Janice Anyon and 120 others v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lavender |
| Judgment Date | 01 March 2024 |
| Neutral Citation | [2024] EWHC 326 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2019-003813 |
[2024] EWHC 326 (KB)
Mr Justice Lavender
Case No: QB-2019-003813
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Douglas Leach (instructed by Harrison Clark Rickerbys Ltd) for the Claimants
Adam Tolley KC (instructed by the Government Legal Department) for the Defendant
Hearing date: 3 November 2023
(1) Introduction
Each of the claimants is, or was, employed by the defendant as a “local service investigator” (“LSI”), investigating benefit frauds. The post of LSI is graded in the defendant's grading system as “executive officer” (“EO”). In this action, the claimants complain about the conduct of a job evaluation exercise carried out by the defendant in 2015–16 (“the Evaluation”). In summary, they contend that:
(1) The Evaluation was not conducted in accordance with the relevant procedures.
(2) Had it been conducted in accordance with the relevant procedures, the Evaluation would have resulted in the role of LSI being graded as “higher executive officer” (“HEO”), which would have increased the claimants' pay.
(3) This is demonstrated, inter alia, by the fact that, at the same time as the Evaluation, a job evaluation exercise was carried out in respect of the post of “central criminal investigation and intelligence service investigator” (“CCIISI”), which the claimants contend is equivalent to the role of LSI, but the role of CCIISI was upgraded from EO to HEO.
The defendant contends that the LSI role was correctly evaluated.
The claimants allege, and the defendant denies, that the defendant's conduct of the Evaluation involved a number of breaches of the claimants' employment contracts. It will be necessary for me to consider these allegations in more detail in due course.
On 5 May 2023 the claimants applied for permission to amend their particulars of claim. The defendant resisted the application on a number of grounds. It will be necessary for me to consider later in this judgment both the nature of the proposed amendments and the circumstances in which the application was made.
This judgment sets out the reasons for my decision on the claimants' application for permission to amend their particulars of claim.
(2) Background
(2)(a) The Evaluation
As is the case with ministers in charge of other government departments, the defendant operates a grading system for civil servants in his department. The grade accorded to a role plays a significant part in determining the salary paid to civil servants who perform that role.
The defendant was obliged by the Civil Service Management Code (“the CSMC”) to develop arrangements for the grading of posts. The version of the CSMC which I was shown was dated November 2016, but it was not suggested by either party that there were any material differences between that version and the version in force at the time of the Evaluation.
The arrangements for the grading of posts which the defendant had in place by the time of the Evaluation consisted of the Job Evaluation Grading and Support system (“the JEGS system”), which was used throughout the civil service. A number of documents set out how the JEGS system was expected to operate throughout the civil service. These documents were, or included:
(1) The JEGS Handbook. The claimants do not have access to a copy of the JEGS Handbook. It is in the possession or control of the defendant, but it is the copyright of Willis Towers Watson (“WTW”) and its contents are said to be a trade secret.
(2) The “JEGS Joint Evaluation and Grading Support Good Practice Guide” published in May 2013 (“the 2013 Guide”).
(3) The “Job Evaluation — Guidance for Managers and Post-Holders” (“the Guidance”).
In addition, the defendant had produced the “DWP Guidance on Pay and Reward” (“the DWP Guidance”).
The JEGS system makes use of software (“the JEGS software”) devised by WTW. The defendant says that the JEGS software is not in his possession or control. The defendant's witness, Stuart Potts, has summarised the central part of the JEGS system as follows:
“The JEGS methodology is contained in the Handbook and the associated software. The Handbook is used by the trained evaluators to score a role by using 44 questions across seven factors, which give an assigned letter value. The scoring from the 44 questions is then input into the software. The algorithm in the software converts the letter value to a numerical final score, which will then be read across to defined ranges which equate to the seven [civil service] grades. JEGS assessors do not know how the algorithm works as otherwise this could add risk that assessors may not complete the assessment fairly and independently as the possibility would be there for them to score questions in a way that pre-empts the grading outcome. These grades ranges are determined by WTW, and the software algorithm is confidential.”
The 2013 Guide states, inter alia, as follows:
“Departments should hold libraries of evaluations. These are helpful when looking to identify roles for benchmarking and providing quality assurance. As a minimum, a record should be maintained which shows the following for all posts which have been evaluated:
• the date of the evaluation
• an anonymised job description/JAF/job profile
• scores by factor
• the finally agreed overall score
• the evaluated pay band.”
I will refer to the library held by the defendant as “the DWP JEGS library”. It was to be used in the quality assurance stage of a JEGS evaluation, following which the proposed outcome of the evaluation was to be considered by an evaluation panel, signed off by a manager and notified to the post-holders. The defendant could subsequently review the outcome if asked to do so.
The 2013 Guide also states as follows:
(1) “This Good Practice Guide is intended to raise awareness of good practice in the application and maintenance of the Job Evaluation and Grading Support (JEGS) system. For JEGS practitioners, it should be used as a supplement to the JEGS Handbook.”
(2) “Guidance on the JEGS factors used to evaluate posts below the SCS is set out in the separate JEGS Handbook. This should be used by HR teams, senior managers and others undertaking evaluations or sitting on job evaluation panels.”
The result of the Evaluation was announced on 23 June 2016. A re-evaluation was requested, but in July 2017 the defendant communicated his decision not to re-evaluate the role.
(2)(b) The Action
The claim form was issued on 21 October 2019. The defence was served on 18 December 2019. The claimants provided their response to the defendant's request for further information (“the particulars”) on 19 August 2020. The defence was amended pursuant to permission granted on 16 December 2021.
In the particulars, the claimants said that they were hindered from giving more detail by the lack of disclosure and they requested early disclosure by the defendant. In particular, they sought disclosure of the scoring process and of the justification for the outcome of the Evaluation. At a hearing before Master Thornett on 16 December 2021 the claimants made clear that they were seeking disclosure of the JEGS Handbook and the JEGS software. The Master's order records that:
“the parties are agreed that the defendant's methodology for grading should be subject to preliminary directions for disclosure for the following purposes:
(a) to identify where there is a subjective element in the application of methodology;
(b) to identify what is needed by way of disclosure of the documents to evidence that subjective element and allow it to be tested;
(c) in turn, to identify whether and if so to what extent [the JEGS Handbook, the JEGS software and any document relevant to their application] are material to the allegations of breach of contract;
(d) to identify and implement safeguards needed reasonably to protect the third party's trade secret and the public interest;”
Regrettably, the parties have been unable to make any substantive progress with those issues since then. On 8 February 2023 the defendant applied for an order under CPR 31.22 requiring that, insofar as they were ordered to be disclosed, the “JEGS methodology documents” (i.e. the JEGS Handbook, the JEGS software, the DWP JEGS library and any document relevant to their application) should only be used for the purposes of these proceedings.
At the next hearing before the Master, on 9 February 2023, the Master proposed the appointment of an expert or assessor to assist with the determination of the scope of disclosure of the JEGS methodology documents. However, the parties were unable to agree on the terms of a draft order giving effect to that proposal.
There was to be another hearing before the Master on 18 May 2023, but this was vacated when the claimants, who had changed their solicitors and counsel in 2022, made their amendment application on 5 May 2023. The Master then made an order on 5 June 2023 that:
“The following Applications, issue and directions shall be listed before a KB Judge on the first available date in Michaelmas Term 2023, time estimate 1 day:
a) The Defendant's 8 February 2023 Application;
b) The Claimant's 5 May 2023 Application;
c) A concluding direction as to the appointment of an independent assessor for the purposes of disclosure;
d) Any Application issued by the Defendant pursuant to Para 1 above [ i.e. for an order establishing a “confidentiality ring” in respect of the assessor's report];
e) A direction as to the earliest date for the CCMC to resume before the Assigned Master and hence date by which the Clerk to the Assigned Master should be requested to further list.”
On 28 June 2023 the defendant applied for an order establishing a...
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