Hovell v Ashford & St Peter’s Hospital NHS Trust
Claimants can lodge equal pay claims for like work, work rated as equivalent under a job evaluation scheme (JES) or work of equal value. In Hovell v Ashford & St Peter’s Hospital NHS Trust, the Court of Appeal said that tribunals do not have to commission a report from an independent expert before deciding an equal pay claim, but just because the jobs had been rated as equivalent under a JES did not mean they were of equal value.
The claimants’ union, UNISON, instructed Thompsons to act on their behalf.
As part of the NHS Agenda for Change reorganisation, Ms Hovell had scored 274 points under a job evaluation scheme (JES) and was placed in band 4. This covered anyone who had obtained between 271 and 325 points. Her three male named comparators scored 296, 298 and 305 points.
She then argued that she had been entitled to equal pay in prior to the implementation of the scheme on 1 October 2004. The employment judge said that an independent expert should be appointed to prepare a report on the question of equal value.
Ms Hovell asked the tribunal to withdraw that requirement, arguing that as the jobs had already been rated as equivalent that was good evidence that the jobs were equal value before October 2004. She argued that the difference in scores was so small that the only proper conclusion was that the jobs were of equal value.
Tribunal and EAT decisions
The employment judge disagreed, however, saying that it was not appropriate to withdraw the requirement for the independent expert in a case where, as here, the comparators had scored more highly than the claimant. The fact that there was only a small difference in the points did not mean that the jobs were of equal value.
Ms Hovell appealed that decision. She argued that where there was evidence that the jobs are equal value from a job evaluation it was for the employer to rebut the evidence if they wanted an expert. The EAT rejected the appeal, saying that the fact that the jobs had been rated as equivalent under a JES provided some evidence that the jobs were of equal value but it was not “determinative of the question” and the burden of proof remained with Ms Hovell.
Decision of Court of Appeal
The Court of Appeal accepted Ms Hovell’s argument that just because a claimant scored fewer points than her comparator in the JES study did not mean that a tribunal had to conclude that her job was not of equal value unless an independent expert said so. Indeed, it said that tribunals could “be persuaded that a very small difference in points …does not reflect a material difference in the value of the two jobs”.
However, it then went on to agree with the tribunal’s conclusion that “equal value does not mean nearly equal value”. So “the fact that there was only a small difference in the points assessed was not of itself evidence that established that the jobs were of equal value”.
The claimant who simply said “my job has been rated in the JES within a mark or two of the comparator” should not expect to succeed in her equal value claim just by making that assertion. “At the very least she must explain why the difference of scores in the job evaluation scheme should be ignored”.
The Court concluded that the employment judge went too far in asserting that a tribunal must have the benefit of an independent expert before it can find equality if the claimant scores fewer points than her comparator in the JES. However, it agreed that the fact that difference in the points given by the JES is small does not of itself establish that the jobs are of equal value. The relevant question was whether the error by the employment judge was material and the Court of Appeal agreed with the EAT that it was not.
This case confirms the claimants’ arguments that the evaluation is evidence even where there is a difference in points. But the practical reality is that given their discretion on this question and the likelihood that the employer will want an expert, independent experts will be used in most cases. Many will take the view that this places an unreasonable cost burden on claimants who effectively have to go through the evaluation of their job twice.