Potter v North Cumbria Acute Hospitals NHS Trust: UKEAT/04/08 Casson v Same: UKEAT/05/08

EAT: Underhill J, Ms P Tatlow and Mr S Yeboah: 17 April 2008

The claimants were nurses and medical secretaries selected as lead claimants in equal pay claims against the respondent trust, in which the employment tribunal directed, in accordance with rule 4(3)(b)(ii) of the Employment Tribunals (Equal Value) Rules of Procedure 2004, that an independent expert should prepare a report with respect to the question whether the work of each of the claimants was of equal value to that of the male comparators on whom they relied. Pursuant to rule 5(1)(d) of the Rules the parties tried to agree job analysis reports for the jobs done by each lead claimant and each comparator which would form the factual basis for the expert’s report, but a difference arose as to the relevant date for the purpose of setting out the respective job descriptions, the employers asserting that the relevant date was the presentation of the claim, whereas the claimants sought to rely on the whole period of the claim, which in some cases involved material changes in job content affecting the comparative values. At a pre-hearing review an employment judge decided that the comparison for the evaluation of equality by an independent expert should be based on the facts as at the date of the presentation of the claim and that the tribunal could consider the impact of any alleged changes in job content at a later stage in the light of the report.

The claimants appealed.

The Employment Appeal Tribunal held:
(1) A tribunal had to consider the question, defined by rule 2 of the Employment Tribunals (Equal Value) Rules of Procedure 2004, whether the claimant’s work and that of her comparators was of equal value, in respect of every part of the claim period, and where it was claimed that the facts were materially different in different parts of the claim period they would have to be stated on a distinct basis in respect of the different parts of the period, either, where the differences were great, by two statements, otherwise at a given base date, typically the date at which the claim was presented, identifying the variations throughout the period. However, decisions on material changes in job content need not be made at one hearing and could be made at successive case management hearings, and tribunals should be informed at an early stage of the broad nature of any issue likely to arise over changes in job content.
(2) In the present case, the employment judge had based his decision on the fact that 25 job analysis reports had been prepared, based on the facts as at the presentation of the claims, and that it would cause undesirable delay and complication if further facts relating to possible changes in job content over considerable periods needed to be included, it being preferable for the tribunal to consider the impact of alleged changes in job content at a later stage in the light of the reports. That was a case management decision with which the appeal tribunal should be slow to interfere, and, as there was no error of law in the employment judge’s reasoning or conclusion, his decision would be upheld.

The appeal was dismissed.

Appearances: Sandhya Drew (Stefan Cross, Newcastle upon Tyne) for the claimants in the first case; Tess Gill and Anya Palmer (Thompsons, Newcastle upon Tyne) for the claimants in the second case; Andrew Clarke QC and Naomi Ellenbogen (Dickinson Dees LLP, Newcastle upon Tyne) for the trust.