The claimant was employed in a team of 4, which, because of a reorganisation, was to be reduced to a team of 3, meaning that one person would be made redundant. The claimant had a job description and there was to be a new job description. The new job description was said by the respondent to be a very different job. The claimant contended that she could do the job which was envisaged in the new team and that she should have been slotted in. Further, one of the 4 team members gave in her notice, and the claimant maintained that this meant there was no longer a redundancy situation. She also pointed out that within the respondent's redundancy policy a person who does not have sufficient experience for a vacant post should be offered the job on a trial basis for up to three months, and that she should therefore have been considered for that and it was unfair not to. The claimant was made redundant. She claimed unfair selection for redundancy and that she was paid less than her male comparator. Both claims failed at the ET.

The EAT upheld the appeal relating to unfair dismissal, saying that the claimant's case of unfair selection based primarily on the failure of the respondent to retain her when another employee left was reasonably arguable. Her case that the respondent did not have a genuine material factor defence to her equal pay claim was dismissed – the ET had correctly compared appraisals of the work she had been doing with that of a man, albeit some reliance was placed on interviews for the new work.
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Appeal No. UKEAT/0395/11/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 October 2011

Before

HIS HONOUR JUDGE McMULLEN QC, MR H SINGH, MR S YEBOAH

MS S ASIF (APPELLANT)

ELMBRIDGE BOROUGH COUNCIL (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR SHAEN CATHERWOOD (of Counsel)

(Appearing under the Employment Law Appeal Advice Scheme)

REDUNDANCY – Fairness

EQUAL PAY ACT – Material factor defence and justification

The Claimant's case of unfair selection based primarily on the failure of the Respondent to retain her when another employee in the group was leaving is reasonably arguable.

Her case that the Respondent did not have a genuine material factor defence to her equal pay claim was dismissed. The Employment Tribunal correctly compared appraisals of the work she had been doing with that of a man, albeit some reliance was placed on interviews for the new work.

1. This case concerns unfair redundancy and equal pay. We will refer to the parties as the Claimant and the Respondent. It is a slimmer case on appeal, the Claimant having abandoned other aspects of her case which we say no more about. This is the Judgment of the court to which all members, appointed by statute for their diverse specialist experience, have contributed.

1. It is an appeal by the Claimant in those proceedings, against a Judgment of an Employment Tribunal sitting at London South over three days, under the chairmanship of Employment Judge Baron given with Reasons and registered on 23 May 2011. The Claimant represented herself and the Respondent was represented by a solicitor.

1. The Claimant made a number of claims, all of which were dismissed by the Employment Tribunal. She appealed. The matter came before Silber J on the sift, who directed a full hearing. In surprisingly concise terms, Silber J said "this case needs sorting out as there may possibly be an arguable point" which did not give us a lot of help for today. The Claimant, however, has secured the services of Mr Shaen Catherwood, under the aegis of the ELAA Scheme and he has, if we may say with respect, transformed the case from the home made Notice of Appeal into something which may correspond to what Silber J had in mind; the search for the elusive, arguable ground or, more accurately, a reasonably arguable ground.

1. The Claimant was employed by the Respondent in a capacity which was the subject of a reorganisation. As the Employment Tribunal, with its great experience, noted, these are not uncommon in local authorities. The Claimant had a job description and there was a new job description. The new job description was said by the Respondent to be a very different job. Mr Catherwood has taken us on an exercise in construction comparing the old with the new. His submission is that the new is very similar to the old. Yet he points out that of the 15 points in the new job description, there is an alteration in language in 11 of them. Also, the Employment Tribunal considered not just the written material but the evidence adduced by the relevant managers.

1. The Claimant contended that she was in a team of four, the new team was of three, she could do the job which was envisaged in the new team and she should have been slotted in. At the time, Mrs White had given notice, before the redundancies took effect, that she was going to leave and the Claimant said "I can do her job. Why make me redundant when Mrs White is already going?" She also pointed out that within the Respondent's redundancy policy a person who does not have sufficient experience for a vacant post should be offered the job on a trial basis for up to three months, and that the Claimant should have been considered for that and it was unfair not to.

1. We consider there are reasonable grounds for sending this to a full hearing. The vehicle for that will be amended grounds of appeal which have been drafted by Mr Catherwood. We will provisionally give permission for the amended grounds upon which we have operated today's hearing to be the grounds of appeal, subject to any objection raised within 14 days by the Respondent. If there is none, then this will be the grounds of appeal which go before the division of the EAT which hears this at a full hearing in substitution for the grounds of appeal, which are already in the papers.

1. We consider that the two discrete aspects of the appeal in relation to Mrs White are reasonably arguable. That is, that the Claimant should not have been let go when Mrs White was herself going, and that she should have been considered under the people policy. As to the more detailed aspects of the case, which Mr Catherwood has set out, this is a matter requiring detailed analysis of the points scored by the relevant managers for each of the four people in the department, in determining who should survive the reorganisation.

1. We pointed out to Mr Catherwood that the law is against him, in that it is not the job of the EAT to consider the points scored by individual managers, of people potentially under threat of redundancy, so long as the issue is generally dealt with fairly and avoids obvious error. However we have not had the Respondent's submissions as would have been ordered by Silber J in response to this amended Notice of Appeal.

1. We have decided that these grounds, as they stand under paragraph 2.1 to 2.6 of the amended grounds, will go forward, but we do so in respect of what we might call the arithmetic point, only out of pragmatism. We have not formed a view that this is reasonably arguable in its own right, because we have not had the advantage of having the Respondent's submissions upon it. It may be that once they get to work on it, that there will be nothing in it, but it is not sensible to hold up the consideration of the appeal further for that, so ground 2 of the amended Notice of Appeal will go to a full hearing. Mr Catherwood quite properly advances the argument that there was no pass mark. That is part and parcel of ground 1 and can be raised as well.

1. We then turn to the equal pay point. The grounds of appeal now forming what is called ground 2, genuine material factor, arises in the following way. The Claimant succeeded in showing that she was doing like work with Mr Wray, and so the Respondent's defence of a genuine material factor had to be examined by the Tribunal. The Tribunal said this:

"56. We therefore turn to the genuine material factor defence where we look at the matter from a different point of view. Miss Thorp submitted that Mr Wray had greater skills, knowledge and experience and was operating at a higher level. The scores given to each of the Claimant and Mr Wray in those respects during the redundancy exercise support that submission. Those scores are set out above. The difference in the scores for 'Knowledge/Skills/Abilities' is particularly striking. Mr Wray and Ms King achieved very similar scores under that heading, and much higher scores than the Claimant's score. Indeed they were more than twice the Claimant's score. The Claimant had joined the Respondent without having any experience in helpdesk work or IT systems administration. During her appraisals she accepted that she was on a steep learning curve. Mr Wray, on the other hand, had substantially more knowledge and skills gained from his previous experience. We find that such experience, with consequent extra skills acquired, was a genuine material factor justifying the difference in pay between the Claimant and Mr Wray, and incidentally also the reason for the difference in pay between the Claimant and Ms King."

1. Against those findings, the two sub-grounds under this part of the appeal contend that the Tribunal impermissibly placed great reliance on certain matters and impermissibly gave weight to certain matters. With respect to Mr Catherwood, this is an unpromising start in a court with jurisdiction founded only on questions of law for, as he well knows, questions of weight are matters of fact for a Tribunal of fact. The Employment Tribunal is constituted by Parliament as the supreme fact-finder, and not the Employment Appeal Tribunal.

1. Nevertheless, we pay careful attention to the substance of the point here. We have to say that we cannot see any error. A striking point, to use the language actually of the Tribunal, is Mr Catherwood's point that if the Tribunal were only looking at the work in the new job, it would have committed an error, because equal pay is to do with a comparison of the work done by, that is already done by, the Claimant and her comparator.

1. However, what the Tribunal decided here was that the difference in pay, Mr Wray of course being paid more by definition in this hypothesis, was explained by reference to the contemporaneous appraisals during the life of the work being done by the Claimant, together with her own (we hope she will forgive us when we say it is an) admission that she was on a steep learning curve. The contemporaneous appraisals during the time the work was being done supported the Respondent's contention that there was a genuine material factor, explaining the difference in pay. Secondly, the notes taken of the interviews also reflect the presentation of the Claimant and Mr Wray in the work they had already done.

1. True it is that there is a reflection about how they would perform in the new work, but there is sufficient material here upon which the Tribunal could find as a fact that there was a genuine material factor. The Tribunal uses evaluative phrases which require the injection by it of assessment, appreciation, evidence and judgment; all matters with which we have not had the advantage to be seised.

1. So the equal pay case, ground 2 of the amended Notice of Appeal, is dismissed, and this case will go forward on the basis that we have suggested.