Mrs Y Slaven v Manchester University NHS Foundation Trust: 2412704/2011
JUDGMENT
The determination of the Employment Tribunal in this stage 2 equal value hearing is set out in the right-hand box of the Scott Schedule in respect of each of the factual matters on which the parties could not agree.REASONS
[1]The claimant was employed by a predecessor of the respondent from 13 October 1975 until 23 September 2011. The claimant started as a trainee Cardiac Case No. 2412704/2011 2 Physiologist and was promoted to the position of Cardiac Investigations and Cardiology Administration Services Manager, holding this post for over 20 years.[2]The claimant has brought an equal pay claim for the purposes of which she compares herself with the respondent’s Chief Clinical Respiratory Physiologist, and the respondent’s Chief Clinical Perfusion Scientist.[3]The claimant and the comparators each completed a job description document using a pro forma prepared by Mr Steve Flather, the ACAS appointed independent expert. Mr Flather’s document asked many questions and the claimant answered it over 95 pages, the physiologist answered it over 82 pages and the perfusionist over 97 pages.[4]The job description prepared by the claimant on Mr Flather’s pro forma document was not the type of formal job description that might have been provided by her employer. She answered the questions asked however relevant they were to the job that she carried out.[5]There was prepared by the respondent a statement of disagreement setting out those aspects of the job description, as completed by the claimant, which were not agreed. A Scott Schedule was prepared showing them in tabular form.[6]The Scott Schedule is appended to this Judgment. It has in the first column the allegation number taken from the job description document. The second column is a summary of the claimant’s position. The third column is a summary of the respondent’s position. The fourth column is for reference to documents, although here it is blank. The final column gives the Tribunal’s determination which will normally be either “C” or “R”, showing whether we prefer the contentions of the claimant or the respondent, save where we consider it necessary to add a very few words.[7]In our judgment it is not proportionate for the Tribunal to give a reasoned judgment for each of the items in dispute set out in the lengthy schedule.[8]The respondent’s position was updated by Mr Boyd in a version that he submitted on the final day of the hearing. As he had not provided his final document to Mr Lewinski, there is no one document where the final position of both sides is set out, but we have taken into account the final position on both sides and the oral submissions of counsel when we reached our conclusions.The Evidence
[9]The claimant produced a comprehensive witness statement and was cross examined extensively.[10]She called in addition to herself Dr David Bennett, Dr Kenneth Shearer, Dr Hai Shang Lee and Dr Nicholas Brooks. All of those doctors worked with the claimant. Case No. 2412704/2011 3[11]Witnesses for the respondent who came to the Tribunal for cross examination were Andrea Arnold, Janet Fallon, Keith Pearce and Professor Simon Ray.[12]Witness statements were received from Judy Coombes and Eileen McLaggan who did not attend for medical reasons. The Reference Period[13]The reference period for the purposes of the equal pay claim runs from 21 December 2005 until 21 December 2011, but as the claimant was absent from work from August 2009 onwards the answers that we give are in respect of the period to August 2009.Discussion and Conclusions
[14]Mr Boyd suggested that the Tribunal might reasonably consider three main aspects of the claimant's work, and that our conclusions on the questions of fact would flow from our general findings. The three areas he submits relate to clinical work, education/training and whether or not the claimant had sole responsibility for carrying out certain aspects of her job role.[15]Mr Lewinski did not seek to dissuade us from following this course.[16]In her job description document the claimant set out various percentages to indicate the time she spent on each aspect of the role.[17]Management and professional leadership of the entire Cardiac Physiology and Cardiology Administration Services in the Regional (Tertiary) Cardiothoracic Centre at the University Hospital of South Manchester was said to take 45% of her time in 2005, increasing to 50% in or around 2009.[18]Performing and supervising a range of complex specialist cardiac investigations on patients, including those required for scheduled and emergency patient care, clinical research, product registry and clinical trials took approximately 15% of the claimant's time in 2005 reducing to 5% in or around 2009.[19]The provision of expert advice, knowledge and teaching to undergraduate/postgraduate students, technicians/scientists, junior medical staff, nursing staff, managers and members of the lay public of the UK and internationally took 5% of her time.[20]Being Clinical Lead Consultant for training in Cardiac Physiology in the North West, developing formal and informal specialist training and delivering such training nationally and internationally took 5% of her time.[21]Acting as Lead Professional Adviser on all aspects of cardiac physiology, in tertiary, secondary and primary care and national opinion leader in Cardiac Physiology involved 5% of her time. Case No. 2412704/2011 4[22]The development and implementation of short courses, seminars, workshops and conferences for both primary and secondary care, and for regional, national and international audiences took 5% of her time.[23]Management of the overall strategic direction/development of the Cardiac Physiology Services and the Cardiology Administration Service increased from 20 to 25% over the period from 2005 to 2009.[24]In his submissions Mr Boyd put forward the reasons why the Tribunal should not find that the claimant carried out clinical work in the reference period. According to him, prior to the reference period the claimant may have done some clinical work but by the time of it that clinical work would be sporadic at best and he submits why this proposition is supported:(1) The claimant was responsible for the delivery of the service which went through a period of exponential growth. In simple terms, who would have been carrying out all the necessary administration services underpinning this growth other than the claimant as manager of the service? What time would there have been for her to have carried out clinical work?(2) In the reference period the Cardiac Physiology Service was serviced by expert leads in the particular areas of cardiac physiology which involved research and training, non-invasive services and invasive services.(3) The respondent Trust has utilised electronic systems to capture clinical results. The claimant nowhere appeared on the databases.(4) The claimant was not provided with a film badge for her use in the Cath lab which would have measured her exposure to radiation. The fact that she did not have a film badge proves that she did not operate in the Cath lab with any frequency.(5) In April 2008 the Cardiac Physiology and Cardiology Administration moved to a new location on the ground floor of the new building and all that remained in the old building was the cardiac catheter laboratories. The claimant’s office remained in the old building which was some distance from the new building, thus it is submitted any clinical work in the new department would, as a matter of common sense, be limited in so far as the claimant is concerned.(6) For all of the above reasons, the likelihood that the claimant was doing any significant quantity of hands-on clinical work in the reference period is unlikely.[25]In the submission of Mr Lewinski the claimant accepts that she was responsible for the delivery of the service and given that she claims that approximately 5% of her time was spent on cardiac investigations and 5% on giving expert medical advice, she accepts that this was a minor aspect of her role. Case No. 2412704/2011 5[26]The claimant accepts that there were three principal Cardiac Physiologists answerable to her, but notwithstanding their introduction she would say that she still did some hands-on work although latterly following the move to the new block this would have been more likely to have been done in the Cath lab.[27]The claimant explains that she would not have appeared on the electronic records because any entries that she made were in the manuscript notes of the patient. The respondent’s Professor Ray recollects seeing the claimant’s handwriting in such notes.[28]The claimant did not use film badges in the Cath lab because she went in rarely and then only whilst radiation was not being used. She would be there more to interpret results than to see the x-rays being taken.[29]The claimant has produced evidence from witnesses.[30]Dr Bennett was assisted by the claimant in interpreting technical data and according to him she also carried out cardiac investigations herself.[31]Dr Shearer told us that the claimant was always available for discussion on clinical problem matters during the day and also she worked well into the early evening and was available for discussion of especially difficult problems. He would regularly discuss with the claimant test results that gave him cause for concern.[32]According to Dr Lee, he would often see the claimant in the Cath lab recovery area programming or interrogating a pacemaker and explaining to the patients what was happening as she went along. Dr Lee often saw the claimant in the Coronary Care Unit assisting the junior technicians when she would also interact with patients and their families.[33]According to Dr Brooks, he recalled numerous instances sitting in front of an echocardiography machine with the claimant looking at a recording and he would ask the claimant for a second opinion on matters. She was able to download and interpret the pacing data and to re-programme devices. He recalled seeing her standing over patients with the pacemaker programming device.[34]The respondent’s witnesses were able to say that they did not see the claimant carrying out these activities but they had to accept that they did not know what the claimant was doing when she was not within their sight.[35]Having considered the competing submissions and on the basis of the evidence before us we find it more likely than not that the claimant was involved in the activities that she has set out as taking some 10% of her time by 2009 being 5% involved in cardiac investigations and 5% giving expert advice in matters medical.[36]Turning now to education and training, Mr Boyd submits that Andrea Arnold was employed from May 2004 as the Regional Cardiac Physiology Tutor, and he asks why would the claimant continue to be involved once Andrea Arnold had been appointed? Case No. 2412704/2011 6[37]The claimant has given herself the title of Clinical Lead for Cardiac Physiology Education in the North West.[38]Andrea Arnold would carry out functions that were naturally part and parcel of the role of the Regional Cardiac Physiology Clinical Tutor, dealing with students and lecturers, and the claimant was not involved in the new BSc Course in Healthcare Science which began in September 2010 with the preparatory work having been done by Andrea Arnold. Andrea Arnold started in 2004 so by the commencement of the reference period in December 2005 she was “up and running”.[39]Andrea Arnold was involved with the MSc programme. Keith Pearce was involved with the MSc programme. There was no formal PhD programme in place.[40]Whilst the claimant had overall responsibility for everything that went on in the department, having oversight of it, her day-to-day involvement was limited. For instance, she was not a formally appointed as a mentor to students but it is not disputed by the respondent that the claimant may have had discussions with students in an informal manner from time to time.[41]When the claimant was absent from work for whatever reason, particularly from August 2009 to the end of the reference period, training issues continued notwithstanding her absence.[42]For the claimant Mr Lewinski refers to the evidence of Andrea Arnold which he submitted shifted significantly in cross examination where she made various concessions. Ms Arnold accepted that changes to courses could be made at any time and could be undertaken by the claimant or Dr Hick of Manchester Metropolitan University. She conceded that the claimant may have met with Dr Hick and discussed updating changes to courses on an annual basis at meetings Ms Arnold did not attend. She had to accept that the claimant may have been involved in liaising with external examiners and meeting with Dr Hick when she was not present. Ms Arnold had not mentioned the claimant's involvement in developing the foundation degree in Healthcare Science because it was not something she had been asked about. The claimant may have been involved in the accreditation of the MSc course with Dr Hick. The claimant may have worked with Helen Liggett in identifying future courses. The claimant was a go to person on such subjects.[43]Mr Lewinski reminded us of an email from Dr Verity Hick to Andrea Arnold, Keith Pearce and the claimant referring to her discussion about the cardiology units with the claimant on 10 March 2009, which involved a proposed timetable for the next few years, setting out the claimant's view that there was a need for an invasive cardiology type of unit and inviting Ms Arnold and Mr Pearce to put something together in relation to this so it could be put forward for approval by the University. Ms Arnold accepted she was simply not aware of the full extent of what the claimant had been doing.[44]As to attending conferences abroad, the claimant had stopped this although she continued to attend conferences in the UK, for instance a hearth rhythm UK national meeting in Bournemouth in 2006. Case No. 2412704/2011 7[45]Mr Pearce was also cross examined on the claimant’s activities in regard to training and he accepted that the claimant was present at the meeting in Bournemouth as a member of a panel answering questions from the audience.[46]On the basis of the evidence before us we find that the claimant’s involvement in education and training decreased over the reference period, coinciding with the increasing involvement and responsibility taken by the clinical leads for education and training.[47]The claimant’s mobility decreased over the reference period which led to the claimant attending fewer outside meetings and/or conferences.[48]There is no doubt that throughout the reference period the claimant maintained her involvement with Manchester Metropolitan University in general and with Dr Verity Hick in particular.[49]We conclude that she had little hands-on involvement with the BSc and/or MSc students with the involvement that she did have being occasional rather than there being any fixed relationship between the claimant and any of the students.[50]As to sole responsibility, the third area suggested by Mr Boyd, in his submission in a number of instances the claimant claims sole responsibility for carrying out certain aspects of her job role. The respondent submits that as a matter of common sense, and to some extent conceded by the claimant, other individuals would have been involved in the carrying out of those functions.[51]Mr Boyd refers us to the untested witness statement of Judy Coombes who, as regards Cardiac Physiology Services, did not accept that the claimant was solely responsible for the continuous planning, monitoring, analysis and assessment of all that was necessary for the Trust to meet its goals and objectives. While the claimant was Head of the Department she did not have sole responsibility. The claimant ignores the necessary presence and input from the consultants and others. Cardiac Physiology Services are very largely responsible to the strategy of the Trust and the needs of the Cardiology Department as determined by the Trust Board and the consultant body.[52]The respondent accepts that as the Manager of the Cardiac Physiology Service the claimant had overall responsibility for it, and in the words of Ms Arnold: “Yvonne was the most senior Cardiac Physiologist at the Trust in the sense that she was the Head of Department. From a managerial perspective I would agree. However, from a clinical perspective I would not. Over the comparison period there were expert leads in place for the Cardiac Physiology specialisms; they and their teams did the clinical work day in, day out, maintaining their clinical skills. Yvonne was the manager.”[53]The respondent does not accept the claimant's case that by being at the top of the organisational structure she would have been the clinical “go to” person or that her job would have required a PhD level of knowledge. Case No. 2412704/2011 8[54]For the claimant Mr Lewinski made comments in the schedule. Where for instance the claimant stated that she was accountable for all clinical governance issues relating to the Cardiac Physiology Service, Mr Lewinski submitted that she was responsible for clinical governance issues in relation to the service in her role.[55]As to the claimant being responsible for the long-term and day-to-day planning and organisation of the work of the Cardiac Physiology Service, Mr Lewinski submitted that whilst the claimant did have responsibility for the matters cited she never said that she had sole responsibility, accepting that others also had responsibility within their roles or remits.[56]On the basis of the evidence before us we find that the claimant was ultimately responsible for what went on within the department, but that as part of her role she was working with medical, nursing and administration staff who all had their own responsibilities in parallel with the claimant’s responsibilities.[57]On a general level we find that the claimant worked long and hard for the respondent and took responsibility for a department which developed considerably in size as the medical science developed. The claimant ensured that the unit developed in size and capability to remained aligned with the developments in cardiac technology.[58]The claimant, with her long service, maintained an overview of what went on within the department. We have referred above to the three clinical leads whose positions developed under the claimant. In our judgment their knowledge of their individual specialities would have overtaken the claimant's knowledge of those individual specialities at some time, but this does not detract from the claimant having sufficient knowledge of those individual specialities to have enabled her properly to manage the department.[59]The claimant called the evidence of four doctors with whom she worked. It appears to the Tribunal that these doctors were of the same generation as the claimant and that they had worked together for a long time. These doctors were happy to consult with the claimant in respect of matters medical having over the years developed trust and confidence in the claimant and her opinions.[60]By contrast the “next generation” of medical staff, as confirmed by Professor Ray, did not have such close involvement with the claimant and therefore did not look to her for guidance. They looked to the clinical leads.[61]When completing the job description document the claimant appears to have provided information on many of the things that she did throughout her career. The material was therefore historic in part rather than contemporaneous.[62]When reaching the conclusions that follow we have taken into account all of these factors.[63]Where the claimant has estimated the time spent by her carrying out various activities as a percentage, in our judgment the claimant’s work varied from hour to Case No. 2412704/2011 9 hour, from day to day and from week to week, so there must inevitably be some fluidity with regard to these figures. Employment Judge Sherratt 19 March 2019