Appeal No. EAT/480/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 7th February 1991 &
	13th & 14th November 1991
	Judgment Delivered on 19th December 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS M L BOYLE

	MRS M E SUNDERLAND JP

MISS M ELBOGEN	APPELLANT

ROYAL INSTITUTE OF BRITISH ARCHITECTS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ROBIN ALLEN
(Of Counsel)
Messrs Robin Thompson & Partners
Bainbridge House
Bainbridge Street
LONDON WC1A 1HJ

For the Respondents	MISS SALLY SMITH
(Of Counsel)
Park Nelson
1 Bell Yard
LONDON WC2A 2JP

	MR JUSTICE WOOD (PRESIDENT):  On the 20th October 1989 Miss Elbogen issued two Originating Applications alleging sexual discrimination in that her employers had not awarded her equal pay with her two comparators.  They were "equal value" claims under Section 1(2)(c) of the Equal Pay Act 1970 (the 1970 Act).  She had ceased working for the Respondents on the 28th July 1989 but her effective date of termination was the 30th September of that year.  An Industrial Tribunal sitting at London (South) under the learned Regional Chairman Mr Oliver Lodge heard both her applications together over a period of three days in June 1990 and dismissed them.  She appeals.  Before the Industrial Tribunal she was represented by a senior member of her Trade Union (the Manufacturing Science and Finance Trade Union) and before us by Counsel, Mr Robin Allen.  The RIBA has been represented throughout by Counsel, Miss Sally Smith.

	The comparators whom Miss Elbogen has chosen were Mr Barry Lennox and Mr Alan Palmer.

	From November 1984 until March 1989 Mr Lennox had been in post as "Assistant Regional Secretary (Southern Region)" (Grade 5).  From March 1989 his responsibilities had changed and his post was restructured to be called "Regional Secretary (Southern Region) and Energy Secretary".  (Grade 6).

	From 1988 until February 1989 Mr Palmer had been "Examination Officer" - (Grade 5) and from February 1989 his responsibilities had been changed and his post had also been restructured.  He became "Examinations and Training Officer" (Grade 6).

	In each of her applications Miss Elbogen claims that in each of her posts she was doing work of equal value to each of the Grade 6 posts.  During the relevant period she was herself in two posts hence two applications.

	Miss Elbogen was first employed by RIBA in 1982.  From the 1st May 1988 she was "Assistant Practice Secretary" (Computers and Energy)".  Late in 1988 and in early 1989 the RIBA was clearly facing financial restrictions and necessary re-organisation was taking place.  On the 31st January 1989 Miss Elbogen was given notice of termination of employment to expire on the 30th June.  The reason for this notice was redundancy and this is not in issue.

	Her first post as Assistant Practice Secretary was Grade 5 and her first application relates to that post.

	During the currency of her notice she was offered and accepted for a trial period the post of "Public Sector Liaison Officer".  This was effective from a date in February 1989.  Prior to January 1989 this post had been occupied by a woman and had been Grade 6, but in January 1989 it was re-assessed and re-graded as Grade 5.  That re-grading is dealt with by the Tribunal in paragraphs 15 and 16 of the Reasons:
"15 The Liaison Post was graded 6 in January 1985.  At that time the Job Description specified that the post holder was responsible to the Public Sector group's budget (£8,000 at 1984 prices);  the background expected was that of a university graduate with at least eight years' relevant experience in a post involving policy formulation and contact with public bodies.  The post was stated to be a four-day week appointment.

16  In January 1989 the Liaison Post was regraded 5.  The Job Description contained some new features but the total number of points fell below 651 because the Public Sector Group's budget for which the post holder was responsible was substantially reduced and the background expected was changed to that of a graduate with five to eight years' relevant experience in a post involving policy formulation and contact with public bodies.  The statement that the post was a four-day week appointment was omitted."
	Miss Elbogen knew of the regrading when she accepted this offer.

	Miss Smith argued the defence on two grounds.  First she relied upon Section 2A(2) of the 1970 Act, this was the main substantive defence.  In the alternative and in order to keep the point open, she submitted that there was a genuine material factor defence under Section 1(3) in that even if the work of the Applicant and that of one or both of the comparators were found to be of equal value, the variations between the Applicant's contracts and the contracts of the comparators were due to material factors which were not the difference of sex and those factors either were or might be material differences between the Applicant's cases and the comparators' cases.

	Section 2A(2) of the 1970 Act (as amended) provides so far as it is material that -  
"..... there shall be taken .... to be no reasonable grounds for determining that the work of a woman is of equal value as mentioned in Section 1(2)(c) ..... if -
(a)  that work and the work of the man in question have been given different values on a study such as is mentioned in Section 1(5) above;  and
(b)  there are no reasonable grounds for determining that the valuation contained in the study was (within the meaning of Sub-section (3) below) made on a system which discriminates on grounds of sex."

Section 2A(3) states:-
"An evaluation contained in a study such as is mentioned in Section 1(5) above is made on a system which discriminates on grounds of sex where a difference, or coincidence, between values set by that system on different demands under the same or different headings is not justifiable irrespective of the sex of the person on whom those demands are made."

The study mentioned in Section 1(5) is:

"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 or group of undertakings."
	
	The Tribunal posed the issue to be decided in paragraph 9 of the Reasons as follows:
"It is not in dispute that the respondent did undertake a study (`the Evaluation Study") such as is mentioned in Section 1(5).  The issue which we have to determine is whether it was made on a system which discriminates on grounds of sex."

	In February 1979 a meeting took place between officers of the RIBA and representatives of the MSF Trade Union.  It was agreed at that meeting that a Committee should be formed to decide on a method of job evaluation to be adopted and that ACAS should be invited to advise and assist.  ACAS agreed to do so and a Working Party was set up with eight from each side and with two ACAS advisers.  A series of meetings took place and an analytical method was agreed.  It was known as a Points Assessment Scheme.  It was duly adopted.  It was accepted by both sides.

	As a result of this agreement a job evaluation Committee was established consisting of three officers from the Respondents (all male) and three from the Trade Union (two of whom were female).  An Appeals Committee was also established consisting of two   Management and two Trade Union members of the Working Party.

	In 1983 a dispute arose between the Trade Union and the RIBA, which is irrelevant for our present purposes, but the result was that the Trade Union representatives withdrew from the Job Evaluation Committee.  The RIBA are content that they should return but this has not taken place.

	Ample and extensive documentation was in front of the Tribunal about the Job Evaluation Scheme and its workings and indeed its workings in the individual cases which were before the Tribunal.  There was a Job Evaluation Manual.  The Tribunal set out the scheme at some detail, but perhaps for our present purposes we may abbreviate the description somewhat as it is not criticised.  It was not suggested that it was in any way unfair or discriminatory on the basis of sex.  There were four main factors and a number of sub factors.  Although a subjective element could not be wholly excluded it is quite apparent that in this scheme it had been reduced to an absolute minimum.  There were four sub factors in which it could be argued that some slight element of subjectivity could creep in.  It seems to us an admirable scheme.  Points were allocated for every sub factor and the total points were placed within bands or grades.  Pay was in the main related to grade but there could be variation within grade, for instance because of length of service.

	The Staff Manual stressed the need to keep the scheme up to date by re-assessment it emphasised that the nature of posts and the demands do not remain static.  The job description for any new post was required to be brought by Management to the Job Evaluation Committee before it could appoint.  There was also a duty to resubmit if the responsibilities of a post changed.  There was a right for a member of staff to ask for a reassessment or indeed to appeal.

	It is perhaps obvious, but the basis for the start of a job evaluation by the Job Evaluation Committee is the Job Description.  This was emphasised specifically in the Job Evaluation Manual.  The only witness for the RIBA, their Personnel Manager Mr Richardson, explained the process in evidence as shown in the Notes of Evidence as follows:
"Discrimination can arise from any scheme drawn and weight given to factors.  Sex bias can only arise in applications of scheme if it is applied grotesquely.

JEC looks at job description.  If not obvious, they take account of general knowledge and examine similar posts and the scores they have obtained to see if consistency can be obtained.

Job descriptions drawn up by employee, Supervisors, Director of Department and self and reviewed by Management Group before going to JEC to ensure job appropriate to the Organisation.  Occasionally Management Group makes a recommendation

JEC can throw job description back at Management Group and say not happy with it.

There are women members of Management Group.

Eight in the Group of whom one a woman.  It is Grade 7, 8 and 9 employees.

Director might decide he did not want a particular job as set out in a job description and then it would go round process again.  Job description determines the grade.  Once Management Group is satisfied, the job description is put to the JEC.

Management Group reviews job against needs of Organisation as whole.  

Normally a formality.  Only twice in my time has Management Group asked for a revision.

JEC assigns score and from score the grade is decided."

	The RIBA  employed about 125;  Grades 9, 8 and 7 are the most senior.  The JEC consisted of three very senior Managers.  The Industrial Members feel that normally it is desirable that it should consist of at least five.

	The full job description of the liaison posts and other posts were all before the Industrial Tribunal.  The differences are clear.  Full disclosure was also made of the details of the points assessment for each and every factor.  It can be seen how and why these posts move from one marking to another and from one grade to another, whether upwards or downwards.

	Relevant details of the whole of the RIBA's staff grades together with the name, sex and other details of each individual were also available.  It is not suggested that they disclose sex discrimination, quite the contrary.  In Grade 5 there were sixteen women and eight men and in Grade 6 there were nine women and sixteen men, in Grade 7 there was one woman out of four and in Grade 8 three men and Grade 9 one man. 

	The Tribunal reached its conclusions in paragraph 25 as follows:
"We find that the work of the applicant in both her posts was given a different value from the work of her comparators on a study such as is mentioned in Section 1(5) of the Equal Pay Act 1970 (as amended).  We further find that there are no reasonable grounds for determining that the evaluations of the applicant's posts and of the posts of the two comparators were, within the meaning of sub-section (3) of Section 2A, made on a system which discriminates on grounds of sex.  It therefore follows from the provisions of Section 2A(2) that there are no reasonable grounds for determining that the work of the applicant in either of the posts which she held was of equal value to that of either of the two comparators.  Accordingly, both these applications must be dismissed."

	It appears from the Decision that during the Hearing two particular matters were raised by Mr Skyte for the Applicant.  The first related to change in the composition of the JEC.  The Tribunal found that the change in the composition was for their purposes irrelevant and expressed their views thus:
"As we find that, on the true construction of Section 2A(2) of the 1970 Act (as amended), the manner in which the job evaluation Scheme was operated is not material for the purpose of determining whether there are no reasonable grounds for determining that the work of a woman is of equal value to that of a male comparator, the change in the composition of the Joint Evaluation Committee is, for present purposes, irrelevant."

	The second point raised by Mr Skyte concerned the minutes of the JEC.  An application for disclosure of the minutes was made at the end of the evidence of the Respondents and was opposed by Miss Smith.  The Tribunal dealt with it in paragraph 20:
"Mr Skyte sought to put in evidence the minutes of the Job Evaluation Committee in order to show how that committee arrived at its decisions as to the evaluation and re-evaluation of the relevant posts.  Miss Smith objected to those documents being put in evidence.  She submitted that it was no part of the Tribunal's task to examine the manner in which the job evaluation scheme was operated.  We upheld Miss Smith's objection and refused to receive the minutes of the Job Evaluation Committee in evidence."

	The Tribunal having found that there were no reasonable grounds for determining that the system was discriminatory on the grounds of sex and this being conceded by Miss Elbogen in evidence, it is difficult to see what the Tribunal failed to do or how the system could be faulted.  It was difficult to see how the manner of carrying out the evaluation was relevant if the system including the job description and the points awarded were not attacked as discriminatory.

	Mr Allen submitted, and we agree, that a Tribunal must dismiss a claim on the basis of equal value where it finds:
(i)		that there had been a job evaluation study (JES) and
	(ii)		the JES is not a system which discriminates on grounds of sex as defined by Section 2A(3) and
(iii)		the work of the Applicant and the comparator have been given different values on the study under the JES and
(iv)		the study was undertaken with a view to evaluating the jobs in terms of the demand made on a worker in each job.

	The issue eventually turned upon number (iv) above.

	Ultimately it has become clear that the allegation which is being made is that the Grade 6 jobs of Mr Palmer and Mr Lennox were being evalued as Grade 6 for the purposes of promoting Mr Palmer and Mr Lennox, that this was a collateral reason and motive for the re-grading and that the re-grading was not a proper re-grading under the scheme.  The collateral purpose was alleged to be the grading of the person and not the job.  It was then suggested that Management "wanted to help men and did not want to help women".

	The basis of this suggestion was a letter of the 21st March 1989 which had been disclosed with the documentation and written by Mr Lakin a Director for Membership & Overseas Affairs to the Regional Committee Member who was Chairman, it said in its effective part:
"For the time being, we cannot implement our policy aim of having a full time senior secretary in every region.  Pending the availability of more funds in 1991, the only way of achieving the promotion for Barry (Lennox) which he deserves, is to give him an HQ responsibility and after discussion we selected Energy for three reasons - following redundancies, we do not have anyone available to handle it here;  it is not a very demanding activity in terms of time and thirdly, there seems to be considerable interest in the subject in Southern Region."

	This letter was not put to Mr Robinson nor was the suggestion now made put to him fairly and squarely.  It may be that the relationship between the Trade Union and the RIBA was not at its best and it is true that Miss Elbogen had represented another employee in a previous tribunal case.  However, this was not a Section 58 case it was an Equal Value case and the Statute is clear.

	This submission imports a suggestion that either the job description was false or that there was no intention to require the duties to be carried out or that there was a conspiracy between the Management Committee and others in order to create a false picture and a false reason for increasing pay.

	This does not in our view amount to a criticism of the manner in which the scheme was operated but to a serious allegation of malpractice, a deliberate misuse of the Job Evaluation Scheme.

	If this issue had been raised in that way before the Tribunal, we cannot but think that the learned Regional Chairman would have dealt with it.  We have read the Notes of Evidence and we are not satisfied that it was the case that was being made before the Tribunal.

	The presence of a group of people forming the JEC is the defence against subjectivity and there is no suggestion on the documentation that subjectivity was allowed to creep into the system.

	If, at the outset, we had realized that this was the real allegation, it is doubtful whether we would have allowed it to be raised, but we are, in any event, quite satisfied that the evidence discloses no basis for this suggestion and that the decision of the Tribunal discloses no error of law.  This Appeal must be dismissed.