The issue arose in relation to s1(5) of the Equal Pay Act as amended where the claimants had compared themselves with temporary road workers or labourers. The road workers’ terms and conditions, like those of the claimants, were governed by a document called the ‘White Book’ and both groups were graded MG1. The question before the Tribunal was whether or not the temporary road workers were evaluated into the White Book thus enabling the claimants to make a comparison between temporary road workers and themselves. According to the Tribunal, the evidence suggested that someone at the respondent had carried out an exercise to ensure that the job specifications and job descriptions for the temporary road workers fell within the MG1 grade, and to do so, in an honest way, they must have been evaluated in accordance with the White Book. The respondent appealed.

The EAT accepted the submissions of the respondent and allowed the appeal. It was implicit in the Tribunal judgment that the evidence of the respondent’s witnesses, that there had never been an evaluation of the temporary road workers, had been rejected but the Tribunal had given no reasons for arriving at this conclusion. Alternatively, the conclusion was one which no reasonable Tribunal properly directing itself on the evidence could have reached.

_____________________

Appeal No. UKEAT/0216/09/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 May 2011

Before

HIS HONOUR JUDGE HAND QC, MR B R GIBBS, MRS M V McARTHUR BA FCIPD

NORTHUMBERLAND COUNTY COUNCIL (APPELLANT)

MRS E COLLINS & OTHERS (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR JULIAN MILFORD (of Counsel)

Instructed by:
Messrs Ward Hadaway Solicitors
Sandgate House
102 Quayside
Newcastle-upon-Tyne
NE1 3DX

For the Respondent
MS KARON MONAGHAN (One of Her Majesty's Counsel)

Instructed by:
Messrs Thompsons Solicitors
The St Nicholas Building
St Nicholas Street
Newcastle-upon-Tyne
NE1 1TH

EQUAL PAY ACT – Work rated equivalent

The Judgment of the Employment Tribunal concluded work had been rated as equivalent because it could be inferred that the male comparators' job had been evaluated under a job evaluation study; that conclusion was inadequately reasoned. It was implicit in the Judgment that the evidence of the Respondent's witnesses there had never been such an evaluation had been rejected but no reasons for arriving at such a conclusion were stated and the inferential basis for the conclusion that there must have been such a study rested on a series of speculative assumptions. Alternatively the conclusion was one that no reasonable Tribunal properly directing itself on the evidence could have reached.

1. This is an appeal from the Judgment of an Employment Tribunal sitting at Newcastle upon Tyne on 15 January 2009. The Judgment was sent to the parties on 2 April 2009. The case has taken some time to come before us because, as we understand it, there have been a number of stays in what is an equal pay case involving some 3,000 or so people, not all of whom will be Claimants, but will be beneficiaries, in the event that the claim is successful. There are, we have been told, millions of pounds at stake.

1. The hearing on 15 January 2009 was a pre hearing review on a preliminary point. The Employment Tribunal held that the Respondents (that is to say, the employees) had been employed on work rated as equivalent with those of male comparators. It is against that finding the Appellant (employer) now appeals.

1. The issue arises in relation to section 1(5) of the Equal Pay Act 1970 as amended. In order to invoke section 1(2)(b) of the Act as triggering the equality clause defined by section 1(1) of the Act, the Respondents had compared themselves with temporary road workers or labourers. Historically, their terms and conditions, like those of the Respondents, were governed by a document called the 'White Book', and both groups were graded MG1. This was a manual workers' grade under the 1987 National Joint Council Job Evaluation Scheme, which, it was common ground at the Employment Tribunal, was a "valid job evaluation scheme" (see paragraph 8 of the Judgment).

1. Our understanding is that ordinarily that would lead to an acceptance, for the purposes of section 1(5), that there had been:

"[...] a study undertaken with a view to evaluating in [...] terms of the demand made on a worker under various headings (for instance effort, skill, decision) [...] the jobs to be done by all or any of the employees in an undertaking..."

1. But the Appellant's position both at the Employment Tribunal and here was that temporary road workers or labourers, although they had been placed in the MG1 grade, had arrived there without any of the job evaluation procedures set out in the White Book being followed. Whether or not this is an unusual position or even, as has been said both here and below, an unattractive one the Appellant to adopt, it could arise only because of the characteristics of the Job Evaluation Scheme, the nature of which is explained by paragraphs 8 and 9 of the Judgment of the Employment Tribunal at page 5 of the bundle:

"8. It is accepted by both parties that the 1987 job evaluation scheme, the White Book, is a valid job evaluation scheme. It has eight common factors being skill, responsibility for people, responsibility for resources, responsibility for supervision, initiative and independent action, mental effort, physical effort and working conditions. These factors are then weighted within the job evaluation scheme. The total scores allocated to an individual determine the appropriate grade which range from grade MG1 to MG6. MG1 requires 1 to 269 points. Mr Stephenson's evidence is that at the time of the introduction of the White Book, 90% of the manual workers within the respondent's work force were evaluated. If a particular job had not been evaluated using the White Book the evaluation took place on a local basis. Job outlines for the White Book were agreed and amounted to 37 in total. These are set out at 2/660. For MG grade 1 the only job profile for employees working on roads is road sweeper. There are national job outlines for road workers at MG3 road worker 1 at MG4 road worker 2 at MG5 road worker 3.

9. The evaluation of the various jobs initially required the comparison between the duties, responsibilities and the conditions of the job within the national job profile. If there were no major differences the job was graded at that level. If there was disparity, assessment was carried by a factor comparison."

As can be seen from paragraph 8, 90 per cent of the manual workers, according to Mr Stephenson's evidence, had been evaluated after the introduction of the White Book in about 1987 or 1988. Paragraph 7 of the Judgment refers to the date of the scheme as having been 1987.

1. The process is further described in paragraph 10:

"Assimilation of manual workers into the White Book terms and conditions was carried out in latter part of 1987. A job description was drafted for each manual job. This was agreed with the trade union representatives. A panel was convened of two of the respondent's officers and two trade union representatives who assimilated the job into the grading structure. This was then considered by the central grading panel. Files were apparently kept."

1. The files that should have related to this particular group of manual workers have been lost. They are said to have "clearly been mislaid" by Mr Stephenson, who gave evidence on behalf of the Appellant at the Employment Tribunal (see paragraph 11). Mr Nicholson, who was the General Manager of the Highways Division, took up that post in 1992. Paragraph 12 explains that compulsory competitive tendering, which had started around the end of the 1980s, had caused some difficulties to the Appellant. His evidence was reported by the Tribunal in these terms at paragraph 12:

"Mr Nicholson became general manager of the highways division in 1992. The highways division had to operate a profit and loss account. The respondent had a core number of workers at the time to carry out road works. At times the work required to be done was in excess of the capacity of the core workforce. To deal with the situation Mr Johnson either had to employ subcontractors or temporarily increase the size of the respondent's own labour force. In practice both options were used."

1. The Judgment continues in paragraph 13 as follows:

"Mr Nicholson's evidence is that he took the decision to employ temporary road workers. They were paid at manual worker grade 1 rates plus 20% bonus. Mr Nicholson's evidence is that a temporary road worker did no different work to that of a permanent road worker who was graded MG3. However, the decision was made that the temporary road workers would not be paid at the same rate as the permanent or core employees who were graded at MG3. The reason was to keep employment cost down."

1. Fragments only of the paperwork have survived. A job description for an MG3 road worker indicated that driving was part of the duties. This is referred to by the Employment Tribunal in paragraph 14 of the Judgment at page 6, where the job purpose is described as follows:

"To undertake, as part of a team, specialist highway maintenance and construction tasks using where required powered light plant and powered hand tools. To drive and operate vehicles and items of plant not requiring an LGV licence."

1. The tasks set out and referred to at paragraph 14 are said to:

"[...] include driving a van with passengers to and from the work and transporting materials to and from stores and work sites on a towed trailer."

1. Other documents that survived are described by the Employment Tribunal at paragraph 16. The first is an application for the post of road worker; the second is a job description:

"[...] which is stated to be at the grade of 'former manual worker grade 1' [...]. The job purpose is described as follows:

'To provide labouring assistance to a team undertaking highway maintenance and construction tasks using where required simple powered light plant and powered hand tools.'"

1. It will be appreciated that the difference between the job purpose set out at paragraph 16 and paragraph 14 is that in the latter there is the additional sentence referring to driving. The evidence given on behalf of the Appellant by Mr Nicholson and to a lesser extent by Mr Dover is recorded at paragraph 19 in these terms:

"The Respondent is unable to identify who prepared the job descriptions and person specifications or when they were prepared. The respondent's evidence is that there was no difference in the work carried out by road workers on MG1 and those on MG3. It accepts that they are bound by contract and by the collective agreements to pay its employees correctly. It accepts that the payment of workers MG1 was 'incorrect' and that they should have been paid on MG3. They have all now been put onto MG3."

1. The Employment Tribunal heard from Mr Spears, who was a trade union representative. We have been taken to his witness statement which starts at page 106 of the bundle. He had extensive experience in the employment of the Appellant, having started in 1972 at the age of 15. He had been working as a labourer/driver in the Highways Division until 1985 when he became a foreman. He had become a GMB shop steward in 1997 and was the Assistant Branch Secretary for the Northumberland County Council branch from 1999 to 2008. He plainly had a good deal of experience. At paragraph 20, his evidence is summarised as follows:

"Both he and the respondent's witnesses accept that he was constantly trying to have the temporary road workers made into permanent road workers, as he used the terms, and be paid on MG3 scales. His evidence was that the elected councillors expressed a view that the highways department should have sufficient permanent employees to be able to do most of the work. This may not have been possible when competitive tendering was required but in recent times that requirement was decreased. Mr Spears was not aware, and we accept his evidence, that the temporary road workers at MG1 were regarded as doing exactly the same work as MG3 road workers. He was specifically asked the question whether if the temporary road workers were doing the same work as MG3 workers he would have countenanced grading the temporary road workers as MG1. He said that he would not."

1. The only evidence before the Tribunal about an employee on the MG1 grade having had his job evaluated under the White Book Job Evaluation Scheme related to Mr Elliott. As the Employment Tribunal appreciated (see paragraph 21 of the Judgment), he may have been a special case, and he was more of a road sweeper than a road worker. The Tribunal also noted the evidence of Mr Dover at paragraph 22 of the Judgment. What they say about his evidence was that he was experienced in working with both temporary and permanent road workers. Paragraph 22 continues as follows:

"He expected temporary and roadwork to do the same job after they had been shown what to do by him. He had no knowledge of any of the recruitment provisions and job descriptions prepared for temporary road workers. He had worked with five to six temporary road workers in each year over a period of 25 years. He had never worked with a temporary road worker who had just started. He had worked with Mr Teesdale, who was a temporary road worker. He had come to work with him after six months from his start date. Some road workers were paid extra when they acted up. He had no knowledge of any of the temporary road workers acting up."

1. Those were the evidential findings of the Employment Tribunal. The conclusions reached by the Employment Tribunal start at paragraph 37 at page 12 of the bundle. Paragraph 37 states the question to be determined as follows:

"The question which the Tribunal has to determine is whether or not the temporary road workers were evaluated into the White Book thus enabling the claimants to make a comparison between temporary road workers and themselves."

1. The rest of paragraph 37 is taken up with an explanation as to why the word 'temporary' might have been somewhat misleading, but since nothing turns on that, there is no need for us to consider it further. The question thus stated had already been identified at paragraph 6, albeit in somewhat different terms. There the Employment Tribunal set out the issues that it understood it needed to resolve in terms of the following alternatives:

"The issue for determination is whether the temporary road workers/labourers identified by the claimants were employed on work rated as equivalent with the manual grade 1 (MG1) claimants because:

(a) the work was rated with other labouring work as MG1 at or around the date of implementation of the White Book job evaluation scheme in 1987/88;

(b) that work was rated separately as MG1 before the introduction of the single status agreement or alternatively;

(c) whether the temporary road workers'/labourers' was not rated at all."

1. Putting that into simpler terms, the issue that the Tribunal had to decide was whether the work carried out by temporary road workers had been evaluated under the White Book scheme in 1987 or 1988, whether it had been evaluated at a later stage, or whether it had not been evaluated at all. At paragraph 38 of the Judgment, there is a reiteration of the case being put forward by the Appellant to the Tribunal. It was that the temporary road workers did the same work as the MG3 road workers but were not paid the same. Paragraph 38 contains a reference to Mr Stephenson's evidence that the decision to place temporary road workers into the MG3 grade had been made for a variety of reasons, including, "not least that we were being sued." Paragraph 39 raises the problem of the lack of evidence; as the Tribunal put it, "a dearth of direct evidence." This is how the Respondent's case was summarised at paragraph 39:

"The respondent's witnesses state that the road workers and the temporary road workers do the same job. The position of temporary road worker had lasted a number of years. We are told that recruitment does not come directly from the highways department but through the personnel department. Individual departments had their own personnel department but they are now centralised. If there was a recruitment we are told that advertisements were placed in local newspapers and through the jobcentre. That involved a process of the highways department informing the personnel department that recruitment was required. The advertisements in the bundle show clearly that temporary road workers were being employed as labourers. The recruitment of temporary road workers would have involved a number of people within the recruiting department (ie the highways department) and personnel. We find it difficult to understand, taking into account the number of people that must have been involved, that no one noticed that the temporary road workers were doing the same work as the road workers MG3 but being paid substantially less."

1. That last sentence has been the subject of scrutiny on this appeal. It will be appreciated from the extensive quotation from the Employment Tribunal's Judgment above that it was the Respondent's case that the work was the same and indeed that a pragmatic decision had been taken by the Respondent to grade the temporary workers as MG1 and pay them less in order to meet the financial exigencies of compulsory competitive tendering. The last sentence of paragraph 39 therefore must be taken to be a rejection of the evidence that this had been a deliberate policy by the Appellant, because otherwise the conclusion that "no one noticed" would ignore the evidence of Mr Nicholson and others that they had not only noticed but deliberately devised the policy.

1. The Tribunal then turned to the equally important evidence of Mr Spears. They describe him as, "the only union representative who has given evidence". Indeed, as we understand it, apart from Mr Nicholson, Mr Stephenson and Mr Dover, Mr Spears is the only other person giving evidence dealing with what actually happened in the highways department from about 1992 onwards. None of those who were employed as temporary road workers on grade MG1 and subsequently had become MG3 road workers gave evidence about their circumstances. In paragraph 40 the Employment Tribunal reiterates that Mr Spears was pressing management to upgrade the temporary road workers. The Tribunal deals with the Respondent's position that the union had not pressed for temporary road workers to be paid the same, and then says this:

"We are aware that the respondent is heavily unionised. We find it particularly difficult to understand that the union representatives particularly the full time representatives, if they were aware of the pay disparity would have countenanced the payment of a group of workers being paid at a lower rate than those of other workers doing exactly the same job. Accordingly, we consider that the unions must have been under the impression that the temporary road workers were, as the title suggests, temporary and doing a lesser job than the MG3 road workers and thus being paid a lesser amount. Mr Spears obviously wanted them to be paid more by being put on the higher grade."

1. At paragraph 41 of the Judgment the Tribunal approaches the question of what actually had been happening from the point of view of the collective agreement. It had been noted that this was a "heavily unionised" employer, and the Tribunal concluded that:

"[...] the respondent was in clear breach of contract and of the collective agreement. Not only were the temporary road workers not paid the correct amount, if it is correct that they were doing exactly the same work as the road workers MG3, it was also affecting their pension contributions for the future. If the respondent is accepted that throughout the period when the temporary road workers were not paid the correct amount, the respondent was clearly seriously depriving the temporary road workers of their rightful pay. We ask ourselves would a public body act in such a way? We also ask would, if the union was fully aware of the situation, it have countenanced the respondent acting in such a way?"

1. The Tribunal then looked again at the documentation. They note that the "most significant difference" between the person specifications is the requirement to drive, and then they say this:

"Someone at some time must have carried out an exercise of drawing up job descriptions and person specifications specifically for the temporary road workers. There is no evidence that an evaluation under the White Book took place. Conversely, there is no evidence that it did not. There is no documentation that the respondent can produce to show what actually did occur. All documentation has been mislaid. Our understanding is that the job descriptions and person specifications were drawn up by the personnel departments applicable at the time. The departments were involved in the White Book evaluation when it was brought in by the respondent. The departments will have been aware of the responsibility of complying with that collective agreement and that any new jobs had to be evaluated into the White Book. [...] The evidence suggests that there was an exercise carried out by someone in the personnel department of the respondent to ensure that the job specifications and job descriptions for the temporary road workers fell within the MG1 grade. To do so, and to do so in an honest way, they must have evaluated in accordance with the White Book."

1. The Tribunal draw all these matters together at paragraph 43. They direct themselves that it was for the Claimant to show on the balance of probabilities that there was an evaluation of temporary road workers in accordance with the White Book. The Tribunal notes that the documentation shows that there were different grades of road workers, and the Tribunal says this of the documentation:

"That is the only documentary evidence which shows that there was or could have been an evaluation."

The Tribunal repeats yet again that this was a "heavily unionised" County Council. The Tribunal reminds itself that the White Book is a national scheme, and then says this:

"What the respondent is asking us to accept is that for a number of years it employed a group of workers that were doing exactly the same work as road workers MG3 but were not paid in accordance with the proper scale that they should have been under the White Book. We cannot accept that. As we have said, the trade unions would not have countenanced that sort of action by the respondent. The workers themselves would not have accepted that situation. If they considered that they were doing exactly the same job as their co workers on MG3 who were being paid more they would, no doubt, have been very voluble in their protest. They would have involved the union. The temporary road workers regarded themselves as doing labouring jobs. They of course had aspirations to get onto the higher grade and this was promoted by the union. It is incomprehensible that the respondent would act in such a way. There must therefore have been an evaluation in accordance with the White Book to grade the temporary road workers as MG1."

1. The Tribunal then went on to make a declaration to that effect.

1. In terms of the submissions that were addressed to us, it is common ground between the parties that, having asserted that she was employed on work rated as equivalent with that of the men, and her job and the men's job had been given an equal value on a study undertaken with a view to evaluating in terms of the demand made under various headings (for instance, effort, skill, decision) the jobs to be done by all or any of the employees in an undertaking, it was for the Claimant to prove on a balance of probabilities that there had been such a job evaluation. It was also common ground that in practice that may mean in most cases, and did mean in this case, that, once it had been shown that the women and their comparators had been graded the same in grades used in a job evaluation study that was a valid job evaluation study for the purposes of section 1(5), if the Respondent wished to put forward a case that there had in fact not been an evaluation of the men's jobs under the job evaluation study then the Respondent would bear the evidential burden of producing that evidence.

1. Mr Milford's submissions on behalf of the Appellant were to approach the matter from the point of view of first of all whether the jobs were the same or different as a matter of fact (this was, he submitted, something in respect of which the Tribunal had failed to adequately reason its conclusions); secondly, whether there had been a job evaluation study, complying with section 1(5), undertaken in respect of the temporary road workers (again, this was something that had been inadequately reasoned, in terms of its conclusions, by the Employment Tribunal); and thirdly, that this was a decision that no reasonable Tribunal properly directing itself could have reached on the evidence.

1. He drew our attention to the case Paterson and Others v London Borough of Islington and Others [2004] UKEAT/0347/03/DA. This was a decision of this Tribunal presided over by Rimer J (as he then was). Its relevance to this appeal is that it concerns the White Book, and the significance is there had been a variation from the procedural regime set out in the White Book. Rimer J's division of this Tribunal reached this position at paragraph 21 of their Judgment:

"Coming now to our conclusions, we regard it as clear that, for the purposes of section 1(5), the evaluation of the applicants' jobs and that of assistant caretaker had to be carried out under a particular 'study,' and that must mean the same study. Were it otherwise, different jobs would or might be evaluated by reference to different criteria, with the result that a comparison between the results would not be one of like with like. There is no doubt that in this case the 'study' adopted by Islington was the Scheme. There is also no doubt how the Scheme was required to be operated at local level. In particular, as regards the 'assessment' of local jobs which could be 'assimilated' to any of the 37 model national jobs, a factor comparison was required with the closest national jobs [...]. We do not accept Mr Ford's submission that this (and other requirements) of the Scheme were merely recommendations from which local departure was permissible in the assessment of jobs. If that were so, the scheme would be of little worth. We accept that the scheme was not mandatory in the sense that either Islington or any other local authority was bound to adopt it. But, if it was adopted, it had to be applied uniformly, and according to its terms, since otherwise the job evaluations carried out under it could not be said to be carried out under it as a single "study".

(22) In the present case there is no doubt that Islington did adopt the Scheme and purported to evaluate the relevant jobs under it. The evaluation of the assistant caretaker post was, however, assessed by reference to three national model jobs and also to a fourth non national model job. In the last respect, the assessment involved a clear departure from the scheme. We are disposed to agree with Mr Ford that, in principle, not every such departure will necessarily compel a conclusion that the relevant evaluation was not carried out under the 'study' represented by this Scheme. We agree that this will usually raise a question of fact as to the materiality of the departure."

1. In that case applying the above reasoning the Tribunal concluded that there was a material departure and that therefore the study had not been the same study for the purposes of section 1(5). Mr Milford's position in this appeal was that Paterson's case was relevant not because there was necessarily a departure from the national scheme in the instant case but because Paterson's case illustrated that there had to be a job evaluation carried out under the terms of section 1(5), and that any evaluation that fell short of, or differed from, the requirements of the White Book scheme was therefore not evaluation. It was not the Appellant's case at the Employment Tribunal that there had been a less than compliant evaluation; it was that there had been no evaluation at all. Nevertheless, if the conclusion at paragraph 42 in the last two sentences was a valid conclusion:

"The evidence suggests that there was an exercise carried out by someone in the personnel department of the respondent to ensure that the job specifications and job descriptions for the temporary road workers fell within MG1 grade. To do so, and to do so in an honest way, they must have evaluated in accordance with the White Book."

that would illustrate that there has not been compliance with the scheme, because the scheme as set out by the Tribunal itself at paragraphs 8 and 9 of the Judgment requires a great deal more than somebody in the personnel department taking that course.

1. However, Mr Milford's main submission was both the above conclusion and the conclusion that is arrived at in the last sentence of paragraph 43, "there must therefore have been an evaluation in accordance with the White Book to grade the temporary road workers as MG1," were supported by completely inadequate reasoning. Under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) there is now what I can call a matrix set out in rule 30(6), which tells Employment Tribunals what should be included in any Judgment. Mr Milford does not quarrel with paragraph 6 of the Employment Tribunal's Judgment; it does, he accepts, set out the issues that have to be decided by the Tribunal and that need to be set out in order to comply with rule 30(6)(a). What he submits, however, is that in relation to both (c), "findings of fact relevant to issues which have to be determined," and (e), "how the relevant findings of fact and applicable law have been applied in order to determine the issues," this is an inadequately reasoned decision. In essence, his submission is that the facts that have been found by the Tribunal do not explain how it is that the Tribunal have reached the inferential conclusion in relation to the issues set out at paragraph 6.

1. A secondary criticism is that the conclusion reached by the Tribunal (namely, that there must have been a job evaluation study carried out) does not actually deal with whether that is in terms of the issues set out at paragraph 6 of the Judgment an evaluation that was carried out under sub-paragraph 6(a) or an evaluation carried out under sub-paragraph (b).

1. We were taken by Mr Milford and also by Ms Monaghan QC, who appears on behalf of the Respondent, to significant portions of the evidence. Mr Milford's submission in relation to the evidence is that there is no explanation on the face of the Employment Tribunal's Judgment as to why the evidence of Mr Nicholson, Mr Stephenson and Mr Dover, but principally that of Mr Nicholson, about the basis on which temporary road workers were graded MG1 has been rejected. Mr Milford accepts that the conclusion must mean that the evidence has been rejected; indeed, the passage that we have referred to earlier (that is to say, the last sentence of paragraph 39) must amount to a rejection of Mr Nicholson's evidence for the reasons that we stated above.

1. Mr Milford's second submission in relation to the job evaluation was that the Tribunal had relied heavily on the position of the trade union, but that the lack of any evidence on the part of the trade union in relation to the MG1 grade and the temporary road workers had been treated, in essence, as a neutral factor. If, as must have been the case, the union was involved in the evaluation of the job, whenever it took place, it would be expected that the union would have kept the material, and yet no material had been produced to the Employment Tribunal that supported the contention that there had been a job evaluation. Indeed the point went further, submitted Mr Milford; Mr Spears would have been one of the people involved in the evaluation yet he was not able to give any evidence as to when it had happened or as to any of the circumstances in which there had been a job evaluation.

1. Mr Milford's third submission related to perversity. This was, he submitted, a truly perverse decision because there was neither direct evidence of an evaluation nor any material from which it could be properly inferred that there was a job evaluation. Nobody had given any evidence or produced any material to suggest that there had been an evaluation, and nothing had emerged to suggest that the local procedure had been followed.

1. Ms Monaghan submitted that this was a decision by the Employment Tribunal which depended upon it having accepted some evidence and rejected other evidence. It had accepted Mr Spears' evidence that he was unaware that the temporary road workers were doing exactly the same work as MG3 road workers (see paragraph 20). It had accepted that this was an undertaking that was, as the Tribunal put it, "heavily unionised," and it had come to the conclusion that what was being put forward by the employer in this case was simply not the truth.

1. The key findings upon which she relied are at paragraph 40 in the last three sentences, where the Tribunal express themselves in these terms:

"We find it particularly difficult to understand that the union representatives particularly the full time representatives, if they were aware of the pay disparity would have countenanced the payment of a ground of workers being paid at a lower rate than those of other workers doing exactly the same job. Accordingly, we consider that the unions must have been under the impression that the temporary road workers were, as the title suggests, temporary and doing a lesser job than the MG3 road workers and thus being paid a lesser amount. Mr Spears obviously wanted them to be paid more by being put on the higher grade."

1. Secondly, she relied on paragraph 42, where the Tribunal had reached what she submitted was the inferential conclusion:

"The evidence suggests that there was an exercise carried out by someone in the personnel department of the respondent to ensure that the job specifications and job descriptions for the temporary road workers fell within the MG1 grade. To do so, and to do so in an honest way, they must have evaluated in accordance with the White Book."

1. And she relied upon paragraph 43, which in effect reiterates the point about the employer being heavily unionised, but importantly, as she submitted, in effect, rejects that the work was exactly the same, in these terms:

"What the respondent is asking us to accept is that for a number of years it employed a group of workers that were doing exactly the same work as road workers MG3 but were not paid in accordance with the proper scale that they should have been under the White Book. We cannot accept that. As we have said, the trade unions would not have countenanced that sort of action by the respondent. The workers themselves would not have accepted that situation. If they considered that they were doing exactly the same job as their co workers on MG3 who were being paid more they would, no doubt, have been very voluble in their protest. They would have involved the union. The temporary road workers regarded themselves as doing labouring jobs."

1. And she relied upon the last three sentences as amounting to a sound inferential conclusion, namely:

"It is incomprehensible that the respondent would act in such a way. There must therefore have been an evaluation in accordance with the White Book to grade the temporary workers as MG1. We accordingly make a declaration to that effect."

1. Ms Monaghan gave pride of place in her submissions to the advantage that the Employment Tribunal has over this Tribunal of having heard the evidence and having therefore had the opportunity to see exactly how the witnesses behaved and how they reacted in cross-examination, and therefore to be able to conclude from the nuances that such evidence gives to a fact-finding Tribunal what evidence should be accepted and what evidence should be rejected. That is a powerful point, but we have reached a conclusion that it cannot carry the day.

1. It seems to us that this is a decision that does not adequately set out the reasons as to why the Tribunal have reached the conclusion. Moreover, we have some reservations as to the thought process that has been arrived at by the Employment Tribunal. So far as the reasons are concerned, if paragraph 39 in its last sentence amounts to a rejection of the evidence of Mr Nicholson, then it seems to us that whether taken in isolation or taken in conjunction with the scepticism manifest in paragraphs 40, 42 and 43 as to whether that really could be the position, it is inadequate reasoning not to have set out in a fuller way why it is that Mr Nicholson's evidence was unacceptable.

1. The last thing that this Tribunal wants to do is to place any straitjacket in terms of rule 30(6) on Employment Tribunals, but it seems to us that in order for parties to know why they have won and why they have lost, and in order to be able to see that the structure of paragraph 6 has been adopted by the Employment Tribunal, it is necessary for the Tribunal to at least say something as to why Mr Nicholson's evidence has to be rejected. It is submitted that his evidence must have been rejected because the trade union would not have countenanced such a practice but even if we accepted the inevitability of that, it still would leave an inadequate set of reasons. What the Employment Tribunal has found is that the unions must have been under that impression that this was temporary work and not the same work as that carried out by the MG3 group; they say so at paragraph 40. But it seems to us that even if the unions were under that impression and even if a greater reaction from individual employees on discovering that the work was the same as that being done by MG3 group was to be expected (see paragraph 43), it does not lead to the conclusion set out at paragraph 43 that the temporary road workers regarded themselves as doing labouring jobs. Nor does it lead to the conclusion set out in the penultimate sentence, "there must therefore have been an evaluation in accordance with the White Book to grade the temporary road workers as MG1." The "therefore" used in that sentence suggests that because the union were under the impressions the Tribunal have found them to be in paragraph 40, and because there may have been more fuss in some circumstances, one can therefore reach the conclusion that there must have been an evaluation in accordance with the White Book is not a sound inferential conclusion and the failure to explain how the primary facts lead to the conclusion is not adequate reasoning in terms of rule 30(6).

1. Moreover, the Employment Tribunal, apart from reaching another inferential conclusion in paragraph 42 that somebody in the personnel department had carried out an exercise to ensure that job specifications and job descriptions fell within MG1 grade, leads then to the last sentence, which again might be regarded as a different way of putting the penultimate sentence of paragraph 43, "there must therefore have been an evaluation in accordance with the White Book," seems to us to be remarkably short of reasoning as to why the facts that have been found by the Employment Tribunal do lead to that conclusion.

1. For those reasons, we do not regard the Employment Tribunal as having set out in accordance with rule 30(6) why it has reached the inferential conclusion that there must have been a job evaluation. In particular, they have failed to explain why they have found that Mr Nicholson's evidence in relation to this was unacceptable, and how the fact that his evidence was unacceptable has led to the conclusion that therefore there must have been an evaluation.

1. We also, not without some hesitation, accept Mr Milford's submission that there seems to have been far too large a step taken from the findings of fact made by the Tribunal to the conclusion reached for this to be the conclusion of a reasonable Tribunal properly directing itself on the evidence. We recognise, as Ms Monaghan submitted to us, that it must be in very few cases that one could say that this was not a conclusion open to a Tribunal on the evidence; nevertheless, there are cases, and we think this is one of them, where the evidence simply does not enable the step to be taken. The documentary evidence, as the Tribunal accepted, only shows that somebody has produced an MG1 grading; it does not show, in our judgment, that there ever was a job evaluation carried out in relation to the MG1 grade.

1. In this context also, we accept Mr Milford's submission that in the penultimate sentence the "therefore" is in effect masking a non sequitur. It does not follow from the fact that the trade union may have been under the impression that temporary road workers were temporary in doing a lesser job that one could reach a conclusion that, not only did they regard themselves as doing labouring jobs as set out in paragraph 43, but that further therefore there must have been a job evaluation. It seems to us that those conclusions do not follow from the facts that have been found by the Employment Tribunal.

1. What are we to do in this case? Mr Milford submits that we must take notice of the fact that the finding at paragraph 42 is to the effect that the personnel department must have done this, and that there is no evidence that any of this was done within the scheme of the White Book so that the last sentence of paragraph 42 should fall away. We are therefore left with a conclusion that this was done by the personnel department, and, if that is right, this is a case similar to Paterson, and in the circumstances therefore we should substitute our own finding that there was no compliance with the White Book evaluation scheme. We cannot take that course; we take the view that the inferential finding at paragraph 42 is as faulty as the other findings, and could not possibly form a basis for us to reach a conclusion that there had been any sort of imperfect evaluation, or indeed any evaluation at all.

1. This is a matter that, in our judgment, should be remitted to an Employment Tribunal. This is a course that we are very reluctant to take given that it is now two years since this matter was decided; nevertheless, we have regard to the fact that there is a great deal at stake. It seems to us also that this is a case that ought to go back to a differently constituted Employment Tribunal. The Employment Tribunal in this case in paragraph 43 seems to us to nail their colours very firmly to the mast of finding all of this incredible. We think it would be best reinvestigated by an Employment Tribunal that has not reached that conclusion. This, in our judgement, is a case that ought to go back for a rehearing before a differently constituted Employment Tribunal.