Mrs G Kemmenoe v London Borough of Bexley: 2304611/2021
JUDGMENT
STAGE 1 EQUAL VALUE HEARING The Respondent’s job evaluation study was unreliable and does not provide a defence to the claim. Directions are given regarding next steps in the concluding paragraphs below.REASONS
[1]In this matter the Claimant, at the relevant time employed by the Respondent as a Valuer at grade Bex12, compares herself to two male Building Surveyors employed by the Respondent at the higher grade Bex16. She says that her role and that of Building Surveyor were of equal value.[2]In its defence the Respondent relies on a 2021 job evaluation study (JES) which concluded that the Claimant’s and comparators’ jobs had been correctly graded using the HAY system, the well known analytical system of job evaluation based on three core factors of know-how, problem-solving and accountability. The Claimant says that that JES is unreliable and is not therefore a bar to her claim continuing. Evidence & Documents[3]I heard evidence from the Claimant and Ms K Dickson a national officer of Unison and a very experienced HAY evaluator. I also read a written statement from the Claimant’s former colleague Ms E House, formerly a Senior Valuer for the Respondent, but afforded it appropriate weight to reflect that Ms House was not present to attest to its truth or be questioned about its contents.[4]For the Respondent I heard from:a. Mr G Muirhead, Principal Valuer;b. Ms L Barlow, Head of Corporate HR; andc. Mr C Laity, Grants Team Manager.[5]I had an agreed bundle of documents before me which, regrettably, was not well prepared. In particular the various versions of documents were not helpfully identified or referenced. It was often difficult to reconcile what document was attached to what email and by whom they had been prepared.[6]Furthermore, despite having been told emphatically during the first two days of the hearing that no notes of the Respondent’s job evaluation panel existed, Ms Barlow subsequently found her handwritten notes of it and they were produced at the outset of the resumed hearing in April. The Claimant was suspicious of the provenance of these notes. Having heard from Ms Barlow and looking at the original daybook from which they had been taken for copying purposes, I accept that the notes are genuine. Despite it being very unsatisfactory that a professionally represented, large organisation had failed to identify such an obviously important document during the course of disclosure, I concluded that it was in the interests of justice for these notes to be admitted into evidence and a copy provided to the Claimant. This required Ms Barlow to be recalled and thus I heard evidence from her about these notes, at the outset of day three.Relevant Law
[7]At paragraph 3 of schedule 3 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the Equal Value Rules), it says: (1) Where there is a dispute as to whether one person's work is of equal value to another's (equal value being construed in accordance with section 65(6) of the Equality Act), the Tribunal shall conduct a hearing, which shall be referred to as a “stage 1 equal value hearing”, and at that hearing shall— (a) strike out the claim (or the relevant part of it) if in accordance with section 131(6) of the Equality Act the Tribunal must determine that the work of the Claimant and the comparator are not of equal value;…[8]When determining a claim of equal value pursuant to section 65 of the Equality Act 2010, section 131(5)&(6) provides: (5) Subsection (6) applies where-(a) a question arises in the proceedings as to whether the work of one person (A) is of equal value to the work of another (B), and(b) A's work and B's work have been given different values by a job evaluation study. (6) The Tribunal must determine that A's work is not of equal value to B's work unless it has reasonable grounds for suspecting that the evaluation contained in the study— (a) was based on a system that discriminates because of sex, or (b) is otherwise unreliable. and section 80(5) provides that: (5) A job evaluation study is a study undertaken with a view to evaluating, in terms of the demands made on a person by reference to factors such as effort, skill and decisionmaking, the jobs to be done— (a) by some or all of the workers in an undertaking or group of undertakings…[9]If a Respondent wishes to rely upon a JES in this way to defeat an equal value claim they have the burden of proving that, on the balance of probabilities, it is valid and this will require them leading evidence to this effect.[10]In contrast, the burden of proving that there are reasonable grounds for suspecting that the JES is based on a discriminatory system or is otherwise unreliable is on the Claimant, but the standard of proof required is much less onerous than that placed on employers trying to establish the validity of a JES. There is no onus on a Claimant to lead expert evidence to show the inadequacy of the system, nor even to provide cogent evidence of reasonable grounds for suspicion. All that is required is sufficient evidence to raise a reasonable suspicion of unsuitability.Findings of Fact
[11]Having assessed all the evidence, both oral and written, and the submissions made by the parties I find on the balance of probabilities the following to be the relevant facts.[12]The Claimant[13]The Claimant, who is a member of the Chartered Institute of Housing and an Associate Member of the Royal Institute of Chartered Surveyors, commenced employment with the Respondent in January 2002 as a parttime Valuer in its Property Assets and Facilities Management Department. She reported to Mr Muirhead who in turn reported to Ms Jackson, Head of Property Assets & Facilities. The Claimant remained in that role throughout her employment and there is no dispute that she performed it well. According to the Respondent’s internal pay grading system, the role was graded at Bex 12.[14]The Claimant’s role[15]Between January 2016 and October 2019, the Claimant was allocated the temporary accommodation project (TAP) in addition to at least some aspects of her usual role which included a number of lease surrenders and extensions, general estate management including health and safety issues, money laundering checks, planning & licensing issues on change of tenants as well as on one occasion organising the recovery and cleaning of a property that had been used as a drugs den. She also had responsibility for debt recovery and other issues at the Thames Depot.[16]After she took on the TAP the Claimant continued on part-time hours but it was acknowledged that it was likely she would need to work more hours than that and was paid overtime. This sometimes significantly increased her working week.[17]The TAP was an initiative set up by senior management in the Housing Department to purchase housing stock to be used as temporary accommodation for those deemed to be homeless whilst also providing capital growth due to rising property values. The overall budget for the TAP was £55m and the target properties were two and three bedroom properties with a maximum price of £240,000 and £320,000 respectively.[18]The Claimant’s role was to identify suitable properties within those parameters, liaise with owners/agents to view them and conclude agreement in principle to purchase. She would complete a visual inspection noting matters on a relatively straightforward proforma template (there was disagreement between the parties as to who first drafted this template but certainly the Claimant adapted it as necessary) which impacted on the value of the property and in particular would need to be remedied or adapted to make it suitable for council accommodation. She would liaise with the Street Property Housing Manager to ensure that the property was suitable for their needs. Because of the speed at which the property market operates, she would often have to carry out negotiations and agree a purchase price prior to completing a formal typed valuation report which in due course would be signed off by Mr Muirhead. He accepted that there would have been occasions where he did not sign the valuation prior to an offer being made, although all offers were subject to contract and valuations would have been countersigned by him prior to exchange of contracts. Ultimately Mr Muirhead was responsible for the valuation but he accepted that the number of changes he made to valuations by the Claimant was very small, ‘if any indeed’. In the meantime the Claimant would have instructed Legal Services (again using a template document she says she designed) to proceed with the purchase. As part of this overall process the Claimant would regularly meet with colleagues in related departments to ensure the purchases were running smoothly. There was also at least one occasion when the Claimant attended a formal audit meeting on behalf of the team.[19]Although Mr Muirhead was the Claimant’s manager and ultimately responsible for her work and provided support, his oversight was limited and became less hands on as she became more experienced in the role.[20]The Building Surveyor role[21]Mr Laity manages, amongst others, the four Building Surveyors employed by the Respondent. In general terms, their role is to provide a comprehensive surveying service to facilitate the purchase, refurbishment, adaptation (particularly in order to access a disability finance grant - DFG), maintenance and management of council owned properties (including those used for the TAP). This includes undertaking full surveys of properties, identifying building works required, drawing up a specification for such works (including all technical and architectural drawings which Mr Laity estimated takes up 20% of their time), tendering and contracting for the work and taking direct oversight of the contracted work. Each building surveyor has authority and autonomy for a budget spend on each property of up to £30,000.[22]The Claimant and the Building Surveyors would liaise closely on the TAP proposed purchases. If the surveyor discovered a fundamental problem with the property he would refer it back to the Claimant and they would decide, in conjunction with the Housing Manager, if they should proceed with the purchase or seek to negotiate a lower purchase price.[23]As far as the two comparators relied upon by the Claimant are concerned, Mr Laity said that the TAP accounted for maybe 10 to 15% of the workload of one and maybe 5% for the other. The other two Building Surveyors were not involved in the TAP.[24]The Building Surveyor role was reviewed under the HAY system in 2019 and re-evaluated from Bex 14 to Bex 16. Mr Laity’s manager presented to that panel (the surveyors were not present) and supported the upgrade to reflect the increased weight and accountability of the role (in particular the doubling of DFGs resulting in complex adaptations or extensions) and to ensure competitive salaries were offered. A further review of grades in 2021 as part of a general departmental review resulted in no change.[25]The JES for the Claimant[26]In May 2019 the Claimant commenced a period of sick leave due to stress at work. In July 2019 she raised a grievance, principally triggered by her treatment during a one-to-one meeting with Mr Muirhead. The end result of that grievance was an apology from Mr Muirhead for his behaviour during that meeting and agreement that the Claimant’s role would be formally reevaluated as she believed that she was underpaid for the work she was doing. In October 2019 the Claimant returned from her sick leave and reverted to her pre-2016 role.[27]For no apparently good reason (although it is noted that this was over the period of various lockdowns), the re-evaluation of the Claimant’s role took some time. On 15 January 2021 the Claimant and Mr Muirhead reached agreement as to the content of the job description and person specification for her role although the parties agree that there is at least one error in the final version and the Respondent disagrees with some of the statements made therein even though Mr Muirhead agreed the document at the time.[28]The agreed person specification, under ‘Education and Formal Training’, referred to a BSc in Estate Management or similar and ‘relevant practical experience’ as essential requirements. An earlier version of that document, in place when the Claimant took the role, referred to ‘two years relevant practical experience’. The amendment had been made as a result of age discrimination legislation.[29]A job evaluation panel, comprising Ms Barlow as chair and Ms Atkinson, also from HR, was held on 29 March 2021 and was conducted remotely due to the pandemic. Ms Barlow is an experienced HAY evaluator having trained on the system more than 10 years ago and has carried out a significant number, she says hundreds, of evaluations for the Respondent.[30]Mr Muirhead and Ms Jackson both attended the panel to give information and answer questions. Ms Barlow agreed with the Claimant that it is more usual to only have one manager in attendance; she did not know why two attended on this occasion. In accordance with the Respondent’s usual practice the Claimant was not invited to attend. Ms Atkinson was the official notetaker and I am told would have produced formal notes used to produce the report although they were subsequently destroyed. As described above, Ms Barlow’s less formal notes were before me. I strongly disagree with the Claimant’s categorisation of these notes as ‘scribbled’ and ‘random’. In my view the notes are surprisingly neat given that they were made contemporaneously and clearly follow an identifiable structure. Further, Ms Barlow was able to give further explanation of what they meant when questioned by the Claimant.[31]What is apparent from the notes is that there was significant discussion between the panel and the managers which impacted on the process in addition to the agreed job description. In her evidence and cross examination of the Respondent’s witnesses the Claimant identified several areas in which she disagreed with the content of the managers’ input. For example:a. Ms Barlow’s evidence was that she was advised at the panel meeting that where there were complex or contentious issues, they would be allocated to a more senior officer or additional support provided. The Claimant said this was not true, nothing had ever been reallocated and referred to Mr Muirhead’s evidence that she required less supervision and fewer matters were escalated to him as she became more experienced including some very complex and upsetting interactions with tenants. She also said that some examples given by Mr Muirhead of where senior managers had had to get involved had happened ‘years and years ago’.b. Further that Ms Barlow’s understanding (based on what the managers had said) that the Claimant had no involvement in any refurbishment, renovations or management of the property postpurchase was again not true. The Claimant referred to an example case of Eversley Avenue in which she says she was asked to help the Building Surveyor resolve issues regarding a flood. Ms Barlow confirmed this example had not been referred to at the panel.c. Ms Barlow was told that Mr Muirhead had designed various proforma documents which the Claimant either disagreed with or said she had substantially developed them.d. As for the valuation process, the Claimant disagreed with the description given to Ms Barlow of how this would be conducted. It is apparent from Ms Barlow’s notes that in the context of this discussion one of the managers described what the Claimant did in respect of valuation as ‘not rocket science’. Ms Barlow agreed that that was an impolite and pejorative comment.e. Ms Barlow’s notes show that Mr Muirhead said he held one-to-ones with the Claimant every three weeks. The Claimant disagreed with that and I note that it was inconsistent with his evidence to this Tribunal.[32]Further, the Claimant was dissatisfied that most of the panel discussion concerned the TAP. Ms Barlow’s position, which I accept as reasonable, was that the reason for the re-evaluation was the change in the Claimant’s duties and that change was her involvement in the TAP.[33]The Claimant also strongly criticises the information given to the panel regarding the level of experience said to be required of the job holder which is relevant to the assessment of ‘technical knowhow’ under the HAY system. They clearly referred to the requirements set out in the person specification and it was also noted that the managers had set out an expectation that the post-holder would be newly qualified. Mr Muirhead’s evidence was that it was Ms Jackson who had made this comment and that he did not disagree with it.[34]The outcome of the panel was that the Claimant’s role remained graded at Bex12. The Claimant and her union representative, Mr Speller, were notified of this outcome by Ms Atkinson on 1 April 2021 in a short email which gave no detail as to the reasons for this assessment other than to say it was in accordance with the HAY system and feedback from her managers had been taken into account. In response to a request for more details from Mr Speller, Ms Atkinson supplied the scores for the Claimant’s post and that it was evaluated at Bex12. Mr Speller replied informing Ms Atkinson that a union evaluator (Ms Dickson) had also undertaken an evaluation of the role and evaluated it at Bex15. He asked what could be done by way of an appeal.[35]That evaluation by Ms Dickson was a paper exercise by reference to the agreed job description. She did not speak to either the Claimant or the managers.[36]The Claimant’s employment with the Respondent terminated on 27 April 2021 due to redundancy (for which she had volunteered) and thereafter her post was deleted.[37]Mr Speller wrote to Ms Atkinson again on 12 May asking for a document setting out the justifications for the scores awarded. This was sent to him on 24 May.[38]Subsequently Ms Dickson carried out a re-evaluation in July 2021 resulting in a score equating to Bex15. Her revised comments included: ‘the evidence is that this is not a newly qualified role… The jobholder has considerable freedom to act, which is not suggestive of a newly qualified role… Would this be appropriate to a newly qualified role? I do not think so…’. In her first assessment she had simply referred to the person specification requirements.[39]The Claimant appealed against the outcome of the job evaluation panel. That appeal was convened on 12 August 2021. The Claimant was invited but did not attend due to another professional commitment. She submitted a written statement and was represented by another union representative Mr Turnbull. The appeal was chaired by Mr Hollier, Deputy Director Corporate Services, also a trained HAY evaluator. Ms Barlow, Ms Atkinson, Ms Jackson and Mr Muirhead all attended and contributed to the discussion.[40]The notes of the appeal show that there were a number of documents in front of the panel which included one called ‘Job evaluation outcome scores - Bexley and Unison’. Given the difficulties described above in identifying exactly which version of various documents was attached to what, it is not possible to say with certainty what this document was. It does appear, however, to be a table showing Ms Dickson’s conclusions in relation to each factor, Ms Barlow’s conclusions in respect of each factor and then further comments from Ms Dickson.[41]The Claimant again says that a number of matters referred to in Ms Barlow’s evidence about what managers said to the appeal panel, are untrue. For example that the role was one that relied on standard processes regarding the acquisition of residential properties and that it did not require know how to work out problems or devise new approaches from first principles. Reference was also made, again, to oversight of the Claimant’s role by managers and use of checklists which the Claimant disagrees with as well as the statements regarding the level of experience required to perform the role. It is clear from the outcome letter that Ms Jackson repeated her comment about having performed a similar role when she had finished university at the start of her career.[42]Mr Turnbull emailed the Claimant after the appeal. He said that he had put the points across made by Ms Dickson. He also said that there were occasions when the meeting seemed to revolve around the TAP rather than whether the job description met the relevant criteria. He said he had attempted to steer the conversation back towards the job description.[43]Mr Hollier emailed Mr Turnbull on 19 August 2021 to check if there were any other comments or points that he wished to make. He said that he was keen that in the light of the Claimant not being able to attend, Mr Turnbull was given every opportunity to respond to any points raised. Mr Turnbull replied on 20 August 2021 thanking Mr Hollier for the opportunity but stating that he believed the comments from Ms Dickson and the Claimant’s statement conveyed the position. He did not make any reference to his concerns about the appeal having been ‘steered’.[44]There was also an exchange of emails between Mr Hollier and Mr Muirhead and Ms Jackson on 24 August 2021 regarding when the Claimant’s job description had changed. In the course of that exchange, and in response to a statement by Mr Hollier that it was agreed as part of the resolution of the Claimant’s grievance that the post would be re-evaluated, Ms Jackson replied: ‘We agreed to undertake the job evaluation because [the Claimant] constantly moaned that she was not paid enough money, not that we felt her job had changed…’[45]Mr Hollier wrote to the Claimant on 31 August 2021 advising her that her appeal had not been successful. This letter was a well structured and analytical account of both the process and the appeal panel’s conclusion albeit one with which the Claimant disagreed. Submissions[46]Both parties provided written submissions supplemented orally on the conclusion of the evidence.[47]In summary the Respondent’s case is that the JES upon which they rely is valid. They used the HAY system which satisfies the section 80 criteria referred to above. They say that the Claimant had appropriate input into the drafting of the job description which was used in the evaluation, the HAY criteria were applied appropriately and discretion was exercised in a reliable way. They accept that the panel focussed on the Claimant’s work on the TAP as it was the addition of that work to her role that had prompted the JES.[48]By contrast, although the Claimant accepts that the HAY system is in itself a valid approach, she says that the way it was applied in her case was unreliable. She says it was based on inaccurate and misleading information and was not conducted in a transparent way, Ms Barlow not having referred to the HAY guidance notes. In particular, she complains about the input from her managers who she feels were acting against her interests (and referred to allegedly derogatory and unfair comments). Accordingly, she says, the panel did not properly understand her role, not least because the process concentrated on the TAP and because of the reference to the role being suitable for a newly qualified person. She also says that the appeal process was unfair and in summary the whole process - in her words - ‘rubberstamped a shoddy job’ because the Respondent knew she was leaving due to redundancy in any event. She compares herself to the Building Surveyors as she believes they had ‘very similar’ jobs to her.[49]The Claimant also points to delay in implementing the agreed JES. Her underlying grievance was resolved in October 2019, the job description not agreed until January 2021 and the whole process not concluded until August 2021. She says this was unnecessary and believes it was delayed to frustrate the outcome.Conclusions
[50]I remind myself that at this stage I am not deciding whether the roles of Valuer and Building Surveyor were of equal value, but only whether the JES relied upon by the Respondent was based on a discriminatory system or otherwise unreliable.[51]The Claimant did not actively argue the former, other than to say that she has a protected characteristic and she believed some of the comments made about her were discriminatory. I deal below with what may be regarded as unfair and/or inappropriate comments in the context of reliability but I conclude that there was nothing about the JES that was discriminatory. Even if it was flawed in some respects that, in conjunction with the Claimant’s gender, is insufficient to amount to a discriminatory system. There would have to be something more to indicate a systemic flaw and there is not.[52]Turning therefore to the reliability of the JES in other respects.[53]The HAY system used by the Respondent is an established and inherently reliable method of evaluation. As the Claimant acknowledged, it requires considerable exercise of discretion on the part of the evaluator which will inevitably on occasion produce different but equally valid results depending on the evaluator. The fact that two experienced evaluators have come to different conclusions is not in itself therefore particularly surprising or evidence of unreliability. Further, there was no evidence to suggest that either Ms Barlow, or Mr Hollier at appeal, fulfilled their roles in anything other than a diligent way.[54]As far as the process used by the Respondent is concerned, whilst some evaluators may choose to invite the employee to be present at the first panel meeting, her absence does not in itself make the process unreliable. The Respondent adopted the same approach for the comparator roles. Further, she had agreed the job description which was considered at the panel. The Claimant was also of course invited to attend the appeal panel although she chose not to and was represented by her union instead. Further, Mr Hollier specifically gave that representative a further chance to make submissions after the appeal panel meeting but he chose not to do so. At that stage he could of course have raised his concerns, as he did with the Claimant, that the appeal panel had ‘steered’ the conversation towards the TAP.[55]Also on process, the Claimant has criticised Ms Barlow for not expressly referring to the HAY guidelines in making her assessment. Given Ms Barlow’s extensive experience in applying those guidelines, I am not concerned by this omission. She was plainly very familiar with them. Also, despite the Claimant’s criticisms of the level of detail that appears in the final outcome documents, this was satisfactory. It is consistent with the content of the report for the Building Surveyors and is very similar to the level of detail provided by Ms Dickson.[56]No doubt the Respondent could have done better in terms of notetaking and the overall speed of the process, but fundamentally, having regard to all the above matters, their process was valid.[57]Turning to the more substantive criticisms raised by the Claimant there are a number of matters that require consideration:a. She says that it was wrong for the evaluations to focus on the TAP part of her role. This was however the main reason for the evaluation taking place – as that was the recent significant change and was the main focus of the Claimant’s submissions (or those on her behalf) at appeal stage. This was not an unreliable approach.b. Having said above that Ms Barlow and Mr Hollier both performed their roles diligently, they both inevitably relied upon the information given to them and in particular the submissions by Mr Muirhead and Ms Jackson. Whilst it is true that the job description was agreed with the Claimant, it is apparent from the evidence of Ms Barlow (and her notes) that substantial additional information was given to her, and repeated at appeal stage, by the Claimant’s managers. Ms Barlow’s explanation that they were ‘experts’ on the role content and provided context stands up to a point but the amount of additional information they provided is striking. It is also striking that they positively argued against any upgrading – which they were entitled to do – but some comments indicate a certain amount of negativity or disrespect to the Claimant. For example the ‘its not rocket science’ comment and Ms Jackson referring to the Claimant having ‘constantly moaned’. Also, of course, there is the fact that the JES had been agreed as part of the outcome of a successful grievance brought by the Claimant against Mr Muirhead for bullying.c. Further, the Claimant strongly disagrees with the accuracy of some of that information provided to both panels. Mr Muirhead’s evidence in cross examination did support that in at least some respects the Claimant’s criticisms were well founded – for example, what he said to the Tribunal about the regularity and importance of his one to ones with the Claimant had a different tone and emphasis to what we can glean from the notes and outcome documentation he said to the panels. Similarly, what was said to the panels about the Claimant’s reliance on checklists and proformas that had been devised for her rather than by her seems to conflict with, again at least in some respect, to the evidence at Tribunal. There is also the issue of what experience the job holder is required to have which certainly seems to have been – at best – not fully explained to the panel and again seems to have been unnecessarily personalised by Ms Jackson.[58]I find that there was a thorough and detailed application of a recognised system for evaluation that was analytical and evidence based at both first and appeal stages. However, in light of the relatively low standard required from the Claimant, I find that there are grounds for reasonably suspecting that the evaluation was unreliable because of what appears to be negativity by her managers towards her manifested in inappropriate comments, a history between the Claimant and Mr Muirhead which could indicate a lack of impartiality on his part and an apparently valid disagreement by the Claimant with some of the information given by Mr Muirhead to the panels. In short, although the system was evidence based, there are reasonable grounds for a suspicion that at least some of that evidence was tainted.[59]Accordingly, the JES relied upon by the Respondent is not in itself a defence to the equal pay claim which may proceed to the next stage.[60]As to what that stage should be, Mr Lester has invited me to go on to find that the Claimant’s role and that of the comparators were not actually of equal value. I am not comfortable in doing that (even if I have the power to do so which, as was discussed at the hearing, is not completely clear from the wording of paragraph 3 of the Equal Value Rules). Although I have heard evidence from the Claimant and Mr Laity regarding those respective roles, it was not comprehensive evidence (focused as it was on the reliability of the JES) and furthermore, I have found that JES and the evidence it was based upon to be unreliable.[61]The matter therefore needs to move to either a stage 2 equal value or final hearing. The former is only required if an independent expert’s report is required. Given that the Claimant no longer works for the Respondent, her post has been deleted and the claim is not relevant to any other employees, my preliminary view is that commissioning an independent expert would add significant unnecessary cost and delay to the process. I am mindful, however, that this question was not fully explored at the hearing. I therefore invite both parties to send any comments they have on this preliminary view in writing to the Tribunal, copied to each other, within 28 days of the date this Judgment is sent to them. If no independent expert is required, standard directions will need to be given for the final hearing. It may be that the parties can agree them between themselves without the need for a further case management hearing. If that is the case, it would be helpful if they could indicate that in their next communication.[62]I wish to make a concluding comment to ensure that the Claimant understands that what I have not done in making this decision is to give any indication that I find her role and that of the Building Surveyors to be of equal value. Indeed, there are matters referred to in the evidence for this hearing that at first look would seem to indicate otherwise (e.g. their respective budgetary authority, levels of autonomy, specialist technical skills). However, for the reasons set out above, the existence of the JES does not preclude her from pursuing her claim.