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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Wood & Ors v William Ball Ltd [1999] UKEAT 552_98_1405 (14 May 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/552_98_1405.html Cite as: [1999] UKEAT 552_98_1405

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APPEARANCES

 

For the Appellants	MR C LEWIS (OF COUNSEL) (Instructed by) Messrs Thompsons Congress House Great Russell Street London WC1B 3LW
For the Respondent	MR A BURNS (OF COUNSEL) (Instructed by) Messrs Prestons & Kerlys 1 Shenfield Road Brentwood Essex CM15 8Al


 


MR JUSTICE MORISON (PRESIDENT): This is an Appeal against an Employment Tribunal decision which was given on 5^th March 1998 by extended written reasons sent to the parties following a Hearing on 11^th November 1997, at which the parties gave evidence and a further Hearing on 12^th February 1998 at which the members of the Tribunal alone considered the evidence and the written submissions which had by then been provided to them.

1. There are nine Appellants. There were nine Applicants who had made a complaint that they had been paid less than they were entitled to as a result of a comparison between the value of the work which others did by comparison with the value of the work which they did. That complaint was made against their Employers, William Ball Ltd, who manufacture and distribute kitchen, bedroom and office furniture.
2. The Applicant/Appellants were or had been employed as cleaner/packers. In broad terms, they were comparing the value of their work to that of the work done by a group of people called "picker/packers". The cleaner/packers were responsible, in broad terms, for cleaning off carcasses, that is, wooden articles which were deposited in their work area by a fork lift truck. They trimmed off excess material and cleaned down the product before it was wrapped or banded. At the warehouse, the items were drilled by a machinist, put into boxes by the picker/packers who were located in the warehouses. It was part of the picker/packers' responsibility to remove from the stacks of material, the relevant items recorded in a requisition form for despatch to a customer.
3. At the Hearing before the Employment Tribunal the Applicants were represented by a Mr Boosey of the GMB Union and the Employers were represented by Mr Andrew Burns of Counsel. The circumstances in which the Tribunal came to be hearing the case has given rise to dispute between the parties on this Appeal. Just taking the Tribunal decision as it stands, they have identified the question on which their decision was to be given as "Application to Adjourn Case for Preparation of an Expert's Report pursuant to Section 2A(1)(b) of the Equal Pay Act 1970". Their unanimous decision is:

"There are no reasonable grounds for determining that the work of the Applicants is of equal value to that of their comparators. Consequently, these Originating Applications are not adjourned for the preparation of an expert's report but are dismissed as they have no reasonable prospect of success in respect of all the complaints."

4. In paragraph 3 of the Decision the Tribunal indicate that the Applicants invited the Tribunal to consider its powers under Section 2A(1)(b) of the Equal Pay Act and, having set out that provision continued:

"As a consequence, the matter that falls to be determined is whether there are no reasonable grounds for determining that the Applicants work is of equal value to their comparators who are 'picker packers' … engaged in duties situated in Warehouse 180 at the Respondent's factory."

5. They then, in paragraph 5, recite the evidence which they received. In paragraph 6, they indicated that they were predisposed, when the case started, to the view that an Expert's Report would be merited, not least because the cleaner/packers were all women at the relevant time and the picker/packers were all men, and that might have alerted the Tribunal to the possibility that what might be described as the "women's work" was less well valued than the "men's work".
6. Having described what happened and made their findings of fact on the evidence, they turned to the Equal Pay Act 1970 in relation to all but one Applicant. The one who was an exception was Mrs Ferral who was a supervisor. In relation to the other eight, they said this:

"The work was clearly and obviously of different value and no expert's report is or would be required to elucidate that fact. It follows that the claim under this head must fail as it has no reasonable prospect of success."

7. In relation to Mrs Ferral the Tribunal were of the view that even if her case was not like the others - a hopeless one by virtue of the comparison which was being made - she could not succeed, in their judgment, because she was paid more than the picker/packers with whom the comparison had been made. There was no supervisor of the picker/packers with whom she could compare her job and, therefore, her claim had no reasonable prospect of success on that ground as well. They referred to the Sex Discrimination complaints and to Article 119 of the Treaty and concluded as follows:

"Under all the aforementioned circumstances therefore, the Tribunal dismisses these Originating Applications as they have no reasonable prospect of success."

8. Before turning to the parties' submissions, it would be as well to set out the relevant statutory provisions. Section 2A (1) of the Equal Pay Act as amended in 1996 reads as follows:

"Where on a complaint or reference made to an industrial tribunal under section 2 above, a dispute arises as to whether any work is of equal value as mentioned in section 1(2)(c) above the tribunal may either -

(a) proceed to determine that question; or

(b) unless it is satisfied that there are no reasonable grounds for determining that the work is of equal value as so mentioned, require a member of the panel of independent experts to prepare a report with respect to that question;

and, if it requires the preparation of a report under paragraph (b) of this subsection, it shall not determine that question unless it has received the report."

9. That statutory provision which was the operative provision in this case, replaced an earlier provision which reads as follows:

"2A(1) Where on a complaint or reference made to an industrial tribunal under section 2 above, a dispute arises as to whether any work is of equal value as mentioned in section 1(2)(c) above the tribunal shall not determine that question unless –

(a) it is satisfied that there are no reasonable grounds for determining that the work is of equal value as so mentioned; or

(b) it has required a member of the panel of independent experts to prepare a report with respect to that question and has received that report."

10. It will be seen at once that there is a significant and substantial difference between the two sets of statutory provisions. Under the pre-1996 Statutory Provisions, an Industrial Tribunal had no power to decide an equal value claim itself except in the very limited situation where it took the view that it was hopeless - that is, that there was no reasonable grounds of success - in which case, it could dismiss it. But since July 1996, an amendment to the law enables the Tribunal to have the option of determining the question - that is, the equal value question itself as an alternative to sending the matter on for the preparation of an independent expert's report. The purpose of this change was to speed up the method of adjudication and more properly to give effect to the United Kingdom's obligations to provide adequate remedies for breaches of Article 119 which requires that men and women should receive equal pay for work of equal value.
11. At the same time as the statute was changed, Parliament introduced new regulations which are set out in Schedule 2 to The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. The relevant parts of Schedule 2 are to be found in paragraphs 8A and 9:

"8A – (1) In any case involving an equal value claim where a dispute arises as to whether any work is of equal value to other work in terms of the demands made on the person employed on the work (for instance under such headings as effort, skill and decision) (in this rule hereinafter referred to as 'the question'), a tribunal shall, before considering the question, except in cases to which section 2A(1)(a) of the Equal Pay Act applies, require an expert to prepare a report with respect to the question and the requirement shall be made in accordance with paragraphs (2) and (3).

(2) The requirement shall be made in writing and shall set out –

(a) the name and address of each of the parties;

(b) the address of the establishment at which the applicant is (or, as the case may be, was) employed;

(c) the question; and

(d) the identity of the person with reference to whose work the question arises;

and a copy of the requirement shall be sent to each of the parties.

(3) The requirement shall stipulate that the expert shall –

(a) take account of all such information supplied and all such representations made to him as have a bearing on the question;

(b) before drawing up his report, produce and send to the parties a written summary of the said information and representations and invite the representations of the parties upon the material contained therein;

(c) make his report to the tribunal in a document which shall reproduce the summary and contain a brief account of any representations received from the parties upon it, any conclusion he may have reached upon the question and the reasons for that conclusion or, as the case may be, for his failure to reach such a conclusion;

(d) take no account of the difference of sex and at all times act fairly.

(9) At any time before the tribunal receives the report of the expert the tribunal may, acting on the request of a party or otherwise, require the expert to send a progress report to the tribunal. If so required, the expert shall, as soon as practicable -

(a) if he receives the requirement before the projected date and has not sent his report, prepare and send to the tribunal a progress report -

(i) stating whether he considers that there will be any material delay in sending his report to the tribunal beyond the projected date, and

(ii) if he considers that there will be such a delay, giving the reasons for the delay and stating the date by which he now expects to send his report to the tribunal;

(b) if he receives the requirement on or after the projected date and has not sent his report, prepare and send to the tribunal a progress report giving the reasons for the delay in sending his report and stating the date by which he now expects to send his report to the tribunal;

(c) if he has sent his report to the tribunal, notify the Secretary of that fact.

The Secretary shall send a copy of any progress report sent to the tribunal under this rule to each party."

It will be seen from Rule 8A(1), (2) and (3) that it was contemplated that the Tribunal would determine first whether to order an independent expert's report as a preliminary matter before moving on to determine whether the claim had been made out. In other words, it was contemplated that if the Tribunal decided initially that a report should not be prepared because there were no reasonable grounds for believing that one should be prepared, then nonetheless, the Tribunal would or might have to go on and hear the case substantively. This is reinforced by the provisions of Rule 9(2E) which makes specific provision for the Employment Tribunal to hear any justification defence before ruling on the need for an independent report on the question of work of equal value.

12. Because of the change in statutory regime, it is also reasonably clear and not really disputed in argument before us, that the decision in Sheffield Metropolitan District Council –v- Sibury & Anor is no longer of application. In that case, the Employment Appeal Tribunal in relation to the pre-1996 amendment concluded that if a Tribunal considered that it was not to require expert's report because there were no reasonable grounds for determining that the work was of equal value it was the duty of the Tribunal then to go on and to dismiss the complaint. It is clear and was accepted by both parties on this Appeal that under the post-1996 regime the fact that a Tribunal has concluded that there was no reasonable prospect of the Applicants showing that their work was of equal value with the comparators, did not thereby, put an end to the case, but permitted the parties themselves to adduce expert evidence in support of their claim which they could adduce at a further Hearing.
13. Accordingly, under the new regime it is contemplated that there is or may be a two-stage process. The first part is to decide whether an expert's report is to be obtained by the Tribunal itself or by the parties themselves. If it is to be by the parties themselves, then the Tribunal will have to determine the case on the basis of the evidence presented to it. That two-stage process is contemplated by the purpose and intention of the change in the statutory regime. It was plainly Parliament's intention that rather than the parties litigating this issue at the Government's expense - that is, at the expense of the Tribunal itself arranging an expert to determine the issues - the parties themselves should be free to do so. It was unlikely that the parties would themselves have gone to the expense of investing in expert's report before making an application to the Tribunal that it should obtain a report itself and therefore, it must have been Parliament's intention that the mere fact that an Applicant failed to persuade a Tribunal to order an independent report, would not mean that the Tribunal might not in due course reach a completely different conclusion based on expert evidence which the parties then produced. Secondly, it is supported, not just by the whole regime but by the explanatory note to the new statutory procedure and thirdly, supported, as I have indicated, by the change in the rules themselves.
14. In this case, it appears that the Tribunal have moved from Stage I, which is to ask whether they should commission a report, in which case, the proceedings would have to be adjourned for that purpose, to Stage II, namely to determine the matter themselves without giving the parties an opportunity to adduce expert evidence if they wish to do so themselves.
15. In the light of that background, the submission of Counsel, Mr Lewis, who appeared on behalf of the Appellants can be shortly stated. If one looked at the question which the Tribunal itself asked, namely should it adjourn the case for preparation of an expert's report pursuant to Section 2A(1)(b) it can be seen that the Tribunal not only answered that question but purported to go on and determine the matter under Section 2A(1)(a). There is no evidence in the papers that any agreement had been made between the parties that that course should be adopted and was acceptable to them. Indeed, Mr Burns of Counsel who appeared on the Appeal, and appeared below, very properly told us that he could not assert that any formal agreement to that effect had been arrived at at the Employment Tribunal. He pointed out that if one looked at the written closing submission on behalf of the Applicants before the Employment Tribunal reference was made to the Applicants wishing to use the services of an expert witness. The services of an expert witness had not been obtained by that time as the Tribunal must have been aware and therefore, it must have been apparent to the Employment Tribunal that the Applicants were saying that even if the Tribunal was currently of the view on the material then available to it, that there were no grounds for ordering an expert's report, that did not mean that in due course, the Tribunal might not be persuaded to take a different view when it was invited to determine the matter.
16. Mr Lewis drew attention to certain passages in Mr Burns' written closing submissions which suggest, at any rate, in paragraph 5 of them, that it was being put to them by Counsel that there were only 2 courses which were open to the Tribunal (a) to find that there were no reasonable grounds for determining that the Applicants' work was of equal value to picker/packers, in which case the applications must be dismissed, or (b) instruct an expert to report within a specified time and give directions for a Full Hearing. In truth, there is a third course which is to find that there are no reasonable grounds for determining the Applicants' work is of equal value to picker/packers on the basis of the evidence as was presented to the Tribunal but that the Applicants should be given the opportunity of adducing expert evidence and the Respondent any evidence in reply before the Tribunal was asked to adjudicate on the matter. That, as I have indicated, would be the normal process, where an application was made for the appointment by the Tribunal of an expert because one would not have anticipated by that stage that the parties themselves would have gone to the expense of engaging experts.
17. Mr Lewis drew attention to the changes in the statutory provisions to which I have referred and made the observation that the Sheffield Metropolitan District Council case was no longer good law. He invited me to say that in this case the Appeal should be allowed on that ground in relation to all of the nine Appellants because what has happened here is a procedural mishap, where the Tribunal has decided more than had been anticipated when the case started. Mr Burns, on behalf of the Employers suggested that it was open to the Employment Tribunal to take the course that it did. He pointed out that the Union Official advanced various witnesses to make good the case that there was a difference in value between the two categories of worker and argued the case on that basis.
18. The Tribunal were, accordingly, Mr Burns contended, entitled on the facts to conclude that there was no merit in that claim and that being so, was entitled to exercise its powers under Section 2A(1)(a). He said that the fact that the Union were asking in their written submissions for an opportunity to put forward expert evidence, was no different from a position in which a party sees that it is losing the case and then asks for the case to be adjourned as it is going wrong. The Tribunal were entitled, he says, to reject that approach. He accepted that in normal circumstances, there was a two-stage process as Mr Lewis had indicated, but submitted to us that what had happened here was that the two stages have become conflated as the Tribunal was entitled to do. He took a separate point in relation to Mrs Ferral and he submitted to us that her case was hopeless, because there was no comparator who arguably could have been doing work of equal value to herself. Insofar as she was comparing herself with a picker/packer, she was being paid more than such a worker, therefore, her claim was misconceived under that heading and accordingly, the fact that (if it be a fact) that the female cleaner/packers were paid less than the male picker/packers, even if there was a comparison to be made, would not lead to the consequence that Mrs Ferral could succeed in her complaint.
19. In reply, Mr Lewis drew our attention to the need to look at the case on the basis of what the Tribunal had actually thought it was deciding rather than on the basis of what the parties thought the Tribunal was deciding. The Tribunal had set out to ask itself the question, should it appoint an independent expert. Yet it had gone on to decide more than that without giving the parties a proper opportunity of dealing with it. He submitted that the case involving Mrs Ferral stood or fell with the other eight Applicants because her case could not sensibly or properly be distinguished from theirs. She is saying that if she had not been a cleaner/packer and then promoted to the job of supervisor she would have received more pay. She was given extra pay for her supervisory duties but she would have started from a higher base level if the claim in relation to the cleaner/packers is sustained.
20. We have come to the conclusion that there has been a procedural mishap in this case. It seems to us that the Tribunal had failed to identify for itself and for the parties precisely what the issues were that were before it on 11^th November 1997. It looks at though they have slid from asking themselves one question under Section 2A(1)(b) into asking a different question in relation to Section 2A(1)(a) without effectively giving the parties an opportunity to say why that would not be appropriate. They appear to have reached the conclusion that no expert evidence to be called would or might make a difference to their finding, in which case, that is akin, as it seems to us, to a finding that these proceedings were frivolous or vexatious. Where a Tribunal is going to exercise that jurisdiction it is required to notify the parties in advance that it is considering doing so. It seems to us that it was a requirement of natural justice that the Appellants in this case should have been told that their rights were going to be fully determined by the Employment Tribunal in the event that they failed to persuade it to arrange for the appointment of an independent expert; and that did not happen. It seems to us therefore, that that explains why the Appellants were referring in their written closing submission to the need to call their own expert evidence.
21. Bearing in mind that there has been a procedural mishap in our judgment, the question then arises as to what we should do. It seems to us that there is going to have to be a Hearing under Section 2A(1)(a). Mr Lewis would no longer contend that there is any need for an independent expert. The Union are content to advance the claims using their own expert. Therefore, the part of the decision which rejects the application under 2A(1)(b) should not be interfered with.. He points out that as there is a two-stage process, the findings made at Stage I cannot have been considered by Parliament to be determinative of what happens at Stage II where the evidence would or might be different. We agree with that submission. It seems to us that any new Tribunal considering this case will have to approach the matter afresh on the basis of the evidence which it hears. It must decide whether there was work of equal value and whether there is a justification defence which the Employers have indicated they may wish to raise. This is not a case where there can be issue estoppel as it seems to us because the purpose of the first Hearing was for a different purpose than the purpose of the second Hearing which is the substantive determination of the dispute. Mr Lewis argued that this case should go before a newly constituted Tribunal. Mr Burns suggested that it would be convenient for it to go back to the same Tribunal. We think that this is not sensible. It would leave everybody with a sense of injustice if the same Tribunal were to arrive at either the same decision as they had arrived at before, or, alternatively, to turn round and make a different decision. In either event, comments could be made about why that had happened. It seems to us that there is nothing to be lost by having a further hearing before a freshly constituted Tribunal at which the Tribunal will be required to determine the equal value claim which has been brought in these proceedings.
22. We should make it plain for future reference that we take the view that what is said in paragraph 153 of Harvey on Industrial Relations and Employment Law which is Division K in relation to question 4 (in the flow chart): "Is there a case to answer under the Equal Value Provisions No/Yes. If No, the case fails", was right under the pre-1996 position but is no longer right. Nor is paragraph 159 an accurate statement of the law as it now is. It appears to relate back to a position in 1994, although it is by no means clear that this is the position. We wish to make it plain that paragraph 159 does not accurately state the law as it is at the present time. It may be that the Learned Editors of Harvey have not intended to represent that it does accord with the law at the present time since, in paragraph 172, they go on to deal with the new law and what they say at paragraph 176 seems to us to be correct. Tribunals therefore, should not follow the case of Sheffield Metropolitan District Council –v- Sibury for the reasons we have already given, nor those two paragraphs in Harvey to which we have referred. These are very difficult matters. The statute is very badly drafted and we are not in the slightest bit surprised that a procedural mishap has occurred as it has in this case. We do not intend to criticise the Learned Chairman nor his colleagues and we do not criticise Mr Burns of Counsel either. These are difficult matters which have gone wrong as we have been persuaded they have by Mr Lewis, to whom we are particularly grateful for his submissions.
23. The net result of this Appeal therefore, is that the Appeal is allowed to the extent that there must be a Hearing of the Applicants' application before a freshly constituted Tribunal, supported by such evidence and material as the parties wish to adduce before it. The decision that there should be no independent report commissioned by the Tribunal should stand for the time being. If it should transpire that there were a need for such a report then the Tribunal has the power to order it in due course. We are not, by saying that, encouraging them to that point of view. Accordingly, on that basis, this Appeal is allowed.