Beal & Ors v Avery Homes (Nelson) Ltd & Ors

At a preliminary equal-value stage, the court’s function is to determine the facts describing the work performed, so that an independent expert can assess whether the work is of equal value. The court must identify work, rather than rely mechanically on contractual documents or job titles.

Work may include tasks actually performed following an instruction, request or encouragement, and tasks performed without express direction where they are an ordinary way of doing the job or have been tacitly approved. Activities undertaken without authorisation, approval or expectation generally fall outside the work. Occasional tasks remain part of the work unless they have fallen into desuetude. Material changes over the relevant period may require separate factual descriptions and expert assessment.

Female employees working in care homes brought equal-value claims under the Equality Act 2010, comparing their work with that of male maintenance operatives paid at higher hourly rates. The claims included consequential sex equality clause claims and conditional piggyback claims.

The hearing was a preliminary factual exercise equivalent to Stage 2 under the Employment Tribunals (Equal Value) Rules of Procedure. The court had to resolve disputed facts for the preparation of an independent expert’s report. It did not decide whether any claimant’s work was ultimately of equal value to that of a comparator.

1. Purpose of the hearing. The court determined disputed facts relevant to the description of each lead claimant’s and comparator’s work. The ultimate equal-value assessment under sections 64 and 65 of the Equality Act 2010 was reserved for a later stage with the assistance of an independent expert.
2. Meaning of work. The relevant question was what the employee actually did, assessed alongside contractual documents, instructions, expectations and the surrounding circumstances. Actual performance was important but not conclusive. A failure or refusal to perform an obligation did not necessarily remove the activity from the work.
3. General approach. An activity performed following a managerial instruction was part of the work. The same was likely where it followed a request or encouragement, although the employee’s inability to be compelled could be relevant. An activity performed without express direction could still be work where it was a way of performing an existing task or where the employer knew of it and tacitly approved it. Unauthorised activity lacking approval and unrelated to an existing task was generally excluded. These were general considerations, not a statutory gloss or rigid test, and each issue depended on its facts.
4. Occasional tasks and changes. Following Potter v North Cumbria Acute Hospitals NHS Trust [2008] ICR 910, occasional tasks could remain part of a job unless they had fallen outside its scope through desuetude. Where material changes in work occurred during the relevant period, the court could use separate factual descriptions or other case-management arrangements. On balance, the expert should address identified changes where doing so could avoid later uncertainty and costs.
5. Regulatory material. Lists of Fundamental Standards under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 were excluded from the job descriptions. The expert could consider the regulatory framework when evaluating work, but the court’s present task was to identify work rather than assess its value.
6. The disputed factual issues were determined, subject to clarification of any accidental omission or inclusion. The job descriptions were to be finalised and supplied to the expert, with further directions agreed or determined as stated in the judgment.