Ms M Weatherup v Dumfries and Galloway Council: 4103783/2018
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant is not undertaking and has not undertaken like work as her comparator in terms of section 65(1)(a) of the Equality Act 2010; accordingly that part of the claim is dismissed.REASONS
[1]The claimant brings an equal pay claim against the respondent. Her comparator is Greig Blayney. The claimant says her work was like Mr Blayney’s work, failing which, that it was work of equal value to his.[2]The issue to be determined at this hearing was whether from September 2016 the claimant’s work was like Mr Blayney’s work as set out in section 65 of the Equality Act 2010 (the EqA).[3]At the hearing, the claimant gave evidence on her own account. She provided a witness statement which was treated as her evidence in chief. The claimant was cross examined and re-examined in the usual way. For the respondent, the Tribunal heard evidence from Steven Herriott, Head of Roads and Infrastructure within the Communities Directorate and Kirsty Shennan, HR Business Partner. They provided witness statements and were cross examined and re-examined in the usual way.[4]The parties provided a joint set of productions. The claimant also a provided a supplementary set of productions.[5]The claimant represented herself at the hearing. Mr Miller, who was instructed by Mr MacEachern, Solicitor, represented the respondent. The claimant and Mr Miller gave oral submissions and provided written copies of their submissions for which the Tribunal was grateful.[6]The Tribunal read the submissions with care during its deliberations. It should not be taken that a point was overlooked, or a fact ignored because the fact or submission is not in the Reasons in the way that it was presented to the Tribunal by the party.[7]The Tribunal made findings in fact and considered the relevant statutory provisions and authorities.[8]The Tribunal’s approach was to consider the issue that it had to determine at this hearing (set out at paragraph 2) by first asking if the work carried out by the claimant and Mr Blayney from September 2016 was in general terms of the same or broadly similar nature. If so, the Tribunal needed to consider the details of the claimant’s job and Mr Blayney’s job and ask whether any differences between them are of practical importance in relation to terms and conditions of employment. Findings in Fact The Claimant[9]The claimant commenced employment with the respondent on 16 May 2005. Her job title was Waste Prevention Officer which formed part of the Strategic Waste Policy and Assets Team in Planning and Environmental Services. She reported to Greig Blayney, then Principal Officer Waste Policy for whom she deputised as and when directed.[10]In the course of normal working, the claimant had no direct responsibility for the work of other employees and she did not normally give advice, guidance or training to new employees. She required to have specialist knowledge to do the job: through vocational training or further education and relevant working experience from three to five years.[11]Around 2005, the claimant became involved in the respondent’s waste private finance initiative project (the PFI Project) which was the single largest project operated by Planning and Environmental Services. The claimant’s initial involvement was limited to attending meetings with the private companies involved with the PFI Project which were chaired by Mr Blayney and undertaking visits to the PFI waste treatment facility.[12]In 2009, the claimant’s role was graded at salary level Band 11. She continued to be involved in the waste prevention programme and attending PFI Project meetings.[13]From July 2011 Steven Herriott, Head of Infrastructure and Commissioning in Planning and Environmental Services was part of the senior management team responsible for the claimant and Mr Blayney.[14]In 2011 the claimant’s involvement in the PFI Project increased. If Mr Blayney was not present, she was responsible for allocating tasks to the teams working on the PFI Project and making payments for the PFI Project.[15]Around 2012 local authorities required by law to implement kerbside recycling. As a result, the respondent required to vary the PFI Project. The claimant and other senior managers and the waste team were involved in work/negotiations relating to the new legislation with along with legal, financial and technical advisors.[16]In 2014, the claimant supervised one temporary member of staff.[17]There was a shift in the claimant’s duties requiring her to focus most of her time on the PFI Project. The claimant was involved in checking and managing payments for monthly reports for unitary invoices and quarterly PFI landfill tax payments.[18]The claimant was also delegated the landfill tax reconciliation for the PFI contract. The claimant identified an anomaly which resulted in the respondent becoming involved in a dispute with contractors.[19]Around December 2015, Alistair Speedie, Director in charge of the service by then known as Economy, Environment and Infrastructure (EEI) instructed the PFI Project company to send all PFI correspondence to the claimant and for it to be copied to him, Mr Herriott and Mr Blayney.[20]In January 2016 Mr Blayney asked the claimant to review the proposed PFI insurance and consider the compliance with the PFI Agreement. The claimant ensured that the insurance was correct and prepared relevant paperwork.[21]Around April 2016 Mr Blayney and Mr Herriott supported the claimant’s request to attend a part time Contract Management Course in Public Private Partnerships/Private Finance Initiatives Advance Professional Diploma.[22]In September 2016, the claimant and Mr Blayney were appointed as the respondent’s representatives on the PFI Project. As Council Representatives they exercised the functions and powers of the respondent in relation to the project operations identified in the PFI Project Agreement. They shared responsibilities for developing strategies and plans for the PFI Project.[23]The claimant obtained an Advance Professional Diploma with Distinction in Contract Management in Public Private Partnerships/Private Finance Initiatives from Leeds Beckett University in June 2017.[24]Given her involvement in working on the landfill tax reconciliations, between 2016 and 2018 the claimant worked with the respondent’s external legal advisers to resolve the land tax reconciliation which had escalated. She was then involved in preparing for the adjudication and attending the hearing at which the respondent was represented by external legal advisers.[25]Following her involvement in the review of the PFI insurance the claimant took the lead on a dispute that arose in 2017/2018.[26]The claimant also continued to be involved in some non-related PFI duties such as responding to information requests and attending area committee meetings and responding to customers.[27]In May 2017, the claimant applied for a re-evaluation of her role as she continued to be paid as a salary level Band 11 employee. Following a job grading submission in October 2017, the claimant was treated as having been working at an environmental officer level from April 2012 and received commensurate back pay. The Environmental Officer position held by the claimant was graded at salary level Band 12 which was an enhancement on her previous position (Waste Prevention Officer graded at salary level Band 11). The Environmental Officer’s role assists and deputises for the Service Manager Environment. It has no direct reports. The jobholder does have responsibility for the work of employees or other people in an equivalent position through allocating work and checking results. This is supervisory.[28]The claimant felt that her role was undervalued and pursued her initial concerns with Mr Speedie who asked for a review on the Environmental Officer role. As a result of that review process, it was recognised that there were some aspects of the claimant’s role which were not fully acknowledged in the Environmental Officer post. That did not impact on the salary level the position was graded (Band 12) although it resulted in a narrative change in the job overview document, particularly in relation to financial factors such as the financial activity for the PFI Project.[29]A further review was carried out to establish what requirements were needed moving forward. The claimant was offered a promoted post of Waste Management Strategy Manager on 26 January 2017. This post was graded at salary level Band 13. The Waste Management Strategy Manager’s job description has no direct reports. The claimant declined the offer. She remained in the Environmental Officer post.[30]In mid 2018 as the PFI Project was to be terminated Mr Speedie appointed the claimant to the core team to work with him, Mr Herriott and the legal technical and financial advisors with a view to negotiating the termination of the PFI contract between June and September 2018. Mr Blayney was not directly involved in the core team. The claimant reported directly to Mr Herriott. The PFI Project was terminated by 11 September 2018.[31]Between September and November 2018 there was a transition period where the claimant was involved in transferring the waste disposal services back in house with the core team. The claimant was involved in the TUPE transfer of 53 staff from the PFI service contractor to the respondent. This was completed on 11 November 2018. She was also involved in progressing matters relating to the settlement agreement and transition services agreement and integration work with the new service. Throughout this period, the claimant was reporting direct to Mr Herriott and continued to so do until spring 2020. The Comparator - Greig Blayney[32]In 2005, Mr Blayney held the position of Principal Officer Waste Policy in Planning and Environmental Services. The claimant was one of his direct reports.[33]The post of Service Manager attracts a salary level of Band 14 to 17.[34]Around September 2012, Mr Blayney’s post became Service Manager Environment. He reported to Mr Herriott, the Head of Infrastructure and Commissioning to whom Mr Blayney provided support and for whom he was required to deputise from time to time.[35]Mr Blayney was the respondent’s lead officer for the environment service ensuring that the respondent discharged its statutory and regulatory duties and enforcement powers. Although supported by team members Mr Blayney was accountable for the environment service as a whole.[36]He had responsibility for the environment service budget which involved being accountable for value for money through effective service delivery; responsibility for developing implementing and monitoring financial arrangements within the service and compliance within financial regulations. Mr Blayney was accountable for external locations such as home Waste Recycling Centres and landfill sites. He required to represent the respondent by liaising with third parties.[37]Mr Blayney had responsibilities for amongst other things managing and directing staff and advisors within environment service function, projects and contracts. He had responsibility for staff in Waste Management and Contaminated Land. He had approximately ten direct reports.[38]In terms of people management, Mr Blayney had responsibility for managing the work of employees or other people. He managed people rather than being a line supervisor. Mr Blayney was responsible for ensuring implementation of personnel procedures for his direct reports: staff development and review; staff supervision and direction for efficiency and effectiveness; staff performance management where appropriate; teamwork planning; staff resource management; general leadership and management participation in the service management team meetings; leading own team meetings and staff one to one meetings[39]The PFI Project was only one (albeit a significant) of the activities carried out by the environment service. From 2012 the claimant who was one of his direct reports took an increasing involvement in the PFI Project.[40]Mr Blayney’s focus on PFI operational matters reduced as he was leading the Change in Law dispute which involved an adjudication hearing followed by a dispute related to historic contract waste and the delivery of it into PFI waste facilities. He delegated the landfill tax reconciliation for the PFI contract and a review of PFI insurance proposed by the PFI Project company to the claimant.[41]On 9 September 2016, the claimant and Mr Blayney were appointed as the respondent’s representatives on the PFI Project. This resulted in them exercising the functions and powers of the respondent in relation to the project operations identified in the PFI Project Agreement. The claimant’s appointment only related to the PFI Project. Mr Blayney continued to have responsibility and accountability for other activities of the environment service.[42]Around September 2016, there was restructuring, as a result of which, a new post of Infrastructure Manager was created. It was intended that the post of Service Manager Environment would be subsumed into this role. It was intended that the Service Manager Environment would be deleted and the jobholder would be subject to the redeployment process.[43]Mr Speedie determined that notwithstanding the restructuring of the resource of the post Service Manager Environment was still required, particularly given the ongoing issues with the PFI Project. While James McLeod was appointed Infrastructure Manager and had general oversight, most of the duties of Service Manager Environment remained with Mr Blayney until February 2019. In particular, Mr Blayney continued to work on the PFI Project; was responsible for contaminated land and the policy and strategy for the environment service; and managed those who reported directly to him.[44]In 2017, one of Mr Blayney’s direct reports left the department. As a result, Mr Blayney was to oversee an operational site in Stranraer in addition to carrying out his other duties.[45]By mid 2018, Mr Blayney became less involved in the PFI Project. The claimant ceased to have a direct reporting line to him. Mr Blayney did however continue to have responsibility for management of all his other direct reports.[46]Mr Blayney continued to manage contaminated land functions and had responsibility for strategic commissioning of the waste collection service and developing policy and strategy for the environmental service. He was accountable for the management of an entire service/department, including ensuring all personnel policies and procedures are implemented and adhered to as well as prioritising and reprioritising the service/department activities.[47]The position of Service Manager Environment was deleted in February 2019 at which point Mr Blayney was redeployed and ceased to be part of the environment service. Mr Speedie retired in March 2019. Observations on the Witnesses and Evidence[48]In considering the evidence led at the hearing, the Tribunal assessed the written and oral evidence from the claimant, Mr Herriott and Ms Shennan along with the productions to which it had been referred.[49]The claimant’s witness statement and supplementary statement were taken as read. Mr Miller cross examined the claimant in the usual way. The claimant was then given an opportunity to respond to the questions raised in cross examination where she felt that additional clarification was required. The claimant came across as a committed and highly competent employee who was genuinely aggrieved about the respondent’s handling of her grievance. The Tribunal had no doubt that the claimant genuinely believes that the respondent has failed to acknowledge and recognise through the regrading process her effective management of the PFI Project.[50]The Tribunal considered in relation to her own work the claimant’s evidence was consistent. The Tribunal was satisfied that she was giving a fair reflection of her job and duties. In relation to her evidence about Mr Blayney’s job the claimant understandably focused on his involvement in the PFI Project from September 2016. The Tribunal considered that her evidence in this respect was credible. The claimant acknowledged that she had no involvement in the contaminated land and other aspects of Mr Blayney’s role. Overall, the Tribunal found her to be a credible and reliable witness.[51]Mr Herriott’s witness statement was taken as read. He was cross examined by the claimant and re-examined in the usual way. The Tribunal had no doubt about his evidence in relation to the claimant and Mr Blayney, both of whom he had worked with a number of years and had an opportunity to see their work first-hand. While Mr Herriott was a witness for the respondent, it was clear that he had no animosity towards the claimant. Indeed, he spoke highly of her competency and contribution in relation to her work on the PFI Project, which he had line managed from the summer of 2018. The Tribunal considered that his evidence was credible and reliable.[52]Ms Shennan also provided a witness statement which was taken as read. She candidly accepted in cross examination that her comparative exercise was undertaken on paper and that she did not have any direct knowledge of what the claimant and Mr Blayney did as part of their jobs. The Tribunal considered that while Ms Shennan did not know the claimant, Ms Shennan was clearly aware of the competent and diligence way which the claimant approached her work. However, Ms Shennan was mindful that the performance of the claimant and Mr Blayney in their respective roles was not relevant to the like work comparison that she was undertaking. She also acknowledged that the respondent’s own job evaluation scheme outcomes were not directly relevant in relation to the like work comparison.[53]In relation to the issues that the Tribunal was considering at this hearing, there was little in the way of material factual dispute. The Tribunal did however feel that it was appropriate to make the following observations on some of the evidence that it heard.[54]It was agreed that when the claimant was appointed by the respondent in May 2005 and her job title was Waste Prevention Officer. After accepting the position, she received a job description and job overview.[55]The claimant produced in her supplementary set of productions a copy of the job description which she received dated 10 February 2005. Whilst similar, it is not the same as the one produced by the respondent in the joint set of productions. The job description that the claimant received in 2005 states: “responsible for: strategic policy for waste prevention and recycling in accordance with the council’s plan government policy and legislation.” The version provided by the respondent in the joint set of productions is blank in the “responsible for” section. There were also differences in the wording in relation to the job description/activities listed in that they were not exhaustive. Both job descriptions were issued by Mr Blayney. The Tribunal did not hear evidence from Mr Blayney. However, the evidence of Mr Herriott and Ms Shennan was the job description are proformas which over time have changed and have been amended. Mr Herriott who issued a number of job descriptions over the years confirmed that his understanding of “responsible for” related to direct reports rather than a general description of the jobholder’s responsibilities. The Tribunal considered that this explanation was plausible given that this preceded information about who the jobholder is responsible to which states the job post of their line manager.[56]It was agreed that in October 2017, following a job grading submission, the respondent issued the claimant with a job description for the position of Environmental Officer. It was also agreed that the claimant did not consider that her role was fully acknowledged in the Environmental Officer’s post. The respondent accepted this to the extent that there was a narrative change in the job overview document. While the claimant did not accept the revised document reflected her job description, she nonetheless accepted the increase in salary that came with the Environmental Officer position which was graded at salary level Band 12 which was backdated to 2012. The claimant’s position was that this did not reflect her contract of employment and suggested that the post of Waste Management Strategy Manager which was graded at salary level Band 13 more accurately reflected her job role. However, the claimant was offered this position as a promotion in effect from 26 January 2017 which was graded at salary level Band 13 but declined the offer.[57]The Tribunal considered that as the offer of the post of Waste Management Strategy Manager was made but declined, this was not the contractual basis of the claimant’s employment. The Tribunal also considered that while the claimant continued to refer to herself as a Waste Prevention Officer, she had at least from 23 October 2017 been enjoying the benefits of the upgraded post of Environmental Officer and had received backpay from 17 April 2012.[58]While there was evidence and discussion about the claimant’s role in allocating and directing work to the PFI team, it was not disputed that the claimant was not permanently responsible for the management of employees other than the oversight of a temporary member of staff who was externally funded and working in the waste prevention education in 2014.[59]The claimant referred to her role the TUPE transfer of 53 staff from the PFI service contractor to the respondent. The Tribunal had no doubt about the claimant’s significant contribution in this respect but did not consider that the claimant was managing these employees. They did not directly report to her.[60]While the Tribunal appreciated that neither party said that that the claimant’s job was Waste Management Strategy Officer it noted that although the job description referred to “managing and directing staff and advisors within the waste management function”, the job overview of that role stated that the jobholder had responsibility for the work of employees through allocating work and checking results on a regular and ongoing but not daily basis, i.e. shift supervisor or supervisor or seasonal or temporary employees.The Law
[61]Section 65(2) of the EqA provides that A’s work is like B’s work if(a) A’s work and B’s work are the same or broadly similar; and(b) such differences as there are between their work are not of practical importance in relation to the terms of their work.[62]Section 65(3) of the EqA provides that on a comparison of one person’s work with another’s for the purposes of section 65(2), it is necessary to have regard to(a) the frequency with which the differences between their work occur in practice; and(b) the nature and extent of the differences.[63]This is a two-stage test. The stages must be considered separately: see Waddington v Leicester Council for Voluntary Services [1977] ICR 266.[64]At stage one, the question to be considered is: “Is the work carried out by the claimant and the comparator of the same or broadly similar nature?” Consideration of the work should be given in general terms, looking at the type of work involved, the types of skill and knowledge required to do it. The Tribunal should focus on the work actually done under the contract rather than what might be theoretically done: see Capper Pass Limited v Lawton [1977] ICR 83 and Dance v Dorothy Perkins Limited [1978] ICR 760.[65]If at stage one, the answer is in the affirmative, a practical and evidential burden of showing differences passes to the respondent.[66]At stage two, bearing in mind section 65(3) of the EqA, the amount of time spent by a comparator on different tasks alleged to be of practical importance may be significant: see Redland Roof Tiles Limited v Harper 1977 ICR 349.[67]Kilner Brown Jay noted in Dance (above): “it is vitally important to reiterate… that it is no part of a tribunal’s duty to get involved in fiddling detail or pernickety examination of differences which set against the broader picture fade into insignificance… if there is a realm of law in which practical common sense ought to apply, it is in this field.”[68]In considering whether a woman’s work is like a man’s work, the focus should be on what each of them does and if there are any differences between what they do, the nature and extent of the differences and the frequency with which they occur. Things done by an employee may include the exercise of responsibility (see Eaton Limited v Nuttall [1977] ICR 272).[69]The tribunal should look at the work actually done under the contract by the claimant rather than what might be done theoretically. In a comparison exercise, the sex and the special personal skill or merit of the respective jobholders must be ignored (see Shields v E Coomes (Holdings) Limited [1978] ICR 1159).[70]In addition to considering the contract the tribunal is to have regard to what happens in practice (see Electrolux Limited v Hutchinson & others [1977] ICR 252) where the EAT gave guidance that the question to be posed was what happens in practice.[71]The comparison of jobs must take into account the whole job in any duties that a man and a woman do not have in common cannot generally be excluded from consideration (see Maidment & Hardacre v Cooper & Co (Birmingham) Limited [1978] ICR 1094), the EAT did however accept that there could be special circumstances where it would be right to exclude a part of a job from comparison where it is “in effect separate and distinct”. Submissions for the respondent[72]The disputed issue in this part of the claimant's claim is whether her work was or is like the work carried out by her comparator in the role of Service Manager, Environment. That issue has been complicated by confusion about the job actually done by the claimant at the relevant times. It is the respondent's contention that the confusion exists solely on the claimant's part. She apparently maintains the view that she remains a Waste Prevention Officer, despite having enjoyed the benefits of the upgraded post of Environment Officer since at the latest 23 October 2017, when she took that position, and arguably from 17 April 2012, the date at which it was decided, for back pay purposes, she had been working at that level. That already complicated picture is aggravated by the claimant's attempt to rely on aspects of a job (Waste Management Strategy Manager) which she was offered but declined.[73]The Tribunal was referred to section 65(2) of the EqA. Section 65(3) replaced section 1(4) of the Equal Pay Act 1970 which was quoted as all the cases relied upon by the respondent were decided long before the EqA came in to force. The respondent submitted that the EqA definition, whilst simplified, presents the Tribunal with essentially the same test as was applied under the Equal Pay Act 1970.[74]In considering whether a woman's work is like a man's work the focus should be on what each of them does and, if there are any differences between what they do, the nature and extent of the differences and the frequency with which they occur. The things done by an employee may include the exercise of responsibility. See Eaton above. From the examples considered by the EAT the factor of responsibility could be decisive in comparing jobs which are a great deal more similar than the jobs being compared in this claim.[75]In the comparison exercise, the individual merits of the respective jobholders must be ignored completely as irrelevant in the necessary comparison. See Shields v E Coomes (Holdings) Limited [1978] ICR 1159 which described the tribunal's task as: "[a]n evaluation of each job as a job irrespective of the sex of the worker and of any special personal skill or merit that he or she may have".[76]It has also been recognised at appellate level that there are limitations to the like work claim type. The EAT in Maidment (above) captured the narrow nature of this route to equal pay in these terms: "the test of 'like work'… is a somewhat rough and ready instrument. If the claimant and her comparable (sic) are not employed on like work it is unfortunately irrelevant that – and it may be the fact in the present case – the gap in remuneration between them is in no way commensurate with the difference in the work which they do." Phillips J in Maidment said, "(i)n short the Act does not enable us in a case such as the present where there are genuine differences between the work done by the man and the work done by the woman to narrow the gap in remuneration so that it truly reflects the difference in the value of the work done by them respectively."[77]In Capper Pass (above) the EAT said that the "only differences which will prevent work which is of a broadly similar nature from being 'like work' are differences which in practice will be reflected in the terms and conditions of employment."[78]The differences between the jobs and comparison in this claim are reflected in the job descriptions which in reality define the extent of the contractual tasks which an employee can be asked to take on.[79]In addition to considering what the contract states, the Tribunal is to have regard to what happens in practice. In Electrolux Ltd (above), a claim involving a consideration of the timing of work respectively done by claimant and comparators, the EAT posed the question "what happens in practice?" One of the four main features which distinguishes the jobs being compared in this claim is the greater level of supervisory responsibility present in the comparator's role. That alone can deny a like work claim. In a passage which begins by acknowledging that not every contractual difference will be a real difference, the EAT also recognise that supervisory responsibilities cannot be ignored: "if men and women are employed doing work which is of a broadly similar nature, it is irrelevant in applying section 1(4) that the men unlike the women are under a contractual obligation to do some work unless they in fact do so… An obligation to supervise, to take responsibility or to control, if it is discharged, is something which in our judgment falls within the words 'the things she does and the things they do.' It is true that it is often difficult to pinpoint (sic) and to identify the manifestation of responsibility in particular acts, but they are nonetheless real for that, and properly to be taken into account in applying section 1(4)." This was re-emphasised in Redland Roof Tiles Ltd (above) in these terms: "[t]he primary matter is what is done in practice. An example of the importance of looking at the contract is to be found in the case where the work actually done is more or less identical, but where one of those employed does, and the others do not, accept a superior position of responsibility having the general oversight of the work. It may be very difficult in such cases to say what are the actual acts done which have to be considered under section 1(4) but we certainly do not mean to say that in such cases it is irrelevant that the man (or the woman as the case may be) has accepted some supervisory role, albeit that it is difficult to pinpoint actual acts done in performance of that obligation." The comparison in these cases are between jobs of a much greater similarity at first view than the jobs in comparison in this claim.[80]In Dance (above) the comparison was between a group of women working as warehouse selectors and their comparator male colleagues working as warehouse operators. The claim failed. Although it was recognised that between the two jobs there was "a central area of similarity", it was fatal to the claim that there was also "a much enlarged programme in the case of the men" In the present claim the "central area of similarity" is undoubtedly the Waste PFI project. Although that was huge in its own right, it by no means defined the full extent of the comparator's job.[81]A different division of the EAT (Phillips J presiding), took the same approach in Maidment (above). In that comparison, there was "very little difference" between the nature of the packing done by the claimant and her comparator. But the Tribunal had been right to recognise that the comparator had additional, practically important features in his job. These duties could not be severed and ignored in the comparison exercise. As put by the EAT, "[a] different result could only be correct if it were permissible to exclude from consideration the duties of storeman undertaken by [the comparator] and not by [the claimant]." It was not so permissible concluded the EAT: "[a]t the end of the day, therefore, we are satisfied that in applying section 1(4), whereas it is usually right to disregard the time at which the work is done, it is not permissible in ordinary circumstances to disregard any part of the work actually done in practice."[82]The claimant does not dwell on those differences – in fact she draws attention to them by the exiguous summary she gives in two short paragraphs in her witness statement (1.51 and 1.52) – but they nonetheless have to be considered and, once considered, decisively undermine the comparison which the claimant has attempted to set up.[83]This part of the claimant's claim should be dismissed. Submissions for the claimant[84]The Tribunal is asked to decide if the claimant’s work was “like work” to that work carried out by Mr Blayney (the comparator) from September 2016.[85]The Tribunal was referred to sections 65(2) and 65(3) of the EqA.[86]The claimant (salary level Band 12) performs like work to Mr Blayney. The claimant was employed as Waste Prevention Officer in 2005. A regrade was undertaken in 2017 of her role, which the claimant felt did not reflect the duties she had been asked to undertake – duties which extended far beyond her original job description, so she did not sign the letter to accept the Environment Officer post. Despite not signing to accept this post, the respondent made a backdated payment for wages underpaid to the claimant between 2012 to 2017. In June 2018, the respondent produced a job description for a post called Waste Management Strategy Manager and advised the claimant that they would apply it from 16 January 2017. The claimant submits that the respondent effectively admited that the duties detailed in that job description had been the responsibility and been undertaken by the claimant for the previous 18 months. However, the claimant does not and did not accept that the offer reflects her all her duties or responsibilities.[87]In particular, from September 2016, she was a Council Representative on the PFI Project. The only other Council Representative at this time on the PFI Project was Mr Blayney, who at all material times has been a Band 15 employee.[88]The claimant and Mr Blayney’s duties required them to spend a high portion of their time on the Waste PFI matters from September 2016. These included similar tasks such as project meetings, contract management, performance and delivering PFI disputes.[89]Both roles were undertaking duties in relation to ensuring that the respondent’s statutory functions associated with the service were carried out. The Tribunal was referred to the evidence that it heard.[90]The claimant said that there may have been duties which Mr Blayney undertook prior to September 2016, but they are not relevant to the like work claim which applies from September 2016.[91]The claimant submitted that she had responsibilities for managing staff, which were recognised by the respondent when it created the Waste Management Strategy Manager job description which it stated applied to the claimant from 16 January 2017. These responsibilities involved managing and directing staff which ensured that the performance management of a major PFI contract for the respondent was undertaken efficiently and robustly. Mr Blayney also had responsibilities for managing staff.[92]Due to the disputed nature of the PFI contract and the effort and skills required to deliver these, resulted in the respondent appointing the claimant to the role of Council representative.[93]Standing the important of the PFI Project to the respondent and the levels of responsibilities associated with undertaking the Council Representative duties, there were no differences of practical importance between the work the claimant was doing and the work that Mr Blayney was doing.[94]The respondent did not carry out a reasonable evaluation in relation to the claimant and the comparator. At no point did the respondent ever investigate the roles which were actually being done. Any difference in the work of the claimant and Mr Blayney were of minimal importance.[95]The claimant also had responsibilities which were greater than those of Mr Blayney, such as to deputise of the Head of Service and the Director which Mr Blayney did not undertake.[96]At every stage the claimant followed due process to resolve this situation and to find a suitable solution but was unable to.[97]For these reasons the Tribunal is asked to find that the claimant was doing “Like Work” to her comparator Mr Blayney.Deliberations
[98]Having read the submissions and authorities, the Tribunal considered that the question of like work needs to be broken down into two distinct sub questions:(i) Is the claimant’s work and Mr Blayney’s work of the same or broadly similar nature, and if so(ii) Are the differences between the things the claimant and Mr Blayney do of practical importance in relation to the terms and conditions of employment?[99]For the claimant to succeed on the like work question, the Tribunal appreciated that she must satisfy the Tribunal that the answer to both questions is in the affirmative.[100]The Tribunal asked if the work claimant’s work and Mr Blayney’s work of the same or broadly similar nature? At this point (stage 1), the Tribunal considered the nature of the work of the clamant and Mr Blayney. This is a question of fact, so the Tribunal referred to the findings. The Tribunal was mindful that it was unnecessary for the two jobs to be identical; the work only need to be “broadly similar”. The Tribunal noted that the search at this stage is for the wood, not the trees. The Tribunal gave general consideration to the work done by the claimant and Mr Blayney and the knowledge and skill required to do it.[101]The claim of like work is from September 2016. The Tribunal found that from September 2016 the claimant and Mr Blayney had been appointed as Council Representatives in relation to the project operations identified in the PFI Project Agreement. Acting, either singly or jointly they exercised the functions and powers of the respondent and shared responsibilities for developing strategies and plans for the PFI Project.[102]While initially the claimant continued to report directly to Mr Blayney from mid 2018, they both reported to Mr Herriott.[103]From the information available to the Tribunal, the claimant and Mr Blayney had the skill, knowledge and decision making required to represent the respondent and provide instructions in relation to the PFI disputes in which they each took their lead.[104]However, in comparing the jobs the Tribunal required to take account of the whole job. While the claimant did not work exclusively on the PFI Project from September 2016 she increasingly spent most of her time on the PFI Project, its termination and the transition of the services in house to the respondent. While Mr Blayney was involved in the PFI Project throughout the period of the claim his work involved wider responsibilities for the environment service as a whole and a number of functions in addition to the waste PFI function. The Tribunal turned to consider these.[105]Mr Blayney’s job involved managing the respondent’s contaminated land functions and he had responsibility for strategic commissioning of the waste collection service. He developed and delivered waste management infrastructure. He had accountability for external locations e.g. recycling centres and landfill sites.[106]The claimant and Mr Blayney attended external working groups however the claimant’s role was restricted to the PFI Project whereas Mr Blayney’s role required knowledge across the whole of his responsibility including contaminated land.[107]The work of claimant and Mr Blayney involved ensuring that the respondent discharged its statutory and regulatory duties. However, the claimant’s involvement was related to the PFI Project whereas Mr Blayney was accountable for the service as a whole.[108]Significantly in the Tribunal’s view Mr Blayney’s work involved people management responsibilities for around ten direct reports which the claimant’s work did not. His role required directing activities which was a higher responsibility than allocating work. He was also accountable for the management of the entire service/department including ensuring all personnel policy and procedures were implemented and adhered to as well as prioritising and reprioritising service and department activities. At most, the Tribunal considered that the claimant could be said to have a supervisory role rather than a managing role.[109]As a result of one of Mr Blayney’s direct reports leaving Mr Blayney’s work involved overseeing an operational site in Stranraer in addition to carrying out his other duties. The claimant suggested that Mr Blayney was deputising for colleague of a lower grade (salary level Band 11). The claimant was not involved in this aspect of Mr Blayney’s work. The Tribunal considered that the responsibility for the operational site in Stranraer fell under Mr Blayney’s job description. He required to manage his own work and that of his direct reports with it along with other aspects of his job. There was no evidence to suggest that the claimant had similar obligations as she had no permanent direct reports.[110]While the work of the claimant and Mr Blayney in relation to the PFI Project were broadly similar Mr Blayney’s work had wider responsibilities and additional work in relation to contaminated land and managing employees which beyond the PFI Project. They were additional and practically important features of his work. The Tribunal did not consider they were separate and distinct. Accordingly, in the Tribunal’s view they could not be excluded from the job comparison.[111]In the comparison exercise taking account of whole jobs the Tribunal was not satisfied that in general terms, the work of the claimant and Mr Blayney was broadly similar.[112]Having answered no to that question, the Tribunal did not consider that it needed to go onto answer the second question as to whether the differences between the things that the claimant and Mr Blayney did was of practical importance in relation to the terms and conditions of employment.[113]Accordingly, as the claimant did not satisfy the Tribunal’s answer to the question was in the affirmative, the Tribunal concluded that the claimant has not undertaken like work as Mr Blayney in terms of section 65 (1)(a) of the Equality Act 2010.Deliberations
[1]This preliminary hearing was listed to consider whether the claim should be struck out under rule 3(1)(a) of schedule 2 of the Employment Tribunals (Constitution and Rules of Procedure) 2013 (the 2013 Rules). This followed the decision of the Tribunal that the claim should not be struck out under rule 37 of the 2013 Rules, nor should a deposit be ordered as a condition of proceeding in terms of rule 39.[2]This hearing was a stage one equal value hearing. The provisions of paragraph 3 of the equal value rules of procedure set out in schedule 3 of the 2013 rules relate to the conduct of a stage 1 equal value hearing. Paragraph 3(1) states that “where there is a dispute as to whether one person’s work is of equal value to another’s…the Tribunal shall conduct a hearing which shall be referred to as a stage 1 equal value hearing and at that hearing shall strike out the claim (or the relevant part of it) if in accordance with section 131(6) of the Equality Act 2010 (EqA) the Tribunal must determine that the work of the claimant and the comparator are not of equal value”.[3]In this case the claimant and her comparator’s roles have not been rated as equivalent under a job evaluation scheme. The issue for determination by the Tribunal is whether the claimant’s claim should be struck out, as would normally be required where her role has not been rated as equivalent with that of her comparator, because the evaluation of her job and/or that of her comparator is “otherwise unreliable” in terms of s.131 EqA.[4]This hearing was presided over by a judge sitting alone, in line with rule 12 of the 2013 rules, which states that there may be more than one stage 1 equal value hearing in any case. Rule 3(3) of schedule 2 states that, “any power conferred on an Employment Judge by Schedule 1 may (subject to the provisions of this Schedule) in an equal value claim be carried out by a full tribunal or an Employment Judge”. Rule 55 of schedule 1 is headed “Constitution of tribunal for preliminary hearings” and states that “Preliminary hearings shall be conducted by an Employment Judge alone, except that where notice has been given that any preliminary issues are to be, or may be, decided at the hearing a party may request in writing that the hearing be conducted by a full tribunal in which case an Employment Judge shall decide whether that would be desirable”. No such application was made and there was no objection to proceeding although it is understood it has been the practice for hearings on this question to be presided over by a full tribunal.[5]Prior to hearing evidence, the Tribunal dealt with an objection by the claimant to the respondent’s documents being lodged late. The claimant had lodged documents which had been copied by the respondent in the usual way, numbered in sections A to G of the volume of productions lodged. The respondent’s documents were available in sub-divider H of the file. The respondent’s documents had been forwarded to the claimant on Friday 3 November 2023, rather than Monday 30 October 2023. Mr Miller explained that the delay lodging those documents was because the claimant had not responded to requests for confirmation of the factors which she disputed. This meant that he had to defer interviewing witnesses, and this task was further delayed by the October holiday.[6]I allowed the respondent’s documents to be accepted although late for the following reasons. I did not accept that the claimant would be prejudiced by their late lodging. The claimant had more than a week to consider the documents. I appreciate that she is not legally represented, but I decided that any potential prejudice could be addressed by giving the claimant more time if requested at appropriate junctures to consider the documents. Specifically, I intended to allow her time to consider them after her evidence but before she was cross examined. It transpired that the claimant’s evidence in chief concluded on the first day and she had further time to consider the documents. She was given an opportunity to give further evidence on the second day before she was cross examined and before the respondent’s witnesses gave evidence.[7]The Tribunal first heard evidence from the claimant as noted above. The claimant had produced a written version of her evidence, which although not treated as a formal witness statement, there being no objection from Mr Miller, she used as a framework for her oral evidence. The respondent then called two witnesses, Ms McWhinney and Miss Lorna Taylor.[8]The evidence was concluded within three days, the hearing having originally been listed for six days. The hearing adjourned after the evidence to allow parties to prepare submissions to be heard on the last day listed, Monday 20 November 2023. Mr Miller helpfully agreed to provide an outline of his submissions in writing to the claimant on Thursday 16 November 2023, which gave the claimant some time to consider them and prepare her own oral submissions for the Monday. She produced a written outline of her submissions which she passed to the Tribunal and Mr Miller, which she addressed in oral submissions, following Mr Miller’s oral submissions. Findings in Fact[9]Based on the evidence heard and the documents lodged, the Tribunal makes the following relevant findings in fact. Respondent’s policies[10]Since the implementation of single status in 2009, the respondent has used the Scottish Joint Council for Local Government Employees Job Evaluation Scheme (B1). The relevant edition is the third edition, dated November 2015.[11]This sets out principles of job evaluation, including “evaluate jobs not people” and “assume acceptable performance of the job” (B6). This scheme uses 13 factors.[12]The respondent’s relevant Job Evaluation/Job Grading Review Policy was created in July 2014 (A1). This explains the procedure for the evaluation of a new job at section 2.[13]At section 3, it sets out the procedure for the “evaluation of existing post – request by manager” and at 3.1 the criteria to be met before an application for re-evaluation of an existing post can progress, which relate to the extent of changes in duties.[14]At 3.2 it sets out the documents which managers will be required to complete to provide the factual basis of the re-evaluation, namely: application for reevaluation form – with signed agreement from employee where appropriate; job evaluation questionnaire completed by post holder in respect of the demands of the changed job; current job overview document (JOD) and factor level scores breakdown; current job description and person specification; proposed job description and person specification; current and proposed section/team organisational chart; and the signature and comment from the relevant head of service.[15]The evaluation will be undertaken by an assigned job analyst using the COSLA guage “evaluator” software and a JOD will be produced. The JOD and evaluation agreement form will be sent to the requesting manager for comment and confirmation as to its factual accuracy and for discussion of any amendments.[16]The manager is required to complete an evaluation agreement form normally within 5 working days of receipt of the above documentation. The team member will provide the final version of the JOD and confirm the grade of the job in writing with the head of service, relevant manager and appropriate HR contact. The post holder will be notified of the outcome of the process in writing normally within 5 working days of the receipt of the agreement form.[17]Section 4 is headed “evaluation of existing posts – request by employee” and states that individuals who believe that changes in their job content and responsibility fully meet the relevant criteria should discuss the changes with their line manager. If the line manager agrees the job has sufficiently changed, the process to be followed is that outlined in section 3 and the application will be led by the manager.[18]Section 4 states further that where the parties cannot reach agreement, the employee and the line manager must complete the relevant sections of the application for re-evaluation submission form and send the form to their head of service. Where the head of service agrees based on evidence presented that the job has sufficiently changed, the process to be followed is that set out in section 3 and is led by the head of service. If management does not agree, the head of service is to complete their part of the application for re-evaluation submission form and send it to HR. In such circumstances where there is no management agreement, “the submission will be entered into the appeals procedure for formal consideration”.[19]The appeal procedure is set out at section 5 which states applications will be considered as admissible to progress through to appeal if they meet one or more of the following grounds: factual inaccuracy in either the inputs or the outputs of the evaluation process; failure to apply the local job evaluation procedure; misapplication of the factor definitions, levels and guidance of the SCJE Scheme. Such submissions will be considered by the local job grading review panel (JGRP) “with no further right of appeal”.[20]The respondent has also produced local guidance, revised 2011 (H62- H86) Claimant’s job role[21]The claimant commenced employment with the respondent on 16 May 2005 as waste prevention officer in the department of planning and environment services. The role (reference 5/698) reported to Greig Blayney then principal officer waste policy (A156). At that time the role had no responsibilities for finance (A160).[22]The claimant’s duties evolved and in 2008 she became involved in the respondent’s waste private finance initiative (Waste PFI), which was the single largest project being operated by that department. Her duties included the waste prevention programme and attending PFI project meetings, then chaired by her line manager, Mr Blayney.[23]In April 2009, following the implementation of single status, the claimant’s waste prevention officer role was graded at salary band 11. The claimant was issued with a new contract of employment (A127). Her line manager’s post was created 11 July 2011 (A142), a job description prepared in September 2012 for the role of service manager environment (A141) and evaluated by the guage software on 7 June 2013 at band 15 (A142-A149). Changes to claimant’s duties[24]The claimant’s duties changed from around April 2012, when she was tasked with working on further duties associated with the Waste PFI project. In particular, by that time Mr Blayney had reduced his involvement in the administration of the PFI project and in participation in the operational meetings. The claimant increasingly undertook these roles, which included monthly invoice checking, landfill tax advance payments, RDF payments and insurance payments for the PFI project which she largely administered for the respondent.[25]The claimant’s duties were subsequently further increased to include involvement with other projects and working groups including the communication of the council’s kerbside recycling services. Restructure 2016[26]In 2016, a restructure exercise was undertaken by the respondent which impacted on the economy, environment and infrastructure (EEI) directorate where both the claimant and her line manager (Mr Blayney) then worked.[27]Prior to July 2016, Mr Blayney had reported along with the service manager infrastructure (James McLeod) to the head of infrastructure and transportation (Steven Herriot). These two posts were to be replaced by one person in the role of infrastructure manager, who was to manage the PFI contract. This post was matched to Mr McLeod. The new structure chart showed that Mr Blayney no longer reported directly to Mr Herriot but was to report to Mr McLeod (D2). Although on paper Mr McLeod managed the PFI contract in practice he was not involved.[28]In September 2016, the claimant was appointed, along with Mr Blayney, as the council’s representative on the Waste PFI contract (D34). This meant that she could have formal discussions with all the PFI partners and issue and sign off formal contract correspondence. Prior to that, she had to arrange for Mr Speedie or Mr Herriot to sign it off in Mr Blayney’s frequent absences. The duties associated with that contract were increasingly undertaken by the claimant, and the contribution of Mr Blayney decreased.[29]From around this time, the claimant was reporting directly to Mr Herriot and to Alastair Speedie, director of the EEI directorate (see D45/46). Application for re-evaluation[30]Because of these changes to her role, there having been no manager led proposal for re-evaluation, on 29 May 2017, the claimant made an application for a re-evaluation of her role by completing the application for re-evaluation form (A10 to A41). The claimant confirmed that she would attend an appeal hearing to present her own case. The claimant’s line manager, Mr Blayney, confirmed that he was in agreement with the application for re-evaluation.[31]Under factor head 10, responsibility for financial resources, the form stated that “the employee has been responsible since 2012 for ensuring that the £12 million (16/17 figures) annual spend on the PFI is properly managed and accounted for throughout the year…”[32]This application was supported by the head of service (Mr Herriot) and signed by him on 30 May 2017, who completed the comments section as follows (A17): “I am fully supportive of Moira’s application for re-evaluation and acknowledge that her role has changed significantly in recent years with the development of the Waste PFI contract. This has led to her increased role in contract management and financial responsibility associated with her new formal role under the contract as Contract Representative. I am in agreement with the comprehensive statements made by Moira that reflect the scope for the work and the level of responsibility in the post. I have discussed this reevaluation with the Director who has also confirmed his strong support for the post to be re-evaluated to reflect the current increased and significant responsibilities of the post”.[33]This support from the head of service meant that the claimant’s initial application for re-grading was no longer to be dealt with under the “employeeled” procedure (section 4) but to be dealt with as a “manager led” evaluation (section 3). This meant in particular that the claimant’s right to have an appeal hearing if she was not in agreement with the outcome of the re-evaluation was removed. It also meant that her line manager had to produce a proposed job description and person specification.[34]On 31 May 2017, the claimant’s line manager Mr Blayney e-mailed the claimant on the subject of job re-evaluation, copying in Mr McLeod, Mr Herriot and Mr Speedie. He attached a re-evaluation form signed by himself and the head of service, and an updated job description and person specification for the change in role under the working title of environment officer. He stated that “I have accepted your changes to these other than management of the PFI budget which is my responsibility and the management of staff because you have no direct reports but I have confirmed in the evaluation that you previously had a member of staff for a temporary period for the purpose of backdating. I have changed the wording of Waste PFI contract management to ‘areas of responsibility’ because other staff have varying levels of management and monitoring responsibilities for different areas of the contract. If you could provide the JE I will submit this for you later today to allow HR to consider the banding” (A97).[35]The job description for the proposed environment officer post (band 12 with a JE reference U384 and a ref number 5/698) which Mr Blayney prepared included under job activities the entry “ensure that the very large annual waste PFI contract budget, with a spend in excess of £10 million is controlled and managed” (A54-55).[36]The claimant did not believe that what was produced by Mr Blayney accurately reflected her job, duties or responsibilities. She e-mailed Mr Herriot stating that she believed that what was proposed continued to undermine the work she did on the PFI project.[37]That e-mail continued: “To put on the structure chart that I do “PFI invoices/reconciliations” is an insult. Removing budget responsibility does not reflect the work I do with the payments throughout the year, since I am the one who does all the invoicing and monitoring for them, and you approve the majority of them so I’m not quite clear where Greig’s role in budget management is in that. Continuing to work in the current environment with Greig will not be good for my health. The attached diary extract shows Grieg’s availability on the days that he is here this week and next week, and these are typical weeks: private appointments between 12-2 pm and private appointments from 3 pm onwards. Therefore, if needed I am deputising (or receiving his calls) for nearly half the week. During normal 9 am – 5 pm working hours he is not here to manage the PFI contract for half the week (E4). Please can you have a look at this response from Greig. He is clearly not in agreement with the detail I wrote in my sections of the evaluation form. If that is the case, this needs to be reflected when the papers go to HR and I wish to have a copy of those papers when they are sent….”[38]Mr Herriot replied on 31 May 2017, advising that he would review the conflict with Mr McLeod (E4). On 1 June 2017, the claimant advised of items of dispute for them to take into account, relating in particular to employee and budget responsibilities.[39]On 5 June 2017, the application was submitted to HR by Mr McLeod. Carol Armstrong (HR) advised that the job evaluation questionnaire was missing and asked for it to be returned by 9 June 2017. That document was required for a manager led re-evaluation.[40]On 9 June 2017, Mr Blayney sent job evaluation documents to HR stating that he very much supported the re-evaluation due to the change in duties. He attached a completed job evaluation questionnaire (JEQ) (E7). According to procedure, the JEQ document should have been completed by the claimant.[41]On 9 June 2017 Mr McLeod advised the claimant that the JEQ and other edited documents were submitted by Mr Blayney without any consultation with him, and that he had asked HR to ignore his e-mail and that the claimant would be sending in the JEQ. He apologised “for any confusion or distress this may have caused” (E7). Later that day, the claimant forwarded the JEQ to HR and Mr McLeod (E9).[42]On 20 July 2017 Mr McLeod called the claimant to advise that Lorna Taylor, the appointed job analyst, was due to write a report to recommend regrading to band 12 backdated to an appropriate date. Immediately after the call the claimant contacted Mr Speedie to express concern that those involved were not fully aware of her duties and responsibilities and in particular her financial responsibilities.[43]On 27 July 2017, in accordance with the procedure, Gordon Halliday, trade union representative and a trained job analyst, signed off the proposed reevaluation having considered factors and compared previous, current and new jobs in the directorate (H95).[44]A JGR consistency meeting took place in the week prior to 14 August 2017. On 14 August 2017, Miss Taylor contacted Mr McLeod to seek clarification regarding a query which had been raised at that meeting regarding factor 10 about the claimant’s involvement in finance given she was not a budget holder. Later that day, following a telephone discussion with Mr McLeod, she asked whether the claimant best fits the category of “processing” …or “accounting for” in regard to her involvement with financial budgets, and the relevant financial category (A43).[45]This is because the scheme distinguishes accounting for/auditing financial resources, (with definitions for small, considerable, large (which refers to amounts of £5m - £10 m per year); and very large (amounts of more that £10m per year)) from “budgetary responsibility” (which defines small, considerable, large (over £500,000 and up to £2.5m), very large (over £2.5m and up to £10 m) and extremely large (over £10 million)).[46]On 16 August 2017, Mr McLeod replied stating “Steven and I have discussed this. We think that Moria best fits the category of ‘accounting for’ and given the monthly invoice amounts that she monitors, audits, explains etc of £750K/month this would place that in the Large (£5-10M category). The review has thrown up the anomaly that Moira has the same authority under the waste PFI contract as Greig Blayney in that they are both Contract Representative. This may mean we need to revisit Moira’s responsibility for the budget” (A43).[47]On 16 August 2017, the job overview document produced by the guage software for environment officer, post reference U384, and stated as created 22 February 2005 and last modified 16 August 2017 set out a summary of what is required for the job under the 13 factor headings (A 49).[48]Under responsibility for financial resources it stated that “the jobholder has indirect responsibility for financial resources…which is predominantly accounting for or auditing ….and the amounts involved are large, i.e. as per local definition” (A51). Responsibility for financial resources was stated to be level 3.[49]The factor levels listing also included the following levels: communication skills – 6; dealing with relationships – 1; responsibility for employees – 2; responsibility for services to others – 5; knowledge – 6 (A53).[50]By e-mail dated 30 August 2017 (A42), Miss Taylor asked Mr McLeod for written evidence to support the effective dates of change for: responsibility to employees – allocation of work to admin/clerical; responsibility for finance – accounting for a large budget; and knowledge – requirement of degree in specific discipline and knowledge of the external environment and more than 5 years’ experience required.[51]By e-mail dated 23 October 2017, the claimant was advised of the outcome of the job evaluation process. She was advised of a new job title (environment officer), new salary band (12) and new job evaluation reference (U384). The finalised job description and person specification, the job overview document, and the factor level listing report were attached. She was advised that the new salary band was with effect from 16 September 2017 backdated to 17 April 2012. That letter concluded, “Please note, this decision is final and you have no further right of appeal” (A47).[52]On 23 October 2017, the claimant contacted Miss Taylor to express concerns about the outcome and she was asked to contact Mr McLeod.[53]On 30 October 2017, the claimant received amended statement of conditions seeking a signed acceptance letter (G30). The claimant did not return that acceptance letter.[54]On 16 November 2017, the claimant wrote to Mr Speedie (A100 to A102) to advise that she believed the evaluation to be incorrect and asked him to “please treat this letter as a grievance or appeal against the process and the outcome.”[55]Without further consultation with the claimant, but following intervention by Mr Speedie, a further job overview was created for the environment officer post on 23 January 2018 (A106). In that document (A109) under responsibility for financial resources, the reference to the amounts was “very large”. In an summary document, under responsibility for financial resources (H97) then awarded level 4, it is stated “indirect, accounting for, very large, NB initial evaluation – large budget but changed following confirmation with AS”. That change of level did not however change the band, which remained band 12.[56]Without further consultation with the claimant, in April 2018, Mr Herriot prepared a job description for the job of waste management strategy manager (WMSM), JE ref U384, ref no 5/698. That job description stated that the job holder was responsible to the head of infrastructure and transportation and director EEI. Under job activities, that included the entry at point 13 as follows: “ensure that the very large annual Waste Management contract budget, with a spend in excess of £10 million, is controlled and managed”. A job overview was produced using the guage software for that role, post number U384, reference A9142, with date created 22 February 2005 and date last modified 31 May 2018 (A114).[57]In a summary document of the levels achieved for the post of WMSM these included the following: responsibility for financial resources – 4; communication skills – 6; dealing with relationships – 1; responsibility for employees – 2; responsibility for services to others – 5; knowledge – 6. Only the factor for mental skills increased from level 5 achieved by the environment officer post to level 6. That change however meant that this re-evaluated post resulted in band 13.[58]On 20 June 2018, John MacEachern, solicitor for the council, wrote to the claimant’s then solicitor as follows (D39): “I am pleased to confirm that the result of your client’s latest job re-evaluation has resulted in a Band 13 placement with a commencement date of 16 January 2017. I attach job description for your information. I look forward to receiving confirmation that this re-evaluation is acceptable to your client and that her ET application will be withdrawn. In closing I have noted that, despite my requests, your client has not chosen, to date, to specify the precise grievance(s) that she wishes the Council to action. Accordingly I am hopeful, albeit it may prove to be the case that my optimism is misplaced, that her ET claim can be settled she will wish to withdraw her grievance(s). I also await hearing from you in that regard”. The job description prepared by Mr Herriot in April 2018 was enclosed.[59]On 19 December 2018, the claimant submitted a second grievance to Mr Speedie, complaining that her grievance of 16 November 2017 had not been addressed (G11). The claimant has to date not received the outcome of either of these grievances. Tribunal observations on the evidence and the witnesses[60]The Tribunal heard evidence from the claimant who gave her evidence in a straightforward manner.[61]The Tribunal also heard evidence from Mrs McWhinney who has been employed by the respondent since 2009 and now works in HR support. She is a trained job analyst and she worked on implementing the job evaluation scheme until 2021, and advised that she has assisted in the preparation of this case as a trained job analyst. She was able to talk about the application of the scheme and the procedure to be followed generally. She was not however involved in the re-evaluations which are the subject of this claim, although she has extensive experience in re-evaluating jobs.[62]The Tribunal heard from Miss L Taylor who had undertaken the evaluation of the post which became environment officer. She could not recall whether she was involved in the evaluation of the waste management strategy manager post. It would appear however, given the dates when she left the employment of the council, which was June 2018 after a period of annual leave, that it was more likely that she was not involved. However, and in any event, Miss Taylor could remember very little of the job evaluation which she had undertaken, and indeed could apparently remember very little of how the scheme operated at all, given that it is over five years since she has worked for the respondent. For these reasons, the Tribunal found her evidence to be unreliable and of little assistance in answering the question to be determined. Relevant law and parties’ submissions[63]Section 131 EqA applies “where a question arises in the proceedings as to whether the work on one person(a) (A) is of equal value to the work of another(b) (B) and A’s work and B’s work have been given different values by a job evaluation study” then “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” (s.131(5) and (6)).[64]The claimant in this case does not argue that the job evaluation study discriminates because of sex, but she does argue that the evaluation contained in the study is “otherwise unreliable”.[65]It was apparent that there was no dispute about the relevant law. The claimant accepts that the onus of proof rests on her. That burden however must not be set too high nor too low, as Mr Miller submitted, using the analogy of a “Goldilocks” standard. Mr Miller submitted that there has to be a colourable distinction or step change between entertaining a suspicion and having reasonable grounds for entertaining a suspicion.[66]Mr Miller in submissions made reference to a number of the decisions of the employment tribunal, in Hartley and others v Northumbria Healthcare NHS Foundation Trust, Brady and others v North Lanarkshire Council (4101149/2016), Allan and others v Fife Council (4102824/2016), as well as the EAT in Middlesbrough Council v Surtees and others (No.2) 2007 IRLR 981 and MacDonald and others v Glasgow City Council UKEATS/0008/14.[67]Of particular relevance however, it being a decision of the Inner House, is the case of Armstrong and others v Glasgow City Council 2017 IRLR 993. Mr Miller relied on dicta of Lord Menzies which he quoted at some length but the key passages appear to be as follows:• “It was accepted that the onus in this regard was on the claimants to raise this issue, but it was for the tribunal to assess whether it had reasonable grounds for suspecting that the evaluation was unsuitable to be relied on. There is no requirement for ‘cogent evidence’ to show that the evaluation is definitely unsuitable to be relied upon – all that the tribunal requires is reasonable grounds to suspect this” [22].• “….what is required is sufficient evidence before the ET to raise such a reasonable suspicion” [58].• “the claimants are entitled to point to all the circumstances as disclosed in the evidence, from whatever source, and to argue that this gives rise to reasonable grounds for suspicion” [60].[68]The burden of proof is thus on the claimant, but it is not a high one. I readily accepted Mr Miller’s submission about the distinction between a suspicion and reasonable grounds for suspicion, that is the latter must be supported by evidence.[69]It is clear however from the dicta of Lord Menzies that the claimant does not require to show that the scheme is unreliable on the balance of probabilities, rather simply that there is some evidence, that is reasonable grounds, to support suspicions that the scheme is unreliable.[70]Mr Miller submitted that when the Tribunal in this case retires to consider the circumstances as disclosed in the evidence it will find nothing which might amount to reasonable grounds. The claimant submitted in contrast that when all the material before it is considered and matters which the claimant has pointed to are taken into account and considered cumulatively, the Tribunal will have reasonable grounds for suspecting that the respondent’s job evaluation study is otherwise unreliable. Tribunal deliberations and decision[71]This case is about a challenge by the claimant to the way that her job role was evaluated using the council’s job evaluation scheme. There was a disagreement about one issue which was relevant to the question to be determined in regard to the challenge. The claimant had commenced employment as a waste prevention officer, and she insisted that was still her role. This was despite the fact that job had been re-evaluated in 2017 and the title changed to environment officer; and subsequently there had been what has been termed a re-evaluation and the job title changed again to waste management strategy manager in 2018. The claimant did not accept the outcome of either re-evaluation but she argued that she was challenging both the evaluation of the job titled environment officer and the evaluation of the job titled waste management strategy manager.[72]Mr Miller’s position was that she could only challenge the job that she was doing, which, by accepting a pay rise and backpay, was the environment officer role. Given she had refused to accept the waste management strategy manager post either as a re-evaluation or a promotion (as it has also been described in these proceedings), the correct focus he submitted was on the challenge to the environment officer evaluation. Mr Miller also pointed out that was the only challenge, because the claimant was not challenging her comparator’s evaluation.[73]I agreed with Mr Miller that the claimant could only challenge the job which she was undertaking, and I agreed with him that the job evaluation being challenged was the environment officer role, which the claimant had accepted through her actions of accepting the salary and backpay. That is not however to say that I was of the view that the evidence relating to the WMSM role was irrelevant, as discussed later.[74]The challenges to the evaluation of the claimant’s role can be categorised in two ways. One was challenges to the process and procedure and the other was the job factor analysis and evaluation itself. Given Lord Menzies’ conclusion that account could be taken of all the circumstances as disclosed by the evidence from whatever source, the challenges to the process and procedure could not be discounted. However the focus must be on the question whether the evaluation itself was unreliable. To a large extent there is an overlap, but some of the claimant’s arguments were purely about the procedure which could not be said necessarily to impact on the evaluation of her job.[75]Mr Miller understandably focused on the factor levels. In particular, he relied on the fact that the claimant did not challenge the evidence of the job analyst on level choices when she input the relevant job facts. I took account however of the fact that the claimant was representing herself. While I accept that the claimant did not cross examine Miss Taylor to any extent on the level choices based on the facts which she input, I deal with this as a question of weight. As noted above, I have adjudged Miss Taylor’s evidence in any event to be unreliable, largely because she had a very poor recall of this evaluation, none of the WMSM role, and indeed little of the application of the scheme. The procedural aspects[76]The claimant relied in particular on the fact that there was no right to appeal the outcome of the evaluation, which she argued was required by the SJC job evaluation scheme, the ACAS code and the Council’s own Job Evaluation Policy. This she argued deprived her of the right to challenge inaccuracies in substance and procedure. She argued that the respondent had treated the evaluation stage as the appeal stage which was a serious flaw.[77]I did note that the appeal procedure would have permitted the claimant to have challenged any failure to apply the local job evaluation procedure and I can understand the claimant’s concerns about the absence of an appeal. Indeed, it may well be as she suggested that had she been entitled to appeal this matter would not have reached this stage. I understood from Mrs McWhinney’s evidence that the respondent has now introduced such a right in similar circumstances. However, I took the view that the claimant’s complaint about the absence of an appeal could not be said, of itself, to indicate that the evaluation was unreliable.[78]Further the claimant complained that all of the guidance about the scheme was not available to employees, but again that would not be sufficient to raise suspicions about the reliability of the evaluation itself.[79]The claimant also raised general concerns about the lack of transparency in the way that the evaluation was undertaken. Again, I could not agree that a lack of transparency in itself was sufficient to support a conclusion that the evaluation in this case was unreliable. Mr Miller argued that “transparency as it is generally understood has little role to play in the resolution of this dispute. In fact, there can be a virtue in secrecy in job evaluation: employees and managers should provide open and honest answers to the ingredients of each job and that objective can be defeated if individuals are privy to scheme definitions. The respondent compensates for this with its collaboration with trained trade union partners who can be expected to and do monitor evaluations and re-evaluations for fairness and consistency”.[80]While there may well be a potential virtue in secrecy in job evaluation, Mr Miller agreed that we should at this stage looking back to be able to see how decisions had been reached.[81]The claimant complained about particular irregularities in the procedure adopted to support her submission about lack of transparency. In particular, she references the period between August and October 2017 when changes were made to documentation and specifically to the responsibility for financial resources information supplied by Mr Speedie without the claimant’s knowledge and the claimant was not sent job overview documents for sign off after changes were made. Further, the trade union representative was not involved in reviewing the documentation after changes to the job facts were made and the involvement of Mr McLeod and Mr Blayney, which was outwith procedure, hindered the proper evaluation of her post.[82]Although I accept that changes were made without the claimant or indeed the trade union representative being aware, and that there were procedural irregularities, again irregularities might not in themselves indicate that the evaluation itself was unreliable. However, the claimant’s position was that as a result of these irregularities the evaluation was based on inaccurate facts. It is self-evident that if the wrong facts about a job are input, then one could not be confident that the outputs were accurate. Indeed, factual inaccuracy in inputs or outputs in the evaluation process is stated to justify an appeal.[83]The claimant relied in particular on the fact that a manager who was not familiar with her work or duties was consulted about the details of the job. Mr McLeod was consulted by the job analyst but was not certain of what her job involved. He used statements such as “we think” and changed his mind, for example in relation to the budget, specifically changing “authorising and monitoring” a budget from £2.5 m - £10m to “accounting for” a budget of £5- 10m, neither of which the claimant believed to be correct. Further, the claimant relied on the reference to responsibilities for employees, shown as “allocation of work to admin/clerical”, yet they were all technical staff who were listed on the application for re-evaluation form.[84]The claimant also argued that there was a deliberate underplaying of her job duties which indicated improper motive on the part of the respondent. In particular, her line manager made adjustments to her job role after her application had been approved by the head of service and he completed the job evaluation questionnaire which should have been completed by her.[85]The claimant argued that the background regarding the 2016 restructure contributed to the appearance of improper motive on the part of the respondent. In particular, she argued that scores were manipulated and the job evaluation undermined to avoid questions being raised as to how a member of staff went from having no financial responsibility to managing a £12m budget; and why the infrastructure manager and service manager environment, both with the Waste PFI project in their job description, were not undertaking this work.[86]She implies that this related to an attempt to cover up the fact that she was effectively doing her line manager’s job. In particular, there was evidence that he was absent a good proportion of each week. While there may well have been a valid explanation for that, the Tribunal heard no evidence about the reason for her line manager’s extensive daily absences. The claimant may well have been suspicious about why the evaluation was undertaken the way that it was, but there was no evidence to support a conclusion that this was based on improper motive.[87]I accept however that the evidence does indicate that changes were made to the scope of her job duties during the process and after her involvement and that of the trade union. It is apparent at least that there was a lack of certainty about the scope of her duties, which the claimant had no opportunity to influence. This does tend to indicate misgivings about whether the facts upon which the evaluation was based were after all accurate. These irregularities and the way that the evaluation was handled in this regard means that neither the claimant, nor the Tribunal, could not be confident about the facts upon which the evaluation was based. Factor challenges[88]Turning to the challenges to factor levels, the Tribunal heard evidence in particular about the claimant’s concerns about the factor which related to responsibility for finance. Specifically, the original application for re-grading, completed May 2017 by the claimant, under responsibility for financial resources, stated that “the employee has been responsible since 2012 for ensuring that the £12 million (16/17 figures) annual spend on the PFI is properly managed and accounted for throughout the year…..”. That was supported by the head of service, who signed off the application and specifically stated that he was in agreement with the comprehensive statements made by the claimant.[89]The job description for the proposed environment officer post which was prepared by the claimant’s line manager, included the entry “ensure that the very large annual waste PFI contract budget, with a spend in excess of £10 million is controlled and managed”.[90]Further information was subsequently provided by Mr McLeod in consultation with Mr Herriot, who suggested the role “accounted for” a “large” budget. The claimant in submissions took issue with the fact that neither Mr McLeod nor Mr Herriot knew the detail of the job she undertook and at the use of language “we think”, but also at their categorisation of “large” which she said was inaccurate. I have made findings in fact that, following an enquiry of Mr McLeod by HR in June, his reply about the scope of her financial duties included an element of doubt, referenced an “anomaly” and suggested that her responsibility for the budget may need to be revisited.[91]Notwithstanding these apparent reservations and different conclusions, without further recourse to the claimant, as at 16 August 2017, “responsibility for financial resources” was evaluated at level 3.[92]Subsequently, in or around January 2018, following unspecified intervention from Mr Speedie, the level was increased to 4. The claimant took issue with the fact that the change in the score for this factor was done without her knowledge and she was not notified of this change. She pointed out that the job descriptions refer to managing a budget over £10 million but this is not reflected in the JOD. The claimant argued that given the very significant feature of validating spend from such a budget, and reconciliations and the long term nature of these, the claimant argues that the demands, effort and skills required in the role in this regard were not fully understood or recognised. Mr Miller submitted that the evidence from the claimant was sufficient to persuade the analyst to allocate level 4 instead of level 3, but that she could not however in her evidence show any grounds which would have justified level 5.[93]The fact that the claimant could not produce evidence at this hearing to justify level five was beside the point. The question is whether there is evidence to raise a suspicion that the evaluation is unreliable. The evidence indicates that there is at the very least a lack of clarity about how the factor definitions were interpreted in this case. The evidence also confirms that the claimant’s misgivings about Mr McLeod’s input that she accounted for a large budget were not misplaced, given Mr Speedie changed that to “very large”.[94]This is coupled with the failings in regard to procedure described above. Whether that is because of some improper motive, in regard to not showing up differences between what the claimant was doing and what her managers were doing, or some other innocent explanation, the fact is that the vacillation and lack of certainty about the scope of the claimant’s job duties to result in the level determined cast doubt on how this factor was interpreted.[95]I concluded that the evidence which cast doubt on whether this factor had been properly evaluated was sufficient to raise a suspicion about the reliability of the evaluation.[96]The claimant had concerns about other factors which Mr Miller addressed in submissions, and in particular:(i) Communication: the claimant argued that formal advocacy skills was not recognised in the JOD. Mr Miller pointed out that as the EO job attracted the highest level score for this factor this challenge must fail.(ii) Dealing with relationships: the claimant argued that the evaluation did not recognise the demands placed on her in relation to dealing with relationships. The local guidance refers to contract variations as being a “substantial” demand. Since she was placed at level one, and given all employees placed at least at level 1, she argued that this does not reflect the demands of dealing with relationships in a disputed Waste PFI contract, its termination and beyond. Mr Miller pointed out that the claimant accepted that her time estimates had included pre-meeting planning in the proportion of time she estimated for dealing with difficult people.(iii) Responsibility for employees: the claimant pointed out that her line manager (her comparator) was out of the office 12-2 pm and 3 pm onwards each day, which is a substantial portion of the 9-5 working week. Mr Miller argued that to succeed on this factor the claimant would have to challenge successfully the JES protocol that tasks carried out while deputising do not count. She did not attempt the challenge.(iv) Responsibility for services to others: the claimant relied on the fact that she had a more senior reporting line than the comparator (to the head of service and director) from 2017. The claimant attended external meetings (such as the PFI service delivery meeting, as well as the local government benchmark meetings) but she argued these are not recognised in the JOD. Mr Miller pointed out that the distinction between the claimant’s level 5 score for this and the comparator’s level 6 is that the comparator was the lead.(v) Knowledge: the claimant relied on that fact that she chaired the PFI service delivery meetings which is an external working group, as well as attending other meetings such as with legal advisers, financial advisers and so on, and the LGBF meetings. The level of knowledge required for the role, including a post graduate qualification in contract management has not been acknowledged in the JOD. Mr Miller argued that once again the claimant was relying on a task (in this case participating in an external working group) which she carried out as her manager’s deputy.[97]The claimant’s concerns reflect the fact that she believes it was assumed others who had the PFI responsibilities written into their job descriptions were undertaking duties that she was in fact undertaking, and that she was not recognised through the JES for the actual work she was doing.[98]The focus of Mr Miller’s submissions in regard to these other factors which the claimant challenged was therefore that these were factors where she deputised for managers in respect of which points would not be awarded under the scheme.[99]Miss Taylor was clear in her evidence that tasks undertaken while deputising for managers would not be taken into account. As I understood it, Mr Miller’s submission was that this would relate to the design of the scheme itself, and that was not something which the claimant was challenging.[100]That may well be right, however in this case there are two aspects to which it seemed would mean that the job role would potentially be relevant for an assessment of “effort, skill and decision”. First, there was evidence that the claimant required to deputise for a significant amount of time during each week while her line manager was absent, and second the claimant’s responsibilities increased to a more senior level when she deputised for the head of service and director, rather than for the service manager environment. It seemed to me that there was at least a lack of clarity about how these factors would be accounted for in an individual evaluation leaving aside personal performance, given their significance in terms of time spent and level of responsibility undertaken, and the lack of certainty about what duties were being undertaken by the claimant’s managers.[101]Whether or not it is correct to conclude that the claimant was deputising, and such duties were principally being undertaken by her managers, the lack of clarity and transparency in the way that the responsibility for financial resources was evaluated meant that I could not be confident that there was no substance to the misgivings expressed by the claimant about whether her duties were fully reflected in the evaluation of her role and in the factor levels identified.[102]In any event, I was of the view that concerns about how financial responsibilities had been evaluated was in itself sufficient evidence to support the conclusion that there was reasonable grounds to suspect that that the evaluation of the environment officer post was unsuitable to be relied on, that is that it was “otherwise unreliable”. WMSM post issues[103]I have decided that the focus must be on challenges to the evaluation of the environment officer post. However, I heard evidence about the WMSM evaluation which I considered to be highly relevant to the question I was to determine.[104]The claimant relied on the fact that the respondent produced two pay bands covering the same period, the overlap being between 16 January 2017 and October 2017. Specifically, the respondent stated in the email on 20 June 2018 that the “re-evaluation” which was for the claimant’s job, had a commencement date of some 18 months previous, to 16 January 2017. The claimant had already, according to the head of service, been undertaking that role between 2012 and October 2017.[105]The claimant stressed throughout the hearing that the evaluations all related to the same post, relying on the fact that the U384 “unique” post number referred to by Miss Taylor had been used for the WPO, EO and WMSM posts. She argued that rather than being “unique” the two evaluations (EO and WMSM) had all been updated on guage against the claimant’s post which she took when she commenced employment in 2005; and rather than the WMSM being a new post or a promotion, it was a re-evaluation of the claimant’s post with input from management only.[106]Mr Miller submitted that the WMSM post was offered in an attempt to end the litigation but not accepted. The claimant relied on the fact that Miss Taylor stated in evidence that this was the result of a restructure which she said happened just before she left in June 2018. I concluded that Miss Taylor must have been mistaken about that.[107]Mr Miller submitted that the e-mail correspondence sent from the council’s solicitor was a “without prejudice” offer. He pointed out that the fact that the e-mail did not contain the words “without prejudice” did not mean that it was not otherwise a privileged communication.[108]I had no difficulty accepting Mr Miller’s argument about the significance of the absence of the words “without prejudice”. However, even if the e-mail had included the words “without prejudice”, I would not have accepted the respondent’s submission that the e-mail simply contained an offer which could be accepted or otherwise not relied on, for the following reasons.[109]I took the view, based on the wording of the e-mail, but also the respondent’s subsequent actions in the course of this litigation, that these were not negotiating proposals, but rather confirmation that a further evaluation (called a re-evaluation) had been undertaken and resulted in a different outcome.[110]The e-mail confirmed that position, specifically, “I am pleased to confirm that the result of your client’s latest job re-evaluation has resulted in a Band 13 placement with a commencement date of 16 January 2017” and a job description was attached.[111]The e-mail was presented as confirmation of the outcome of the re-evaluation, the information in it presented as a clear and unequivocal admission or statement of fact. It was not in any way a hypothetical admission or concession for settlement purposes. It must, given the terms of the e-mail, constitute an admission that the claimant’s job role was at that time evaluated at band 13, that is one band above that which the same scheme had evaluated the claimant’s role of environment officer, namely band 12.[112]While that e-mail also stated, “I look forward to receiving confirmation that this re-evaluation is acceptable to your client and that her ET application will be withdrawn”, it is not stated to be without prejudice or to be an offer that might be the start of negotiations or be withdrawn if the ET application was not itself withdrawn.[113]Although I accept that it is not conclusive, the fact that the words without prejudice do not appear do tend to support the conclusion that this was not a settlement offer. But also the respondent’s actions in the course of this litigation do not support the suggestion that this was an offer made to end litigation. In particular, there is no suggestion in the like work judgment to which I was referred of that being an offer in settlement. Rather it was presented as a “promotion” which was a particular cause for concern for the claimant.[114]This, if nothing else, supports the conclusion that the evaluation conducted by the respondent of the claimant’s environment officer post was unreliable. The clearest evidence of that was the fact that there was an overlap in the time frame of the evaluations. Specifically there were two evaluations, given different scores, levels and bands, for the period from January to October 2017. The re-evaluated post of WMSM in 2018, confirmed that it was to be backdated to January 2017. Miss Taylor’s evidence was that the conclusion about the starting date for the re-evaluation would be from the claimant’s managers. The claimant was however advised of the outcome of the original re-evaluation of the post of environment officer in October 2017 (with that evaluation backdated to 2012). It cannot be the case if the job evaluation scheme was suitable to be relied on that it would result in two different scores for the same period of time from January to October 2017.Conclusion
[115]I therefore refuse the respondent’s application for strike out in terms of rule 3(1)(a) of schedule 3 of the 2013 Rules.[116]This case will now be listed for a further Stage 1 equal value hearing to consider whether the Tribunal can determine the equal value question or whether to require an independent expert to prepare a report. M Robison