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This section discusses the appointment of an independent
expert by the tribunal, together with:
The appointment of an independent expert
(IE)
The tribunal decides,
at a
stage 1 equal
value hearing whether or not to instruct an independent expert
to prepare a report on the question whether the claimant's and the
comparator's jobs are of equal value.
The parties are required thereafter to furnish the expert with
all information which they are required to disclose to the tribunal
about the jobs.
Involvement of the
independent expert in fact finding
Stage 1 and Stage 2 hearings are designed to ensure that all
the relevant facts are collated and agreed and any disputes over
facts resolved. This is with a view to presenting the
independent expert with all the facts on which he or she must base
his or her report. It is not therefore normally envisaged
that the independent expert will be involved in this fact finding
process. However, the tribunal may where appropriate order an
independent expert to assist it in establishing the facts on which
his or her report is to be based, for example where a party is not
legally represented or where the tribunal thinks it would be
helpful because the parties are unable to reach agreement about the
relevant facts or where the tribunal considers that insufficient
information may have been disclosed by a party and that this may
impair the ability of the independent expert to prepare a
report.
If the independent expert has not been involved in fact
finding prior to the Stage 2 equal value hearing, the independent
expert will be advised by the tribunal of the facts which it has
determined, and on which his or her report should be based. The
independent expert is then required to prepare a report based on
these facts.
It is however open to the independent expert to apply to the
tribunal for some or all of these facts to be amended, supplemented
or omitted. It would be appropriate for the independent expert to
make such a request where s/he considers that they did not have all
the requisite facts on which to prepare a report.
At the Stage 2 equal value hearing, the tribunal will specify
the date when the independent expert must have completed his or her
report. The independent expert is required to send copies of
the report to both parties and to the tribunal by that date.
The indicative timetable set out in the Equal Value Rules (to the
Employment
Tribunals (Constitution and Rules of Procedure) Amendment
Regulations 2004) suggests that the independent expert
report will be available within 4 weeks of the Stage 2 equal value
hearing, although this would appear to be an entirely unrealistic
time frame and it is likely to take much longer to compile.
The duties and power of the
independent expert
The equal value rules set out the following duties of the
independent expert:
- assist the tribunal in furthering the overriding objective to
deal with cases justly as set out in regulation 3
- comply with the requirements of the rules and any orders made
by the tribunal or a chairman in relation to the proceedings
- keep the tribunal informed of any delay in complying with any
order in the proceedings with the exception of minor or
insignificant delays
- comply with any timetable imposed by the tribunal or chairman
in so far as this is reasonably practicable
- inform the tribunal or a chairman on request by it or him of
progress in the preparation of the independent expert's report
- prepare a report on the question based on the facts relating to
the question and send it to the tribunal and the parties
- make himself or herself available to attend hearings in the
proceedings
The independent expert is entitled to:
- apply to the tribunal to vary, omit or supplement any of the
facts on which his or her report is to be based
- make an application for any order or for a hearing to be held
as if he were a party to the proceedings
- be notified of all hearings, orders or judgments as if he or
she were a party to the proceedings
- be copied any information which one party is required to
provide the other party
The tribunal's power in
relation to the independent expert
In addition, the tribunal has the power to:
- require either party to send copies of documents or provide
information to the independent expert
- grant the independent expert access to the respondent's
premises to allow him or her to conduct interviews with any
relevant persons, including the comparator
- where more than one expert is to give evidence in the
proceedings, that those experts present to the tribunal a joint
statement on issues where they agree and disagree with the
Independent Expert or each other.
Written questions to the
independent expert
After the expert has prepared his or her report, either of the
parties, or one of the party's experts, can put written questions
about the report to the independent expert.
These questions:-
- may be put once only
- must be put within 28 days of the date on which the parties
were sent the report
- must be for the purpose only of clarifying the factual basis of
the report
- 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
- must be answered within 28 days (failure to respond within 28
days may result in the tribunal refusing to rely on the
report)
The answers will form part of the report.