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Potter v. North Cumbria Acute Hospitals NHS Trust


Employment Appeal Tribunal

The Employment Appeal Tribunal gave guidance on the correct approach to assessments of equal value where a claimant's job had changed during the period of her claim.

The appellant employees (P) appealed against an employment tribunal's case management decision concerning their claims for equal pay. P were 13 claimants who had been selected as lead cases from a large number of equal pay claims brought against NHS trusts, including the respondent (N). P's claims extended over a six-year period. During that period they had worked in different jobs within the same pay grade. The tribunal directed that an independent expert should prepare reports on whether P's work was of equal value to that of their comparators. It decided that the correct comparison period was the date of presentation of the claims, and that additional evidence regarding a variation in job duties could be adduced later. P submitted that the independent expert report should have related to the entire period of their claims.

HELD: (1) What remained notionally the same job could, over time, undergo changes in its content to a sufficient extent to affect its value for the purposes of the Equal Pay Act 1970. Employment tribunals had to consider whether the claimant and the comparator's work were of equal value in respect of every part of the claim period. In a typical equal pay claim, the employee's claim was for a failure to pay a sum due as at each pay day over the period to which her claim related. The tribunal did not have to hear detailed evidence relating to every part of the claim period. In many cases there would be no reason to suppose that the relevant facts were materially different at any point during the period. However, where the facts were materially different during the claim period, the facts had to be stated on a distinct basis in respect of those different parts of the period. (2) In the instant case, the employment judge had not concluded that only the facts as at the date of claim were relevant. He had simply specified what facts the expert reports in the lead cases were to cover. He explicitly recognised that issues regarding any earlier job changes within the claim period would have to be decided later. That position was not contrary to the tribunal rules. The question of equal value was not indivisible. An employment tribunal could split the issues in order to manage complex litigation. It did not follow that the tribunal would then have to appoint an independent expert to report on each of those issues. It was entirely possible that the tribunal would feel able, having had the benefit of expert reports on the base facts, to reach a safe conclusion on the impact of any job changes without requiring a further report. (3) Where tasks fell to be performed only occasionally or at long intervals, that did not mean that they were not part of the package of tasks and responsibilities that needed to be evaluated, nor was the job to be regarded as different in the periods when such tasks were actually being performed and when they were not. (4) In circumstances where "job analysis reports" had already been prepared on the basis of the date of P's claims, and N had not been called on to identify any job changes on which it relied, the tribunal's decision was a proper exercise of its discretion and contained no error of law.

Appeal dismissed

For the second appellants: Tess Gill, Anya Palmer

2008] ICR 910, [2009] IRLR 22

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