Ms S Coningham v Warner Bros Entertainment UK Ltd: 2204198/2021

EMPLOYMENT TRIBUNALS

Case No 2204198/2021

Between

Ms S ConinghamClaimant

Warner Bros Entertainment UK LtdRespondent

Before

Employment Judge A.M.S. Green

Mr M Singh - Counsel for claimant

Mr T Cordrey - Counsel for respondent

Date 13 February 2023

JUDGMENT

ON A PRELIMINARY MATTER The application to strike out the claimant’s claims is refused.

REASONS

[1]For ease of reading, I refer to the claimant as Ms Coningham and the respondent as Warner Bros.

[2]The purpose of this hearing was, amongst other things, to consider Warner Bros application to strike out Ms Coningham’s claims or, in the alternative for the Tribunal to make a deposit order.

[3]We worked from a digital bundle. Mr Singh and Mr Cordrey helpfully provided skeleton arguments upon which they elaborated in their oral submissions. I am grateful to them for their clarity in presenting their respective cases.

[4]I have refused the application to strike out the claims and I have refused to make a deposit order.

The claims

[5]On 6 July 2021, Ms Coningham presented a complaint to the Tribunal claiming age discrimination, race discrimination and sex discrimination under the Equality Act 2010 (“EQA”). She also made a claim for equal pay under EQA. At an open preliminary hearing on 10 March 2022 I dismissed the following claims upon withdrawal:a. The claim for indirect sex discrimination pursuant to EQA, section 19.

b. The claim for equal pay pursuant to EQA, sections 65 and 66.

c. The parts of the claims for direct race, sex, and age discrimination pursuant to EQA, section 13 and harassment pursuant to EQA section 26 as identified in the document entitled “Agreed Schedule of Withdrawn Complaints” as appended to that judgment.

[6]Essentially Ms Coningham claims that she was denied promotion several times and that Warner Bros failed to benchmark her for a management role. She says that these detriments were because of her protected characteristics of age, race, and sex and where continuing acts. Warner Bros’ application to strike out the claims or for grant of a deposit order

[7]On 7 January 2022 Warner Bros applied to the Tribunal for an order to strike out Ms Coningham’s claims for direct race, sex, and age discrimination or, in the alternative, for a deposit order to be made [67]. They also applied to strike out the claim for equal pay, but this is no longer a live issue given that I have dismissed that claim upon withdrawal.

[8]Warner Bros contends that the claims should be struck out for the following reasons:a. All of Ms Coningham’s claims for race sex and age discrimination are out of time on the basis that all of the alleged acts and/or omissions took place before 6 April 2021 (being three months before the submission of the claim plus the relevant ACAS early conciliation period).

b. The most recent alleged discriminatory act appeared to have occurred in February 2021, when Ms Coningham alleged that Warner Bros failed to properly benchmark her for a management role. Before that, the most recent allegations arose in late 2019 and early 2020. Ms Coningham refers to a number of very historic matters in her particulars of claim dating back to 2016 and involving many different alleged discriminators. Warner Bros submits that there is no pleaded basis upon which Ms Coningham can assert that the allegations form part of a continuing act.

c. There would clearly be significant prejudice to Warner Bros if Ms Coningham was allowed to proceed with her historic discrimination complaints given that some of the alleged discriminators are no longer employed by them, and those who are still employed would be required to recall evidence from up to 6 years ago. It is submitted that it is inevitable that memories will have faded such that a fair hearing may no longer be possible.

d. Ms Coningham has provided no explanation as to why she did not bring her claims within the prescribed time limits. Accordingly, Warner Bros contends that there is no basis upon which Ms Coningham could assert that it would be just and equitable to extend time to allow the Tribunal jurisdiction to consider her discrimination complaints.

[9]In the alternative, Warner Bros contends that Ms Coningham’s discrimination complaints should be struck out on the grounds that they have no reasonable prospect of success, for the following reasons:a. In relation to most of the allegations set out in the claim, Ms Coningham has failed to provide information on the basis of which, even if proven as fact, the Tribunal could possibly conclude, in the absence of an adequate explanation from Warner Bros, that an unlawful act of discrimination has been committed. The burden of proof placed on Ms Coningham to demonstrate a prima facie case has not, therefore, been discharged and all such claims must fail.

b. In particular, but without limitation, Warner Bros submits that there is little or no prospect of Ms Coningham being able to demonstrate that the alleged acts of direct discrimination at paragraph 71 (a)-(j) of her further and better particulars were in any way related to her race, sex, or age. As part of Warner Bros internal grievance process, these complaints were thoroughly and fairly investigated by an Executive Director in the WarnerMedia People Relations team, an independent corporate team with a remit to investigate workplace concerns arising from the WarnerMedia Group’s Equal Opportunities policies, and then considered in detail by two senior managers at Warner Bros (the grievance hearing manager and the grievance appeal hearing manager). None of these three senior managers found any evidence of unlawful discrimination. Warner Bros relies on the findings of the grievance investigator, summarised at paragraph 13 of its amended response [62] in support of their application.

[10]In the alternative, Warner Bros submits that if the Tribunal is not minded to strike out the claims, Ms Coningham should be required to pay a deposit to the Tribunal of £1000 per allegation or detriment in order to continue to advance her claims on the grounds that they have little reasonable prospect of success pursuant to rule 39 (1). The grounds relied upon by Warner Bros for a deposit order are the same as those set out in relation to strike out.

[11]In his paragraphs 24 to 34 of his skeleton argument, Mr Cordrey submits the following in relation to timing of the presentation of the claim to the Tribunal and the extent of delay as follows:a. The last promotion which Ms Coningham says that she was denied related to a decision taken by Warner Bros relevant recruitment and/or hiring manager for that role on 23 January 2020.

b. The ordinary three-month time limit under EQA, section 123 for bringing the claim therefore gives a deadline of 22 April 2020.

c. Ms Coningham obtained her Early Conciliation certificate with Day A on 8 June 2021 and Day B on 8 June 2021. Pursuant to EQA, section 140B (3) the day after Day A (9 June 2021) to Day B (8 June 2021) (a total of -1 days) is to be added to the three-month time limit, therefore not in this case extending the time limit for submitting the claim.

d. EQA, section 140B (4) provides a potential second route of extension if the primary time limit, as extended by section 140B (3) expires between Day A (8 June 2021) and one month after Day B (8 July 2021). Since the primary time limit expired on 22 April 2020, this did not fall within that period and therefore there is no extension provided here either.

e. The claim form was lodged on 6 July 2021 leaving the most “recent” claim of a denial of promotion of more than 14 months out of time. The oldest claim is 3 years and 10 months out of time. That is an enormous delay in the context of a three-month primary time limit prescribed by Parliament.

f. As to the alleged failure to benchmark Ms Coningham, she claims that this took place on 25 March 2021. Applying the three-month time limit there was a prima facie deadline of 24 June 2021 for bringing the claim with no extension provided by EQA, section 140B (3). However, that the deadline of 24 June 2021. Between Day A (8 June 2021) and one month after Day B (8 July 2021) leading to the limitation period extending to 8 July 2021 pursuant to EQA, section 140B (4). As the claim form was lodged on 6 July 2021, this claim is within time by 2 days.

g. Ms Coningham claims that her denied promotions are in time because they amount to “conduct extending over a period”. Ms Coningham must, therefore, rely on the denials of promotion being connected to a refusal to benchmark (which is just in time) as together, an “ongoing situation or continuing state of affairs”.

h. It can immediately be seen how implausible an argument this is for the following reasons:

i. The string of allegedly denied promotions ceases, on Ms Coningham’s case, on 23 January 2020 with no further detriment occurring until the single benchmarking detriment on 25 March 2021, well over one year later. Temporally this break significantly undermines the existence of any kind of ongoing situation or continuing state of affairs. ii. The group of allegedly denied promotions are a different type of detriment from the failure to benchmark Ms Coningham against a manager’s role, making it hard to argue they together form conduct extending over a period. iii. Ms Coningham does not plead that there is any connection between the failure to benchmark and the denial of promotion and does not plead that Ms Sharp, the individual responsible for the failure to benchmark, had any involvement in or influence over the individuals who denied her the promotions. iv. In keeping with Owusu v London Fire & Civil Defence Authority

[1995] IRLR 574

these denials of promotion are to be treated as “specific one-off instances” rather than conduct extending over a period.

[12]In his oral submissions, Mr Cordrey argued that paragraphs 24 to 29 of his skeleton argument should not be disputed. He reiterated the point that the benchmarking allegation was in time, and it should not be struck out. He then referred to a block of 12 denials of promotion which Ms Coningham complained about, the most recent of which was 14 months out of time. The oldest example was 3 years and 10 months out of time. Ms Coningham’s claim was fundamentally predicated upon all of these being “dragged” into time by the benchmarking allegation. The Tribunal, therefore, had to consider whether her lack of promotion was connected to benchmarking.

[13]Mr Cordrey also referred to paragraph 30 onwards in his skeleton argument where the chronology of denied promotions ran from June 2017 until January 2020. Thereafter, Miss Coningham did not suffer any further detriment until she was not benchmarked against a manager position which was in March 2021. He described this as a “desert” between the final denial of promotion in January 2020 and the failure to benchmark in March 2021. This undermined the argument that there was an ongoing situation or a continuing state of affairs which required repetition. In this case, there was a gap of over a year which immediately broke the chain of causation and suggested that there was no ongoing situation or continuing state of affairs. The block of similar detriments had ended. It had a definite start point and a definite endpoint. More than a year later, Ms Coningham separately said that she should have been benchmarked for a management role and she was not. There was no connection with that event and the earlier detriments (i.e. failure to promote). He then repeated what he set out in paragraph 32 and 33 of his skeleton arguments.

[14]Mr Cordrey submitted that I should take Ms Coningham’s case at its highest. This is based on what she has claimed. In her claim, she says that the lack of benchmarking was connected to the denials of promotion. If she had pleaded that an individual, Ms Sharp, had connived with the decision-makers who refused her 12 promotions or if it was somehow connected with a small group of managers who had it in for her, I would have to take this at its highest. However, Ms Coningham was not saying this in her particulars of claim or in her further and better particulars. There was no connection between benchmarking and the failure to be promoted. Ms Sharp is not one of the named individuals. She is not said to be the guiding hand or the guiding mind. I was also referred to the decision in Owusu, which Mr Cordrey said was in point. It was a very similar case that was heard by the EAT concerning a complainant who abandoned their claim based on denial of promotion being conduct over a period of time. In particular, I was referred to paragraph 19 of that decision. The EAT agreed that these were specific instances outside the three-month period. In Mr Cordrey’ submission the same applied to Ms Coningham’s case. The failure to promote her should be treated as specific instances all of which fell outside the three-month limitation period.

[15]In Mr Cordrey’s submission the minimum period that the claims were out of time is 14 months. If Ms Coningham wanted to bring discrimination claims in respect of the 12 decisions denying her promotion, she had three months from the date of each decision. She did not have 14 months to do that. She did not have more than two years to do that. She would have to provide a good reason for her delay. From Warner Bros’ perspective it would be very difficult for it to evidence why someone other than Ms Coningham was promoted in June 2017. That is part of her claim. Mr Cordrey submitted that Parliament intended claims should be brought quickly. Furthermore, I was asked to consider the likelihood of the relevant decision makers still being employed by Warner Bros and whether they would be able to remember what happened. Additionally, there may be issues about paperwork concerning the decision and whether it had been retained. The earliest decision was almost 5 years ago. There was no reasonable prospect of showing that the 12 denials of promotion are connected with benchmarking. I was invited to strike out the claims as a matter of substance.

[16]Mr Cordrey referred to paragraphs 35 onwards in his skeleton argument and acknowledged that it is very unusual to strike out a discrimination claim but reminded me that judges should not be shy to take a robust decision in a case where there is realistically only one possible outcome.

[17]In paragraph 37 of his skeleton argument, Mr Cordrey submits that most of Ms Coningham’s race, sex and age discrimination claims are entirely speculative. In effect, he submits that her claim is that she is an older, Asian/Indian woman and individuals who beat her to various promotions were not, and therefore, the refusal to appoint her to those promoted positions was because of her age, race and/or sex.

[18]In paragraph 38 of his skeleton argument, Mr Cordrey refers to background evidence of comments and allusions to Ms Coningham’s age, sex and race which does nothing to assist her since she does not assert that those background events are in any way connected to and involve the majority of the individual decision-makers who were responsible for the 12 denials of promotion relied upon. Mr Cordrey submits that Ms Coningham’s case appears to be on the lines of “because W and X once asked intrusively about my age, sex or race, that calls into question decisions by Y and Z who had no connection with W and X and were not present and not even aware of the behaviour of W and X”. Such a contention has no reasonable or little prospect of success, and, in this regard, I am referred to the decision of the EAT in London Borough of Camden v Miah

[2009] All ER (D) 258

. If Ms Coningham’s case is allowed to proceed than in any instance where any employee had been refused a promotion, they could look at the person who had received the promotion, identified different protected characteristic, and brought a discrimination claim.

[19]In paragraph 40 of his skeleton argument, Mr Cordrey submits that Ms Coningham must be able to show on her pleaded case that there is a reasonable prospect of a Tribunal concluding that the reason she suffered the pleaded detriments was her race, age and/or sex. However, she has not identified any information or allegation about the individuals that denied her promotion or benchmarked her against a manager role, save in relation to Ms Sharp, that would provide a basis for inferring, even as a prima facie case, that the reason for the detriment was her race, sex, or age. In a number of cases she simply did not know who made the impugned decision.

[20]In paragraph 40 of his skeleton argument, Mr Cordrey refers to evidence that Warner Bros has provided of the extensive grievance and grievance appeal investigations which showed that the reason for the denial of promotions were wholly non-discriminatory. Mr Cordrey relies on the decision in Ahir v British Airways plc

[2017] EWCA Civ 1392

in support of his proposition that this is a case where there is a straightforward and well documented explanation for what had occurred on the basis of a mere assertion that the explanation is untrue without Ms Coningham being able to advance some basis, even if not yet provable, for that being so.

[21]In his oral submissions, Mr Cordrey said that the allegations of 12 detriments relating to promotion should be struck out. This was because Ms Coningham was pleading that she was denied promotion by those individuals and that someone else with a different protected characteristic was promoted which she says is discrimination. In relation to those 12 decision-makers, nothing is said that could be inferred that they had a discriminatory animus when they made their decisions.

[22]Mr Cordrey submitted that Miss Coningham had not advanced anything more than what anyone can say about any promotion decision (i.e. they are different from me). That is not enough to justify taking up the Tribunal’s time and putting Warner Bros to proof in a discrimination claim. Ms Conningham’s opposition to the application to strike out her claims or for grant of a deposit order

[23]In relation to time limits, Mr Singh sets out Warner Bros position in paragraphs 8 & 9 of his skeleton argument as follows:a. Ms Coningham’s claims are now more focused, and he invites Warner Bros to reflect upon their application and in particular that the Tribunal will take the claims at their highest.

b. The claims are in time and Warner Bros have erroneously relied upon the cut-off date of 6 April 2021 however: i. The failure to promote was, and is, an ongoing situation or state of affairs and, in this regard Mr Singh refers to the decision in Hendricks v Commissioner of the Metropolis

[2002] EWCA Civ 1686

ii. Regarding pay and benchmarking, Ms Coningham was informed of the outcome of the benchmark 25 March 2021 meaning that the failure was ongoing until that point. ACAS was notified and the Early Conciliation certificate was issued on 8 June 2021. The limitation period ended on 8 July 2021 (Employment Rights Act 1996, section 207B (4). The claim was issued on 6 July 2021. iii. The harassment type allegations are withdrawn.

[24]Regarding the substantive merits of the claims, Mr Singh submits at paragraph 10 of his skeleton argument that this is a matter to be determined at a final hearing but, nonetheless, on the face of it, the application to strike out or grant a deposit order falls far short of the required test concerning prospects.

[25]In paragraph 11 of his skeleton argument, Mr Singh addresses Ms Coningham’s career prospect allegations as follows:a. There are a large number of examples where she failed in various applications throughout her employment. Instead, those who were younger, male and/or white were successful. She has named comparators.

b. Although Ms Coningham withdrew her harassment type allegations, they provide useful background and point to Warner Bros’ culture in the following ways: i. Comments about her voice suggesting racial stereotyping. ii. Ashley Cosgrove’s comments about Bollywood movies. iii. Questions about Ms Coningham’s age. iv. Whilst the context is denied, Warner Bros admits Shelley Drury made comments in relation to Tik-Tok. v. Warner Bros accepts that Shelley Drury made comments that Mr Stenhouse “only recruits blondes”, which, even if not strictly true, suggests an absence of non-discriminatory and objective recruitment processes. Only recruiting blondes is inherently discriminatory. In this regard, Mr Singh relies upon the decision in James v Eastleigh Borough Council

[1990] IRLR 288

. vi. Polly Cochrane made comments about younger team members feeling uncomfortable around more experienced employees. vii. Mr Cosgrove mixing up the names of two black members of staff. viii. Ms Coningham being asked where she is from.

c. Mr Singh refers to the grievance outcome. The allegations of discrimination were not upheld but there was an absence of any apparent probing or analysis of comparators. In this regard, Mr Singh relies upon the decision in Badeway v Circle Thirty Three Housing Trust Limited [1997]

UKEAT/332/95

where it was held that evidence about an individual’s firm and truthful belief, that the protected characteristic played no part in their own decision-making process, is not only not determinative evidence, it is not even relevant evidence as to whether or not a protected characteristic has played a part. In any event, the outcome identifies isolation from the outset; lack of line management support and feedback on development; an absence of discussions and development including promotion; and a lack of transparency. Mr Singh then refers to the grievance outcome [261].

d. Mr Singh refers to the apparent lack of diversity within Warner Bros. During the grievance meeting on 26 July 2021, Ms Coningham referred to black and Asian interns being recruited for the first time ever. Ms Anwer referred to “a culture change generally”.

e. Mr Singh refers to the lack of transparency. In Ms Anwer’s investigation of Ms Coningham’s applications, a culture of poor record-keeping of the processes is revealed in relation to job application; criteria; and written feedback. There is an absence of an investigation into the comparators Ms Coningham identified. In relation to the Digital Sales Manager post (circa October 2019 to January 2020), and unambiguous and inconsistent “process” was followed with no records apparently maintained. The absence of any contemporaneous documents dealing with the selection processes and explaining the decision-making constitutes a breach of the EHRC Code of Practice for Employment. It is reasonable to have expected a paper trail of the interview/recruitment process and in this regard Mr Singh refers to paragraphs 17.38 and 17.4 of the EHRC Code. Inferences of discrimination could be drawn from such failures.

f. Because of the lack of transparency, there is an absence of evidence that Warner Bros recruited in a non-discriminatory way based upon objective criteria. In relation to the Senior Strategy Manager post it was commented that Ms Coningham’s “style not quite right from what I recall though”. Mr Singh refers to emails on 5 July 2019 suggesting that the Sales Manager process was predetermined between Mr Stanley and Ms Glasscoe.

g. Mr Singh refers to Warner Bros failing to provide details of 19 recent promotions.

h. Mr Singh refers to Ms Coningham being the only permanent member of staff in the digital sales team that is not a manager other than the interns.

i. Mr Singh refers to there being no performance issues raised against Ms Coningham to justify the absence of opportunities.

j. A job description suggests an outdated culture (e.g. “Excellent manmanagement skills”).

[26]In paragraph 12 of his skeleton argument, as to Singh addresses the benchmarking/pay allegations as follows:a. Ms Coningham is the only permanent member of staff in the digital sales team that is not a manager other than the interns.

b. Mr Keegan is paid approximately twice as much as Ms Coningham, but the difference in their roles is not substantial. Warner Bros relies upon Ms Coningham’s role not requiring line management, but to younger white males have marketing roles (and pay) but are not line managing.

c. Mr Gibbons and Mr Greasley did not line manage but our managers. Mr Gibbons was promoted without a formal process.

d. Ms Sharp, Ms Coningham’s line manager appear to have forgotten the benchmarking process and she requested that Ms Coningham obtained Mr Keegan’s job description (which Warner Bros failed to provide at the time). Ms Sharp was neutral on whether Ms Coningham’s role was at a manager level, which unsurprisingly People Relations found “unusual”. Mr Singh also refers to a “bizarre and unexplained discrepancy” in relation to communications between Ms Sharp and Ms Youde. Amnesia about the process extended to Cat Richards.

e. Mr Singh refers to the ambiguity about whether Ms Coningham line managed or had line management responsibility he submits that this is supported by the finding that Ms Sharp failed to correct Ms Coningham about whether she had management responsibilities over Mr Banez and/or Mr Keegan. The absence of limited line management responsibilities does not explain the disparity in pay.

[27]In his oral submissions, Mr Singh submitted that there was a significant difference between the parties regarding how they consider the prospects of the claims. He suggested that this could be down to their having a different understanding as to how discrimination works in the workplace which underscores the need for caution with discrimination claims when applications for strike out or deposit orders are made. He submitted that there was no magic formula and that in similar cases a Tribunal may find an inference of discrimination, but another Tribunal would reach an opposite conclusion on the same facts. He submitted that some Tribunals might think that 12 failed applications for promotion was enough to warrant having a final hearing.

[28]Mr Singh submitted and emphasised the importance of the fact-finding element in discrimination cases. He said that the Tribunal must dig deep into such cases and that he attributed his differences with Mr Cordrey’s position to the connectivity between the applications for promotion and the benchmark process. Mr Singh submitted that Mr Cordrey was seeking to minimise that connection. A Tribunal might look back at a history of non-promotion and consider the benchmarking process as simply being no more than an ongoing extension of Ms Coningham’s belief that she was not been recognised for what she was doing. Essentially, Ms Coningham wanted to be a manager and she wanted to be paid for performing that role. This was enough for the Tribunal to determine at a final hearing.

[29]On the question of time limits, Mr Singh referred to Parliament’s intent which he said was set out in EQA, section 123 which recognises that if there is discrimination over a period of time there is no time limit for that period.

[30]Regarding the decision in Owusu Mr Singh submitted that it was not in point with this case. He acknowledged that Counsel in that case had abandoned presenting the claim regarding promotion and it was safe to assume that this was because they believed that each failed promotion was a discrete event and not interconnected. This is not the case in Ms Coningham’s claim and failure to be promoted can be a continuing act. It is a question of fact as to whether acts extend over a period of time. They do not require to be connivance. Often in these cases, respondents can gaslight an employee and that is a matter for a Tribunal to determine on the evidence.

[31]Ms Coningham’s case is that the failure to promote is connected with the benchmarking which did not occur in a vacuum. It was part of an ongoing process. I was referred to the notes of the grievance hearing as evidence of connectivity [213]. In Mr Singh’ submission this showed evidence of a connection between the benchmarking and job opportunities.

[32]Mr Singh submitted that the application was nowhere near the threshold of no reasonable prospects. He also referred to the fact that Warner Bros admitted that a comment had been made that a member of management would only hire blondes. This is evidence of connectivity with promotion and being paid the right salary.

[33]Mr Singh submitted there was a constant theme within the grievance process that Ms Coningham saw herself as a manager. She wanted to have the title of manager and to be paid appropriately to reflect that role. This required a benchmarking process to achieve that.

[34]A Tribunal might think that all of the people who were promoted other than Ms Coningham was inherently discriminatory behaviour. This suggests that the claim has far greater prospects than merely being of no or little prospect.

[35]Mr Singh referred to the grievance outcome where Warner Bros found that it had forgotten about her. They do not know why that was, but they claimed that it was not because of discrimination. However, Mr Singh submitted that a Tribunal would take a different approach. It may be that Warner Bros are saying that they are not the best employer, but it is for them to present a clear and cogent case as to why they treated Ms Coningham in the way that they did. This is an ongoing problem for her, and she is still not getting promotion opportunities.

[36]Mr Singh also submitted that Warner Bros had taken forensic advantage at the time to delay benchmarking because of Covid. The process also lacked transparency because of a lack of records. This was in breach of the EHRC Code and adverse inferences could be drawn because of that breach.

[37]There was no record of applications for promotion. There was no feedback justifying making the decision not to promote. There were references to Ms Coningham not having the right style. The Tribunal might say that this is something discriminatory and not an objective basis for recruiting.

[38]Mr Singh submitted that Ms Coningham was the only person in her team who was not a manager other than the interns and yet there were no performance issues that would justify that which pointed to race, age or sex being the reason why she had not been promoted. There was also an issue about whether terms such as “man management” were appropriate.

[39]Mr Singh submitted that if I was not with him on refusing strike out on the grounds of connectivity and time, I was invited to consider exercising the just and equitable discretion to extend time or whether the matter should be considered at a final hearing.

[40]Finally, in relation to a deposit order, Mr Singh submitted that the threshold had not been met. The issues had to be determined at a final hearing and not at a mini trial. There was evidence to support Ms Coningham’s case. Warner Bros’ rebuttal

[41]I allowed Mr Cordrey to rebut some of the points made by Mr Singh in his closing submissions. I was taken to an email from Warner Bros solicitors to Ms Coningham’s solicitors dated 25 January 2022 [2019] where it was stated: that if Ms Coningham contended that there were reasons why it would be just and equitable for the Tribunal to extend time she was requested to provide a witness statement setting out these and any other documentary evidence that she intended to rely upon as soon as possible and no later than 24 January 2022. They were warned that they would object strenuously of Ms Coningham tried to raise new evidence at this hearing about the just and equitable issue if they have been given no warning of it and will ask new evidence to be refused. Mr Cordrey was astonished that Mr Singh had referred to the just inequitable extension given what had been written in that email. Ms Coningham had not provided a witness statement, or any documentary evidence as requested. Her solicitor had not replied to that email. I was invited not to determine the just and equitable extension.

[42]Mr Cordrey also stated that he had gone through the grievance process and the references by Ms Coningham as to why she had not been given a promotion. Matters such as style and not fitting in had been referred to. This reinforced his position that her claims were out of time, and she could have raised her concerns within the three-month time limit as and when they arose. To allow the claims in this late would significantly prejudice Warner Bros.

[43]In relation to references such as not hiring blondes, even if Warner Bros admitted that an employee made such remark it would not support the case that there was conduct extending over a period. That would only arise if it could be shown that it influenced the detriments. Ms Coningham has never said that any of those individuals influenced or affected the detriments that Warner Bros says were out of time. Ms Coningham’s reply

[44]I invited Mr Singh to reply to Mr Cordrey. He told me that there had been correspondence and that the claims had been significantly pared down. He referred to the fact that any party can require the other to do something in correspondence but that does not mean that they have to comply. He invited me to determine the just and equitable discretion to extend time and that it did not need to be pleaded. This was provided for in EQA. He submitted that this was not an abuse of process. The applicable law

[45]Rule 53 (1) (c) of the Rules of Procedure confirms that a Tribunal has the power to consider the issue of strike at out a preliminary hearing. Rule 37 sets out the grounds on which a Tribunal can strike out a claim or response (or part). A claim or response (or part) can be struck out on a variety of grounds including that it is scandalous or vexatious or has no reasonable prospect of success (rule 37 (1) (a)).

[46]In Anyanwu and anor v South Bank Student Union and anor

2001 ICR 391

, HL, discrimination cases are generally fact sensitive, and any issues should usually only be decided after all the evidence has been heard. However, in that case, Lord Hope observed: The time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail

[47]In Chandhok v Tirkey

[2015] ICR 527

Langstaff P cited Anyanwu and went on to say at paragraph 20: This stops short of a blanket ban on strike-out applications succeeding in discrimination claims. There may still be occasions when a claim can properly be struck out—where, for instance, there is a time bar to jurisdiction, and no evidence is advanced that it would be just and equitable to extend time; or where, on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ in Madarassy v Nomura International plc

[2007] ICR 867

, para 56): “only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” Or claims may have been brought so repetitively concerning the same essential circumstances that a further claim (or response) is an abuse. There may well be other examples, too: but the general approach remains that the exercise of a discretion to strike out a claim should be sparing and cautious.

[48]The Tribunal must take a view on the merits of the case and only where it is satisfied that the claim or response has no reasonable prospect of succeeding can it exercise its power to strike out.

[49]In Ahir v British Airways plc

2017 EWCA Civ 1392

, CA, the Court of Appeal asserted that tribunals should not be deterred from striking out even discrimination claims that involve disputes of fact if they are entirely satisfied that there is no reasonable prospect of the facts necessary to find liability being established, provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been explored. The Court accepted that the test for strike-out on this ground with its reference in rule 37(1)(a) to ‘no reasonable prospect of success’ was lower than the test in previous versions of the strike out rule, which referred to the claim being frivolous or vexatious or having ‘no prospect of success’. In this case, the Court upheld an employment judge’s decision to strike out the victimisation and discrimination complaints of an employee who had been dismissed for falsifying his CV. His claims were based on allegations that six managers who had each separately considered the admitted misconduct of the employee during the disciplinary process had allowed their decisions to be tainted by the protected acts of the employee even though there was no evidence to suggest that they were aware of those protected acts. The Court concluded that the employment judge had rightly described the allegations as ‘fanciful’ and struck out the claims as having no reasonable prospect of success.

[50]In Kaur v Leeds Teaching Hospitals NHS Trust

2019 ICR 1

, CA, Lord Justice Underhill reiterated the sentiment he had previously expressed in Ahir when concluding that an employment judge had correctly struck out a constructive dismissal claim based on a final straw incident on the basis that it had no reasonable prospect of success. His Lordship observed: ‘ Whether [striking out] is appropriate in a particular case involves a consideration of the nature of the issues and the facts that can realistically be disputed. There were in this case, no relevant issues of primary fact. Had the matter proceeded to a full hearing the job of the tribunal would not have been to decide the rights and wrongs of the [final straw] incident of 22 April, and it would not have heard evidence directly about that question. The issue would have been whether the disciplinary processes were conducted seriously unfairly so as to constitute, or contribute to, a repudiatory breach of the Appellant’s contract of employment. The evidence relevant to that question in substance consisted only of the documentary record. It is true that if there were any real grounds for asserting actual bad faith on the part of the decision-makers that could not have been resolved without oral evidence; but that was not the pleaded case, and the employment judge was entitled to conclude that there was no arguable basis for it.

[51]In E v X, L and Z

UKEAT/0079/20

(10 December 2020, unreported) the immediate point in this appeal was that a second Employment Judge had erred in overturning a case management decision of the first Employment Judge without these being a change in circumstances. However, of more general importance is the context, namely a striking out of a claim raising the always difficult area (on time limits) of whether the claimant can rely on the concept of 'acts extending over a period'. The judgment of Ellenbogen J in the EAT at [50] subjects this question to lengthy guidance in the light of six leading cases, namely Sougrin v Haringey Health Authority

[1992] IRLR 416

, Robinson v Royal Surrey County Hospital NHS Foundation Trust

UKEAT/0311/14

(30 July 2015, unreported), Sridhar v Kingston Hospital NHS Foundation Trust

UKEAT/0066/20

(21 July 2020, unreported), Caterham School Ltd v Rose

UKEAT/0149/19

(22 August 2019, unreported), Lyfar v Brighton & Sussex University Hospitals NHS Trust

[2006] EWCA Civ 1548

, and Aziz v FDA

[2010] EWCA Civ 304

. The guidance is lengthy, but is important and is set out here in full:a. In order to identify the substance of the acts of which complaint is made, it is necessary to look at the claim form: Sougrin.

b. It is appropriate to consider the way in which a claimant puts their case and, in particular, whether there is said to be a link between the acts of which complaint is made. The fact that the alleged acts in question may be framed as different species of discrimination (and harassment) is immaterial: Robinson.

c. Nonetheless, it is not essential that a positive assertion that the claimant is complaining of a continuing discriminatory state of affairs be explicitly stated, either in the claim form, or in the list of issues. Such a contention may become apparent from evidence or submissions made, once a time point is taken against the claimant: Sridhar.

d. It is important that the issues for determination by the tribunal at a preliminary hearing have been identified with clarity. That will include identification of whether the tribunal is being asked:

(1) to consider whether a particular allegation or complaint should be struck out, because no prima facie case can be demonstrated; or

(2) substantively to determine the limitation issue: Caterham.

e. When faced with a strike-out application arising from a time point, the test which a tribunal must apply is whether the claimant has established a prima facie case, in which connection it may be advisable for oral evidence to be called. It will be a finding of fact for the tribunal as to whether one act leads to another, in any particular case: Lyfar.

f. An alternative framing of the test to be applied on a strike-out application is whether the claimant has established a reasonably arguable basis for the contention that the various acts are so linked as to be continuing acts, or to constitute an on-going state of affairs: Aziz; Sridhar.

g. The fact that different individuals may have been involved in the various acts of which complaint is made is a relevant, but not conclusive, factor: Aziz.

h. In an appropriate case, a strike-out application in respect of some part of a claim can be approached assuming, for that purpose, the facts to be as pleaded by the claimant. In that event, no evidence will be required – the matter will be decided on the claimant's pleading: Caterham.

i. A tribunal hearing a strike-out application should view the claimant's case, at its highest, critically, including by considering whether any aspect of that case is innately implausible for any reason: Robinson.

j. If a strike-out application succeeds, on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success (whether because of a time point or on the merits), that will bring that complaint to an end. If it fails, the claimant lives to fight another day, at the full merits hearing: Caterham.

k. Thus, if a tribunal considers (properly) at a preliminary hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out: Caterham.

l. Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence to be considered at the preliminary hearing, findings of fact and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the full merits hearing: Caterham.

m. If it can be done properly, it may be sensible, and, potentially, beneficial, for a tribunal to consider a time point at a preliminary hearing, either on the basis of a strike-out application, or, in an appropriate case, substantively, so that time and resource is not taken up preparing, and considering at a full merits hearing, complaints which may properly be found to be truly stale such that they ought not to be so considered. However, caution should be exercised, having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case; the fact that there may be no appreciable saving of preparation or hearing time, in any event, if episodes that could be potentially severed as out of time are, in any case, relied upon as background to more recent complaints; the acute fact-sensitivity of discrimination claims and the high strike-out threshold; and the need for evidence to be prepared, and facts found (unless agreed), in order to make a definitive determination of such an issue: Caterham.

[52]I now turn to consider time limits. EQA, section 123(1) provides that proceedings of this nature may not be brought after the end of:a. the period of 3 months starting with the date of the act to which the complaint relates, or

b. such other period as the employment tribunal thinks just and equitable.

[53]EQA, section 123 and its legislative equivalents do not specify any list of factors to which a tribunal is instructed to have regard in exercising the discretion whether to extend time for ‘just and equitable’ reasons. Accordingly, there has been some debate in the courts as to what factors may be relevant to consider.

[54]To establish whether a complaint of discrimination has been presented in time it is necessary to determine the date of the act complained of, as this sets the time limit running. Where the act complained of is a single act of discrimination, this will not usually give rise to any problems. A dismissal, for example, is considered to be a single act and the relevant date is the date on which the employee’s contract of employment is terminated. Where dismissal is with notice, the EAT has held that the act of discrimination takes place when the notice expires, not when it is given (Lupetti v Wrens Old House Ltd

1984 ICR 348

, EAT). Rejection for promotion is also usually considered a single act. In this case, the date on which another person is promoted in place of the complainant is the date on which the alleged discrimination is said to have taken place (Amies v Inner London Education Authority

1977 ICR 308

, EAT).

[55]The question of when the time limit starts to run is more difficult to determine where the complaint relates to a continuing act of discrimination, such as harassment, or to a discriminatory omission on the part of the employer, such as a failure to confer a benefit on the employee. EQA, section123(3) makes special provision relating to the date of the act complained of in these situations. It states that:a. conduct extending over a period is to be treated as done at the end of that period (section123(3)(a));

b. failure to do something is to be treated as occurring when the person in question decided on it (section123(3)(b)). In the absence of evidence to the contrary, a person is taken to decide on a failure to do something either when that person does an act inconsistent with doing something, or, if the person does no inconsistent act, on the expiry of the period within which he or she might reasonably have been expected to do it (section123(4)).

[56]Much of the case law on time limits in discrimination cases has centred on whether there is continuing discrimination extending over a period of time or a series of distinct acts. Where there is a series of distinct acts, the time limit begins to run when each act is completed, whereas if there is continuing discrimination, time only begins to run when the last act is completed. This can sometimes be a difficult distinction to make in practice.

[57]The leading case is Barclays Bank plc v Kapur and ors

1991 ICR 208

, HL, which involved a pension scheme that allegedly discriminated against a group of Asian employees. The argument on time limits centred on whether the operation of the pension scheme was a continuing act that subsisted for as long as the employees remained in the bank’s employment (in which case their complaints were presented in time) or whether it was a single act that took place when the bank decided not to credit the employees’ service in Africa for the purpose of calculating pension entitlement (in which case their complaints were time-barred). The House of Lords found in favour of the employees and ruled that the right to a pension formed part of their overall remuneration and, if this could be shown to be less favourable than that of other employees, it would be a disadvantage continuing throughout the period of employment. It would not be any answer to a complaint of race discrimination that the allegedly discriminatory pension arrangements had first occurred more than three months before the complaint was lodged.

[58]Crucially, their Lordships drew a distinction between a continuing act and an act that has continuing consequences. They held that where an employer operates a discriminatory regime, rule, practice or principle, then such a practice will amount to an act extending over a period. Where, however, there is no such regime, rule, practice or principle in operation, an act that affects an employee will not be treated as continuing, even though that act has ramifications which extend over a period of time. Thus in Sougrin v Haringey Health Authority

1992 ICR 650

, CA, the Court of Appeal held that a decision not to regrade an employee was a one-off decision or act, even though it resulted in the continuing consequence of lower pay for the employee who was not regraded. There was no suggestion that the employer operated a policy whereby black nurses would not be employed on a certain grade; it was simply a question whether a particular grading decision had been taken on racial grounds. That case can, however, be contrasted with the case of Owusu v London Fire and Civil Defence Authority

1995 IRLR 574

, EAT In that case O commenced employment with L in 1986 as a fire safety caseworker graded MG12. In February 1991 O made a claim of race discrimination, alleging that on four occasions between 1986 and 1988 he was not promoted, that on three occasions, the last being in August 1990, he was not shortlisted for vacancies, and that on several occasions he had not been given the opportunity to act up or been regraded when he had acted up. The tribunal dismissed all O's complaints as being time-barred by reason of the three-month time limit contained in the Race Relations Act 1976 s.68(1). The EAT held, allowing the appeal in part, that(1) the tribunal erred in failing to treat the acts complained of on regrading and failure to give the opportunity to act up as continuing acts. In accordance with the principles stated in Sougrin v Haringey HA [1992] I.C.R. 650, and Barclays Bank Plc v Kapur [1991] 2 A.C. 355, [1991] 1 WLUK 769, an act that has continuing consequences is not therefore a continuing act within the meaning of s.68(7)(b) of the 1976 Act. However, an act does extend over a period of time if it takes the form of a policy, rule or practice in accordance with which decisions are taken from time to time. In making the allegations concerning failure to regrade and give opportunities for acting up O had alleged that a discriminatory policy existed and

(2) the tribunal had not erred in ruling that O's claims concerning failure to shortlist and promote were time-barred. The complaints related to specific instances and were not continuing acts.

[59]In Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

, CA, the Court of Appeal made it clear that it is not appropriate for employment tribunals to take too literal an approach to the question of what amounts to ‘continuing acts’ by focusing on whether the concepts of ‘policy, rule, scheme, regime or practice’ fit the facts of the particular case. Those concepts are merely examples of when an act extends over a period and should not be treated as a complete and constricting statement of the indicia of ‘an act extending over a period’. In that case the claimant, who was a female police officer, claimed, while on stress-related sick leave, that she had suffered sex and race discrimination throughout her 11 years’ service with the police force. She made nearly 100 allegations of discrimination against some 50 colleagues. In determining whether she was out of time for bringing complaints in respect of these incidents, the EAT upheld an employment tribunal’s ruling that no ‘policy’ of discrimination could be discerned and that there was, accordingly, no continuing act of discrimination. However, the Court of Appeal overturned the EAT’s decision, holding that it had been sidetracked by the question whether a ‘policy’ could be discerned in this case. Instead, the focus should have been on the substance of the claimant’s allegations that the Police Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the police force were treated less favourably. The question was whether that was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.

[60]However, shortly after the promulgation of the decision in Hendricks, a differently constituted division of the Court of Appeal took a different view in Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

, CA, holding that the claimant’s race discrimination claim failed because he had been unable to show that his employer operated a practice, policy, rule, or regime that governed the acts he complained of.

[61]The conflict between these opposing decisions was finally resolved in favour of the test set out in Hendricks by the Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust

2006 EWCA Civ 1548

, CA. In that case L brought 17 complaints of race discrimination against the employer concerning the way in which it had investigated complaints of bullying and harassment made against her by a colleague. At a pre-hearing review, the employment tribunal decided that L’s complaints about the employer’s internal investigation and the subsequent disciplinary hearing (although these were, in themselves, continuing acts of discrimination) were not linked to later complaints she had made about her manager’s actions after the disciplinary hearing and the employer’s handling of her grievance. As a result, the events giving rise to the 17 complaints were not part of one continuing act of discrimination, meaning that many of the earlier complaints were time-barred. The Court of Appeal upheld the tribunal’s decision on the particular facts of the case. However, in reaching its decision, the Court clarified that the correct test in determining whether there is a continuing act of discrimination is that set out in Hendricks. Thus tribunals should look at the substance of the complaints in question — as opposed to the existence of a policy or regime — and determine whether they can be said to be part of one continuing act by the employer.

[62]Hendricks was also cited with approval by the Court of Appeal in Aziz v FDA

2010 EWCA Civ 304

, CA — another race discrimination case — where the Court noted that in considering whether separate incidents form part of an act extending over a period, ‘one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents’. This was taken to heart by the EAT in Greco v General Physics UK Ltd EAT 0114/16. In that case the Appeal Tribunal held that, while six of the seven acts of sex discrimination about which G complained concerned her manager in some way, the manager’s involvement was not a conclusive factor and the employment tribunal had been entirely justified in finding that the seven quite specific allegations concerned different incidents that ought to be treated as individual matters. Accordingly, they were not to be considered as part of a continuing act and, in consequence, some were out of time. The tribunal had not erred in its approach to deciding that it was not just and equitable to extend the time limit for the allegations that had been presented out of time.

[63]In discrimination claims under the EQA, claimants benefit from a slightly more favourable burden of proof rule in recognition of the fact that discrimination is frequently covert and therefore can present special problems of proof. Broadly speaking, S.136 EqA provides that, once there are facts from which an employment tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof ‘shifts’ to the respondent to prove a nondiscriminatory explanation.

[64]Mr Justice Elias appeared to accept in both Laing v Manchester City Council and anor

2006 ICR 1519

, EAT, and Network Rail Infrastructure Ltd v Griffiths-Henry

2006 IRLR 865

, EAT, that in direct discrimination cases proof of less favourable treatment (discounting the employer’s explanation for such treatment) can, of itself, establish a prima facie case of discrimination. However, much of the case law concerning the statutory burden of proof provisions suggests that something more than less favourable treatment compared with someone not possessing the claimant’s protected characteristic is required. The clearest indication that this is so comes from the judgment of Lord Justice Mummery in Madarassy v Nomura International plc

2007 ICR 867

, CA, where he stated: The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

[65]Rule 39 (1) provides that where at a preliminary hearing a Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, "it may make an order requiring a party ("the paying party") to pay a deposit not exceeding £1000 as a condition of continuing to advance that allegation or argument". The Tribunal must be satisfied that there is "little reasonable prospect" of the particular allegation or argument succeeding. This maintains a distinction between the criterion for making a deposit order and that for striking out a case under Rule 37 (1) (a) on the ground that the proceedings have "no reasonable prospect of success".

[66]The test of "little prospect of success" is not as rigorous as the test for "no reasonable prospect". It therefore follows that a Tribunal has a greater leeway when considering whether or not to order a deposit. Nonetheless it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or the response (Jensen Van Rensburg v Royal Borough of Kingston-upon-Thames EAT 0096/07). A Tribunal should have regard to the likelihood of the facts being established by the claimant when making the order. The Tribunal should balance the contentions on the one side against the undisputed facts on the other and should conclude on the evidence that the claimant has little prospect of proving his/her claim at the hearing (Spring v First Capital East Limited EAT0567/11).

[67]In Hemden v Ishmail

[2017] IRLR 228

the purpose of a deposit order was identified at paragraphs 10 and 11 as: to identify at an early-stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails. The purpose is emphatically not… to make it difficult to access justice or to affect a strikeout through the back door.

[68]I also recognise the importance of engaging with an understanding, the basis of the claimant’s claims before considering whether any allegation has little reasonable prospect of success. An assessment of whether there is little reasonable prospect of success under Rule 39 (1) is a summary assessment intended to avoid cost and delay and should not involve a mini trial of the facts, as this would defeat the object of the exercise. Discussion and conclusion

[69]During the open preliminary hearing I was asked to consider the draft list of issues [122] and to determine four contested areas.

[70]I allowed the following amendments to the list of issues:a. The deletion in paragraph 2(a).

b. Retaining paragraph 2(a)(xii). Warner Bros had sought this deletion.

c. Deleting paragraph 2(a)(xiv)

d. Retaining direct sex discrimination. Warner Bros had sought this deletion.

[71]In paragraph 2 of the list of issues, Ms Coningham alleges that she was treated less favourably because of her race and or age and or sex. In relation to race, she relies upon her Asian/Indian ethnic origin and sites the following alleged detriments:a. Not being offered a promotion. She alleges that she was not offered promotion to/considered for the following roles by Warner Bros’ relevant recruitment and/or hiring managers (or as specified below). She relies upon hypothetical comparators and/or the comparators specified as follows: i. On June 7, 2017, content manager role, Ms Coningham was unsuccessful following an interview with Simon Culm, the Executive Director, Sales, and Business Development. ii. On 1 October 2017, creative formats manager role, Ms Coningham was not selected for interview by Gemma Broadhurst. iii. On 24 November 2017, senior strategy manager role, Ms Coningham was recommended for shortlisting by external headhunters but after a pre-interview chat with Natalie Francis, was not given a final interview. iv. On 5 March 2018, sales executive, theatrical sales role, Ms Coningham was unsuccessful following an interview with Neil Marshall, the SVP of Theatrical Sales. She relies upon Patrick Keane as a comparator (race, age, and sex). v. On 24 April 2018 Harry Potter, business development analyst, Nikki Giles informed Ms Coningham she would not be interviewed for the post. vi. On 1 May 2018, senior marketing executive, Ms Coningham was not interviewed by Warner Bros relevant recruitment and/or hiring manager for that role. vii. On 3 September 2018, Ms Coningham was offered a promotion by Ms Glascoe, but this offer was then withdrawn. viii. On 19 January 2019, business executive to Robert Blair role, Ms Coningham was recommended for interview by Warner Bros’ US head-hunters, but HR did not put forward for interview. ix. On 22 February 2019, marketing manager, Theatrical Catalogue Marketing role, Ms Coningham was not offered an interview by Mr Thomas, the Head of Catalogue Marketing. x. On 9 March 2019, marketing executive, film marketing UK WHEG role, Ms Coningham was not offered an interview by Warner Bros’ relevant recruitment and/or hiring manager for that role. Ms Coningham relies on Natalie Fern Davies as a comparator (race and age). xi. On 14 October 2019, Digital Sales Manager, Ms Coningham was not asked the same questions as other candidates by Miss Glascoe and was not offered the role. Ms Coningham relies on Harry Greasley as comparator (race, age, and sex). xii. On 23 January 2020, marketing executive, WBTV marketing role, Ms Coningham was not offered an interview by Warner Bros’ relevant recruitment and/or hiring manager for that role.

b. On 25 March 2021, Ms Coningham alleges that Warner Bros failed to benchmark her role. She relies upon a hypothetical comparator. She relies upon Joseph Gibbons, Harry Greasley, and Matthew Keegan to assist the Tribunal to construct appropriate comparators.

[72]I prefer Mr Cordrey’s analysis of the calculation of time limits, and the role of Early Conciliation has, to Mr Singh’s for the reasons given by Mr Cordrey in his skeleton argument and his oral submissions.

[73]For the reasons given by Mr Singh in his skeleton argument and in his oral submissions, I do not accept that the 12 instances of alleged failure to promote Ms Coningham amounted to specific instances all of which occurred outside the three-month time period. The fact that different individuals were involved does not detract from the possibility of there being continuing acts. Mr Singh has eloquently argued that the acts that Ms Coningham complained of relating to failure to promote and failure to benchmark her to a management role were continuing acts. Failure to promote and failure to benchmark are in substance part of the same regime. For the reasons given by Mr Singh I believe that the allegations amount to a prime facie case that there was a continuing act relating to denying Ms Coningham the opportunity to be promoted to a management position. It must be the case that benchmarking formed part of that practice because it was intended to be used as a tool for determining her role in management. The continuing act was in the form of maintaining a practice which when followed or applied, excluded Ms Coningham from promotion to a management position. I believe that there is a prime facie case that these acts extended over a period of time because they took the form of some policy, rule or practice in accordance with which decisions were taken from time to time. What is continuing is alleged in this case is a practice which resulted in consistent decisions that were discriminatory of Ms Coningham.

[74]It follows, therefore, that it is a matter of evidence for the Tribunal as to whether such a practice as is alleged by Ms Coningham in fact exists. Mr Singh has set out what amounts to the “something more” required to establish less favourable treatment compared with someone not possessing the Ms Coningham’s protected characteristics is. Ultimately, this is a matter to be determined at a final hearing and, no doubt, Warner Bros will provide their explanations which they say will show that there is no link between the unfavourable treatment and Ms Coningham’s protected characteristics. No doubt they will also attempt to show that there was no linking practice but a matter of one-off decisions each having different explanations that cannot constitute a practice.

[75]It is important to emphasise that even if it was to be established that there was some practice built up of denying Ms Coningham promotion and benchmarking, it must still have to be proved that it was a discriminatory practice. Under such circumstances, it may be the case that Warner Bros will be able to satisfy the Tribunal at the final hearing that there are nondiscriminatory explanations for the treatment of which Ms Coningham complains about. However, these are all matters for investigation by the Tribunal at the final hearing. The application to strike out the claims is refused.

[76]Although the test for granting a deposit order is less stringent than for striking out a claim, for the reasons given by Mr Singh, I am satisfied that Ms Coningham has more than little reasonable prospect of succeeding in her claim or claims at a final hearing and the application for a deposit order is refused.

Findings of Fact

[77]There were 533 applicants for the role. The Claimant said that she applied for the role but the Respondent has no record of her applying for the role. The CV produced by the Claimant for this role showed her as having worked at the BBC as a Marketing and Sales Executive from 2008 to 2013. 12 applicants were passed to Ms Drury for consideration and she interviewed 7 of them. The successful candidate was a 32 year old white (American) woman. She had worked for the Respondent as a Marketing Executive for a little over a year and a half.

[78]The Claimant’s managers, Ms Glasscoe and Ms Sharp, were not aware of any of the applications made by the Claimant, other than the one for the Digital Account Manager. They played no role in the decisions made.

[79]In early 2020 the Claimant asked Ms Sharp whether role could be benchmarked as she felt that her job title and remuneration did not reflect the responsibility of her role. The Claimant said that she felt that her role was equivalent to a manager role and that should be reflected in her title and remuneration. She felt that her role was similar to that of Matt Keegan because he did the same job as her but in relation to physical content. Mr Keegan’s job title was Senior Pre-Production Manager and it was three levels higher than the Claimant’s role in in the grading structure. Ms Sharp agreed to benchmarking the Claimant’s role.. However, the matter was not progressed for several months and Ms Sharp’s explanation was that at that time there was a freeze on new hires and promotions and that would have made it difficult for the Claimant’s role to be regraded.

[80]In a conversation in February 2020 which involved the Claimant and others Ms Drury made a comment about not understanding TikTok and that it was best to leave it to “the kids”. In another conversation around the same time staff joked about Ms Drury’s boss only hiring blondes for the Marketing Executive role as the previous three women appointed to the role had been blonde. Other senior women who reported to him, including Ms Drury, were not blonde.

[81]Sometime in 2020 a Sales Manager when referring to a black employee used the name of another black employee and when it was pointed out to him that it was the wrong name, he responded “same difference” Some of the Claimant’s colleagues referred to her as having a “posh voice” and said that she should be reading the news.

[82]In summer 2020 Ms Sharp asked the Claimant to provide her with an updated job description of her role. The Claimant sent her a job description on 21 September 2020. The job description comprised nearly three typed pages. Most of the Respondent’s job descriptions that we looked at in the course of the hearing were just under two pages.

[83]Ms Sharp amended the job description provided by the Claimant to make it(a) more concise and

(b) to more accurately reflect the skills and experience for the role. For example, the Claimant’s “overview of the role” ran into five paragraphs. Ms Sharp reduced it to the first of those five paragraphs which was “Accountable for the planning and delivery of all digital product avails for Warner Bros, HBO and Turner Home Entertainment, UK & Ire.” That summarised the overview of the role concisely. She moved responsibility for the performance management of three external agencies based in the US and Germany from the overview of the role to the primary responsibilities. The Claimant had set out 16 skills and requirements for the role. Ms Sharp reduced them to 9. She left out things such as “successful track record in project management skills” , “extensive stakeholder management experience”, “comfort communicating with senior management” which were not skills and experience required for the Claimant’s role. The job description drafted by Ms Sharp was closer to the job description that had been used when the Claimant had been recruited in 2016, although Ms Sharp had not seen that job description. Ms Sharp also removed from the skills and experience section references to the Claimant building team standards and guiding and developing other members of the team. The Claimant had put in her job description that one of her responsibilities was to manage the allocation for the Sales Admin Assistant. That had appeared in the Claimant’s original job description but there had not been any Sales Admin Assistant since Ms Olafare had left a few week after the Claimant started. Ms Sharp removed that.

[84]On 11 November 2020 Ms Sharp sent Sammi Winetroube, Compensation Analyst in the Compensation and Benefits team, her revised job description of the Claimant’s role and asked her to benchmark it against other similar roles within the Respondent. Ms Winetroube forwarded Ms Sharp’s email to Aexandra Saifer and Lisa Youde in HR because it is the responsibility of HR to liaise with the manager and to determine what he/she is seeking from the benchmarking exercise. It appears that they took no action at that stage and on 21 January Ms Sharp chased them up on it. Ms Youde responded that they had been told that no promotions were being considered at the time and suggested that it might be worth waiting in case anything changed. Ms Sharp pressed her to proceed with it at that time.

[85]On 27 January Ms Youde referred the matter back to Ms Winetroube for her to do the benchmarking. Ms Winetroube reviewed the role based on the job description. She used Wills Towers Watson’s external data to match the role with equivalent roles in other business and its guidance to determine where the role was placed within the discipline. A broad overview of the guidance is look at the scope, responsibility and accountability of the role concerned. Ms Winetroube matched the role to the Willis Towers Watson level of P2-10 which meant that the person performing the role had working knowledge and experience in their own discipline, continued to build their knowledge of the organisation, processes and customers, performed a range of assignments that were normally straightforward, used prescribed guidelines and policies to analyse and resolve problems and received a moderate level of guidance and direction. On the limited knowledge available to her, Ms Winetroube thought that the role might potentially fit at the next level up – P3-11. She explained to Ms Youde what the two levels denoted and asked her where she thought that the role fitted She also asked her whether there were any internal comparators. Ms Youde responded that she did not know of any internal comparators and, although she did not have enough working detail of the role, she thought that it fitted into level P2-10. Ms Winetroube then informed her that the salary range for that role was between £28,401 and £42,601 with a mid-point range of £35,501 and a bonus target of 5%. The Claimant’s salary at that time was £35,500 with a bonus target of 4%. On 10 February Ms Youde informed Ms Sharp of the outcome of the benchmarking exercise.

[86]Ms Sharp sought further information from Ms Youde about the benchmarking process. Ms Youde responded on 10 March 2021. She said that they had benchmarked the role in line with the contents of job and not its title and based on that the Claimant was paid the correct amount. She said that they had reviewed other roles in the business but they were not the same in terms of content and seniority; some roles were managers of people. While the Claimant’s role had some activities that were typical of a more senior role, there were still a lot of tasks at the administrative level.

[87]On 23 March Ms Sharp shared the outcome of the benchmarking process with the Claimant. The Claimant felt that the benchmarking process did not accurately reflect the responsibilities of her role, such as responsibility for process and directing performance of other teams and external agencies. She also referred to Mr Keegan, who she felt was performing the same role as her on the Physical Supply Chain but was graded a Manager. Ms Sharp suggested that it would be a good idea for the Claimant to meet with Ms Youde to further discuss the issues that she had raised. On 23 March the Claimant asked Ms Sharp to send her a copy of the job description, which she knew Ms Sharp had “tweaked” before sending it on. Ms Sharp supplied her with a copy of that job description.

[88]Shortly thereafter Ms Youde reminded Ms Sharp that on the benchmarking the Claimant was eligible for a 5% bonus rather than the 4% bonus on which she was at the time. She asked her whether she wanted her to explore it. Ms Sharp’s response was that she was happy to bring it into the mix but as a stand alone change it felt a bit minimal. She felt that an additional 1% bonus as the only change as a result of the benchmarking process would be perceived by the Claimant as an empty gesture and was likely to be inflammatory. She felt it would be more appropriate to reconsider it in the round as part of the Respondent’s annual salary review process.

[89]In April Ms Youde met with the Claimant to discuss the benchmark. After the meeting the Claimant sent her an email with a few questions. She said that Ms Youde had said that one of the reasons that she did not have a Manager title and Mr Keegan did was because he managed two persons (an executive and an intern). She said that managing an assistant had formed part of her job description when she took on her role and that she now managed Mr Keegan in his digital work. In any event, one did not need to manage staff to have a Manager title. In the Digital team, there were two managers who did not manage people. Her expectation had been that her role would have been benchmarked against Mr Keegan’s role and that her role should be upscaled to reflect the importance of digital for the future growth of the business.

[90]Ms Youde had further discussions with Ms Winteroube about the salary differences between P2-10 and P3-11. Ms Winetroube agreed that if the business wanted to offer the Claimant a salary increase of 10%, which would bring her salary up to £40,000, that could be justified as it would be at the top end of P2-10 and the bottom end of P3-11.

[91]Ms Youde responded to the Claimant’s email on 11 May 2021. She said that several factors were considered in determining what level should be assigned to a particular role. Her role had been assessed by HR in conjunction with the Compensation and Benefits team, taking into account the information provided by her manager Ms Sharp. The conclusion of the exercise had been that her role did not meet the criteria for a manager position. In respect of the Claimant’s assertion that she managed/supervised Mr Keegan, Ms Youde said, “I understand from Ruth that this is not the case and that, whilst you have educated him on a process involved in his role, this is just a small portion of his role and his management sits under another structure. It is not correct that your role should be benchmarked against Matt’s.”

[92]Mr Keegan’s job title was Senior Pre-Production Manager – Creative Services. The job description stated that there were two direct reports and the responsibilities of the post included to manage, motivate and mentor direct reports. Mr Keegan, in fact, had two direct reports – an executive and an intern. The primary responsibilities for the role were(i) responsibility for the distribution of content across the Respondent’s Home Entertainment Group in the UK and Ireland,

(ii) managing the delivery of all WB content (including local and international sources) for certification in the UK and Ireland across physical and digital releases,

(iii) the identification and implementation of process enhancements to deliver efficiencies on behalf of the Home Entertainment Group and

(iv) super user for certain business process systems). The second responsibility included driving relationships with Industry certification bodies in the UK and Ireland, keeping abreast of new legal requirements and changes in process and continuing to build upon the Respondent’s relationship with those industry bodies to trial new initiatives across digital submissions. The third responsibility entailed the postholder heading Nimbus, which was a project to identify and implement key cost saving/time efficiencies in the supply chain and to gain management buy-in and approval for all key initiatives.

[93]Ms Winetroube gave evidence that if she had benchmarked Mr Keegan’s job description, she would have matched it to the Wilis Towers Watson level M2-12.

[94]In 2021 WarnerMedia merged with Discovery.

[95]On 25 May 2021 the Claimant raised a grievance in which she complained about the failure to benchmark her to Senior Manager level and unequal pay due to sex, age and race discrimination. She gave reasons why she believed that her role was not just a co-ordinator role. She also complained that the benchmarking process had been explained to her in advance and that she had not been consulted in the course of the process. In respect of pay discrimination, she made the following points – She said that her role, which managed the digital supply chain, had been held by women and that the two persons in leadership position in the physical supply chain were both men and younger. The women had not been promoted although digital revenue had outgrown physical revenues over the past ten years. She believed that the business did not want to promote her or people of her age because they considered that it unsettled younger and less experienced staff. It was self-evident that the business had had structural issues around race due the lack of ethnic diversity at all levels in the business. White staff were more likely to be offered opportunities and promotions.

[96]Oliver Mundy in People Relations was tasked with investigating the Claimant’s grievance. The People Relations team undertook investigation of employment concerns cross the WarnerMedia group of companies. Mr Mundy interviewed the Claimant on 2 and 4 June 2021

[97]Mr Mundy interviewed Ms Youde on 24 June, Ms Sharp on 25 June and Ms Glasscoe on 6 July 2021.

[98]On 12 July 2021 the Claimant raised a second grievance about the handling of the first grievance. She complained about failure to disclose the “role and remit of” Mr Mundy, incomplete grievance procedure policy and failure to have a grievance hearing within ten days as stipulated in the Respondent’s grievance policy. The Claimant asked for a new grievance investigator to be appointed.

[99]On 12 July Samira Anwar, Executive Director of People Relations, wrote to the Claimant that she would take over the investigation of her first grievance. The second grievance was investigated by someone else.

[100]Ms Anwar met with the Claimant on 26 July 2021 and sent her the notes of the meeting on the following day. At the meeting the Claimant raised a number of issues which had not featured in her original grievance. The Claimant returned the notes with a few amendments on 30 July 2021. She also sent Ms Anwar a copy of the particulars of claim that she had submitted to the Tribunal. The particulars of claim contained a substantial number of new allegations that the Claimant had not raised either with Mr Mundy or her. Ms Anwar met with the Claimant again on 25 August 2021. At the meeting the Claimant confirmed that the particulars of claim set out set out the entirety of her grievance. Ms Anwar extended the scope of her investigation to include all the matters in the particulars of claim. In the course of her investigation Me Anwar interviewed a large number of witnesses and spoke to some of them more than once.

[101]Ms Anwar produced her investigation report on 28 September 2021. The report comprised 20 typed pages. Ms Anwar did not find any evidence to corroborate/support that the Claimant had been discriminated against by reason of a protected category. She found that the benchmarking process had been reasonable, had used a job description drafted by the Claimant and had followed a formalised process which had assessed her role against market data. She did not consider that Mr Keegan should have been regarded as an internal comparator for benchmarking processes. She found the Claimant did not have/had not had any management responsibility for Mr Mesa-Banz or Mr Keegan. She considered that Ms Sharp should have corrected the Claimant on that during the benchmarking process as she had a fundamental misapprehension that Mr Keegan reported to her. In relation to the Claimant’s internal search for roles within WB she had not found any evidence to support that any failure to obtain an alternative role was by reason of discrimination.

[102]The grievance hearing took place on 5 October 2021 and was conducted by Dan Penfold, Vice President Business and Legal Affairs. It lasted nearly two hours. The Claimant said that Ms Anwar’s report was “biased, unfair and unsympathetic” and then explained in detail what she disagreed with and why.

[103]Mr Penfold sent the Claimant his grievance outcome on 22 October 2021. His conclusions on the benchmarking exercise were as follows, “the benchmarking exercise performed in respect of you role was conducted in a reasonable fashion, using appropriate job descriptions and following a formalised process which considered both internal and external metrics. I have not been able to find evidence that the failure to benchmark upwards to Senior Manager level was the result of an unfair procedure… I conclude that you have not acted as a line manager, that it was appropriate for the Compensation and benefits team to conclude that your lack of line management responsibility clearly distinguished your role from that of Matt Keegan, and that he was therefore not an appropriate point of internal comparison for the benchmarking exercise. Accordingly, given that your role is distinguished from Matt Keegan’s role by line management responsibility, in addition to a number of other functional differences between the two roles, I am unable to find that you have been discriminated against with regard to pay on the basis of gender. I find that it is not unusual that you were not involved in the benchmarking process personally, although it is irregular that your line manager did not feed back to you some of the material details of the benchmarking as it progressed” In respect of the Claimant’s unsuccessful applications for numerous internal roles, although he accepted that some inappropriate comments had been made (such as “my boss only recruits blondes”) he had been unable to locate any evidence that the Claimant had been treated unfairly or in a discriminatory fashion. He did not uphold any of the Claimant’s grievances but found that there were numerous areas in which the management that she had experienced at WB had been “sub-optimal”. He explained, “Clearly, there have been a number of instances in which communication with your line managers has not been clear, or has lacked the requisite frequency. Perhaps consequently, your expectations and understandings have not been aligned with those of your managers.” He made recommendations to address that and advised the Claimant of her right to appeal.

[104]The Claimant appealed against the grievance outcome on 28 October 2021. The appeal was heard by Trevor Albery, Vice President, WW Content Protection & Analytics, on 19 November 2021. He dismissed the appeal.

[105]Ms Wintetroube’s unchallenged evidence was that the Account Manager roles (held by Joe Gibbons and Harry Greasley) were sales roles and would be matched to a different discipline from the Claimant’s tole which was essentially an administrative role in Sales. Her evidence was that they would be matched to the Willis Towers Watson level S3-11 which is slightly more senior than the Claimant’s P2-10. The “S” denotes “sales” and “P” denotes “professional”. The S3-11 level overview includes the following – has a solid understanding of business, financials, products/services , the market and the needs of assigned accounts, works with a complex or large territory/account, products/services, sales or account management processes, has authority/opportunity to set and negotiate products/service terms and plans own territory or account approach and manages own resources.

[106]In January 2022 the WarnerMedia UK & Ireland Executive Committee had seven members. The most senior person, the Country Manager, was Polly Cochrane, a woman. Three of the other members were men and three were women. At the time of the hearing, there were nine members of the Executive Committee, five of whom were women. An extract from the Respondent’s Gender Pay Gap Report showed that 52.9% of its employees were women and 47.1% men. In the Lower and Middle Quartiles the women formed a larger part of the workforce. In the Upper Quartile 53.2% of the employees were men and 46.8% women. The median gender pay gap was 9.3%. Conclusions Jurisdiction

Conclusions

[107]The effect of sections 123(3) and 140B of the Equality Act 2010 is that any complaints about acts or omissions (failure to do things) that occurred before 9 March 2021 will not have been presented in time and the Tribunal will not have jurisdiction to determine them unless it considers it just and equitable to do so,

[108]The Claimant’s complaint of sex discrimination about the failure to pay her a salary commensurate to her role is linked to the complaints of discrimination about the failure to benchmark her role to a manager role. The Claimant asked for the benchmarking exercise in early 2020 because she felt that her job title and remuneration did not reflect the responsibility of her role. The benchmarking exercise was concluded on 9 February 2021 and the decision was that the Claimant was being paid at the mid-point level of the salary range for her role. On 10 February 2021 Ms Youde communicated that to the Claimant’s line manager, Ms Sharpe. Ms Sharpe sought further information from Ms Youde about the process and Ms Youde responded on 10 March 2021.On 23 March 2021 Ms Sharp shared the outcome of the process with the Claimant, which was that her job title was correct and she was being paid the correct amount. The Claimant raised some issues about the process and Ms Sharp suggested that she spoke to Ms Youde. The Claimant spoke to her in April and Ms Youde sent her an email on 11 May confirming that the original decision stood.

[109]On the basis of the above facts it is arguable that the decision to benchmark the Claimant’s role to P2-10 and not to increase her pay was made on 9 February 2021 and that it was confirmed on 11 May 2021 that that decision remained unchanged. It is equally arguable that the final decision was made on 11 May 2021. If we had concluded that the decision was made on 9 February 2021, we would have concluded that it was just and equitable to consider those claims because that decision was first communicated to the Claimant on 23 March 2021. The Claimant had no way of knowing when the decision was made and when any time limit for complaining about it would expire. We concluded, therefore, that the Tribunal had jurisdiction to consider those two claims.

[110]The complaints of age, sex and race discrimination about the various roles for which the Claimant applied will only have been presented in time if the Tribunal finds that(i) the complaints of age, race and sex discrimination about the benchmarking exercise are well-founded and

(ii) some or all of the complaints about the Claimant’s applications are well-founded, and that they are part of continuing act which culminated with the benchmarking exercise. We concluded that even if any of the Claimant’s complaints about her applications were well-founded they could not be said to be part of an act extending over a period and certainly not part of an act extending over a period which ended with the benchmarking exercise. Our reasons for so concluding are as follows. The benchmarking exercise is a completely different process from the recruitment process and is carried out by different individuals from those who were involved in the various recruitment processes. There is a gap of a year between the last unsuccessful application and the conclusion of the benchmarking exercise. There is no link between the Claimant’s failed applications and the benchmarking exercise in terms of the actions of the Respondent.

[111]Furthermore, we concluded that the failure to invite the Claimant to interview or to appoint her to the roles for which she applied were isolated and unconnected acts and were not an act extending over a period. There was nothing inherently discriminatory in the recruitment process applied by the Respondent. There was no evidence that it was weighted against women, older persons or those of Asian/Indian origin. The Claimant’s applications were made over a period of two and a half years (between May 2017 and January 2020). They were made to different parts of the Respondent’s business and the decisions were made by different individuals. There was no evidence to link the various individuals who made the decisions or of any collusion between them. The Claimant failed to establish any link between those decisions take by different persons at different times. We concluded that they were specific, single, one-off processes entirely unconnected with and independent of each other.

[112]We then considered whether it would be just and equitable to consider the complaints of discrimination about the various applications which had not been presented in time. The complaint about the earliest application was presented nearly four years after the time limit for presenting it expired. The complaint about the last one fifteen months after the time limit expired. That is a significant delay The Claimant has not provided any explanation for not presenting the claims earlier. The facts on which she relies to found her claims of discrimination were known to her at the time. This is not a case where she discovered the discrimination as a result of facts which came to light much later. The Claimant is an intelligent and educated woman. Her husband is a solicitor. There was no reason why the Claimant should not have known or been able to find out about time limits. Instead of bringing a claim after the last failed application, the Claimant asked for her role to be benchmarked. Having received the outcome of the benchmarking exercise the Claimant raised a grievance about it and discrimination in relation to her pay. The first time she complained about discrimination in respect of her unsuccessful applications was when she presented her claim form on 6 July 2021. The Respondent has faced considerable forensic prejudice in defending claims where the alleged acts of discrimination occurred four years before the presentation of the claim and some of the background evidence relied on even earlier. Much of the relevant documentary evidence no longer exists because the Respondent had a GDPR-compliant policy of destroying recruitment records after six months. Many of the individuals who could have given evidence about the background evidence on which the Claimant relies and the allegations no longer work for the Respondent. The witnesses who did give evidence about recruitment processes, interviews and other conversations struggled to remember exactly what had been said or done many years. Having considered all the above matters, we concluded that it would not be just and equitable to consider the complaints of discrimination about the Claimant’s unsuccessful applications. The benchmarking exercise

[113]In order for the Claimant’s complaints of discrimination about the benchmarking exercise to succeed, she would have to establish(i) that the Respondent subjected her to a detriment by not conducting the exercise fairly and properly and/or reaching a conclusion that was not open to it;

(ii) in doing that it treated her less favourably than it treated or would have treated others in similar circumstances and

(iii) that it did so because of her race and/or sex and/or age.

[114]The most important part of the benchmarking exercise was carried out by Ms Winetroube who used external data to determine at what level the role should be placed based on the job description of the role. There was no criticism of her or the exercise that she had carried out by the Claimant. The Claimant’s case essentially was that the process was seriously flawed and the result incorrect because Ms Sharp changed the Claimant’s job description, the Claimant had line management responsibility and Mr Keegan had not been considered as an internal comparator.

[115]The process that was followed by the Respondent was the process that it normally follows when benchmarking roles. We accept that there was a delay in starting the process after the Claimant first asked for it. We do not accept, as was suggested by the Claimant, that Ms Sharp waited for Mr Stanley to leave before starting the process or that she pressed HR to proceed with it, contrary to their advice to wait, because she knew that would lead to the Claimant’s role not changing. There was no evidence to support either of those suggestions. A freeze on promotions would have no impact on Ms Winetroube’s assessment of a job description against the external data. The Claimant had an input in the job description that was used. She produced the first draft. The changes made by Ms Sharp were largely stylistic to make the job description more concise and like the Respondent’s other job descriptions. She removed the reference to the Claimant being responsible for managing the allocation for the Sales Assistant because the Claimant had only done that for about two weeks after starting in her role. The Claimant was aware that Ms Sharp had “tweaked” her job description before she sent it. When the Claimant received a copy of the job description on 23 March 2021 she did not complain about the changes that had been made.

[116]The Claimant’s case was also that her role should have been benchmarked against that of Mr Keegan because(i) the work that she did for the digital supply chain was the same as the work that he did for the physical supply chain and

(ii) she had line managed Mr Mesa-Banez and managed/supervised Mr Keegan. That was not the case. We have found that Mr Mesa-Banez and the Claimant did the same job and that they both reported to Ms Glasscoe. The Claimant did not line manage him. Equally she did not manage Mr Keegan. She trained him on the Respondent’s digital avails process which formed a tiny part (approximately 5% of his role). Nor were their roles the same. Mr Keegan line managed two employees, the Claimant did not line manage anyone. Their roles were in different part of the business and Mr Keegan’s role had greater and more complex responsibilities than the Claimant’s role. He was responsible for driving and building upon relationships with industry certification bodies and he headed Nimbus, a project to identify and implement savings and efficiencies in the supply chain. We accepted Ms Winetroube’s evidence that his job description would have been benchmarked to M2-12.

[117]We concluded that there were no serious flaws in the benchmarking process to render its conclusions unfair or unsafe. The process that was carried out was fair and reasonable and the conclusion was fair and justified. The Claimant was being paid the mid-point of the salary range for that role. The Respondent did not subject the Claimant to a detriment in the benchmarking of her role.

[118]It was not a conclusion of the benchmarking process that the correct salary for the Claimant was £40,000. Following further discussions between HR and Ms Winetroube, after the Claimant had expressed her unhappiness about the outcome of the benchmarking exercise, Ms Winetroube had advised HR that if the business wanted to increase the Claimant’s salary, a salary of £40,000 could be justified as it would be at the end P2-10 and the bottom end of P3-11. She never said that that was the correct salary for the Claimant’s role and that it was what she ought to be paid.

[119]There was no evidence from which we could infer that the Respondent treated the Claimant less favourably than it treated, or would have treated, others in a similar position. We did not consider that Messrs Keegan, Gibbons and Greasley helped us in any way to construct the hypothetical comparator (we look at this in more detail when we consider the Claimant’s sex discrimination complaint about the level of her pay). There was no evidence from which we could infer that the Claimant’s race, age or sex played any part whatsoever in the benchmarking exercise (we deal with the matters from which the Claimant said we could draw inferences when we deal with her other complaints).

[120]We concluded that the complaints of age, race and sex discrimination about the benchmarking exercise failed because(i) she had not been subjected to a detriment;

(ii) there was no evidence that she had been treated less favourably than a man, a white person or a younger person would have been in similar circumstances and

(iii) there was no evidence from which we could infer that her race, age or sex had played any part in the way the process was conducted or the decision reached. Sex discrimination – pay

[121]In order for this claim to succeed, the Claimant has to establish that a man doing the same role would have been paid more than she was. The Claimant’s case was that we could determine what a male comparator would have been paid by looking at the Respondent’s treatment of Messrs Keegan, Gibbons and Greasley. We did not consider that they assisted us in constructing the hypothetical male comparator, We have already set out the differences between Mr Keegan’s role and the Claimant’s role. The roles of Messrs Gibbons and Greasley were also different. They were account managers, who managed individual accounts, and had individual responsibility for meeting sales targets and generating revenue. Their roles were sales roles. The Claimant’s role was an administrative co-ordinating role in Sales. The person who did the same role as the Claimant was Miguel Mesa-Banez. He was employed on fixed-term contracts and was not a permanent employee. There was no suggestion by the Claimant that he was paid more than her. There was no evidence from which we could infer that a man doing the Claimant’s role would have been paid more than she was. The complaints about the failed applications

[122]As we have not found the Claimant’s complaints about benchmarking and her level of pay to be well-founded, we do not have jurisdiction to consider the complaints about the failed applications. In case we are wrong in that conclusion, we set out briefly what we would have concluded in respect of those complaints.

[123]In the course of 2.5 years the Claimant’s case is that she applied for about 11 different roles. In a few cases, the Respondent had no record of having received an application for the Claimant. In one case, the Claimant produced an automated reply from Brassring to prove that she had applied. She did not do so for the others. Almost all the roles were advertised internally and externally. In most cases there were a large number of applicants (between 152 and 533). The roles were in different parts of the business and different Talent Acquisition personnel and managers were involved in the selection processes. The initial sifting was done by the Talent Acquisition staff. The Managers conducted the interviews. The Claimant did not have the requisite experience for some of the roles. She applied for roles that were much more highly paid than her existing role (roles that paid between £48,000 and £90,000). The Claimant was interviewed for some of the roles. Those who were selected for the roles generally had more, or more recent, relevant experience than the Claimant. Five out of the ten persons appointed to roles that were advertised were women. One of the persons appointed was South-East Asian and one was multiracial. Most of those appointed were in their 20s or 30s, and one person was in her 40s. The Tribunal could not conclude on the basis of the facts that the failure to appoint the Claimant to any of those roles was on the grounds of her race, sex or age.

[124]The Claimant’s case was that we could infer race, age and sex discrimination from a number of facts. We deal briefly with the main points. It was said that the Respondent’s recruitment process was informal, lacked transparency and the absence of contemporaneous documents relating to the selection process was in breach of the EHRC Code of Practice. We do not accept that the process was informal. As we have said almost all the posts that we considered were advertised internally and externally, there were job descriptions for the roles, the applications were sifted by Talent Acquisition personnel, the managers shortlisted for interview and interviewed the applicants. A process was followed to try to find the best candidate. We accept that a couple of roles were not advertised, but that was the exception and not the norm. The EHRC Code makes it clear that in deciding how long to keep records after a recruitment exercise employers must balance the need to keep those records to justify any decisions made with their obligations under the Data Protection Act 1998 not to keep them any longer than is necessary. The Data Protection Code provides that employers should not hold recruitment records beyond the statutory period for bringing claims relating in relation to it unless there is a clear business reason for extending that period. The Respondent’s policy of retaining records for six months is in accordance with both those Codes. The absence of records stems from the Claimant bringing claims years after the recruitment process and long after the time limits for bringing such claims have expired. We concluded that we could not draw any inferences of discrimination from the recruitment process or the absence of contemporaneous records.

[125]The Claimant gave evidence about the majority of the workforce being white and that the majority of those who were promoted in 2021-2022 were white. There is very limited documentary evidence to support that. Without knowing what percentage of the Respondent’s employees is of BAME origin and how many of them applied for promotion, it is not possible to draw any inferences from that evidence in respect of the Claimant’s complaints.

[126]It was also said that we could infer discrimination from certain comments that were made in the workplace. We have found that the following comments were made – at a lunch the Claimant was asked questions about her family and her children (paragraph 66), in respect of a junior administrative role Ms Drury said that she wanted to focus on candidates with limited previous experience as they would get more out of the role (paragraph 76), Ms Drury made comments about it being best to leave TikTok “to the kids”, staff joked about Ms Drury’s boss only hiring blondes (paragraph 80), a Sales Manager mixed up the names of two black employees and, when corrected, said “same difference” and the Claimant’s colleagues made comments about her “posh voice” and said that she should be reading the news (paragraph 81). We accept that some of those comments are inappropriate. We also accept that expressing a view about hiring someone with less experience could give rise to an inference of age discrimination. The other comments, however, did not assist us in determining whether the hiring managers and Talent Acquisition personnel involved in making the decisions for the roles for which the Claimant had because of race, sex or age treated her less favourably that they treated, or would have treated, others.

[127]We also took into account the fact that in January 2022 the majority of the Respondent’s Executive Committee members (including the Country Manager) were women and that the majority of its employees were women. All the members of the Executive Committee were white.

[128]Had we considered those complaints, we would have concluded that none of them were well-founded.