Discrimination complaints - the new regime: Part 3 equal value

In the third of three features on the new discrimination complaints regime, Michael Rubenstein looks at the new regime for dealing with equal value complaints.

A new regime for dealing with equal value complaints has been created by the Equal Pay Act 1970 (Amendment) Regulations 2004* and the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2004, both of which came into force on 1 October 2004. The Department for Trade and Industry (DTI) Women & Equality Unit has published guidance on the new procedures.**

The new regime applies to any cases that were commenced before 1 October 2004, but in which an independent expert has not yet been required to prepare a report. The main changes made by the new Rules of Procedure and the amendment to the Act are designed to avoid the lengthy delays that have often characterised large-scale equal value complaints. They do this by encouraging the early exchange of relevant factual information, providing for indicative timetables at each stage, regulating the work of the independent expert, and restricting the role of expert witnesses.

The new procedures dovetail with the main Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 by inserting a new Schedule 6 into the 2004 Rules.

Specialist panels

Rule 8(5) of the main Rules of Procedure authorises the Presidents of Employment Tribunals to establish specialist panels of chairmen and members. It is intended to appoint tribunal panels with specialist knowledge of equal value cases. According to the Women & Equality Unit, "the long-term aim would be to build up a pool of expertise in dealing with equal value cases. In the short term, the priority is to provide specialist training for a number of chairmen to manage the large-scale cases."

General power to manage proceedings

Equal value timetable

The main changes made by the new Rules of Procedure are also designed to avoid lengthy delays. An annex to the Rules of Procedure sets out an "indicative timetable" for dealing with claims. This envisages that proceedings where no independent expert is appointed will normally take 25 weeks and proceedings with an independent expert will take 37 weeks from the time of the claim.

The Rules of Procedure provide for "standard orders" at each stage of the equal value proceedings (see below). In addition, they give the tribunal extensive powers to make case management orders.

These include:

  • the power to order that no new facts shall be admitted in evidence unless disclosed to all other parties in writing before a specified date;

  • the parties may be required to send copies of documents or provide information to the other parties and to an independent expert;

  • the employer is required to grant access to its premises to the independent expert; and

  • where more than one expert is to give evidence, the experts must present to the tribunal a joint statement of matters that are agreed between them and those matters on which they disagree.

    * SI 2004 No.2352

    SI 2004No.2351

    **10 September 2004, www.womenandequalityunit.gov.uk/

    Stage 1

    Three possible stages are envisaged for equal value hearings. The "stage 1 equal value hearing" will take place in all equal value cases. This hearing will consider whether the claim should be struck out on grounds that the work of the claimant and the comparator are not of equal value.

    Unlike the old regime, the Equal Pay Act has now been amended to remove the "no reasonable grounds" defence in s.2A(1)(b). This provided that a tribunal could not appoint an independent expert to prepare a report on the work of the claimant and that of her comparator if there were "no reasonable grounds" for determining that the jobs of the claimant and her comparator were of equal value. In particular, s.2A(2) went on to stipulate that the "no reasonable grounds" defence applied where the work of the woman and the work of the man were given different values under an analytical job evaluation scheme, unless the woman could show reasonable grounds for determining that the job evaluation itself was sex-discriminatory.

    This potential defence has been criticised as leading to tribunals striking out equal value claims in too many circumstances on the one hand, and as prolonging cases on the other. The new procedure removes the "no reasonable grounds" defence. The result is to allow the employment tribunal in all cases to decide whether to decide the question of equal value itself or to appoint an independent expert. It also means that the tribunal is no longer able to strike out the claim merely because it considers that there are no reasonable grounds to determine that the work of the claimant and her comparator are of equal value.

    Where there has already been a job evaluation study that has given different values to the work of the claimant and the comparator, the case will not automatically fail. However, the new s.2A(2A) creates a presumption in favour of upholding the job evaluation study. It requires the tribunal to find that the work is not of equal value unless the tribunal has reasonable grounds for suspecting that the evaluation contained in the study was made on a system that discriminates on grounds of sex, or is "otherwise unsuitable to be relied upon".

    After Stage 1

    The Rules of Procedure set out "standard orders for stage 1 equal value hearing". These incorporate requirements for the early exchange of factual information, within stipulated time periods following the stage 1 hearing.

    For example, within 28 days of the stage 1 hearing, "the parties shall provide each other with written job descriptions for the claimant and any comparator" and "shall identify to each other in writing the facts which they consider to be relevant to the question". Within 56 days, the parties must present to the tribunal a joint agreed statement covering job descriptions and relevant facts. At least 28 days prior to the hearing, the parties must submit a statement of facts and issues on which they are in agreement, a statement of facts and issues on which they disagree and a summary of their reasons for disagreeing.

    Rule 3(1)(d) empowers the tribunal to order the employer to grant the independent expert access to its premises in order to conduct interviews with relevant persons. Interestingly, if no independent expert is appointed, rule 5(1)(c) says that the tribunal "shall, unless it considers it inappropriate to do so . . . order that . . . the respondent is required to grant access to the claimant and his representative (if any) to his premises during a period specified by the tribunal or chairman in order for him or them to interview any comparator."

    If no independent expert is appointed, the next stage will be a full hearing (see below). If an independent expert is appointed, there will be a stage 2 hearing.

    Stage 2

    A stage 2 equal value hearing will take place in all cases where the independent expert has been required to prepare a report. The main aim of the stage 2 hearing is to resolve disputed facts, so that the independent expert can evaluate the work knowing the main elements of the jobs in question.

    The rules provide that at the stage 2 hearing, the tribunal "shall make a determination of facts on which the parties cannot agree which relate to the question" and shall require the independent expert to prepare his report on the basis of facts that have either been agreed between the parties or determined by the tribunal.

    As with the stage 1 hearing, the rules set out standard orders for a stage 2 hearing. The tribunal will normally set a date, by reference to the indicative timetable, by which the independent expert will be expected to have prepared his or her report. In this connection, the Equal Pay Act has been amended so that the tribunal at any time is able to withdraw the requirement on the independent expert to prepare a report and decide the case for itself. If the requirement to prepare a report is to be withdrawn, the tribunal is empowered to ask the independent expert for specified documentation or make any other relevant request.

    Stage 3

    The final stage under the new regime is the full hearing, at which the independent expert's report will be considered by the tribunal and the tribunal will decide whether the work being compared is of equal value.

    It will also hear the employer's material factor defence if appropriate, and determine the remedy if the claim is successful.

    Expert evidence

    One of the characteristics of major equal value cases has been the use by each party of their own expert to put forward evidence as to why the work being examined was, or was not, of equal value. As the Women & Equality Unit explains, "large sums of money can be at stake and the parties have an incentive to use the system to its full to be sure that no stone is unturned. This also acts as an incentive for parties to use their own experts and leads to lengthy cross-examination of the independent expert at the oral hearing."

    The new rules regulate the use of expert evidence by the parties to an equal value complaint. They make clear that "an expert shall have a duty to assist the tribunal on matters within his expertise. This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid." An expert cannot be called without the permission of the tribunal, and any expert report must be disclosed to all other parties and any independent expert at least 28 days prior to the hearing.

    There are also detailed rules allowing for, and regulating, written questions from the parties to an expert, including an independent expert, who has prepared a report.