Middlesbrough Borough Council v Surtees and others (No 2)

EAT: Judge McMullen QC: 24 August 2007

The 12 female claimants claimed equal pay with two male comparators employed by the appellant council on the ground that they were doing work of equal value. An independent expert was appointed by the employment tribunal to report on the question of whether the claimants were doing work of equal value with either or both of their comparators. The independent expert provided provisional statements and then a final report. A party expert was appointed on behalf of the council who identified two aspects of methodology not included within the provisional statements. The methodology advanced by the council’s expert indicated not disagreement on numbers but a principles disagreement having a substantial impact on the decision. At a case management discussion, the tribunal chairman decided that under rule 11(4) of Schedule 6 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 he had no power to admit a report by the council’s expert, and that, even if he had had a discretion to do so, he would not have exercised it to allow the introduction of his report.

The council appealed.

Judge McMullen QC held:
Rule 11(4) of Schedule 6 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 did not deprive the employment tribunal of power to hear an expert called by a party, but positively envisaged expert evidence while restricting its reach by excluding from the evidence such an expert could give facts already accepted or found, and, given that restricted scope of challenge to the facts, an expert was plainly there to challenge methodology. Since it did not become necessary for the council to adduce an expert report until the independent expert had disclosed his methodology and the council’s expert had found it to be suspect, it would be “inappropriate” to require the report of the council’s expert to be disclosed on the same date as that of the independent expert for the purposes of rule 11(4); and, as a matter of discretion, the evidence of the council’s expert should be admitted in order to assist the council’s challenge to the evidence of the independent expert.

The appeal was allowed.

Appearances: Christopher Jeans QC and Jane Callan (Legal Services, Middlesbrough Borough Council); Philip Engleman (Stefan Cross, Newcastle upon Tyne) for the claimants.