Appeal No.  UKEAT/0508/05/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 November 2005

 
Before
HIS HONOUR JUDGE McMULLEN QC
MR P R A JACQUES CBE
MR T MOTTURE

 
 
LONDON BOROUGH OF NEWHAM	APPELLANT

 

 
MS A L JACKLIN	RESPONDENT

Transcript of Proceedings
 
JUDGMENT
(corrected 9 January 2006 pursuant to Rule 33(1)(a))
 
PRELIMINARY HEARING – Appellant only

 

	APPEARANCES

 

For the Appellant	MR PAUL STADDON
(of Counsel)
Instructed by:
London Borough of Newham Legal Services
Newham Town Hall
East Ham
London 
E6 2RP

For the Respondent	Written Submissions	

SUMMARY
Equal Value
It is not an error of law for an Employment Tribunal to refuse to admit part of an employer’s expert report on the evaluation of two jobs if it or the part excluded does not comply with Rule 11. In any event the Employment Tribunal had a discretion which it exercised correctly.
 
GMF defence raises difficult points and should go to Full Hearing.

 

HIS HONOUR JUDGE McMULLEN QC
 
1.             This case concerns two points arising out of the application of the Equal Value provisions of the Equal Pay Act 1970.  We say at the outset that we have decided that there are reasonably arguable prospects on one point which is the defence of a genuine material factor available to an employer to defeat a claim for equal pay.  It is not necessary to say anything more about this since this will go to a Full Hearing and directions will follow.
 
2.             The other point is what we will call the ‘evidence point’.  This arises out of a reserved Judgment of an Employment Tribunal sitting over some 10 days at Stratford East under the Chairmanship of Ms J M Laidler, given with Reasons on 19 July 2005.  Parties were represented by Mr Walsh of Counsel for the Claimant Ms Jacklin and Mr Staddon of Counsel for the Respondent Newham, who appears today.  
 
3.             The directions setting this up were given by HH Judge Ansell and provision was made for written submissions to be provided in accordance with the practice direction for our use - and they have been drafted by Mr Walsh.  Unusually at this stage, we have a Respondent’s Answer in short form responding to both of the grounds of appeal.
 
4.             The claim made by (the Claimant) was for equal pay and what was unusual about it was that the Judgment of the Tribunal was this:
“the Claimant was between 1996 to 1999 employed on work of equal value to that of Ron Robinson from September 2000 to the date of issue of these proceedings in May 2002.”
 
5.             As can be seen, there was a comparison of the work of persons not contemporaneously employed which was claimed to be of equal value.  So the Tribunal had the assistance of the independent expert drawn from the ACAS panel appointed by ACAS in order to decide whether the claim would succeed.  
 
6.             The second part was the Tribunal’s dismissal of the Respondent’s defence under s.1(3).  As part of the material available to the Tribunal, there was a report by an expert Mr Derek Burn commissioned on behalf of the Respondent.  
 
7.             The procedure for a party to introduce a report is very much circumscribed by the Equal Value Regulations.  Put simply, when the amendments were made to deal with the Judgment of the European Court of Justice, ensuring that claims for Equal Value (as they are now known) could be made in the United Kingdom in 1983, the outcome of many cases was protracted and the subject of criticisms.  In the one authority which Mr Staddon has put before us, Aldridge v British Telecommunications PLC [1989] ICR 790 in a Judgment of Wood P with members, the criticisms made in the employment community of these regulations is given judicial backing.  Thus it was in due course that the regulations were changed, and it is not too simple to say that considerably more protection was given to a report of an independent expert reporting to the Tribunal under the Rules so that the areas of attack were circumscribed.  
 
8.             These now form the Schedule to the 2004 Regulations which the Tribunal cited and which, so far as is relevant to the issue on appeal, are as follow
“11:
‘(2B)	At any time after the Tribunal has received the report of the expert, any party may, on giving reasonable notice of his intention to do so to the Tribunal and to any other party to the claim, call one witness to give expert evidence on the question on which the Tribunal has required the expert to prepare a report; and where such evidence is given, any other party may cross-examine the person giving that evidence upon it.
(2C)	Except as provided in rule 10A(19) or by paragraph (2D), no party may give evidence upon, or question any witness upon, any matter of fact upon which a conclusion in the report of the expert is based.”
 
9.             These regulations provide a procedure for the adduction of challenges and it is what is described in Aldridge as the admission stage.  The Respondent decided that it would not take that step as reported by the Tribunal in the following terms:
“100	That application was not pursued and Mr Kennedy’s report admitted into evidence.  If the Respondent, as it now seeks to do, considered the report to be flawed because of double counting, scores given to factors which were not an important part of the job or no factor dealing with financial consequences of decisions, then the time to raise those objections was in an application under Rule 10A(18).  Rule 11(2C) is then very clear that ‘no party may give evidence upon, or question any witness upon, any matter of [f]act upon which a conclusion in the report of the expert is based’.  Whilst it was eventually accepted by the parties that no other evidence other than expert evidence should be heard on the issue of equal value, what the Respondent now seeks to do is indeed challenge the findings of fact upon which Mr Kennedy’s conclusions were based.  It is not entitled to do so.”
 
10.         Mr Burn’s report for Newham was sought to be adduced.  In order for the challenge by Counsel on behalf of Ms Jacklin to be adjudicated, it was necessary for the Tribunal, it felt, to read the report and the Independent Expert’s.  The application was to exclude substantial parts of Mr Burn’s report.  The outcome was that those parts which were objected to were excluded.  The Tribunal said this:
“15	The Tribunal heard an application by Mr Walsh on behalf of the Claimant that parts of the report of Derek Burn, for the Respondent, should be found to be inadmissible.  Mr Walsh submitted a written outline of this argument the previous week.  He in particular objected to Section 2.12, 3.1 to 3.5, 4.1 to 4.8 and 5.6 to 5.8.  The Respondent, prior to this application actually being heard by the Tribunal, withdrew paragraph 2.12 where Mr Burn referred to having spoken to the EQC and ACAS.  The Tribunal does not therefore need to make any ruling on that paragraph.
16	With regard to the other paragraphs, Mr Walsh argued that under the Tribunal Rules, these paragraphs are not admissible.  He referred in this respect to the Employment Tribunal Rules Schedule 3, paragraph 11 (2B) which states:
 
‘At any time after the Tribunal has received the report of the expert, any party any other party to the claim, call one witness to give expert evidence on the question on which the Tribunal has required the expert to prepare a report and where such evidence is given, any other party may cross examine the person giving that evidence upon it.’ [our emphasis]
17	The question that was put to the independent expert in this case, Mr Kennedy, was that set out by the Employment Tribunal at an interlocutory hearing which took place on 25 September 2002, the wording of which is also set out in Mr Kennedy's report.  The question was "Whether the work of the Applicant during some or all of the years 1996 to 1999 inclusive is of equal value to the work of Ron Robinson from 1 September 2000 to date".
18	The Tribunal heard limited evidence from Mr Burn on the question solely of admissibility of his report.  Mr Burn was very honest and open in his evidence to us when indicating that he was first approached by the Respondent to advise on whether they had a defence to this claim.  He was asked by the Respondent to evaluate the jobs of the Claimant and Mr Robinson from a job evaluation stand point.  He stated that until he came to this Tribunal he thought that equal pay was based on such a job evaluation.  He is not on the ACAS panel of independent experts and had not appeared in the Employment Tribunal prior to this case.
 
19	The Tribunal has looked at the introduction to his report in which he refers to being retained to examine the jobs of the Claimant and Mr Robinson and to "evaluate the jobs of the Applicant as performed in the years 1996 to 1999 and that performed by the comparator from 1 September 2000.
 
20	It is quite clear to the Tribunal, having considered Mr Bum's evidence and that introduction that he was asked to report on a different question than the question which was put to the independent expert.
 
21	In this respect no criticism is intended of Mr Burn but the fact remains that this Tribunal finds that his expert evidence does not come within the provisions of Regulation 11 (2B) and that it is not evidence on a question that was put to the independent expert.  He is seeking to comment on matters with regard to job evaluation and not on equal value.  The Tribunal therefore finds inadmissible the paragraphs which have been set out above.  They are however prepared to hear; and it must follow that Mr Bums could still give evidence on paragraphs 2.1 through to 2.11 which deal with his criticisms of Mr Kennedy's methodology and also paragraphs 5.1 to 5.5.  Those paragraphs were therefore put in evidence and there was further Cross examination by the Claimant's counsel.”
 
11.         It can be seen that the Tribunal has brought to bear its experience of job evaluation.  On this Appeal Tribunal, there is considerable experience of job evaluation and, indeed, I was myself an ACAS independent expert, appointed under the Equal Value Regulations and we can fully understand, therefore, the reasoning behind the Tribunal’s Judgment in those paragraphs.  Not all was lost for the Respondent, however, because as can be seen from the earmarking of those paragraphs which were to be relied upon, Mr Burn’s report was used as the vehicle for a challenge properly made to the independent expert Mr Kennedy’s report.  Mr Burn himself gave evidence.  
 
12.         It is a phenomenon of these proceedings that the independent expert appointed by ACAS at the instance of the Tribunal is open to cross-examination by both sides, and that happened in this case.  In any event, the Tribunal has reached conclusions having considered his report and the attack made upon it through the evidence of Mr Burn.  So, what might appear at first sight to be handcuffing the Respondent is very different when one realises how this was played out at the Employment Tribunal.  
 
13.         The Tribunal thus rejected those parts of the reports which it cited.  On appeal, essentially, the point is taken that the Tribunal was wrong to characterise the material excluded as falling within paras.11(2B) and.11(2C) of the Schedule to the Employment Tribunal Regulations.  Secondly, it is contended that the Tribunal wrongly excluded this material because in substance there is no difference between the approach of the two experts since they are said to be based upon the same facts.  
 
14.         In our discussion this morning we drew the attention of Mr Staddon to the finding by the Tribunal at paragraph 93 recording his submission which is this:
“Mr Staddon accepted that he could not suggest to the tribunal that it adopt its own factors but that it should look carefully at the scheme used and its tendency to even out any differences between middle managers.  The tribunal should use its own judgment to determine whether or not the work was in fact of equal value.  It was, he said, a pity that Mr Burns had been addressing the wrong question in his report.”
In what has been a highly unusual experience for us and, (we take it) for Mr Staddon a unique experience, counsel was lost for words, yet found enough to say so.  The case was adjourned for one and half hours so that Mr Staddon could properly reflect upon this.  As he acknowledges, at first sight, indeed, on a plain reading, Mr Staddon appears to be throwing his hand in on the issue of the Burn report.  As he put it to us, that would make pointless the half day interim hearing which took place where there was a dispute about the admissibility of the report.  He further points out that the Respondent’s answer and the succinct submissions made for the purposes of this hearing by Mr Walsh of Counsel do not take this point.
 
15.         We do not think that this reflects a concession by the Respondent given by Counsel on the admissibility of the Burn report.  It is, after all, in a passage in a section of the Judgment quite removed from the initial Judgment when, as we have cited, a decision was made to exclude much of the Burn report.  We think the better analysis of this is that Mr Staddon said to the Tribunal, as he has said to us, that the language of the question posed on the one hand to Mr Burn, and on the other Mr Kennedy, is, indeed, different and the Tribunal may have been putting in shorthand the longer submission which is (as Mr Staddon put it today): although the language is different, the substance of the question is not.
 
16.         In Aldridge at 796 (C) to (G) the EAT said this:
“Because of the existence of this rule it has become the practice, and it seems to us likely to continue to be the practice, that one side or the other will always attack the independent expert's report at the "admission stage": rule 7 A (8) and (9).  Due to the rigidity of the rules and the inevitable consequential delay if a fresh report is ordered, the most convenient course may well be for the tribunal to admit the report, and then to give it such weight as it deems fit in the final weighing of the evidence.  If the report is considered to be highly unsatisfactory, the weight would be small, and the evidence in the report of the expert witness called by one side or the other may be preferred.  It must be remembered that the tribunal may well have heard a great deal of evidence at the admission stage.  It is only fair to the expert, that if there are matters of fact which arise out of this report or the case itself which he may have overlooked, that he should be given an opportunity to deal with and explain it.  He (or she) might well change his mind; if so, he could do so in a written addendum-rule 7A(11) - if this was thought to be the most convenient way to deal with the matter.
It is only after the admission stage that the facts on which the conclusion of the expert is based may not be challenged, but that does not prevent the industrial tribunal, before reaching their conclusion, taking into account all the evidence including that given at the admission stage and subsequently.  As we read rule 8(2C), its purpose is to prevent continuing attack upon the issues of fact upon which the expert's conclusion is based once the admission stage is completed.
No one suggests that the tribunal is prevented from considering other evidence in addition to that contained in the report and given orally by the independent expert.  It is the totality of the evidence to which the tribunal is entitled to look.”
 
17.         Reliance upon that passage was prefaced by Mr Staddon submitting that the substance is still good law.  To an extent there is some mitigation of that passage because, as we have indicated, the regulations have been strengthened so as to allow a more expedient approach to the use of expert evidence.  Nevertheless, the gist of what the EAT there said remains good law.  In substance, the Tribunal had to look at the material, it formed a view about it and it formed a view about the questions asked.  It turned its specialist attention as an Employment Tribunal to the difference between equal value assessment under the regulations and the job evaluation scheme, or a job assessment scheme, or a job evaluation assessment, and we cannot fault its conclusions (expert and specialist as it is) and, indeed, basing ourselves upon our own experience in this field.  
18.         We too, have looked in detail at the reports of Mr Kennedy and Mr Burn.  We are unable to find any error in the Employment Tribunal’s analysis of those reports.  We cannot see how the Tribunal committed an error of law in its approach either to the construction of paragraphs 11(2B) and 11(2C) or in the exercise of its discretion in this case.  Thus, bearing fully in mind the approach of the EAT in Aldridge, we will dismiss the appeal.
 
19.         We would very much like to thank Mr Staddon for his submissions and, indeed, Mr Walsh for those written submissions he has given.  The appeal on the evidence point is dismissed. [Directions on the GMF point not transcribed].