Hovell v Ashford & St Peter’s Hospital NHS Trust
The 1970 Equal Pay Act allows women to claim equal pay with a man doing like work, work rated as equivalent under a job evaluation study or work of equal value. In Hovell v Ashford & St Peter’s Hospital NHS Trust (IDS 864), the Employment Appeal Tribunal (EAT) said that a job evaluation study is only one factor to be considered when deciding whether two jobs are of equal value.
Ms Hovell’s union, Unison, instructed Thompsons to act on her behalf.
Basic facts
On 1 October 2004, the Trust implemented a valid job evaluation study (JES) consisting of nine pay bands. This JES (Agenda for Change) was applicable throughout the NHS. Ms Hovell’s job was put in band 4, along with her three named comparators (although she had scored fewer points than any of them). She was therefore entitled to the same pay as them from that date.
However, she could not claim back pay because the law says that a JES cannot have retrospective effect. In January 2007, she lodged a claim that her work was of equal value to her comparators which would allow her to claim six years of back pay.
Both sides were agreed that there had been no real changes to Ms Hovell’s job nor those of her male comparators during the six years prior to her equal value claim and that the JES was untainted by sex discrimination.
Tribunal decision
The tribunal decided that an independent expert should be appointed to prepare a report on whether Ms Hovell’s job was indeed of equal value to that of her male comparators.
However, before that happened, Ms Hovell asked for the request to be withdrawn. She said that the fact that she had been placed in the same banding as her comparators was “sufficient evidence of equal value to determine the question”.
But the employment judge disagreed. He said that being in the same band was “neither determinative nor sufficient evidence of equal value” not least because she had scored lower than her comparators under the JES.
Ms Hovell appealed, arguing that, unless there was contrary evidence from her employer, the “same band” argument should prevail. The fact that she had scored fewer points than her comparators was irrelevant.
EAT decision
However, the EAT was not convinced. It said that the JES banding only provided “some evidence” that Ms Hovell’s job and that of her comparators were of equal value prior to 1 October 2004, but it was not “determinative” of the issue. It said that employers are not bound to accept that two jobs are automatically of equal value prior to a JES being implemented and could choose to rely on expert evidence
It also rejected Ms Hovell’s argument that just because two jobs have been put in the same banding raises a presumption that they are of equal value (a presumption that, she said, the Trust had to displace). Instead, the onus of showing that the jobs were of equal value was down to her.
Accordingly, the employment judge had been entitled to request an independent expert’s report and that should now go ahead.
Comment
The Court of Appeal will decide in January whether Mrs Hovell has permission to appeal. This case means that employment tribunals have a discretion whether to appoint an expert in equal value cases. In exercising their discretion they can take into account the evidence from a valid job evaluation but the employer is not bound to accept it. In some cases however the evidence will be so clear that it may be unreasonable for an expert report to be required. One of the issues in this case was whether it was the points score or the grade that was relevant. The EAT expressly dismissed the employer’s argument that only the points score is relevant. These are difficult issues that we hope the Court of Appeal will consider.