Equal Pay – The appeal concerns two narrow points on the meaning of a Job Evaluation Study (‘JES’) under s.80(5) Equality Act 2010 (‘EqA 2010’) and whether, and if so how, the statutory burden of proof provisions in s.136 EqA 2010 apply to the determination at a preliminary hearing of the question of whether a study is a s80(5) compliant JES.
Held: the burden of proof will only shift under s.136 when a prima facie case on all aspects of a claim has been established (whether on the evidence or because the basic facts are not in dispute). In this case, at the preliminary hearing at an early stage of an equal pay claim on the single issue of whether there was a JES that had rated the claimants and their comparators jobs as equivalent, there were still many other outstanding issues and many of the basic facts were in dispute or not yet agreed, it was premature to apply s.136. But there was no error in the tribunal’s sharp focus on the respondent’s evidence and in looking to the respondent to justify its assertion that the 2014 Exercise was not a JES even though the burden of proving that the 2014 Exercise was a JES lay with the claimants. It was almost a matter of common sense – making findings as to the primary facts and drawing such inferences as they considered proper from those facts to reach a conclusion on the balance of probabilities. But it did not involve a shift in the burden of proof under the statutory provisions.
There was no error in the tribunal’s conclusion that the 2014 Exercise was not a JES as it did not cover the demands made on the job holders as required by s.80(5) and was still a work in progress. A detailed trawl through all the appellate case law on JES demonstrates that it has been overlooked that the second limb in Eaton v Nuttall [1977] ICR 272 EAT was overturned by Bromley and ors v H and J Quick Ltd [1988] ICR 623 CA. But by simply applying the words of the statute and assessing if a scheme is thorough in analysis, tribunals are well able to decide if a scheme relied on is a JES as defined by s.80(5), as this tribunal did. Only where a JES is relied on by a respondent to strike out an equal value claim under s.131(6) must the tribunal consider if the study is tainted by sex discrimination or is otherwise unsuitable to be relied on. If a study is tainted by sex discrimination, it may well be that it also means that it has not given the job in question a value by reference to the demands made on a worker under various headings, but that is as a consequence of applying the wording of s.80(5).
Citations:
[2022] EAT 165
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 09 November 2022; Ref: scu.682479