The Employment Tribunal Procedure Rules 2024

Schedule 2 Procedure in equal value claims

Rule 1(3)(b) Application and interpretation of Schedule 2 1 (1) This Schedule applies to equal value claims. (2) In this Schedule— “comparator” means the person of the opposite sex to the claimant in relation to whom the claimant alleges that his or her work is of equal value; “the facts relating to the question” has the meaning in rule 6(1)(a); “independent expert” means a member of the panel of independent experts mentioned in section 131(8) of the Equality Act; “the question” means whether the claimant’s work is of equal value to that of the comparator; “report” means a report required by a Tribunal to be prepared in accordance with section 131(2) of the Equality Act; “study” means a job evaluation study as defined in section 80(5) of the Equality Act. (3) Any reference in this Schedule to a rule, is a reference to a rule in this Schedule unless otherwise provided. General power to manage proceedings 2 (1) Subject to rules 3(1) (conduct of stage 1 equal value hearing) and 6(1) (conduct of stage 2 equal value hearing) the Tribunal may order— (a) that no new facts are to be admitted in evidence by the Tribunal unless they have been disclosed to all other parties in writing before a date specified by the Tribunal (unless it was not reasonably practicable for a party to have done so); (b) the parties to send copies of documents or provide information to the independent expert; (c) the respondent to grant the independent expert access to the respondent’s premises during a period specified in the order to allow the independent expert to conduct interviews with persons identified as relevant by the independent expert; (d) when more than one expert is to give evidence in the proceedings, that those experts present to the Tribunal a joint statement of matters which are agreed between them and matters on which they disagree. Conduct of stage 1 equal value hearing 3 (1) Where there is a dispute as to whether one person’s work is of equal value to another’s (equal value being construed in accordance with section 65(6) of the Equality Act), the Tribunal must conduct a hearing, which must be referred to as a “stage 1 equal value hearing”, and at that hearing must— (a) strike out the claim, or the relevant part of it, if in accordance with section 131(6) of the Equality Act the Tribunal must determine that the work of the claimant and the comparator are not of equal value, (b) determine the question or require an independent expert to prepare a report on the question, (c) if the Tribunal has decided to require an independent expert to prepare a report on the question, fix a date for a further hearing, which must be referred to as a “stage 2 equal value hearing”, and (d) if the Tribunal has not decided to require an independent expert to prepare a report on the question, fix a date for the final hearing. (2) Before a claim or a part of it is struck out under sub-paragraph (1)(a), the Tribunal must send notice to the claimant and allow the claimant to make representations to the Tribunal as to whether the evaluation contained in the study in question falls within sub-paragraph (a) or (b) of section 131(6) of the Equality Act. The Tribunal is not required to send a notice under this paragraph if the claimant has been given an opportunity to make such representations orally to the Tribunal. (3) The Tribunal may, on the application of a party, hear evidence and submissions on the issue of defence of material factor contained in section 69 of the Equality Act before determining whether to require an independent expert to prepare a report under paragraph (1)(b). (4) The Tribunal must give the parties reasonable notice of the date of the stage 1 equal value hearing. The notice must specify the matters that are to be, or may be, considered at the hearing and give notice of the standard orders in rule 4. Standard orders for stage 1 equal value hearing 4 (1) At a stage 1 equal value hearing a Tribunal must, unless it considers it inappropriate to do so, order that— (a) before the end of the period of 14 days from the date of the stage 1 equal value hearing the claimant must— (i) disclose in writing to the respondent the name of any comparator, or, if the claimant is not able to name the comparator, disclose information which enables the respondent to identify the comparator, and (ii) identify to the respondent in writing the period in relation to which the claimant considers that the claimant’s work and that of the comparator are to be compared, (b) before the end of the period of 28 days from the date of the stage 1 equal value hearing— (i) where the claimant has not disclosed the name of the comparator to the respondent under sub-paragraph (a)(i) but the respondent has been provided with sufficient detail to be able to identify the comparator, the respondent must disclose in writing the name of the comparator to the claimant, (ii) the parties must provide each other with written job descriptions for the claimant and any comparator, and (iii) the parties must identify to each other in writing the facts which they consider relevant to the question, (c) the respondent must grant access to the respondent’s premises during a period specified in the order to allow the claimant and the claimant’s representative to interview any comparator, (d) the parties must before the end of the period of 56 days from the date of the stage 1 equal value hearing send to the Tribunal an agreed written statement specifying— (i) job descriptions for the claimant and any comparator, (ii) the facts which both parties consider are relevant to the question, and (iii) the facts on which the parties disagree (as to the fact or as to the relevance to the question) and a summary of their reasons for disagreeing, (e) the parties must, at least 56 days before the final hearing, disclose to each other, to any independent expert or other expert and to the Tribunal written statements of any facts on which they intend to rely in evidence at the final hearing, and (f) the parties must, at least 28 days before the final hearing, send to the Tribunal a statement of facts and issues on which the parties agree, a statement of facts and issues on which the parties disagree and a summary of their reasons for disagreeing. (2) The Tribunal may add to, vary or omit any of the standard orders in paragraph (1). Involvement of independent expert in fact finding 5 Where the Tribunal has decided to require an independent expert to prepare a report on the question, it may, on its own initiative or on the application of a party, order the independent expert to assist the Tribunal in establishing the facts on which the independent expert may rely in preparing the report. Conduct of stage 2 equal value hearing 6 (1) At a stage 2 equal value hearing the Tribunal must— (a) make a determination of facts on which the parties cannot agree which relate to the question and must require the independent expert to prepare the report on the basis of facts which have (at any stage of the proceedings) either been agreed between the parties or determined by the Tribunal (referred to as “the facts relating to the question”), and (b) fix a date for the final hearing. (2) Subject to paragraph (3), the facts relating to the question are the only facts on which the Tribunal must rely in relation to the question at the final hearing. (3) At any stage of the proceedings the independent expert may make an application to the Tribunal for some or all of the facts relating to the question to be amended, supplemented or omitted. (4) The Tribunal must give the parties reasonable notice of the date of the stage 2 equal value hearing. The notice must draw the attention of the parties to this rule and give notice of the standard orders in rule 7. Standard orders for stage 2 equal value hearing 7 (1) At a stage 2 equal value hearing the Tribunal must, unless it considers it inappropriate to do so, order that— (a) by a specified date the independent expert must prepare their report on the question and must (subject to rule 13 (national security proceedings)) send copies of it to the parties and to the Tribunal, and (b) the independent expert must prepare their report on the question on the basis only of the facts relating to the question. (2) The Tribunal may add to, vary or omit any of the standard orders in paragraph (1). Final hearing 8 (1) Where an independent expert has prepared a report, unless the Tribunal determines that the report is not based on the facts relating to the question, the report must be admitted in evidence. (2) If the Tribunal does not admit the report of an independent expert in accordance with paragraph (1), it may determine the question itself or require another independent expert to prepare a report on the question. (3) The Tribunal may refuse to admit evidence of facts or hear submissions on issues which have not been disclosed to the other party as required by these Rules or any order (unless it was not reasonably practicable for a party to have done so). Duties and powers of the independent expert 9 (1) When the Tribunal makes an order under rule 3(1)(b) (conduct of stage 1 equal value hearing) or 5 (involvement of independent expert in fact finding), it must inform the independent expert of the duties and powers under this rule. (2) The independent expert has a duty to the Tribunal to— (a) assist it in furthering the overriding objective, (b) comply with the requirements of these Rules and any orders made by the Tribunal, (c) keep the Tribunal informed of any delay in complying with any order (with the exception of minor or insignificant delays in compliance), (d) comply with any timetable imposed by the Tribunal in so far as this is reasonably practicable, (e) when requested, inform the Tribunal of progress in the preparation of the report, (f) prepare a report on the question based on the facts relating to the question and (subject to rule 13 (national security proceedings)) send it to the Tribunal and the parties, and (g) attend hearings. (3) The independent expert may make an application for any order or for a hearing to be held as if the independent expert were a party to the proceedings. (4) At any stage of the proceedings the Tribunal may, after giving the independent expert the opportunity to make representations, withdraw the requirement on the independent expert to prepare a report. If it does so, the Tribunal may itself determine the question, or it may require a different independent expert to prepare a report. (5) When paragraph (4) applies, the independent expert who is no longer required to prepare a report must provide the Tribunal with all documentation and work in progress relating to the proceedings by a date specified by the Tribunal. Such documentation and work in progress must be in a form which the Tribunal is able to use and may be used in relation to those proceedings by the Tribunal or by another independent expert. Use of expert evidence 10 (1) The Tribunal must restrict expert evidence to that which it considers is reasonably required to resolve the proceedings. (2) An expert has a duty to assist the Tribunal on matters within the expert’s expertise. This duty overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid. (3) No party may call an expert or put in evidence an expert’s report without the permission of the Tribunal. (4) No expert report shall be put in evidence unless it has been disclosed to all other parties and any independent expert at least 28 days before the final hearing. (5) In proceedings in which an independent expert has been required to prepare a report on the question, the Tribunal must not admit evidence of another expert on the question unless such evidence is based on the facts relating to the question. Unless the Tribunal considers it inappropriate to do so, any such expert report must be disclosed to all parties and to the Tribunal on the same date on which the independent expert is required to send their report to the parties and to the Tribunal. (6) If an expert (other than an independent expert) does not comply with these Rules or an order made by the Tribunal, the Tribunal may order that the evidence of that expert must not be admitted. (7) Where two or more parties wish to submit expert evidence on a particular issue, the Tribunal may order that the evidence on that issue is to be given by one joint expert only. If the parties wishing to instruct the joint expert cannot agree an expert, the Tribunal may select an expert. Written questions to experts (including independent experts) 11 (1) When an expert has prepared a report, a party or any other expert involved in the proceedings may put written questions about the report to the expert who has prepared the report. (2) Unless the Tribunal agrees otherwise, written questions under paragraph (1)— (a) may be put once only, (b) must be put within 28 days of the date on which the parties were sent the report, (c) must be for the purpose only of clarifying the factual basis of the report, and (d) must be copied to all other parties and experts involved in the proceedings at the same time as they are sent to the expert who prepared the report. (3) An expert must answer written questions within 28 days of receipt and the answers must be treated as part of the expert’s report. (4) Where a party has put a written question to an expert instructed by another party and the expert does not answer that question within 28 days, the Tribunal may order that the party instructing that expert may not rely on the evidence of that expert. (5) In this rule, reference to an expert includes reference to an independent expert. Procedural matters 12 (1) Where an independent expert has been required to prepare a report, the Tribunal must send that expert notice of any hearing, application, order or judgment in the proceedings as if the independent expert were a party to those proceedings and when these Rules or an order requires a party to provide information to another party, such information must also be provided to the independent expert. (2) There may be more than one stage 1 or stage 2 equal value hearing in any case. National security proceedings 13 Where in an equal value claim a direction is given, or order is made, under rule 93 of Part 15 to these Rules (national security proceedings)— (a) any independent expert appointed must send a copy of any report and any responses to written questions to the Tribunal only, and (b) rule 6 of Schedule 1 to these Rules (reasons in national security proceedings) applies with the following modifications— (i) references to the written reasons must be read as references to the independent expert’s report and any answers to that report; (ii) references to the edited reasons must be read as references to the edited report; (iii) references to the reasons for the decision must be read as references to the independent expert’s report and any answers to that report; (iv) in paragraph (1), omit “given under rule 60 (reasons)”; (v) in paragraph (2)— (aa) after the words “under paragraph (1)” insert the words “, or if later, from the date that any answers to that report are sent,”; (bb) omit “and where the written reasons relate to a judgment, enter them onto the Register”; (vi) paragraph (6)(c) does not apply; (vii) in paragraph (7), omit “, but must not enter the written reasons on the Register”; (viii) omit paragraph (9).