Appeal No. EAT/17/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 23rd March 1992

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR T S BATHO

	MR S M SPRINGER MBE

SPRINGBOARD SUNDERLAND TRUST	APPELLANTS

MRS J ROBSON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR T HEWITT
(Of Counsel)
Crutes
37-38 West Sunniside
Sunderland
SR1 1BY

For the Respondent	MS V GAY
(Of Counsel)
Brian Thompson & Partners
2 Fenkle Street
Newcastle-upon-Tyne
NE1 5XN

	MR JUSTICE KNOX:  This is an Appeal by Springboard Sunderland Trust which I will call "the Trust" from a Decision of the Industrial Tribunal sitting at Newcastle-upon-Tyne on the 6th September 1989 and sent to the parties on the 19th October.

	The Decision is expressed in the following terms:
"The majority decision of the Tribunal is that:

(a)the applicant was employed on work rated as equivalent with that of Mr Render, her comparator, (he being in the same employment) in a job evaluation study carried out between February and May 1987, and,

(b)`rated as equal' in section 1(5) of the Equal Pay Act 1970 as amended means rated equally according to the way in which the numerical results are converted into grades in spinal column points in the respondents pay scheme."

	The Chairman, at the outset, with disarming frankness, accepted that that formulation left a good deal to be desired because it did not fit with the terms of the Act, and in that he was indeed right.  The basic facts that enable the appropriate statutory provisions to be identified are as follows.

	The employee Mrs Robson, the Respondent before us, and I will call her Mrs Robson, claimed under Section 1(2)(b) of the Equal Pay Act that an equality clause should operate.  Section 1(2)(b) is concerned with the case:
"where the woman is employed on like work with a man in the same employment"
and her comparator, as appears from the passage I have read from the Decision, was a Mr Render.  Their jobs in fact were not entirely identical, Mrs Robson was a team leader, Mr Render was described as an Induction Officer.  There had however been a Job Evaluation Study which was accepted and it was agreed that it was neutral from the gender point of view, so that no problem arises on that score.

	The relevant statutory provision is therefore, Section 1(5) which contains a definition of work rated as equivalent with that of a man.  The sub-section reads as follows:
"A woman is to be regarded as employed on work rated as equivalent with that of any men if, but only if, her job and their job have been given an equal value, in terms of the demand made on a worker under various headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings"

I omit the rest of the sub-section which is not relevant to this case because there was no difference between men and women.

	The job evaluation as between Mrs Robson and Mr Render threw up, initially three, and after appeal, only two differences in the points that were allotted to several factors.  The two differences were, first of all in education, where Mr Render was rated in level 5 and Mrs Robson in level 4.  Level 5 is, in the Job Evaluation Scheme, described as follows:
"Ability to carry out work requiring good practical knowledge of accountancy, technical work, etc.  This will include qualifications shown in the attached schedule"

no such qualification appears to have been relevant.  Level 4, which was the one ascribed to Mrs Robson reads:
"Ability to write letters and reports on various subjects or do more complex calculations or prepare simple statistical statements."

That difference produced a 10 point difference, level 4 being given 45 points, level 5 being given 55 points.  The other difference that survived appeal was in respect of supervisory responsibility where Mr Render was in level 3:
"1-10 manual workers, OR
 1-3 clerical staff, OR
 equivalent combination"

being the minimum requirement.  Level 2, which was Mrs Robson's, is described as:
"Occasional supervisory responsibility of a minor nature, e.g. `fathering' temporary staff assigned to the section during peak periods."

That difference in points terms was one of 8, and so adding those two differences together one gets an 18 point difference between the two of them.  There was originally a further difference in respect of creativity but that disappeared on appeal.

	The end result, including the first evaluation and then the panel evaluation and then the appeal, was that whereas Mr Render got 428 points, Mrs Robson finished with 410.  That is set out in the two job evaluation score sheets that are in the papers before us and were before the Industrial Tribunal.  The bottom line of those two score sheets reads from left to right in Mrs Robson's case:

	"EVALUATOR 1	PANEL RESULT	   APPEAL
	LEVEL    PTS	LEVEL    PTS		LEVEL   PTS
SCALE/TOTAL	  4           390	  4            400		  5          410"

	Mr Render's figures were simpler because there was only evaluator and panel and his  results were:
		"5            418	  5             428"

The Job Evaluation Scheme has as one of its constituent parts a table of points to grading relationship that attributes Scale 5 for 410 points and Scale 5 for 428 points but Scale 4 for the pre-appeal levels of marks that Mrs Robson had namely, 390 and 400.  

	The table headed "Points to Grading Relationship" in the Job Evaluation Scheme has two relevant entries, between Points 360 and 409 salary grades AP.3 and T.3 figure in the next column, and between Points 410 to 449, under salary grade one gets AP.4 and T.4, and that translates in scale terms in the way in which I have read from the bottom line of their two respective score sheets.  So it will be seen that Mrs Robson as a result of appeal just climbed into a higher grade or scale than she had been before the matter went on appeal.

	The question, therefore obviously arises, whether as the Trust submits, what needs to be done is to look at the points evaluation and the result of the analysis in terms of points, or whether, as Mrs Robson submits, one has to look at the whole of the Job Evaluation Scheme and take into account that that contains a whole variety of different processes which include the process of converting points to grade or scale at the end of the line.  That this is part of the Job Evaluation Scheme itself is submitted as appearing from the introduction to the Job Evaluation Scheme itself, and subsequent paragraphs that describe it. The initial words of the introduction to the Scheme which is the "Greater London Whitley Council" London Scheme is as follows:
"The widespread use of job evaluation as a means of determining salary grading in London Boroughs stemmed from a pilot survey carried out by the London Boroughs' Management Services"

There is a passage that deals with over-graded posts, which at paragraph 6 reads:
"Where an authority considers in the light of the application of the Scheme that a post is overgraded, the existing postholder shall be given personal protection and, if possible, given the opportunity to undertake duties more in keeping with his potential grading."

	Under the heading "Price Tag" paragraph 8 reads:
"The G.L.W.C. agreed that the price tag set out in this Appendix should apply without variation to all authorities using the G.L.W.C. Scheme."

and it is submitted that in the light of those paragraphs there is an indication that the Job Evaluation Scheme is one which does not stop short at a points evaluation but includes the end result which is the scale or grade.

	As appears from the fact that the Industrial Tribunal Decision was a majority Decision, there was a difference of opinion below.  The Chairman took the view that the statutory words had to be construed in their ordinary literal meaning and that he interpreted as involving that the words "rated as equivalent with that of any men" were limited to the "values" assigned under the Job Evaluation Scheme and not according to any conversion subsequently made of such values into banding.  That would seem to be directed at the terms of Section 1(2)(b) rather than Section 1(5) which, it seems to us, is the critical sub-section because it contains the definition for statutory purposes of what Section 1(2)(b) means.  We would therefore identify the critical question to be whether, Mrs Robson's job and Mr Render's job had been given an equal value on the Job Evaluation Scheme that was in fact undertaken.  That of course has to be, as the sub-section mentions, in terms of the demand made on the workers under the various headings.

	The majority took the view that there was an employment of Mrs Robson on work rated as equivalent with that of Mr Render because the scheme that was used contained a conversion of points to salary grades and they therefore took the view that one had to accept the banding system as part of the Job Evaluation Scheme.

	The practical arguments in favour of the wider view, namely that of having regard of the grade or scale at the end of the evaluation process, were identified before us as first of all being that there would be a precise and clear yardstick for the parties and that, in this particular context, means not only the employer and employee but also the unions, who would know what was involved right from the outset. 

	Secondly, it was submitted that if one takes the narrower view of just adding up the points and the matters upon which the points are based and looks no further, one inevitably has a very large number of minor variations required to be treated separately.  This was very properly accepted by Mr Hewitt as being a result of the narrow construction, but he submitted that the literal construction was the only possible one in the terms of the sub-section. 

	Thirdly, it was submitted on behalf of Mrs Robson that job evaluation schemes are not a precise mathematical science, but an art,  a proposition for which there is much authority, and that in those circumstances it would not be right in principle, unless one was driven to it, to have regard to the precise mathematics rather than the end result involved in the Scheme itself.

	We have come to the conclusion that it is necessary to have regard to the full results of the Job Evaluation Scheme to see whether or not one can say whether a study undertaken of a Job Evaluation Scheme gives an equal value to the two jobs in question, and that includes the allocation of a scale at the foot of the score sheets.

	The reference to the terms of the demand made on the workers under the several headings, of which illustrations are given, is in our view an indication of how the Job Evaluation Scheme is required to be structured, but does not involve a limitation in the scope of the sub-section.  We appreciate that Mr Hewitt, in his persuasive argument, was not submitting that the words "equal value" meant the same as "the same number of points", because the Section does not say so and, more importantly on a purely linguistic level, there would be difficulty in dealing with a case where the applicant had a higher number of points than her comparator.  Obviously that would not be a case of the same number of points, but equally obviously it would be totally unrealistic to regard the requirement as not satisfied by such a woman.

	Equal value, Mr Hewitt submitted, means the results of the analysis that was actually made in the Job Evaluation Scheme and he pointed to the two differences which I stated earlier between Mrs Robson's evaluation in relation to supervision responsibility and education from those attributed to Mr Render.  On balance we are persuaded that the interpretation relied on by Mrs Robson being a possible one, in terms of the wording of the sub-section,  is undoubtedly one which is from the practical point of view preferable, and since it coincides with the Decision of the majority this Appeal will be dismissed.