Hovell v Ashford & St Peter's Hospital NHS Trust

In an equal-value claim under the Equal Pay Act 1970, a small difference in job-evaluation points does not itself establish equal value. Equal value is not the same as near or substantial equality. The claimant must explain, in the context of the particular study, why the difference does not represent a material difference between the jobs. A lower score does not require the tribunal to reject equal value, and an independent expert is not legally indispensable in every case. The burden of proof remains with the claimant. The tribunal retains discretion to appoint or retain an expert, with delay being only one relevant factor. The appeal was dismissed because the employment judge's error was immaterial.

The claimant was employed as a social services administrator by the respondent NHS Trust. Under the NHS Agenda for Change job evaluation scheme, she scored 274 points and was placed in band 4. Three male comparators scored between 296 and 305 points. She received equal pay from 1 October 2004 under section 1(2)(b) of the Equal Pay Act 1970, but pursued an equal-value claim under section 1(2)(c) for the preceding six years.

An employment judge had ordered an independent expert to report on equal value at the parties' request. The judge later refused the claimant's application to withdraw that requirement. The Employment Appeal Tribunal dismissed her appeal under UKEAT/0163/08/RN, although it considered that part of the judge's reasoning concerning Home Office v Bailey was erroneous. The central questions before the Court of Appeal were whether the points difference could establish equal value without expert evidence, and whether any error affected the exercise of discretion.

Elias LJ gave the judgment of the court, with Etherton and Mummery LJJ agreeing. The appeal was dismissed.

1. Effect of job evaluation. A claim based on work rated as equivalent under section 1(2)(b) of the Equal Pay Act 1970 has no retrospective effect. Rating as equivalent may assist an equal-value claim, but it does not conclusively establish equal value under section 1(2)(c): Redcar and Cleveland Borough Council v Bainbridge and Ors [2009] ICR 133.
2. Points difference. Equal value does not mean nearly equal or substantially equal value. A claimant cannot succeed merely by showing that her job scored only a few points below the comparator's job. She must place the difference in the context of the particular job evaluation study and explain why it does not reflect a material difference. Relevant considerations may include the study's treatment of benchmark jobs, the weighting of factors, departures from a typical job profile and the level of scrutiny applied to particular jobs.
3. Expert evidence. The fact that the claimant's job scored fewer points does not oblige a tribunal to find that it is not of equal value unless supported by an independent expert's report. A tribunal may find equal value without such a report where the evidence justifies that conclusion. Conversely, a higher score for the claimant would not necessarily establish equal value, although it would be exceptional for the employer to demonstrate otherwise.
4. Burden and discretion. The burden of establishing equal value remains with the claimant. A formal presumption or shifting burden does not arise from an equivalent rating. Under rule 6(2) of Schedule 6 to the Employment Tribunal (Constitution and Rules etc.) Regulations 2004, an independent expert may be appointed to assist the tribunal. Rule 10(4) permits withdrawal of the requirement at any stage, including after appointment, but the tribunal retains a discretion whether expert assistance is needed. The possible delay caused by a report is only one factor.
5. Materiality. The employment judge went too far in suggesting that expert evidence was indispensable whenever the claimant's job scored lower. That error did not affect the result. The application assumed that the claim was bound to succeed; the judge considered the 22-point difference significant; the original order had been made with the parties' consent; and there had been no material change of circumstances. The refusal to withdraw the requirement was therefore justified.

• Court of Appeal (Civil Division): [2009] EWCA Civ 670. Appeal dismissed.
• Employment Appeal Tribunal: UKEAT/0163/08/RN. Appeal unsuccessful; the refusal to withdraw the independent-expert requirement was upheld.
• Employment Tribunal: An independent expert was ordered on 9 August 2007. The application to withdraw that requirement was refused on 12 February 2008.