loss
account. The respondent had a core number of workers at the time to carry out
road works. At times the work required to be done was in excess of the capacity
of the core workforce. To deal with the situation Mr Johnson either had to
employ subcontractors or temporarily increase the size of the respondent’s own
labour force. In practice both options were used.”
8.
The Judgment continues in paragraph 13 as follows:
“Mr Nicholson’s evidence is that he took the decision to employ
temporary road workers. They were paid at manual worker grade 1 rates plus 20%
bonus. Mr Nicholson’s evidence is that a temporary road worker did no
different work to that of a permanent road worker who was graded MG3. However,
the decision was made that the temporary road workers would not be paid at the
same rate as the permanent or core employees who were graded at MG3. The
reason was to keep employment cost down.”
9.
Fragments only of the paperwork have survived. A job description for an
MG3 road worker indicated that driving was part of the duties. This is
referred to by the Employment Tribunal in paragraph 14 of the Judgment at
page 6, where the job purpose is described as follows:
“To undertake, as part of a team, specialist highway maintenance
and construction tasks using where required powered light plant and powered
hand tools. To drive and operate vehicles and items of plant not requiring an
LGV licence.”
10.
The tasks set out and referred to at paragraph 14 are said to:
“[...] include driving a van with passengers to and from the
work and transporting materials to and from stores and work sites on a towed
trailer.”
11.
Other documents that survived are described by the Employment Tribunal
at paragraph 16. The first is an application for the post of road worker;
the second is a job description:
“[...] which is stated to be at the grade of ‘former manual
worker grade 1’ [...]. The job purpose is described as follows:
‘To provide labouring assistance to a team undertaking
highway maintenance and construction tasks using where required simple powered
light plant and powered hand tools.’”
12.
It will be appreciated that the difference between the job purpose set
out at paragraph 16 and paragraph 14 is that in the latter there is
the additional sentence referring to driving. The evidence given on behalf of
the Appellant by Mr Nicholson and to a lesser extent by Mr Dover is
recorded at paragraph 19 in these terms:
“The Respondent is unable to identify who prepared the job
descriptions and person specifications or when they were prepared. The respondent’s
evidence is that there was no difference in the work carried out by road
workers on MG1 and those on MG3. It accepts that they are bound by contract
and by the collective agreements to pay its employees correctly. It accepts
that the payment of workers MG1 was ‘incorrect’ and that they should have been
paid on MG3. They have all now been put onto MG3.”
13.
The Employment Tribunal heard from Mr Spears, who was a trade union
representative. We have been taken to his witness statement which starts at
page 106 of the bundle. He had extensive experience in the employment of
the Appellant, having started in 1972 at the age of 15. He had been working as
a labourer/driver in the Highways Division until 1985 when he became a
foreman. He had become a GMB shop steward in 1997 and was the Assistant Branch
Secretary for the Northumberland County Council branch from 1999 to 2008. He
plainly had a good deal of experience. At paragraph 20, his evidence is
summarised as follows:
“Both he and the respondent’s witnesses accept that he was
constantly trying to have the temporary road workers made into permanent road
workers, as he used the terms, and be paid on MG3 scales. His evidence was
that the elected councillors expressed a view that the highways department
should have sufficient permanent employees to be able to do most of the work.
This may not have been possible when competitive tendering was required but in
recent times that requirement was decreased. Mr Spears was not aware, and
we accept his evidence, that the temporary road workers at MG1 were regarded as
doing exactly the same work as MG3 road workers. He was specifically asked the
question whether if the temporary road workers were doing the same work as MG3
workers he would have countenanced grading the temporary road workers as MG1.
He said that he would not.”
14.
The only evidence before the Tribunal about an employee on the MG1 grade
having had his job evaluated under the White Book Job Evaluation Scheme related
to Mr Elliott. As the Employment Tribunal appreciated (see
paragraph 21 of the Judgment), he may have been a special case, and he was
more of a road sweeper than a road worker. The Tribunal also noted the
evidence of Mr Dover at paragraph 22 of the Judgment. What they say
about his evidence was that he was experienced in working with both temporary
and permanent road workers. Paragraph 22 continues as follows:
“He expected temporary and roadwork to do the same job after
they had been shown what to do by him. He had no knowledge of any of the
recruitment provisions and job descriptions prepared for temporary road
workers. He had worked with five to six temporary road workers in each year
over a period of 25 years. He had never worked with a temporary road worker
who had just started. He had worked with Mr Teesdale, who was a temporary
road worker. He had come to work with him after six months from his start
date. Some road workers were paid extra when they acted up. He had no
knowledge of any of the temporary road workers acting up.”
The Employment Tribunal’s Decision
15.
Those were the evidential findings of the Employment Tribunal. The
conclusions reached by the Employment Tribunal start at paragraph 37 at
page 12 of the bundle. Paragraph 37 states the question to be
determined as follows:
“The question which the Tribunal has to determine is whether or
not the temporary road workers were evaluated into the White Book thus enabling
the claimants to make a comparison between temporary road workers and
themselves.”
16.
The rest of paragraph 37 is taken up with an explanation as to why
the word ‘temporary’ might have been somewhat misleading, but since nothing
turns on that, there is no need for us to consider it further. The question
thus stated had already been identified at paragraph 6, albeit in somewhat
different terms. There the Employment Tribunal set out the issues that it
understood it needed to resolve in terms of the following alternatives:
“The issue for determination is whether the temporary road
workers/labourers identified by the claimants were employed on work rated as
equivalent with the manual grade 1 (MG1) claimants because:
(a) the work was rated with other labouring work as MG1 at or
around the date of implementation of the White Book job evaluation scheme in
1987/88;
(b) that work was rated separately as MG1 before the
introduction of the single status agreement or alternatively;
(c) whether the temporary road workers’/labourers’ was not rated
at all.”
17.
Putting that into simpler terms, the issue that the Tribunal had to
decide was whether the work carried out by temporary road workers had been
evaluated under the White Book scheme in 1987 or 1988, whether it had been
evaluated at a later stage, or whether it had not been evaluated at all. At
paragraph 38 of the Judgment, there is a reiteration of the case being put
forward by the Appellant to the Tribunal. It was that the temporary road
workers did the same work as the MG3 road workers but were not paid the same.
Paragraph 38 contains a reference to Mr Stephenson’s evidence that
the decision to place temporary road workers into the MG3 grade had been made
for a variety of reasons, including, “not least that we were being sued.”
Paragraph 39 raises the problem of the lack of evidence; as the Tribunal
put it, “a dearth of direct evidence.” This is how the Respondent’s case was
summarised at paragraph 39:
“The respondent’s witnesses state that the road workers and the
temporary road workers do the same job. The position of temporary road worker
had lasted a number of years. We are told that recruitment does not come
directly from the highways department but through the personnel department.
Individual departments had their own personnel department but they are now
centralised. If there was a recruitment we are told that advertisements were
placed in local newspapers and through the jobcentre. That involved a process
of the highways department informing the personnel department that recruitment
was required. The advertisements in the bundle show clearly that temporary
road workers were being employed as labourers. The recruitment of temporary
road workers would have involved a number of people within the recruiting
department (ie the highways department) and personnel. We find it difficult to
understand, taking into account the number of people that must have been
involved, that no one noticed that the temporary road workers were doing the
same work as the road workers MG3 but being paid substantially less.”
18.
That last sentence has been the subject of scrutiny on this appeal. It
will be appreciated from the extensive quotation from the Employment Tribunal’s
Judgment above that it was the Respondent’s case that the work was the same and
indeed that a pragmatic decision had been taken by the Respondent to grade the temporary
workers as MG1 and pay them less in order to meet the financial exigencies of
compulsory competitive tendering. The last sentence of paragraph 39
therefore must be taken to be a rejection of the evidence that this had been a
deliberate policy by the Appellant, because otherwise the conclusion that “no
one noticed” would ignore the evidence of Mr Nicholson and others that
they had not only noticed but deliberately devised the policy.
19.
The Tribunal then turned to the equally important evidence of Mr Spears.
They describe him as, “the only union representative who has given evidence”.
Indeed, as we understand it, apart from Mr Nicholson, Mr Stephenson
and Mr Dover, Mr Spears is the only other person giving evidence
dealing with what actually happened in the highways department from about 1992
onwards. None of those who were employed as temporary road workers on grade
MG1 and subsequently had become MG3 road workers gave evidence about their
circumstances. In paragraph 40 the Employment Tribunal reiterates that
Mr Spears was pressing management to upgrade the temporary road workers.
The Tribunal deals with the Respondent’s position that the union had not
pressed for temporary road workers to be paid the same, and then says this:
“We are aware that the respondent is heavily unionised. We find
it particularly difficult to understand that the union representatives
particularly the full time representatives, if they were aware of the pay
disparity would have countenanced the payment of a group of workers being paid
at a lower rate than those of other workers doing exactly the same job.
Accordingly, we consider that the unions must have been under the impression
that the temporary road workers were, as the title suggests, temporary and
doing a lesser job than the MG3 road workers and thus being paid a lesser
amount. Mr Spears obviously wanted them to be paid more by being put on
the higher grade.”
20.
At paragraph 41 of the Judgment the Tribunal approaches the
question of what actually had been happening from the point of view of the
collective agreement. It had been noted that this was a “heavily unionised”
employer, and the Tribunal concluded that:
“[...] the respondent was in clear breach of contract and of the
collective agreement. Not only were the temporary road workers not paid the
correct amount, if it is correct that they were doing exactly the same work as
the road workers MG3, it was also affecting their pension contributions for the
future. If the respondent is accepted that throughout the period when the
temporary road workers were not paid the correct amount, the respondent was
clearly seriously depriving the temporary road workers of their rightful pay.
We ask ourselves would a public body act in such a way? We also ask would, if
the union was fully aware of the situation, it have countenanced the respondent
acting in such a way?”
21.
The Tribunal then looked again at the documentation. They note that the
“most significant difference” between the person specifications is the
requirement to drive, and then they say this:
“Someone at some time must have carried out an exercise of
drawing up job descriptions and person specifications specifically for the
temporary road workers. There is no evidence that an evaluation under the
White Book took place. Conversely, there is no evidence that it did not.
There is no documentation that the respondent can produce to show what actually
did occur. All documentation has been mislaid. Our understanding is that the
job descriptions and person specifications were drawn up by the personnel
departments applicable at the time. The departments were involved in the White
Book evaluation when it was brought in by the respondent. The departments will
have been aware of the responsibility of complying with that collective
agreement and that any new jobs had to be evaluated into the White Book. [...]
The evidence suggests that there was an exercise carried out by someone in the
personnel department of the respondent to ensure that the job specifications
and job descriptions for the temporary road workers fell within the MG1 grade.
To do so, and to do so in an honest way, they must have evaluated in accordance
with the White Book.”
22.
The Tribunal draw all these matters together at paragraph 43. They
direct themselves that it was for the Claimant to show on the balance of
probabilities that there was an evaluation of temporary road workers in
accordance with the White Book. The Tribunal notes that the documentation
shows that there were different grades of road workers, and the Tribunal says
this of the documentation:
“That is the only documentary evidence which shows that there
was or could have been an evaluation.”
The Tribunal repeats yet again that this was a “heavily
unionised” County Council. The Tribunal reminds itself that the White Book is
a national scheme, and then says this:
“What the respondent is asking us to accept is that for a number
of years it employed a group of workers that were doing exactly the same work
as road workers MG3 but were not paid in accordance with the proper scale that
they should have been under the White Book. We cannot accept that. As we have
said, the trade unions would not have countenanced that sort of action by the
respondent. The workers themselves would not have accepted that situation. If
they considered that they were doing exactly the same job as their co‑workers
on MG3 who were being paid more they would, no doubt, have been very voluble in
their protest. They would have involved the union. The temporary road workers
regarded themselves as doing labouring jobs. They of course had aspirations to
get onto the higher grade and this was promoted by the union. It is
incomprehensible that the respondent would act in such a way. There must
therefore have been an evaluation in accordance with the White Book to grade
the temporary road workers as MG1.”
23.
The Tribunal then went on to make a declaration to that effect.
Submissions
24.
In terms of the submissions that were addressed to us, it is common
ground between the parties that, having asserted that she was employed on work
rated as equivalent with that of the men, and her job and the men’s job had
been given an equal value on a study undertaken with a view to evaluating in
terms of the demand made under various headings (for instance, effort, skill,
decision) the jobs to be done by all or any of the employees in an undertaking,
it was for the Claimant to prove on a balance of probabilities that there had
been such a job evaluation. It was also common ground that in practice that
may mean in most cases, and did mean in this case, that, once it had been shown
that the women and their comparators had been graded the same in grades used in
a job evaluation study that was a valid job evaluation study for the purposes
of section 1(5), if the Respondent wished to put forward a case that there
had in fact not been an evaluation of the men’s jobs under the job evaluation
study then the Respondent would bear the evidential burden of producing that
evidence.
25.
Mr Milford’s submissions on behalf of the Appellant were to
approach the matter from the point of view of first of all whether the jobs
were the same or different as a matter of fact (this was, he submitted,
something in respect of which the Tribunal had failed to adequately reason its
conclusions); secondly, whether there had been a job evaluation study,
complying with section 1(5), undertaken in respect of the temporary road
workers (again, this was something that had been inadequately reasoned, in
terms of its conclusions, by the Employment Tribunal); and thirdly, that this
was a decision that no reasonable Tribunal properly directing itself could have
reached on the evidence.
26.
He drew our attention to the case Paterson and Others v London Borough of Islington and Others [2004] UKEAT/0347/03/DA.
This was a decision of this Tribunal presided over by Rimer J (as he then
was). Its relevance to this appeal is that it concerns the White Book, and the
significance is there had been a variation from the procedural regime set out
in the White Book. Rimer J’s division of this Tribunal reached this
position at paragraph 21 of their Judgment:
“Coming now to our conclusions, we regard it as clear that, for
the purposes of section 1(5), the evaluation of the applicants’ jobs and
that of assistant caretaker had to be carried out under a particular ‘study,’
and that must mean the same study. Were it otherwise, different jobs
would or might be evaluated by reference to different criteria, with the result
that a comparison between the results would not be one of like with like.
There is no doubt that in this case the ‘study’ adopted by Islington was the
Scheme. There is also no doubt how the Scheme was required to be operated at
local level. In particular, as regards the ‘assessment’ of local jobs which
could be ‘assimilated’ to any of the 37 model national jobs, a factor
comparison was required with the closest national jobs [...]. We do not accept
Mr Ford’s submission that this (and other requirements) of the Scheme were
merely recommendations from which local departure was permissible in the
assessment of jobs. If that were so, the scheme would be of little worth. We
accept that the scheme was not mandatory in the sense that either Islington or
any other local authority was bound to adopt it. But, if it was adopted, it had
to be applied uniformly, and according to its terms, since otherwise the job
evaluations carried out under it could not be said to be carried out under it
as a single “study”.
(22) In the present case there is no doubt that Islington did
adopt the Scheme and purported to evaluate the relevant jobs under it. The
evaluation of the assistant caretaker post was, however, assessed by reference
to three national model jobs and also to a fourth non‑national model
job. In the last respect, the assessment involved a clear departure from the
scheme. We are disposed to agree with Mr Ford that, in principle, not
every such departure will necessarily compel a conclusion that the relevant
evaluation was not carried out under the ‘study’ represented by this Scheme.
We agree that this will usually raise a question of fact as to the materiality
of the departure.”
27.
In that case applying the above reasoning the Tribunal concluded that
there was a material departure and that therefore the study had not been the
same study for the purposes of section 1(5). Mr Milford’s position
in this appeal was that Paterson’s case was relevant not because
there was necessarily a departure from the national scheme in the instant case
but because Paterson’s case illustrated that there had to be a
job evaluation carried out under the terms of section 1(5), and that any
evaluation that fell short of, or differed from, the requirements of the White
Book scheme was therefore not evaluation. It was not the Appellant’s case at
the Employment Tribunal that there had been a less than compliant evaluation;
it was that there had been no evaluation at all. Nevertheless, if the
conclusion at paragraph 42 in the last two sentences was a valid
conclusion:
“The evidence suggests that there was an exercise carried out by
someone in the personnel department of the respondent to ensure that the job
specifications and job descriptions for the temporary road workers fell within
MG1 grade. To do so, and to do so in an honest way, they must have evaluated
in accordance with the White Book.”
that would illustrate that there has not been compliance with the
scheme, because the scheme as set out by the Tribunal itself at
paragraphs 8 and 9 of the Judgment requires a great deal more than
somebody in the personnel department taking that course.
28.
However, Mr Milford’s main submission was both the above conclusion
and the conclusion that is arrived at in the last sentence of
paragraph 43, “there must therefore have been an evaluation in accordance
with the White Book to grade the temporary road workers as MG1,” were supported
by completely inadequate reasoning. Under the Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) there
is now what I can call a matrix set out in rule 30(6), which tells
Employment Tribunals what should be included in any Judgment. Mr Milford
does not quarrel with paragraph 6 of the Employment Tribunal’s Judgment;
it does, he accepts, set out the issues that have to be decided by the Tribunal
and that need to be set out in order to comply with rule 30(6)(a). What
he submits, however, is that in relation to both (c), “findings of fact
relevant to issues which have to be determined,” and (e), “how the relevant
findings of fact and applicable law have been applied in order to determine the
issues,” this is an inadequately reasoned decision. In essence, his submission
is that the facts that have been found by the Tribunal do not explain how it is
that the Tribunal have reached the inferential conclusion in relation to the
issues set out at paragraph 6.
29.
A secondary criticism is that the conclusion reached by the Tribunal
(namely, that there must have been a job evaluation study carried out) does not
actually deal with whether that is in terms of the issues set out at
paragraph 6 of the Judgment an evaluation that was carried out under
sub-paragraph 6(a) or an evaluation carried out under sub-paragraph (b).
30.
We were taken by Mr Milford and also by Ms Monaghan QC,
who appears on behalf of the Respondent, to significant portions of the
evidence. Mr Milford’s submission in relation to the evidence is that
there is no explanation on the face of the Employment Tribunal’s Judgment as to
why the evidence of Mr Nicholson, Mr Stephenson and Mr Dover,
but principally that of Mr Nicholson, about the basis on which temporary
road workers were graded MG1 has been rejected. Mr Milford accepts that
the conclusion must mean that the evidence has been rejected; indeed, the
passage that we have referred to earlier (that is to say, the last sentence of
paragraph 39) must amount to a rejection of Mr Nicholson’s evidence
for the reasons that we stated above.
31.
Mr Milford’s second submission in relation to the job evaluation
was that the Tribunal had relied heavily on the position of the trade union,
but that the lack of any evidence on the part of the trade union in relation to
the MG1 grade and the temporary road workers had been treated, in essence, as a
neutral factor. If, as must have been the case, the union was involved in the
evaluation of the job, whenever it took place, it would be expected that the
union would have kept the material, and yet no material had been produced to
the Employment Tribunal that supported the contention that there had been a job
evaluation. Indeed the point went further, submitted Mr Milford;
Mr Spears would have been one of the people involved in the evaluation yet
he was not able to give any evidence as to when it had happened or as to any of
the circumstances in which there had been a job evaluation.
32.
Mr Milford’s third submission related to perversity. This was, he
submitted, a truly perverse decision because there was neither direct evidence
of an evaluation nor any material from which it could be properly inferred that
there was a job evaluation. Nobody had given any evidence or produced any
material to suggest that there had been an evaluation, and nothing had emerged
to suggest that the local procedure had been followed.
33.
Ms Monaghan submitted that this was a decision by the Employment
Tribunal which depended upon it having accepted some evidence and rejected
other evidence. It had accepted Mr Spears’ evidence that he was unaware
that the temporary road workers were doing exactly the same work as MG3 road workers
(see paragraph 20). It had accepted that this was an undertaking that
was, as the Tribunal put it, “heavily unionised,” and it had come to the
conclusion that what was being put forward by the employer in this case was
simply not the truth.
34.
The key findings upon which she relied are at paragraph 40 in the
last three sentences, where the Tribunal express themselves in these terms:
“We find it particularly difficult to understand that the union
representatives particularly the full time representatives, if they were aware
of the pay disparity would have countenanced the payment of a ground of workers
being paid at a lower rate than those of other workers doing exactly the same
job. Accordingly, we consider that the unions must have been under the impression
that the temporary road workers were, as the title suggests, temporary and
doing a lesser job than the MG3 road workers and thus being paid a lesser
amount. Mr Spears obviously wanted them to be paid more by being put on
the higher grade.”
35.
Secondly, she relied on paragraph 42, where the Tribunal had
reached what she submitted was the inferential conclusion:
“The evidence suggests that there was an exercise carried out by
someone in the personnel department of the respondent to ensure that the job
specifications and job descriptions for the temporary road workers fell within
the MG1 grade. To do so, and to do so in an honest way, they must have
evaluated in accordance with the White Book.”
36.
And she relied upon paragraph 43, which in effect reiterates the
point about the employer being heavily unionised, but importantly, as she
submitted, in effect, rejects that the work was exactly the same, in these
terms:
“What the respondent is asking us to accept is that for a number
of years it employed a group of workers that were doing exactly the same work
as road workers MG3 but were not paid in accordance with the proper scale that
they should have been under the White Book. We cannot accept that. As we have
said, the trade unions would not have countenanced that sort of action by the
respondent. The workers themselves would not have accepted that situation. If
they considered that they were doing exactly the same job as their co‑workers
on MG3 who were being paid more they would, no doubt, have been very voluble in
their protest. They would have involved the union. The temporary road workers
regarded themselves as doing labouring jobs.”
37.
And she relied upon the last three sentences as amounting to a sound
inferential conclusion, namely:
“It is incomprehensible that the respondent would act in such a
way. There must therefore have been an evaluation in accordance with the White
Book to grade the temporary workers as MG1. We accordingly make a declaration
to that effect.”
38.
Ms Monaghan gave pride of place in her submissions to the advantage
that the Employment Tribunal has over this Tribunal of having heard the
evidence and having therefore had the opportunity to see exactly how the
witnesses behaved and how they reacted in cross-examination, and therefore to
be able to conclude from the nuances that such evidence gives to a fact-finding
Tribunal what evidence should be accepted and what evidence should be
rejected. That is a powerful point, but we have reached a conclusion that it
cannot carry the day.
Conclusion
39.
It seems to us that this is a decision that does not adequately set out
the reasons as to why the Tribunal have reached the conclusion. Moreover, we
have some reservations as to the thought process that has been arrived at by
the Employment Tribunal. So far as the reasons are concerned, if
paragraph 39 in its last sentence amounts to a rejection of the evidence
of Mr Nicholson, then it seems to us that whether taken in isolation or
taken in conjunction with the scepticism manifest in paragraphs 40, 42 and
43 as to whether that really could be the position, it is inadequate reasoning
not to have set out in a fuller way why it is that Mr Nicholson’s evidence
was unacceptable.
40.
The last thing that this Tribunal wants to do is to place any straitjacket
in terms of rule 30(6) on Employment Tribunals, but it seems to us that in
order for parties to know why they have won and why they have lost, and in
order to be able to see that the structure of paragraph 6 has been adopted
by the Employment Tribunal, it is necessary for the Tribunal to at least say
something as to why Mr Nicholson’s evidence has to be rejected. It is
submitted that his evidence must have been rejected because the trade union
would not have countenanced such a practice but even if we accepted the
inevitability of that, it still would leave an inadequate set of reasons. What
the Employment Tribunal has found is that the unions must have been under that
impression that this was temporary work and not the same work as that carried
out by the MG3 group; they say so at paragraph 40. But it seems to us
that even if the unions were under that impression and even if a greater
reaction from individual employees on discovering that the work was the same as
that being done by MG3 group was to be expected (see paragraph 43), it does
not lead to the conclusion set out at paragraph 43 that the temporary road
workers regarded themselves as doing labouring jobs. Nor does it lead to the
conclusion set out in the penultimate sentence, “there must therefore have been
an evaluation in accordance with the White Book to grade the temporary road
workers as MG1.” The “therefore” used in that sentence suggests that because
the union were under the impressions the Tribunal have found them to be in
paragraph 40, and because there may have been more fuss in some
circumstances, one can therefore reach the conclusion that there must have been
an evaluation in accordance with the White Book is not a sound inferential
conclusion and the failure to explain how the primary facts lead to the
conclusion is not adequate reasoning in terms of rule 30(6).
41.
Moreover, the Employment Tribunal, apart from reaching another
inferential conclusion in paragraph 42 that somebody in the personnel
department had carried out an exercise to ensure that job specifications and
job descriptions fell within MG1 grade, leads then to the last sentence, which
again might be regarded as a different way of putting the penultimate sentence
of paragraph 43, “there must therefore have been an evaluation in
accordance with the White Book,” seems to us to be remarkably short of
reasoning as to why the facts that have been found by the Employment Tribunal
do lead to that conclusion.
42.
For those reasons, we do not regard the Employment Tribunal as having set
out in accordance with rule 30(6) why it has reached the inferential
conclusion that there must have been a job evaluation. In particular, they
have failed to explain why they have found that Mr Nicholson’s evidence in
relation to this was unacceptable, and how the fact that his evidence was
unacceptable has led to the conclusion that therefore there must have been an
evaluation.
43.
We also, not without some hesitation, accept Mr Milford’s
submission that there seems to have been far too large a step taken from the
findings of fact made by the Tribunal to the conclusion reached for this to be
the conclusion of a reasonable Tribunal properly directing itself on the
evidence. We recognise, as Ms Monaghan submitted to us, that it must be
in very few cases that one could say that this was not a conclusion open to a
Tribunal on the evidence; nevertheless, there are cases, and we think this is
one of them, where the evidence simply does not enable the step to be taken.
The documentary evidence, as the Tribunal accepted, only shows that somebody
has produced an MG1 grading; it does not show, in our judgment, that there ever
was a job evaluation carried out in relation to the MG1 grade.
44.
In this context also, we accept Mr Milford’s submission that in the
penultimate sentence the “therefore” is in effect masking a non‑sequitur.
It does not follow from the fact that the trade union may have been under the
impression that temporary road workers were temporary in doing a lesser job
that one could reach a conclusion that, not only did they regard themselves as
doing labouring jobs as set out in paragraph 43, but that further
therefore there must have been a job evaluation. It seems to us that those
conclusions do not follow from the facts that have been found by the Employment
Tribunal.
45.
What are we to do in this case? Mr Milford submits that we must
take notice of the fact that the finding at paragraph 42 is to the effect
that the personnel department must have done this, and that there is no
evidence that any of this was done within the scheme of the White Book so that
the last sentence of paragraph 42 should fall away. We are therefore left
with a conclusion that this was done by the personnel department, and, if that
is right, this is a case similar to Paterson, and in the
circumstances therefore we should substitute our own finding that there was no
compliance with the White Book evaluation scheme. We cannot take that course;
we take the view that the inferential finding at paragraph 42 is as faulty
as the other findings, and could not possibly form a basis for us to reach a
conclusion that there had been any sort of imperfect evaluation, or indeed any
evaluation at all.
46.
This is a matter that, in our judgment, should be remitted to an
Employment Tribunal. This is a course that we are very reluctant to take given
that it is now two years since this matter was decided; nevertheless, we have
regard to the fact that there is a great deal at stake. It seems to us also
that this is a case that ought to go back to a differently constituted
Employment Tribunal. The Employment Tribunal in this case in paragraph 43
seems to us to nail their colours very firmly to the mast of finding all of
this incredible. We think it would be best reinvestigated by an Employment
Tribunal that has not reached that conclusion. This, in our judgement, is a
case that ought to go back for a rehearing before a differently constituted
Employment Tribunal.
