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In a welcome decision, the EAT concludes that a Tribunal which decides not to refer an equal value case to an independent expert is not entitled to dismiss the applications summarily.
Instead, it must, separately, give the applicants the opportunity to bring their own expert evidence before determining whether or not the applicants' work is of equal value to that of a comparator.
In Wood & Others v William Ball Ltd., the applicants were cleaner/packers and the comparators were picker/packers. The employer manufactured and distributed kitchen, bedroom and office furniture.
The Tribunal convened a hearing for the purpose of hearing an "application to adjourn the case for preparation of an expert's report pursuant to Section 2A(1)(b) of the Equal Pay Act 1970". On hearing the employer's expert evidence, and evidence from the applicants and comparators, the Tribunal concluded that there were no reasonable grounds for determining that the work of the applicants was of equal value to that of the comparators. It then proceeded to dismiss the applications as, in its opinion, they had no reasonable prospects of success. The applicants appealed.
Before 1996, Section 2A(b) of the Equal Pay Act provided that a Tribunal could not determine the question of equal value unless (a) it was satisfied that there were no reasonable grounds for determining that the work was of equal value; or (b) it had required the preparation of an independent expert's report.
In 1996, however, Section 2A(1) was amended so that a Tribunal could either (a) determine the question of equal value; or (b) unless it was satisfied that there were no reasonable grounds for determining that the work was of equal value, require the preparation of an independent expert's report. This meant that Tribunals were given the option of determining the question of equal value themselves, rather than referring cases to an independent expert.
The GMB supported their members case and instructed Thompsons in the appeal.
The Employment Appeal Tribunal in the Wood case decided that the 1996 amendment envisaged a two-stage process. The Employment Tribunal had been wrong to elide the two stages so as to dismiss the applications at the same time as finding that there were no reasonable grounds for determining that the work was of equal value. Instead, the Tribunal should have arranged a separate hearing at which the applicants would have been able to present their own expert evidence, as they had indicated they wished to do.
This is an important case. Many applicants claiming equal value will wish to see, first of all, whether or not the Tribunal is prepared to refer the matter to an independent expert which will, of course, save the applicants a considerable amount of money. If not, the applicants should still be given the opportunity to bring forward their own evidence at a separate hearing to determine whether or not their work is of equal value to that of their comparators. As such, the old law, on the pre-1996 provisions, as stated in Sheffield Metropolitan District Council v Sibury & Another, no longer applies.