Equal pay – Independent experts – Job evaluation

F A Hovell v Ashford and St Peter’s Hospital NHS Trust: CA (Civ Div) (Lords Justice Mummery, Etherton, Elias): 9 July 2009

The appellant employee (H) appealed against a decision of the Employment Appeal Tribunal (EAT [Judge Peter Clark] 13/08/2008) upholding an employment judge’s refusal to revoke the appointment of an independent expert in an equal value case.

H had been employed by the respondent NHS trust as a social services administrator. Pay and conditions were reorganised and employees were placed in pay bands corresponding to their score in a job evaluation scheme. H was placed in the same pay band as three male comparators, although her score was the lowest.

When the NHS trust’s job evaluation scheme was implemented H received the same pay as her comparators by virtue of section 1(2)(b) of the Equal Pay Act 1970. However, having achieved that equality, H then sought to establish that she had been entitled to equal pay in the six-year period prior to the implementation of the scheme, and pursued her claim against the NHS trust under section 1(2)(c). An employment judge, at the request of both parties and in accordance with the usual practice, ordered that an independent expert should be appointed to prepare a report on the question of equal value. H subsequently applied to withdraw that requirement, although it was not suggested that the circumstances had changed in any material way. H contended that the fact that her job had been rated as equivalent to that of the male comparators necessarily determined that the jobs were of equal value for the purposes of section 1(2)(c). The judge found that it would be an error of law to decide that two jobs were of equal value simply on the basis that the difference in points was very small and for the tribunal to uphold a section 1(2)(c) claim on the basis that a claimant’s work, although not of equal value to the comparator’s work, was very nearly so. The EAT dismissed H’s subsequent appeal, having found that, although the fact that the jobs were in the same pay band was some evidence that they were of equal value, that was not determinative of the question and did not displace the burden of proof, which remained with H. H contended that the judge had made a material error of law in the exercise of his discretion in that he appeared to have thought that if there was any difference at all in the marks given in the job evaluation study, then as a matter of law no tribunal could find that the jobs were of equal value without first obtaining the evidence of an independent expert.

Held: (1) The mere fact that a claimant scored fewer points than her comparator in a job evaluation scheme did not mean that a tribunal was obliged to conclude that her job was not of equal value unless there was the support of an independent expert. A tribunal might be persuaded that a very small difference in points, particularly in the context of a wide-ranging job evaluation study which had focused on benchmark jobs and had not involved a direct comparison of the jobs in issue, did not reflect a material difference in the value of the two jobs. However, that equal value did not mean nearly equal value and it was not right that jobs were equal if they were substantially equal. The analysis of job value was not a science, and a slavish adherence to the marks scored suggested a degree of precision which the assessment of job value could not bear. There may be a proper basis for a tribunal reaching the decision that jobs were of equal value even without the benefit of an independent expert’s report, but the converse might also be true: the employer might, in exceptional circumstances, be able to show that a job was not of equal value even where a claimant’s job was weighted higher than a comparator in the job evaluation study. In the present case, the judge had been correct in stating that the fact that there was only a small difference in the points assessed was not of itself capable of establishing that the jobs were of equal value, although he had gone too far in asserting that a tribunal had to have the benefit of an independent expert before it could properly find equality where the claimant’s job had been marked lower than a comparator’s job. That error was not, however, material. The judge had been justified in taking the view that the tribunal would benefit from an expert’s report and that he should not change the original order.

(2) Per curiam. The exercise of discretion by the employment tribunal was not to be limited. Ultimately, the tribunal had to determine whether it would be assisted by an independent expert’s report. The fact that it might in some cases properly find two jobs to be of equal value without obtaining a report did not mean that it was obliged to follow that course if it felt prejudiced by the lack of expert assistance. The tribunal could appoint an expert at any stage in proceedings.

Appeal dismissed.

Antony White QC, Karon Monaghan QC (instructed by Thompsons) for the appellant; John Bowers QC, Kirti Jeram (instructed by Beachcroft) for the respondent.