§ Lord Hodgson of Astley Abbotts
asked Her Majesty's Government:
Under what circumstances in Section 6(2) of the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2004 (S.I. 2004/2351) a tribunal or chairman would appoint an independent expert whose ability was impaired as in Section 6(3)(c). [HL90]120WA
§ Lord Sainsbury of Turville
When in an equal value claim there is a dispute as to whether work is of equal value as mentioned in Section 1(2)(c) of the Equal Pay Act 1970, the tribunal must hold a "stage 1 equal value hearing". There are standard orders which a tribunal may make at a stage 1 equal value hearing. The aim of those standard orders is that certain factual information is exchanged and agreed between the parties. At that hearing the tribunal will also decide whether it wishes to require an independent expert to prepare a report on the question of whether the claimant's work is of equal value to that of the comparator. The independent expert does not have to prepare the report at this stage; the tribunal is just deciding whether it will require the independent expert to do so later in the proceedings.
In most cases the tribunal will only actually require the independent expert to prepare the report after the "stage 2 equal value hearing"—that is after certain facts have been exchanged and agreed as explained above. The logic is that the independent expert needs to have certain facts available to him before he can start to prepare his report. However, occasionally there may have been an inadequate exchange of factual information by the parties after the stage 1 equal value hearing. That is where the tribunal's power in rule 6(2) of Schedule 6 comes in. In such circumstances the tribunal may, if it considers it appropriate, order an independent expert to assist the tribunal in establishing the facts on which he is to base his report. The situation described in rule 6(3)(c) is where insufficient factual information has been disclosed by a party, therefore the independent expert would have insufficient facts on which to base his report.
Rule 6(3)(c) is not addressing a lack of ability on the part of the independent expert, but is instead addressing a failure of one of the parties to the proceedings to disclose sufficient factual information.