H Dreelan and L Gaffney v Liverpool University Hospitals NHS Trust: 2402029/2024 and 2402030/2024
EMPLOYMENT TRIBUNALS
Case No 2402029/2024, 2402030/2024
Between
H Dreelan and L GaffneyClaimantLiverpool University Hospitals NHS TrustRespondent
Before
Employment Judge FeeneyDate 23 December 2025
JUDGMENT
[1]The claimants’ claims of sex discrimination under the Equality Act 2010 have no reasonable prospect of success and are struck out[2]The claimants’ claims under the Equality Act 2010 of equal value with their comparator PM are struck out on the basis there is a non-discriminatory and reliable JES which values the roles of the claimants and the comparator differently.[3]The claimants’ application to amend their claims to include like work fails.
REASONS
[1]Background The claimants bring equal value claims. They are both Band 6 Healthcare Quality Facilitators or were so at the time the claim was issued. The first claimant was employed from November 2014 until 31 December 2023 and the second claimant from 1 November 2014 until 11 November 2024. The claim form was presented on 29 March 2024. The claimants claim equal value with their comparator Mr Mulford who was paid at a Band 7 who was employed by the respondent in a split role as Healthcare Quality Facilitator (the same role as the claimants’ full-time role) and 0.5 in Communications. The claimants allege the work they undertook was work of equal value with Mr Mulford.[2]The parties agreed that a JES was carried out in respect of the claimants’ roles and that of Mr Mulford. The claimants explained to me that they do consider the JES carried out by the respondent was unreliable. They do not allege that the JES was based on a system that discriminates because of sex. They made clear at the earlier case management that they do not allege that they did like work to Mr Mulford or that their work was rated as equivalent to Mr Mulford. However, on 23 March 2026 the claimants requested that they be allowed to amend their claim to include a like work claim. I advised I would consider this at the end of the hearing.[3]The first claimant also argues the way the respondent handled her complaint about disparity in pay was a breach in her contract of employment and entitled her to resign and claim constructive dismissal.[4]Today’s hearing was a stage one equal value hearing, and I did not consider the constructive dismissal claim. The respondent’s defence is that:-4.1 The work done by the claimants or the work done by Mr Mulford had been given different values by a JES and there are no reasonable grounds for suspecting that the evaluation was based on a system that discriminates because of sex or is otherwise unreliable;4.2 The claimants cannot bring a claim of sex discrimination and equal pay arising from the same issue (Sections 70 and 71 of the Equal Pay Act).4.3 The respondent denied they breached the claimants’ contract of employment entitling her to resign and claim constructive dismissal.[5]The claimants equal pay and sex discrimination acts should be struck out for the reasons set out in paragraphs 1 and 2 above.[6]The issues to be decided at this hearing:- Equal pay claim, Section 127 Equality Act 20106.1 Was the work of the claimants and Peter Mulford given different values by a JES (Section 131(5)(v) of the Equality Act.6.2 If so, does the Tribunal have reasonable grounds for suspecting that the evaluation contained in the JES is unreliable (Section 131(6)(b) of the Equality Act).6.3 Did the respondents breach an equality clause that the claimants by paying Peter Mulford a higher rate of pay Band 7, than the claimants Band 6, for work of equal value (Section 127 Equality Act).[7]Direct Sex Discrimination Equality Act 2010, Section 13 7.1 Did the respondents do the following things:-7.1.1 Pay Peter Mulford a higher rate of pay Band 7 than the claimants Band 6 for work of equal value.7.1.2 Was that less favourable treatment. The Tribunal will decide whether the claimants were treated worse than someone else was treated. There must be no material defence between their circumstances and the claimants. The claimants say they were treated worse than Peter Mulford.7.1.3 If so, was it because of sex.7.1.4 Can the claimant proceed with a Sex Discrimination Act claim in respect of issues raised relating to equal value.[8]Claimants’ position[9]The claimants were required to provide details of in what way they said the job evaluation scheme was unreliable, and they provided the following reasons. (A)9.1 Inconsistencies in job matching evaluation.9.2 Failure to adhere to the established agenda for change job evaluation policy which mandates that job matching and evaluation processes be fair, transparent and consistently applied across all staff groups.9.3 Despite requesting a formal job re-evaluation we were denied an independent review contradicting both the national job evaluation process and the respondent’s own policies.9.4 Mrs J Tallon, the senior Corporate Business Partner unilaterally determined that their Band 6 role did not match Band 7 job description of a newly advertised position. That decision was made without an independent panel review in direct violation of established policy.9.5 They were refused a job evaluation against Mr Mulford’s (PM) role, responsibilities and job description for the work he undertook within healthcare, quality assurance without a direct comparison due to its responsibilities and required skills, the fairness and transparency of the JES process are fundamentally compromised.[10]Lack of transparency in the evaluation process. (B)10.1 The decision to deny re-banding was made without providing clear evaluation criteria or documented scoring that could be fairly compared to that of Mr Mulford’s role. This lack of transparency renders the process unreliable within the respondent organisation.10.2 We were initially assured by Mrs Cobain on 25 July 2023 that rebanding would proceed yet this decision was abruptly reversed on 9 August 2023. This raises concerns about the integrity and reliability of the evaluation process at an organisation level.[11]Deviation from established policies and national job evaluation handbook (C)11.1 Failure to conduct a formal job matching process.11.2 The respondent’s refusal to conduct a formal job matching process contradicts the principles outlined in the national job evaluation process handbook which requires: * Job descriptions and personal specification to be up to date * Pay structures to be consistent and non-discriminatory * Independent review panels to be convened when disputes arise.11.3 Instead of following the structured impartial withdraw, the respondents engaged in a formal discussion resulting in an arbitrary and inconsistent outcome.[12]Gender Based Pay Disparity and discriminatory application of jES (D)12.1 Evidence of gender pay discrimination.12.2 The respondent’s implementation of a JES at an organisational level resulting in gender pay disparity and Mr Mulford a male comparator was placed on Band 7 whilst performing work of equal value to us, we remained at Band 6.12.3 The refusal to formally compare our roles to that of Mr Mulford’s suggests the failure to apply the JES in a very non-discriminatory manner.12.4 Where pay disparity exists the employer must provide objective justification which the employer has not done.12.5 Failure to address concerns raised by the claimants and potential victimisation.12.6 The respondent’s lack of action and retaliatory conduct.12.7 The respondents failed to take any meaningful steps to investigate or rectify the claimant’s concerns about gender pay disparity and the flaws in the evaluation process.12.8 The respondent offered to re-band claimant one only after she resigned suggesting retaliatory behaviour rather than a legitimate evaluation process. Disclosure issues[13]The claimants also relied on disclosure issues as follows 1 Being initially refused sight of PM’s job description 2 Being refused audit allocation and time recording documentation until at the tribunal Respondent’s Skeleton Arguments[14]The respondent submits-14.1 Both roles of the claimants and Mr Mulford were evaluated on the NHS Job Evaluation Scheme known as Agenda for change to different bands.14.2 Under Rule 3(1)(a) of the Equal Value Rules in the employment tribunal Rules of procedure 2024 at a stage one hearing the Tribunal must strike out a claim or the relevant part of it, 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.14.3 The relevant parts of 131 of the Equality Act provide that:- (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 person(b) (B) (b) a’s work and b’s work have been given different valuation by different job evaluation study. (6) The Tribunal must determine that A’s work was not of equal value to B’s work unless it had reasonable grounds for suspecting that the evaluation contained in the study (A) was based on the system that discriminates because of sex or (B) is otherwise unreliable.[15]I have highlighted that those points in italics as that is the groundson which the claimants are challenging the evaluation and not, despite the details in their further and better particulars, because the job evaluation process discriminated on the grounds of sex. Respondent’s points[16]The respondents implemented a valid job evaluation scheme within the meaning of Section 80(5) of the Equality Act 2010. The claimants are not pursuing an argument that the overall job evaluation study was invalid.[17]The burden of proving that one of the exceptions in subsection 131(6) applies rests on the claimants who do not argue that the evaluation is based on a system that discriminates because of sex.[18]The equal value claims must therefore be struck out unless they can establish there were reasonable grounds to suspect that the evaluation was … otherwise unreliable.[19]In line with Fairley -v- Sunderland ET 2502170/2020 which states that “the claimant must therefore point to evidence relating to one or more of the evaluations contained in the study.[20]Further It is not sufficient for a claimant to rely upon mere assertions (Hartley and Others -v- Northumbria Health Care NHS Foundation Trust). The evidence should be strong enough to give the Tribunal reasonable grounds for suspicion that there might be such grounds. In another Employment Tribunal case, Camble -v- Birmingham City Council 1300104/20 the Tribunal observed that Section 131(6)(b) was not intended to be a gateway to differences of view about scoring in an evaluation. There needs to be something more seriously involved.[21]In respect of the claimants’ direct sex discrimination claim Section 70 of the Equal Pay Act makes clear that sex discrimination claims arising out of the terms of employment can only be bought as equal pay claims. Section 71[22]The relevant sex discrimination provision has no effect in relation to a term, of(a) Is modified or included by virtue of a sex equality clause or rule, or(b) Would be so modified or included but for Section 69 of Part 2 of Schedule 7.[23]Neither of the following are sex discrimination for the purposes of the relevant sex discrimination provision.(a) The inclusion in A’s terms of a term that is less favourable as referred to in Sections 66(2)(a); and(b) The failure to include A’s terms a corresponding term as referred to in Section 66(2)(b). Witnesses[24]At the Tribunal I heard from both claimants and for the respondent from Ms Louise Cobain (Executive Director; Assurance) and Mrs J Tallon (Role Assessor)
The Relevant Facts
[25]The two claimants worked in the Healthcare Quality Team, which worked as almost a freelance unit with different NHS organisations being clients, and the ‘MIAA team’ would be contracted to provide audits which were then allocated to individual Healthcare Quality Facilitators to complete. The claimants were unaware their job title was changed in 2015 to Healthcare Quality auditors. Nothing in the jobs they did changed.[26]In July 2023 the claimants met with Louise Cobain, Executive Director of Assurance to put forward a case that their duties should fall within in a Band 7 job description, and they felt that their jobs should be compared with the new Band 7 Healthcare Transformation and Delivery Manager post within the MIAA Solutions Business Unit. This is not the job they rely on for this claim. A woman was later appointed to that role.[27]The claimants allege that at the meeting on 25 July 2023 with Mrs Cobain she stated that they would be re-banded and that there was some money available for this from a vacant senior role. However, instead of proceeding with this Mrs Cobain then instructed Mrs Tallon to do the review described above. Mrs Cobain says she agreed to reviewing their job descriptions. It is not germane to the case whether or not Ms Cobain did promise a re-banding, however it might be germane to the unfair dismissal claim.[28]Under Agenda for Change if a manager agrees with an employee that their request for regrading has merit it can be referred to a Job evaluation panel. That panel decides whether to change the grading or retain the extant grading.[29]Mrs Cobain asked Janet Tallon who was trained in job banding and operated as an assessor to do an initial banding review. This was for the job which is not the role they are relying on for the equal value claim. Mrs Cobain stated if Ms Tallon had asessed the claimants’ jobs on higher points than band 6 under agenda for change she would have agreed to submit their jobs for reevaluation.[30]Louise Cobain stated that she did not promise to upgrade the claimants immediately at their meeting on 25 July, but, by asking Janet Tallon to do a job mapping exercise her intention was if that produced a case for reevaluation then that is what she would do under the agenda for change (AFC) process. If it is agreed from the offset that roles and responsibilities have changed the parties can agree to an amended job description which then will be reviewed by the job evaluation panel who can re-evaluate the job either at the same level or up or down. This is set out in the agenda for change and the respondent’s policy. However, Janet Tallon’s banding of the claimants gave their role 439 points which is a Band 6 and highlighted differences in terms of two job factors, financial resources where there was no reference to them operating as budget holder and human resources where there was no reference to them supervising staff. There were no grounds for submitting the jobs for re-evaluation under agenda for change. Ms Cobain asked them to arrange a meeting with her to discuss further to discuss the job mapping. This mapping however was in relation to delivery manager role which is not the role issued in the Tribunal as re-iterated before. The claimants in any event did not respond.[31]The scoring range for band 6 was 396-465 and obviously a band 7 was immediately above that.[32]It is relevant to note JT’s review gave them 439 - more points than agenda for change which was 402 but that was insufficient to suggest a band change as it was within the points band for band 6.[33]The claimants say on 9 August 2023 they requested that their job descriptions be mapped against Mr P Mulford (PM), a comparator for the equal value claim. The respondent denies this. They say they were refused this and were refused a copy of PM were refused and that an independent panel review under agenda for change should have been proceeded with in respect of Mr Mulford. The respondent denies this and there are no notes of the meeting. However, the claimants did not mention this in their grievance which I find is inconsistent with such a request being made[34]There is no issue about equal pay or gender in balance until the claimants’ joint grievance on 26 November 2023 where they stated they did work of equal value to PM. They also complained about other people in respect of which they felt they did work of equal value which included Georgina Turner, obviously a female who was employed at Band 8A.[35]Mrs Cobain stated that the main difference between the comparators role and the claimants was that he had managerial responsibilities for the quality element of his role and a requirement for different skills, knowledge and experience relating to the communication elements of his role.[36]This was set out in the grievance outcome letter which stated that “PM’s management responsibility included:-(a) Acting as lead specialist on specific projects as required utilising appropriate national guidance.(b) Leading on service development in relation to specific projects.(c) Providing leadership and co-ordination across the function in developing specific projects in areas of clinical quality.(d) Ensuring robust project management and roll out plans to deliver identified project and support services across the client base.[37]There were differences of relevance in their job requirements. PM required experience of policy development; management of budgets; operational management and service delivery; leading and managing teams; developing, running and delivering training programmes which were not included in the claimant’s job requirements. PM was responsible for the implementation of MIAA’S communications strategy and was responsible for a budget.[38]Ms Cobain also stated that she knew PM had previous experience, skills and expertise in audit methodologies. These skills are highly transferable and supported his understanding of internal audit methodologies in his current role. She believed that neither of the claimants had these skills. He had a degree level qualification which again the claimants did not have. The claimants disputed this as they said Mrs Gaffney did have those skills and that an essential requirement for PMs role was clinical experience and a project management qualification which PM did not have. I accept this evidence is correct .[39]PM’s score was 471 so he near the bottom edge of band 7.[40]In the outcome letter the complaints about the banding of JW and GT the female employees cited Band 8 roles were also addressed.[41]In the course of the grievance the claimants did not suggest that their original AFC banding was incorrect. Neither did they put forward which specific areas they disputed, although they did at Tribunal in relation to Factor 2 – knowledge training and experience and Factor 8 financial and physical resources.[42]Ms Cobain also stated that the claimants state they were refused a formal job re-evaluation under the agenda for change. That was not true in respect of the Band 7 Delivery Management role and they never asked for a review in respect of PM’s role at all, nor a agenda for change formal process in respect of either roles. There is no written evidence that this was requested and although I believe the claimants genuinely believed they had asked for this the specifics slipped away in the meetings and was never focused on. If it had been requested, they would have been earlier references to it in the contemporaneous documents.[43]Mrs Cobain did offer to send them PM original matching report from AFC but they did not follow this up. There is an email which establishes this.[44]The grievance and a grievance appeal were unsuccessful Following the failure of their grievance Mrs Dreelan found another role and advised the respondent of this on 5 October 2023 At that point Mrs Dreelan was offered a Grade 7 acting up role. The claimant refused this and states she was offered a permanent Band 7 the next day but again Mrs Dreelan refused as she had lost faith in the respondent. The claimants cite this sudden ability to find a band7 post as an example of the unreliability of the job evaluation scheme. Mrs Cobain said that the post became available as a result of restructuring and that she was seeking to find a justifiable band 7 in order to retain the claimant 1. I accept her evidence. Claimant 2 by this time was off sick with a medical condition eventually leaving her role on 11 November 2024.[45]When the claimants did receive the job descriptions as part of this process, they criticised the job gradings on the following bases - That matters pm got high scores for factors which were also present in their band 6 roles for example the band 6 and 7 role includes ‘to supervise and coach audit staff in the delivery of healthcare quality projects, ‘the claimants say the band 7 role was awarded higher points than the band 6 role under the same heading with no apparent justification. - In relation to general band 7 criteria PM did not have management responsibility;[46]They also pointed out that PM as referred to above undertook a mixed role of partly the claimants’ job and partly a role within communications but 2018 there was another employee involved in Communications so he did at times less communications work.[47]That new employee was also a band 7. The respondent state PM was however responsible for the whole teams performance framework and key performance indicators, did have management responsibilities on specific projects. In addition, it can be seen from the audit allocations that he did less audit work and it was Mrs Cobain’s evidence that from time to time he would be heavily engaged on communications. PM had also been seconded to Digital Support because of his specific skill set.[48]The documents produced late by the respondent included details of the split of PMs time between auditing, corporate(communications) and latterly digital support. There was also more detailed breakdown of hours spent.[49]The tables showed that in 2020/21 the audit split was Pm:47.29 claimant 1 128.65; claimant 2:145.3.[50]Regarding Corporate (meaning communications in this instance) PM:49.43 Claimant 1 2.04; Claimant 2: 0.59[51]Digital support PM :64.67 ;the claimants nil[52]Covid reallocation: PM :42.62; Claimant 1 :15.1: claimant 2: nil[53]The year after was similar. In 2022/23 PM did 111.6 hours on audits compared to the claimant 1:186.69 and claimant 2 :179.46[54]In 2023/4 PMs audit time was 155.75 but Mrs Cobain explained this was because Mrs Dreelan left and Mrs Gaffney was off sick, so it was not a typical year.[55]It is clear over time there was a rough 50:50 split in PMs role between communications and audit work.[56]In cross examination Mrs Gaffney agreed that she did not know the other communications person was on the same grade as PM and took the view therefore his role should be split 50% audit 50% communications. At the same time agreeing that their audit work was the same; presumably on a band 6 and suggested that PM should be on two separate contracts. However, that does not suggest the claimants’ band grading was unreliable.[57]There was a contentious issue regarding whether PM met the criteria for his role in any event as he did not have the required clinical experience. However, he had been appointed without one of the essential criteria that would have been referred to a ‘workforce ’panel which would have to accept the justification. Theis issue however was not germane to the claimants’’ case as they were not arguing that PM’s role was overvalued but that theirs was undervalued.[58]The respondent produced a table which set out the claimants’ responses to the different evaluations. To factor 2 they had not challenged this evaluation in response to JTs review which gave them 156 in line with AFC. However at the tribunal they asserted the score should have been 196. In relation to factor 8 they again had not challenged the AFC or JT rating of 21 until the hearing when they had argued it should be 32;in relation to Factor 9 (Human resources) they did challenge this earlier following JTs review stating instead of 9 they should have been awarded 21 points which they maintained at tribunal .In relation to emotional effort again they stated they should have been scored not 5 but 11 which they maintained at tribunal . They claimants in their witness statements or evidence provide detail as to why their scores should be increased from Janet Tallon’s assessment .[59]On basis of their original self-evaluation following JTs review they would have gained 18 points. There position had changed by the tribunal as the difference at tribunal was an additional 38 points. It has to be remembered however that this was the claimants’ view not an independent assessor.
The Law
[60]The law has been set out above before the fact finding. Accordingly, that is the law that I will be applying in my conclusions.[61]The respondents’ submissions were that there were three principle factual issues to be decided.(i) Whether there was a commitment on 25 July to re-band the claimants’ role or whether Mrs Cobain said she would look into whether they should be re-banded.(ii) Whether LC refused to carry out a job matching to PM’s role in the meeting on 9 August.(iii) The extent to which the PM’s role differed from C’s role in practice.?[62]In considering the third point Louise Cobain gave evidence regarding the differences in the roles.(i) The reason is that PM has far more time allocated to corporate contributions as compared to the claimants because of the communications and management expects of his role.(ii) The reason that PM did significantly fewer audits each year was because of his communication and management responsibilities.(iii) That PM had sole management responsibilities for MIAA’s communication strategy until 2018 when a Communicating Marketing Manager was appointed to a Band 7 role and that after that they split the responsibility with PM having additional responsibility for digital communication.(iv) PM have management level responsibility for the whole team’s performance framework and key performance indicators and whilst not having any line management responsibilities, have management of other employees on specific projects.[63]As a Band 9 manager she (Mrs Cobain) still carries out audits but that does not make her role comparable to that of the claimants, The respondent submitted that where there was a conflict of evidence the evidence regards witnesses should be preferred as the claimant’s evidence was contradictory, confused and lacking objectivity. For example:-(i) It was C’s evidence that PM did the same role as them while inconsistently arguing that PM had a communications element to his role which should have been evaluated separately.(ii) C’s seemed to accept that the criteria for re-evaluation under AFC had not been met and that LC was being supportive by obtaining JT’s review yet maintained their position that AFC policies and procedures had not been followed.(iii) C 1 sought to argue she was not relying on Georgina Turner as a comparator in her grievance and on an in actual reading of her grievance that is exactly what she was doing.(iv) On the first day of her evidence C1 denied that PM had been seconded to digital support because of his specific skill set but accepted that on the second day in the light at page 424. Amendment Application The law on amendments[64]In an amendment application the Tribunal is required to balance the injustice and hardship of allowing amendment against the injustice and hardship of refusing it, taking into account all the circumstances of the case. Kuznetso - v- Royal Bank of Scotland Court of Appeal 2017. The Tribunal should not adopt a tip box approach Abercrombie -v- Aga Range Master Court of Appeal 2013 but the following factors are relevant.(a) the nature of the amendment (Selkent -v- Moore) 1996 and paragraph 6 of 10 of the Presidential Guidance on case management.(b) Time limits (Selkent and the Presidential Guidance)(c) The timing and manner of the application, (Selkent and the Presidential Guidance.)(d) Whether the amended claim has reasonable prospects of success Kumari -v- Greater Manchester Mental Health NHS Foundation Trust EAT 2022. In particular:- (i) Can the amendment be properly and fairly be assessed as having no reasonable prospect of success then the amendment should plainly not be permitted as it would be pointless. (ii) Even if the prospects are thought to be better than that the weakness of the case may outweigh other factors in the balancing exercise.[65]The real and practical consequences of allowing or refusing an amendment, Vaughan-v- Mondality Partnership EAT 2020. Respondent’s Submissions on Amendments[66]The respondent submits that the proposed amendment is not a relabelling but the addition of a new type of equal pay claim which is inconsistent with the claim currently being pursued as the claimants recognise that comparator spent a large proportion of his time on communications which they did not.[67]By definition if C and her comparators are doing like work, they cannot be doing work of equal value. The like work must be the primary claim and only moving onto equal value if the like work claim fails.[68]The respondent submits the amendment application was made by a mail on 28 March 2025, almost fifteen months after the claimant left the respondent’s employment and it was nine months out of time without any real explanation and in circumstances in which 129 of the Equality Act 2010 does not permit the Tribunal to extend time.[69]With C2 as she remained in employment until 11 November 2023 the application was made within the normal six-month time limit.[70]Regarding the manner and timing of the application it was made by email on 28 March 2025, almost exactly a year after the claims were presented on 29 March 2024.[71]The claimants were asked if they were bringing a like work claim and stated at the case management preliminary hearing on 6 January 2025 that they were not.[72]The claimants have had trade union advice since August 2023.[73]Further, the respondent submits the like work claim was little or no prospects of success because:-(i) There is overwhelming evidence before the Tribunal there was significance differences of practical importance between the role which the PM carried out and that of the claimants.(ii) In addition, if C’s equal value claims are struck out on the basis there are no reasonable grounds for thinking the AFC evaluations are unreliable R will have a genuine material factor defence even if the Tribunal considers the roles to be like work records i.e. they were rated as equivalent in the job evaluation scheme.(iii) Even if C’s equal value claims are not struck out R would still have a strong material factor defence given:- (a) the agreed fact that the pay of C and PM were determined by their agenda for change banding. (b) The agreed fact that the two roles were evaluated differently under the agenda for change before the appointment of C and PM, therefore before the genders were known; and (c) That C’s have not at any point sought a re-evaluation of their roles on the grounds of a change of responsibilities.[74]The real practical consequences of the amendment are:-(a) The Tribunal has already commenced an equal value process and heard stage one of the equal value hearing over two days excluding submissions.(b) Had C thought a light work claim primarily the question of like work would have necessitated having been determined at or before this hearing.(c) As it is if the amendment is granted a separate hearing will be required and if the equal value claims are not struck out the equal value process will have to be paused while the like work issue is resolved.(d) Both the respondent and the Tribunal would therefore be put to considerable additional cost and inconvenience by the lateness of the application.(e) In summary, the balance of injustice and hardship comes down decisively and favourably refusing the amendment. (i) Because there will be significant additional time and expense entered into by the parties and the Tribunal which could have been avoided had the claims been brought earlier. (ii) There is no real explanation for the lengthy delay in making the application or for C’s reversal of their position, and (iii) Denying the amendment will cause C little if any prejudice:- 1. If the equal value claims are struck out the like work claims are hopeless not least because the respondent has an unsavable material factor defence so there is no advantage to the claimants in being permitted to do that. 2. If the equal value claims are not struck out the claimants will have the ability to pursue their claims using that route as they originally intended and there would be no benefit tied in the like work claims. Should the direct discrimination claims be struck out[75]The respondent submits that as a sex discrimination claim arise out of the same facts, they are caught by Section 70 of the Equality Act 2010 which sets out that the sex discrimination and equal pay provisions within the Equality Act are mutually exclusive and the same conduct cannot give rise to both claims.[76]In BMC Software -v- Shaikh 2007 it was said that the effect of Section 70 is “it prevents excess reliance on the employment discrimination provisions in Section 39(2) of the Equality Act 2010 in circumstances where Section 66 of the Equality Act apply”. Not only does the “relevant discrimination provisions” have no effect by Section 72 a less favourable term cannot amount to sex discrimination.[77]The respondents submitted that Section 71 does not provide an exception to Section 70 in relation to the claim for direct discrimination, rather its purpose is to permit hypothetical comparators in direct discrimination claims relating to pay, and that this was supported in Shaikh, where it was said: “Section 71 deals with situations where the circumstances set out in Section 65 the Equality Act are not present and that has the result that Section 66 of the Equality Act does not have any effect, put another way the equality clause has no effect as there is no corresponding term because there was no actual comparator. The explanatory note for Section 71 of the Equality Act gives this example. An employer tells a female employee “I would pay you more if you were a man … in the absence of any male comparator the woman cannot bring a claim for breach of the Equality clause, but she could bring a claim of direct sex discrimination”.[78]This seems to be to illustrate the territory covered by Section 71 of the Equality Act therefore the section is not an acceptance of Section 70 of the Equality Act although it does identify circumstances where a sex discrimination claim can arise out of a term of the contract relating to pay. To my mind, far from providing a general exception this reinforces the division made by Section 70 of the Equality Act between a remedy under the Equal Pay provisions and sex discrimination. It only applies where a Section 70 of the Equal Pay Act does not and to allow for a sex discrimination claim limited to direct discrimination based on the treatment of a person.[79]Therefore, the respondents state that as this is a claim relying on an actual comparator the sex discrimination claims should be struck out. Should the equal value claim be struck out.[80]The respondents submits:- (1) That the main issue is whether “a reasonable grounds for suspecting that the evaluation contained in the study is otherwise unreliable” (a reference to the JES).[81]The respondent submits there is no authority or decision regarding what is required to discharge that burden.[82]The claimant’s response to EJ Child’s order set out above suggests that they are alleging the following:-(a) There are inconsistencies in job matching and evaluation;(b) R has failed to follow agenda for change policies and practices;(c) There has been a lack of transparency in R’s approach;(d) There has been discriminatory application of agenda for change;(e) There was a failure to address these concerns and retaliatory conduct.[83]The respondent’s submissions in respect of those matters are:-(a) Inconsistencies in job matching and evaluation;(b) The evaluation process involves a panel assessment by two management members and two staff side members who are trained in job evaluation and the results of their review by a consistency panel. The claimants have produced no evidence to suggest that process was not followed or that those evaluations of their and PM’s job were unreliable or inconsistent other than that their own opinion differs from those from the panel assessment in relation to four factors. Factor two knowledge, training and experience. Factor eight financial and physical resources. Factor nine human resources; and Factor fifteen emotional effort.[84]The respondent submits that this falls a long way short of what is required and also cite:-(1) Nowhere in the extensive grievance do the claimants point to any evidence that their roles were unreliably evaluated.(2) The claimants’ difference of opinion in relation to those factors were adduced the first time in oral evidence and have never previously been alleged.(3) To the contrary, when previously commenting on JT’s comparison of their role to the Delivery Manager’s role the claimants did not argue as they did in evidence that their roles should have been scored higher than it was under either factor two, knowledge, training and experience or factor eight, financial and physical resources.(4) There are clear differences between the job description and the person specification for the two roles which are more than sufficient to explain the differences in scores. For example, in respect of factor two, knowledge, training and experience: (i) PM’s role just required experience of policy development, management of budgets, operational management and service delivery, leading and managing teams and developing running and delivering on training programmes which C roles did not.(5) Similarly, in respect of factor eight financial and planning resources PM had a lead responsibility for the implementation of MIAA’s communication strategy and was responsible for an allocated budget which C did not.(6) had something gone awry with those evaluations it surely would have been picked up by the trade union representatives at the time.[85]The respondent produced the scores that the claimants had received by the original matching panel, JT’s review, the claimants’ critique of JT’s review and C1 in oral evidence, and the scoring is clearly consistent and been placed well within Band 6 without the new allegations in relation to factor two and factor eight.[86]The claimants also say that PM should not have been evaluated to the Band 7 role because he did not have management responsibilities. This is inaccurate as LC explained while he did not line manage anyone, he still had management responsibilities, both for aspects of communication strategy and with the HQT.[87]The respondent further submits that it was no part of the claimants’ previous case that the agenda for change evaluation of PM’s role was unreliable because he did not have all the essential criteria for the role as set out in the job description. In particular, a clinical qualification. To the contrary, C’s case is that their role was under valued rather than PM’s role was overvalued. In any event however it was LC’s clear evidence that if a manager wished to shortlist a candidate who does not meet the essential criteria they would be required to justify an appointment to the workforce team who could refuse the appointment if they were not satisfied with the justification. Failure to follow AFC policies and practices[88]The claimants argued in Tribunal that the respondents should have employed PM on two separate contracts, one for his communication role and one for his HQH role. However, the respondent submits once a decision for management outside the job evaluation process how to design posts or which posts it wished to recruit to, and it may well have decided to recruit in this way in order to have maximum flexibility if the demands of one side became greater than the demands of the other side.[89]Having designed the post in this way the post then had to be evaluated under AFC which it was done. The only question for the Tribunal is whether there are reasonable grounds for thinking that something has gone wrong at the evaluation stage.[90]The respondent further submits that the claimants claim that they were denied an independent review contrary to AFC and that the respondent was in direct violation of established policy does not stand up to scrutiny. (a) The AFC job evaluation policy sets out the relevant process for evaluation or re-evaluation section three and states in terms “it is important that the procedure outlined is adhered to in all circumstances”. (ii) On C’s own evidence they did not seek a re-evaluation on the basis of changes to the role in line with paragraph 3.5 of agenda for change job evaluation policy. In addition, they were too late to apply for a review under paragraph 3.6 and there was no grievance outcome referring their role to a new matching panel under paragraph 3.11. They had not been able to point to any other relevant circumstances which would justify re-evaluation under agenda for change. Transparency[91]The respondent submits that they did not refuse to deny re-banding, none of the criteria for re-banding that had been considered that had been met.[92]Similarly, for the reasons set out above it is not the case that Ms Cobain assured them the re-banding would proceed on 25 July and then reverse her decision on 9 August. Even if she did, the fact that she did not consider the criteria for re-evaluation to have been met, shows that she was properly applying agenda for change.[93]The respondent further submits that C1 sought to rely upon an alleged disclosure failure as evidence of a lack of transparency. This referred to the job description of PM, and the time allocation tables This has not been pleaded but it is also unsustainable on the following grounds:-(i) A document which C1 relies on were voluntary disclosed between hearings and are in the bundle. We saw a request for those documents the first time in the claimant’s witness statement.(ii) They were available to the claimants during their employment(iii) They are not documents which a matching panel would ever have sight of.(iv) In any event they support rather than undermine R’s case that there was significant differences between the claimants and PM’s Discriminatory application[94]The respondents submitted that there is no evidence whatsoever of gender discrimination the way the relevant roles were evaluated to the contrary. (ii) The claimants accepted that the AFC evaluations were carried out before the roles were recruited to at a time when the genders of the posts were unknown. (iii) It is telling that several of the roles which C relied on in their grievance as demonstrating that their role should be re-banded were filled by women.a. The Band 7 Delivery Manager role was filled by EM, a female.b. The comparator with the work of GT’s Band 8A role, again a female. Failure to Address Concerns and Retaliatory Conduct[95]The respondent submits that LC plainly took their concerns seriously and sought to address them.(i) She commissioned a review of their roles against the new Delivery Manager post.(ii) She emailed to say she would be liaising with a colleague in August 2023 about PM’s Band 7 evaluation report and inviting them to put a follow up meeting in her diary.[96]The retaliatory conduct relied on is understood to be the offer made by LC of 5 October 2023 that C1 could act up in a Band 7 role with additional responsibilities pending permanent recruitment to that role. Restructuring was taking place and it was a Band 7 role. It was not the same role the claimant was undertaking. She did not want to lose C1 and it does not seem to be how that can be at all relevant to whether the agenda for change evaluation was unreliable. Claimants Submissions[97]The claimants submitted:-(i) That the Tribunal was presented with clear and consistent evidence that the claimants and PM performed identical health care quality assurance audits delivered using the same methodology, standards, tools and terms of reference. The work was interchangeable and that was not challenged by the respondent.(ii) PM may have the word communications in his job title, but equal value must be assessed based on skill, effort and responsibility, not job title.[98]In respect of the split role defence that the respondent argues his role was split between healthcare quality assurance communications. However:-(i) They confirm he had no formal job plan for communications.(ii) Time sheet entries were sporadic, inconsistent and did not establish a material division of duties.(iii) Communications responsibilities were largely delivered by another individual, a Communications Manager. This has been relied on as a material factor when it should be part of the evaluation.(iv) The claimants also submit that there was inconsistencies in communication scoring yet PM was awarded 32 points for communication in factor 6 whereas the claimants were awarded 45 points the highest score, which undermines the argument that his communication responsibilities justified his higher banding. Surely he would have scored higher in that factor if that was justifying the distance in banding.(v) The claimants submitted that there were inflated JES scores in relation to Mr Mulford. In factor 9, 21 points for human resources yet he did not manage any staff and had no greater responsibilities than the claimants. Both job descriptions set out a responsibility for supervising and coaching. The claimants only scored 5 points under this. It is not clear why.(vi) Finance, Factor 8. PM got 32 points, yet he had no delegated budgetary responsibility. The claimants only received 5 points for the same categories and yet the roles were the same as demonstrated in Mrs Cobain’s cross examination. The claimants submitted this was textbook example of inconsistency within the agenda for change framework. Clinical Qualification Requirement[99]The claimants submitted that his job description specified a clinical qualification is essential and yet he did not possess one. It was asserted by LC that this was mitigated by PM’s experience. Therefore, it was questionable whether this requirement was on the communication facility role was as strong as the respondents submit.[100]PM scored higher on the requirement for knowledge, training and experience for the very reason that the clinical qualification was required, when in fact he was appointed without one. Redcar and Cleveland BC -v- Bainbridge 2008 Court of Appeal confirms that pay disparities must be justified by objective consistent and non-discriminatory criteria, and in Handley -v- United Bristol Healthcare NHS Trust where essential qualifications are absent the postholder cannot be assumed to meet the requirements for a higher pay or band. The claimants contended that PM’s job should have been downgraded, even if he would then get pay protection (however I don’t see how this helps them as then they would have no Band 7 comparator). Handley –v- United Bristol Healthcare NHS Trust 2002 where there arose a split or unclear each part must be evaluated on its own merits. Direct Sex Discrimination[101]The claimants say they were treated less favourably than the male comparator PM who was paid more for undertaking the same assurance work and no genuine or lawful material factors being put forward for this. The claimants submitted they raised concerns throughout the grievance process and were denied access to critical documents, misled about the availability of roles and subjected to inconsistent and opaque handling, whereas this did not happen to their male comparator. Procedural failings and evaluation defects[102]The Tribunal has heard unchallenged evidence of serious procedural failings:-(i) were evaluated against the delivery management role. This was not an equivalent role but it was the only option at the time due to the respondent’s failure to disclose PM’s documents.(ii) Job matching that was undertaken was a desk-based paper exercise, our actual work was never reviewed.(iii) Key evidence was withheld until after cross examination.(iv) PM’s split role was never formally disaggregated or evaluated separately.(v) Structural charts were undated and inaccurate. Changes in job descriptions[103]The claimants job titles were changed but they were not aware of this until the hearing. This contradicts the fact that no material change occurred. Transparency, Credibility and Disclosure[104]The claimants submitted the respondents comment during disclosure was deeply troubling.(i) Offer of Band 7 made verbally on 25 July was later withdrawn.(ii) A second acting up role was offered following resignation and for a substantive role when I rejected the acting up post. LC denies this.(iii) LC advised there was a Band 7 position for me following a team review but no minutes, emails or outcomes were ever disclosed or presented to the Tribunal.[105]The respondent’s representative stated in opening documents that documents would be disclosed if we choose to in relation to work plans and timesheets. It was only after this that they were actually disclosed. This was inconsistent with the principles of fairness and candour required by the Tribunal. Manipulation or withholding of material evidence can render a process irretrievably unfair. Respondent’s material factor defence[106]The material factor defence including historical reasons for split duties and equivalent experience lacked credibility, evidence or legal standing. Amendment Application to add a like work claim[107]The claimants seek to amend to add a like work claim. Section 65(2)(a) of the Equality Act 2010, define like work as “the same or broadly similar work where the difference is between the workers are not of practical importance in relation to the terms and conditions of employment”. The claimants submitted that the audit work carried out by themselves, and PM was fundamentally the same and there were no material differences in management responsibilities, financial responsibilities and core assurance tasks undertaken. This was not a change in their case but a reflection of the evidence that emerged. Conclusions Sex discrimination claim
Conclusions
[108]The claimants sex discrimination must fail as the provisions of sections 70 and 71 Equality Act 2010 and previously the Equal Pay Act and Sex Discrimination Act provided that there would be no overlap and that pay claims were properly to be proceeded with under the equal pay provisions[109]Accordingly, this claim is struck out. Equal Value outcome[110]The claimants can only proceed with their claim if it is found that the scheme they worked under was unreliable. There is very little guidance on what constitutes unreliable. It need not be anything on the balance of probability just that there are reasonable grounds for suspecting it might be unreliable.[111]The claimant’s case was obscured to some extent by the number of employees on higher grades they had sought to compare themselves with in respect of seeking a higher grading including grades higher than PM’s. All these higher grades were filled by women either at the time or following recruitment.[112]In addition I make a generally comment that the regrading of the claimants’ posts appeared to get off track without clear documented job matching requests and no direct intervention from the union nor any consideration as far as I know regarding an objective reconsideration of the audit role over a wider area or classically as to whether the audit role was undervalued on a gender basis if it could be shown for example that audit jobs were filled predominantly by women and a comparators higher grade role by men.[113]The claimants were at all time highly regarded and did their jobs with the utmost professionalism and timeliness.[114]In relation In then to unreliable I will consider each factor cited by the claimants[115]Transparency: The claimants relied on various failures to provide documents being litigants in person the claimants did not request specific disclosure of the documents but referred to the failure to provide in a witness statement. It would not be unusual when parties are representing themselves to have a gradual and evolving understanding of what documents are available which might be available and might assist. However, the documents were made available ultimately and I made a decision not to postpone the hearing.in addition as the case was relisted for a month later there was then time before cross examination for the claimants to consider any late disclosure.[116]In my view the real issue was comparing the jobs forensically and providing evidence of what the claimants actually did which made their grading of 6 unreliable.[117]The difficulty with attacking what PM did was that that leads down a path of suggesting he was over graded which does not help the claimants ultimately although it might suggest a degree of unreliability.[118]However, I find the lack of transparency was not made out in any event as the claimants needed the original grading of PM and themselves and PMs job description which they had in time for the hearing. Neither do I find transparency in itself a sufficiently strong factor to suggest unreliability as Agenda for change is well documented in any event.[119]Retaliation: As understood the claimants rely on the offers of grade 7 jobs following Mrs Drelan’s decsion to obtain anoter role.this has I find no bearing on the question of unreliability as they were different roles, whether Claimant 1 refused them because of a loss of trust and confidence or because she just wanted to be an auditor which she enjoyed will be a relevant matter for the constructive unfair dismissal claim in particular remedy and but it is not a factor of relevamce to unreliability. I accept Mrs Cobain was looking for ways of retaining the clamant 1 and the jobs offered were different from what she was doing as a grade 6.[120]Lack of qualifications: I find this is not a significant enough factor to suggest unreliability – its something that arose over 10 years ago when the role was first set up, a decision was made to recruit PM despite there not being a complete match to the requirements and there has been no suggestion PM was unable to do his role. This is about PM personally and not the actual role.[121]Failure to follow process; I find that there was no specific request for job matching. For some reason focus was lost and matters were not pinned down. The essential issue was obscured by the claimant’s grievance including grade 8 jobs undertaken by women. The job assessment which was undertaken was in line with what the claimants requested so I cannot understand why they cite this as a failure to follow procedure. Accordingly, I do not find this suggests unreliability. The fact that PMs role was not disaggregated and evaluated separately was not a requirement of the AFC process although would be looked at in an equal value process - nevertheless it would not necessarily be a total separation as no doubt an equal value process would look at other factors such as the flexibility to do the two roles.[122]Change in job description: The noted that their job title had changed from healthcare quality facilitators to health care quality auditors. However, nothing had changed at the time therefore I do not regard this as a factor suggesting unreliability. Claimants Job Evaluation Issues[123]This is essentially the main issue were the roles unreliably assessed as to give rise to reasonable grounds for suspicion of unreliability?[124]This involves considering the claimants’ different views of how their jobs should be valued.[125]I do find it relevant that the claimants’ argument about the differences changed drastically between their view of JT’s assessment and in the tribunal. This does affect my view of credibility. In addition, the fact that the claimants were seeking a regrading against a different job at that time does not affect the JT’s assessment as this was an objective view of the claimants’ roles. Whilst she ultimately indicated which of the factors matched, she had done a points assessment first.[126]Split role: The claimants rely on no proper evaluation of PMs role however an evaluation did take place when the job was first devised and that put PM on a 7. The claimant also argues that there was very little evidence that PM did do the functions of the communications role as the documentary evidence was not thorough. The problem with this argument as this is an argument he was overvalued which as I’ve said before does not help the claimant, if true of course. It could suggest unreliability, but it would be ludicrous to find unreliability on a ground that could only lead to PM being downgraded. In addition, there must be a value put on flexibility and on the fact that PM also was seconded to digital support. Pleaded Differences[127]The claimants believed they should get extra ‘points’ for several factors but did not explain why in detail.In submissions they stated PM had inflated scores for two factors[128]HR and Finance (again inflated would mean his scoring should be reduced) In relation to HR they rely on the fact that he managed no staff however Mrs Cobain pointed out that he did have management of projects.[129]The claimants then refer to supervising and coaching where they only received 5 points and PM 21. This is the only element that was raised specifically by the claimants which the respondnet di not provide a rationale for in any detail.[130]Finance: PM had 21 points and the claimants only 5 yet they argue he had no budget responsibility and Mrs Cobain could only refer to the fact he had to report data to budget holders.[131]In submissions the claimants did not refer to other differences they had raised at the Tribunal accordingly I am assuming that they did not wish to rely on those. Overvalued issue[132]I have found this a difficult issue as it could suggest unreliability but would only result in the comparators role being downgraded[133]There was a dispute with Mrs Cobain about whether a job could be downgraded under AFC and the claimants quoted from the scheme that where this happened the actual post holder would receive pay protection. I accept this is the case although not put to Mrs Cobain in cross examination as the rules of the scheme are a matter of record. PM would personally not be downgraded is correct[134]I can see that there is evidence that PM did not actually do some of the roles in the job description to the extent suggested by the job description in respect of the factors cited above by the claimants. However, he did have extensive project management responsibility within communications and within the overall team which the claimants were unaware of. In addition the other communications officer was on a band 7 suggesting that the skills in relation to communications were generally regarded as attracting higher points than auditing. The only specific issue was the supervising and coaching staff however this was one issue amongst very many and the difference in points was at the most 16 – not a significant number when the points difference was so large. In addition that was the claimants’ own assessment. If correct the result would have been a reduction in the PM’S scoring and an increase in theirs to a maximum of 21 but as I have said I do not think this significant enough.[135]Accordingly, I find that there was insufficient evidence to find that the JES in banding the claimants at 6 was unreliable. Therefore, the equal value claim is struck out. Amendment application[136]I refuse the claimants’ application to amend to include like work. A like work claim can be defeated under section 65(2)(b) Equality Act 2020 if the jobs are broadly similar and there are no differences of practical importance between the jobs . The respondent would plead the JES as a genuine material factor defence. It cannot be relied on if it is shown to discriminate on the grounds of sex.[137]Whilst Mrs Gaffney is in time with her application however it is made late – 15 months after the claims were issued and only 2 weeks before the hearing was due to start. Given that the claimants had union assistance through this is surprising as like work is usually proceeded with before equal value. In addition, the claimants have had full opportunity to advance their case in this hearing. Therefore, the prejudice to the respondent in having to relitigate very similar issues is less than to the claimants who as said above have had full opportunity to put every aspect of their case.[138]In any event I find the claimants have no prospect of success as only part of the work is broadly similar and there are clearly significant differences between the roles which meet the test of differences of practical importance in view of the communications and digital support role. As I have found the JES is not unreliable and it was accepted it was non discriminatory on the grounds of sex it stands as a complete defence to the like work claims.