Glasgow City Council workers win equal pay appeal over job evaluation scheme

Lord Menzies
Lord Menzies

Thousands of current and former employees involved in an equal pay dispute with Scotland’s largest local authority have successfully challenged the council’s job salary re-grading scheme after complaining that the process was “fundamentally flawed”.

The Inner House of the Court of Session quashed a decision of the Employment Appeal Tribunal (EAT) in which the EAT held that the Job Evaluation Study (JES) conducted by Glasgow City Council was valid in terms of the Equal Pay Act 1970 (EQP).

The Lord Justice Clerk, Lady Dorrian, sitting with Lady Paton and Lord Menzies  heard that the respondent’s study, which was carried out as part of its Workforce Pay and Benefits Review (WPBR), was designed to implement the move to single status for the respondent’s employees so that, following the review, separate collective agreements would be replaced with one scheme which brought all Administrative, Professional, Technical and Clerical (APT&C) staff and manual workers together under one pay scheme.

Job evaluation scheme

To effect this, a JES required to be carried out in order that the respondent could implement a new, unified pay and grading structure.

That involved creating job “families”, developing role profiles, evaluating role profiles, and allocating role profiles to job families.

Through that process, each job was given a grade score.

The respondent then assessed Work Context Demand (WCD) and each job was also given a score under that heading.

The appellants brought claims in terms of EQP challenging the design, methodology and implementation of the JES, arguing that it was “invalid” because it produced two separate scores for each job, which resulted in women earning thousands of pounds less than men in certain “equivalent” jobs.

However, they were unsuccessful before the ET and the EAT and therefore the claimants appealed to the Court of Session.

Among the witnesses who gave evidence before the ET was Dr Stephen Watson, who designed the JES for the respondent, but there was no independent expert witness for either the claimants or the respondent as to the suitability of the JES or its compliance with the requirements of section 1(5) of EQP.

Burden of proof

The ET’s decision suggested that the tribunal considered that there was a burden of proof on the claimants to demonstrate that a scheme which produced two scores was invalid.

The ET also observed that the claimants had not called an independent expert who could provide the tribunal with an opinion as to the legitimacy of using a methodology that resulted in two separate points values, which it said created a “lacuna”.

The EAT held that the ET had made findings it was entitled to make and there was no error of law in its decision.

The appellants argued that the burden of proving that the respondent’s JES satisfied the requirements of section 1(5) of EQP rested with the respondent and that the tribunal erred in its approach on the treatment of expert evidence.

It was argued that the lacuna existed because of the respondent’s failure to discharge the burden of proof.

Expert evidence

It was also submitted that, having stated that it required expert evidence about the technical question as to the legitimacy of using this methodology, and that it could not be expected to rely on its own knowledge to reach a conclusion, the ET then answered the question and reached a conclusion.

The appellants maintained was not for the claimants to fill the gap, nor for the ET itself to fill the gap, but it was for the respondent to lead this evidence and in the absence of expert evidence the ET should not have found the JES to be valid.

The appeal judges agreed that the burden of proof rested with the council to demonstrate that it complied with the law, and that it failed to produce expert evidence to discharge the burden.

Error of law

Delivering the opinion of the court, Lord Menzies said: “The burden of proving that its JES was compliant with section 1(5) rested on the respondent throughout the proceedings before the ET. It was not part of the function of the ET to speculate as to whether aspects of the JES might be made to work in such a way as to render them compliant. If there was a lacuna in the methodology of the JES, it was not part of the ET’s function to try to fill that lacuna. If the tribunal could not be satisfied on the basis of the evidence led before it that the methodology of the JES was justified and its analysis thorough, the ET required to find that it was not a valid job evaluation as defined in section 1(5) of EQP.

“The above observations apply to all ETs, but in the context of the particular JES being considered in these appeals, they are especially important. The scheme which was being put forward by the respondent was a bespoke scheme… The respondent was of course entitled to commission its own bespoke design, and was not obliged to follow the methodology of other schemes. However, when the ET was considering what it described as a ‘bespoke, novel and untested’ scheme, it must have evidence before it from the respondent to enable it to conclude that it was compliant.”

He added: “At several points in its decision and in its additional reasons the ET appears to criticise the claimants for not leading expert evidence. The impression is created that there was an onus on the claimants to establish that the scheme was not compliant with section 1(5). We do not accept that there was any such onus. If the respondent did not lead sufficient, or sufficiently persuasive, evidence that the scheme met the relevant tests in order to comply with section 1(5), the ET required to find that the scheme was not a valid job evaluation as defined in section 1(5) of EQP.”

The judges also observed that, having stated that the answer to the question lay within the technical expertise of an expert and that the ET did not hold themselves out as experts, the tribunal proceeded to answer the question, which it should not have done.

“This was not a case of a specialist tribunal asserting knowledge, but rather of a tribunal expressly disavowing expertise,” Lord Menzie said.

The court concluded: “With regard to the issue of the compliance of the JES with section 1(5), we conclude that the burden of proof rested throughout with the respondent. Having determined that it lacked the expertise to answer the issue which it identified in paragraph 376 without independent expert evidence, and there having been no independent expert evidence, the ET erred in law in proceeding to answer the question. The absence of such expert evidence meant that the respondent failed to discharge the burden of proving that its JES was compliant with section 1(5) of EQP. The decision of the ET in this regard displays an error of law, and the decision of the EAT to uphold that decision also amounts to an error of law.”

The case was remitted to the ET to consider the question of equal value.

© Scottish Legal News Ltd 2019

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