Miss S Najeeb v JP Morgan SE – London Branch: 2216593/2023
EMPLOYMENT TRIBUNALS
Case No 2216593/2023
Between
Miss S NajeebClaimantJP Morgan SE – London BranchRespondent
Before
Employment Judge A M Snelson
Members
Mr S McLaughlinMs J TombsDate 17 November 2025
JUDGMENT
Ms J Tombs On hearing the Claimant in person and Mr S Purnell, counsel, on behalf of the Respondent, the Tribunal unanimously determines as follows.(1) The Claimant’s claim for equal pay is not well-founded.(2) The Claimant’s complaints of direct sex discrimination are not well-founded.(3) The Claimant’s complaints of victimisation are not well-founded.(4) The Claimant’s complaints of direct sex discrimination and victimisation fail on the further ground that they were presented out of time and the Tribunal has no jurisdiction to consider them.(5) Accordingly, the proceedings as a whole are dismissed.
REASONS
Introduction
[1]The Respondent is a company within JP Morgan Chase & Co, one of the largest banking and financial services organisations in the world.[2]The Claimant, Miss Saidya Najeeb, was recruited by the Respondent on 14 March 2022 as an Analyst Grade 502 in its International Funds Product Management (‘IFPM’) team. She continues to be employed within the organisation although, since the events with which this case is concerned, she has taken up a fresh appointment with a different company in the JP Morgan group.[3]By her claim form presented on 17 November 2023, Miss Najeeb, who has at all times been unrepresented, brought a claim for equal pay and numerous other complaints under the Equality Act 2010 (‘the 2010 Act’), which were resisted by the Respondent on their merits and, in part at least, on jurisdictional grounds.[4]The matter has an unremarkable case management history, which it is not necessary to recite. The upshot was common ground that claims were pursued for equal pay, direct sex discrimination and victimisation. A list of issues was agreed.[5]The matter came before us in the form of a final, ‘face-to-face’ hearing on 3 November 2025, with five sitting days allowed. Miss Najeeb appeared in person and presented her case with courtesy and good grace. The Respondent had the advantage of being represented by Mr Sebastian Purnell, counsel.[6]At the start of the hearing the scope of the dispute was narrowed in two respects. First, the Respondent confirmed that it accepted that Miss Najeeb and her male comparator for the purposes of the equal pay claim, ‘Mr A’, were at all relevant times employed in ‘like work’. Second, the Respondent conceded that each act relied on by Miss Najeeb as a ‘protected act’ for the purposes of the victimisation claims satisfied the statutory definition of that term.[7]These developments left us with three conceptually straightforward claims, at least for the purposes of considering liability. Given common ground on ‘like work’, the equal pay claim depended solely on whether the Respondent could establish its ‘material factor’ defence, namely that the initial difference in pay between Miss Najeeb and Mr A was attributable to his superior skills and experience at the time of his appointment in July 2022 and the widening of the gap in early 2023, was explained by his stronger performance since appointment.[8]The direct discrimination and victimisation claims turned on(a) whether, and if so, to what extent, Miss Najeeb could establish that the Respondent had subjected her to any ‘detriment’ and(b) whether any proven detriment amounted to directly discriminatory treatment ‘because of’ sex and/or an act of victimisation on the ground that it was applied to her because she had done any protected act. Unlike the equal pay complaint, the discrimination and victimisation claims faced the further challenge that they had been brought out of time.[9]Having read into the case on the morning of day one we heard evidence over the following six sessions, adjourning at lunchtime on day four to allow the parties time to prepare closing submissions. On the evening of day four we received written submissions from Mr Purnell, which were also copied to Miss Najeeb. She delivered written submissions on the morning of day five, which we read before hearing oral argument from both sides. Following private deliberations, we delivered an oral judgment on the afternoon of day five, dismissing all claims on their merits and those for direct discrimination and victimisation on the further ground that they had been brought out of time and consequently fell outside the Tribunal’s jurisdiction.[10]These reasons are given in written form pursuant to an oral request by Mr Purnell on behalf of the Respondent, made at the hearing. The Legal Framework Equal pay
The Legal Framework
[11]The Equality Act 2010 (‘the 2010 Act’), s66 entitles a woman to claim the benefit of a ‘sex equality clause’ where she establishes that she is employed on like work, work rated as equivalent, or work of equal value to that of a male comparator in the same employment. This right is subject to the employer making out a ‘material factor’ defence under s69. A sex equality clause entitles a woman to have her contract modified so that her terms are not less favourable than those of the comparator.[12]The concept of ‘like work’ is governed by s65, the material provisions being the following: (2) A’s work is like B’s work if –(a) A’s work and B’s work are the same or broadly similar, and(b) such differences as there are between their work are not of practical importance in relation to the terms of their work. (3) So on a comparison of one person’s work with another’s for the purposes of subsection (2), it is necessary to have regard to – (a) the frequency with which differences between their work occur in practice, and (b) the nature and extent of the differences.[13]Dealing with the material factor defence, s69, so far as relevant, provides:(1) The sex equality clause in A’s terms has no effect in relation to the difference between A’s terms and B’s terms if the responsible person shows that the difference is because of a material factor reliance on which – (a) does not involve treating A less favourably because of A’s sex than the responsible person treats B, and (b) if the factor is within subsection (2), is a proportionate means of achieving a legitimate aim.(2) A factor is within this subsection if A shows that, as a result of the factor, A and persons of the same sex doing work equal to A’s are put at a particular disadvantage when compared with persons of the opposite sex doing work equal to A’s.[14]There is no suggestion that s69(2) is in play here. As to s69(1)(a), as Lord Nicholls explained in Glasgow City Council v Marshall [2000] ICR 196 HL (p202H et seq]) the employer bears the burden of establishing four things: First, that the proffered explanation, or reason, is genuine, and not a sham or pretence. Second, that the less favourable treatment is due to this reason. The factor relied upon must be the cause of the disparity. In this regard, and in this sense, the factor must be a 'material' factor, that is, a significant and relevant factor. Third, that the reason is not 'the difference of sex'. This phrase is apt to embrace any form of sex discrimination, whether direct or indirect. Fourth, that the factor relied upon is or … may be a 'material' difference, that is, a significant and relevant difference, between the woman's case and the man's case. Direct discrimination[15]The 2010 Act protects employees and applicants for employment from discrimination and analogous torts based on, or related to, a number of ‘protected characteristics’, which include sex. Chapter 2 lists a number of forms of ‘prohibited conduct’. These include direct discrimination, which is defined by s13 in (so far as material) these terms: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. By s23(1) and (2)(a) it is provided that, for the purposes of (inter alia) a direct discrimination claim, there must be no material difference between the circumstances of the claimant’s case and that of his or her comparator and that (for these purposes) the ‘circumstances’ include the claimant’s and comparator’s abilities.[16]In Nagarajan v London Regional Transport [1999] IRLR 572 HL Lord Nicholls construed the phrase ‘on racial grounds’ in the Race Relations Act 1976, s1(1)(a), in these words: If racial grounds … had a significant influence on the outcome, discrimination is made out. High authority establishes that introduction of the ‘because of’ formulation (which replaced ‘on racial grounds’, ‘on grounds of sex’ etc in the pre-2010 legislation) did not materially change the law (see eg. Onu v Akwiwu [2014] ICR 571 CA). Victimisation[17]By the 2010 Act, s27, victimisation is defined thus: (2) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – … (a) making an allegation (whether or not express) that A or another person has contravened this Act.[18]For the purposes of s27(2)(d), an allegation which is false and made in bad faith will forfeit protection (s27(3)). Subject to that, protection will attach to an allegation even if it is later shown not be well-founded, provided that it complains of conduct capable in law of amounting to a contravention of the 2010 Act (Waters v Commissioner of Police of the Metropolis [1997] ICR 1073 CA). When considering whether a claimant has been subjected to particular treatment ‘because’ he or she has done a protected act, the Tribunal must focus on ‘the real reason, the core reason’ for the treatment; a ‘but for’ causal test is not appropriate: Chief Constable of West Yorkshire v Khan [2001] ICR 1065 HL, para 77 (per Lord Scott of Foscote). On the other hand, the protected act need not be the sole reason: it is enough if it contributed materially to the outcome (Nagarajan, cited above). Protection against discrimination and victimisation[19]Discrimination is prohibited in the employment field by s39 which, so far as relevant, states: (2) An employer(a) (A) must not discriminate against an employee of A’s(b) (B) – …(c) by [not applicable];(d) by subjecting B to any other detriment. A ‘detriment’ arises in the employment law context where, by reason of the act(s) complained of a reasonable worker would or might take the view that he or she has been disadvantaged in the workplace. An unjustified sense of grievance cannot amount to a detriment: see Shamoon v Chief Constable of the RUC [2003] IRLR 285 HL.[20]Employees enjoy parallel protection against victimisation under the 2010 Act, s39(4)(d). 21 2010 Act, by s136, provides:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[22]On the reversal of the burden of proof we have reminded ourselves of the case-law decided under the pre-2010 legislation (from which we do not understand the new Act to depart in any material way), including Igen Ltd v Wong [2005] IRLR 258 CA, Villalba v Merrill Lynch & Co Inc [2006] IRLR 437 EAT, Laing v Manchester City Council [2006] IRLR 748 EAT, Madarassy v Nomura International plc [2007] IRLR 246 CA and Hewage v Grampian Health Board [2012] IRLR 870 SC. In the last of these, Lord Hope warned (as other distinguished judges had done before him) that it is possible to exaggerate the importance of the burden of proof provisions, observing (judgment, para 32) that they have ‘nothing to offer’ where the Tribunal is in a position to make positive findings on the evidence. Lord Leggatt, giving the only substantial judgment in the Supreme Court in Efobi v Royal Mail Group Ltd [2021] 1 WLR 3863, passed similar comments (para 41). But if and in so far as it is necessary to have recourse to the burden of proof, we take as our principal guide the straightforward language of s136. Where there are facts capable, absent any other explanation, of supporting an inference of unlawful discrimination, the onus shifts formally to the employer to disprove discrimination. All relevant material, other than the employer’s explanation relied upon at the hearing, must be considered.[23]By the 2010 Act, s123(1) it is provided that proceedings may not be brought after the end of the period of three months ending with the date of the act to which the complaint relates, or such other period as the Tribunal thinks just and equitable. ‘Conduct extending over a period’ is to be treated as done at the end of the period (s123(3)(a)). Now, under the Early Conciliation provisions, the period is further extended by the time taken up by the conciliation process. The ‘just and equitable’ discretion is a power to be used with restraint (see Robertson v Bexley Community Centre [2003] IRLR 434 CA). Evidence and Documents[24]We heard oral evidence from Miss Najeeb and, on behalf of the Respondent, Mr Mark Lee, Vice President, International Funds Product Management (line manager to Miss Najeeb and Mr A in their Analyst roles), Mr Antonio Bocchino, Executive Director, International Head of Funds Project Management (second level line manager to Miss Najeeb and Mr A in their Analyst roles), Ms Annabelle De Araujo, Managing Director, Global Head of Core, Advisory and Funds Product Development (fourth level line manager to Miss Najeeb and Mr A in their Analyst roles), Ms Elizabeth Harris, HR Business Advisor, Mr Mark Jones, Executive Director, Corporate and Investment Bank, Payments (grievance manager) and Mr Andrew Humbles, Managing Director, Deputy Head of Global Sanctions Compliance, Global Financial Crime Compliance (grievance appeal manager).[25]In addition to witness evidence we read the documents to which we were referred in the bundle of documents of over 1,300 pages.[26]The paperwork was completed by sundry documents prepared by the parties, including a chronology, a cast list and the most helpful written submissions on both sides. The Essential Facts[27]Our account here is confined to primary facts. Secondary or evaluative findings are reserved to our analysis and conclusions below.[28]The evidence was wide-ranging. We have considered all of it. But it is not our function to recite the evidence or to resolve all conflicts. The facts which it is necessary to record are the following. We use the past tense because our findings are directed to events prior to 17 November 2023, although no doubt much of our narrative continues to be applicable today. Setting the scene[29]The IFPM team sits within JP Morgan’s International Private Bank (‘IPB’) business. The core function of the team is to ‘onboard’ all mutual funds and exchange traded funds approved for use within the IPB. Given the strict regulatory environment, the work is heavily process-orientated and calls for close attention to detail. Team members are required to engage with various stakeholders, including fund houses and internal specialist teams (Legal, Compliance etc).[30]Immediately before Miss Najeeb was appointed in March 2022 the IFPM team consisted of three individuals, Mr Bocchino, Mr Lee and a high-performing Associate (as will be recounted, he left the team a few months later).[31]The line managers above Mr Bocchino comprised, in ascending order, Mr John Pagnotta, Managing Director, Private Bank and Ms De Araujo (already mentioned).[32]Performance of JP Morgan employees is assessed by line managers annually and the outcomes taken into consideration in decisions on pay and career development. Three ratings are available: ‘Strong’, ‘On Track’ and ‘Growth’ (sic). We accept the unchallenged evidence given on behalf of the Respondent that ‘Strong’ performance gradings are very rare and more or less unprecedented in the case of new appointees in their first year in post. Facts relevant to the equal pay claim[33]The Respondent has a published compensation policy, which it shares with its employees. The version shown to us (which dates from late 2022) refers to a ‘compensation philosophy’ which promotes ‘pay-for-performance practices’ and rewards long-term contributions to the profitability of the organisation. It stresses that compensation should not be ‘overly rigid, formulaic or focused on the shortterm’. The policy champions a ‘Total Compensation’ approach to base salary and incentive pay, requiring a ‘holistic evaluation of the employee’s performance’. The longer remuneration policy repeats and develops these themes. Both documents give greater attention to incentive pay than to base salary, focusing on performance criteria likely to bear upon incentive pay decisions, but neither prohibits managers from also basing fixed salary decisions on performance.[34]On her appointment in March 2022, Miss Najeeb had only 10 months’ experience in the financial services sector. That was with a different institution in the role of Equity Research Analyst. Her work in that position had been highly research-focused and consisted very largely of financial modelling.[35]The vacancy for which Mr A applied arose when the Associate (already mentioned) left the IFPM team. For reasons that do not matter, the decision was taken to authorise recruitment to replace him, but only at the lower Analyst grade. Mr A was appointed in July 2022. Prior to that, he had been working for the Respondent for some three-and-a-half years in its Edinburgh office. He had acquired significant experience in its Data Governance Team from 2019 onwards and had been part of the Client Service Specialist Team since January 2021. His work (in both capacities) had involved regular interaction with the IFPM team.[36]Miss Najeeb was appointed on a base annual salary of £55,000, together with an allocation of £6,000 by way of incentive pay (such a being, necessarily, an indicative award rather than a contractual entitlement).[37]Mr A was appointed in July 2022 on an annual salary of £60,000, together with an incentive pay allocation of £6,000.[38]We were told, and accept, that a base salary of £55,000 represented standard ‘entry level’ pay. £60,000 sat approximately in the middle of the bracket within which base salaries were usually set on appointment, depending on skills and experience.[39]The Respondent’s hope that Mr A’s experience and abilities would enable him to ‘hit the ground running’ were fulfilled. He proved to be very well equipped to discharge all aspects of the Analyst role from the outset, with minimal supervision and support. In his annual review at the end of the year he received strong commendations, albeit his performance grading was ‘On Track’, the second of the three possible gradings. He received his allocation of incentive pay in full despite having worked for only half of 2022. Mr Lee and Mr Bocchino resolved at the end of 2022 to work together to assemble a business case for Mr A’s promotion the following year. They duly did so and he was successful in applying for promotion at the end of 2023.[40]By contrast, Miss Najeeb’s performance during 2022 (as we have mentioned, she was appointed in March of that year) was weaker. She achieved some successes for which she was complimented, but there were also aspects of her work which caused Mr Lee and Mr Bocchino concern. In particular, they noted an apparent lack of focus and poor attention to detail. During the second half of the year, they concluded that Mr Lee’s informal guidance and support were not succeeding and resorted to more formal interventions and a practice of documenting those interventions. At the end of the year, after some discussion, Miss Najeeb received a performance grading of ‘On Track’, but the annual review document was clear testament to ongoing concerns, stressing that she would struggle to maintain that grading in the coming year if she did not make significant improvements.[41]Another consequence of the favourable performance review at the end of 2022 was that Mr A’s base pay was increased by a further £4,000 to £64,000. Miss Najeeb’s base salary increase for 2023 was ultimately set at £1,000, with the consequence that the base salary differential increased from £5,000 to £8,000. This was the result of intervention by Ms de Araujo, who approved the proposal to raise Mr A’s salary by £4,000, but blocked a parallel proposal in relation to Miss Najeeb and another employee, pointing out that in both cases, their performance had not been strong.[42]The incentive pay allocations for Miss Najeeb and Mr A for 2023 remained unchanged at £6,000.[43]Miss Najeeb secured a fresh role within a different part of the Respondent’s organisation in late 2023. In late 2024 she was promoted to Associate. Facts relevant to the direct discrimination claims[44]Miss Najeeb relied on five detriments for the purposes of her direct discrimination claims. The first was said to consist of Mr Lee and Mr Bocchino subjecting her in December 2022 to a ‘formalised review meeting without notice, with her second level line manager present and a formal discussion carried out’. We find as follows. The meeting was arranged to conduct a standard end-of-year performance review of the sort which Mr Lee would hold with any other ‘report’. Miss Najeeb received about an hour’s notice that Mr Bocchino would also be present. It was, as she says, out of the ordinary for a second level line manager to attend, and it was not suggested that Mr Bocchino had attended the corresponding meeting with Mr A. As to ‘formality’ the meeting formed a part of the Respondent’s appraisal and performance management arrangements and, to that extent, it had a degree of formality about it. Notes were taken. But it was no more ‘formal’ than any other meeting of the same kind, including Mr A’s 2022 end-of-year review meeting.[45]The second alleged detriment was said to consist of Mr Lee not inviting Miss Najeeb to a lunch with a client on 17 January 2023, or tell her about the occasion. The facts are simple. The invitation to lunch came from a senior figure in the client organisation. Mr Lee responded, proposing that Mr A should also attend, so that he could formally introduce them (they had already corresponded by email), adding that Mr A had replaced the high-performing Associate mentioned above, with whom the client had worked in the recent past. The client replied, gladly extending the invitation to Mr A and expressing pleasure at the prospect of meeting him. Miss Najeeb had done some work with the client organisation. So had another member of the IFPM team (a male Associate), who was also not invited to the lunch. We accept the Respondent’s unchallenged evidence that there were also social events to which Miss Najeeb was invited and Mr A was not. It was not in dispute that Mr Lee did not discuss the lunch with Miss Najeeb, before or after it took place. Nor was it suggested that that fact was unusual.[46]Third and fourth in the list of alleged detriments are two items which it is convenient to take together. They charge Mr Lee with mismanagement of Miss Najeeb from January 2023 onwards by permitting Mr A to adjust the team’s pipeline tracker without reference to her, failing to keep her informed on relevant matters and requiring her to produce a ‘formal work document detailing her work tasks on a weekly basis’, which she regarded as unnecessary and burdensome. Again, our findings are brief. We accept that, as Mr Lee explained, the pipeline tracker was a tool for use by the team as a whole. It was part of Miss Najeeb’s function and that of Mr A to adjust the tracker as and when necessary on account of tasks performed. Team members did not require the approval or consent of other team members to make adjustments. Once any adjustment had been made, it was visible to the other team members, so separate notification would have been superfluous. Mr Lee did not extend any separate, individual power or authority to Mr A (or anyone else) in relation to the use of the pipeline tracker. As to the general complaint of failure to keep Miss Najeeb properly informed, we find this unsubstantiated. The detailed, and largely unchallenged, evidence of Mr Lee points in the opposite direction. Moreover, the complaint is not easily reconciled with the general trend of her case, which was to complain of intrusive overmanagement, not neglect. As for the ‘formal work document’, this was an individual tracker which Mr Lee devised and required Miss Najeeb to utilise from January 2023 onwards. He told us that he judged this tool necessary in order to assist her to manage her workstreams and keep up to date on the status of the funds with which she had to deal.[47]The fifth alleged detriment was Mr Lee’s failure to provide Miss Najeeb with opportunities for training, mentoring or promotion, including expressly refusing to provide her with an HR contact to discuss additional qualification opportunities, or to support her in relation to promotion and/or assisting her to achieve the top performance rating. We find no factual basis for these complaints. We accept Mr Lee’s unchallenged evidence that he responded to Mis Najeeb’s query about qualifications by researching and reporting back to her on two particular possibilities. She did not press him for further assistance in relation to these or any others. As to general support, this was certainly provided in the form of assiduous supervision, advice and assistance, initially oral but, as time went by, increasingly backed up by written communications. Under cross-examination, Mr Lee was pressed on what Miss Najeeb saw as his failure to provide her with an annual development plan. He replied that her main objectives were specified in the 2022 end of year review. We agree. On the topic of promotion, Mr Lee and Mr Bocchino agreed that, at the end of 2022, she was not a realistic candidate for promotion and that she should devote her energy to improving her skills and performance. Facts relevant to the victimisation claims[48]Miss Najeeb relied on four protected acts in each of which she complained of being paid less than Mr A: a conversation in November 2022 by video conference call with Mr Lee; a meeting on 5 December 2022 with Mr Pagnotta (already mentioned); a meeting in around February or March 2023 with the Human Resources/Employee Relations team; and her written grievance of 14 July 2023.[49]It is common ground that the protected acts relied upon all constituted allegations of infringements of the 2010 Act and, as we have already noted, the Respondent concedes that the requirements of s27(2) are met in each case.[50]As to detriments, Miss Najeeb repeats her case on direct sex discrimination (mutatis mutandis), and adds one further allegation, namely that, from December 2022 onwards, Mr Bocchino and Mr Lee subjected her to sudden negative performance feedback with unfair work demands, despite her performance staying consistent. Miscellaneous matters[51]On 14 July 2023 Miss Najeeb raised a formal grievance in which she complained about being paid less than Mr A and about being treated unfavourably for raising concerns about unequal treatment. Following a detailed investigation, Mr Jones (already mentioned) dismissed the grievance, finding that the pay disparity was correctly explained by differences in experience and skills and not gender-based and noting that Miss Najeeb had withdrawn the second element of her complaint (an apparent allegation of victimisation).[52]Miss Najeeb appealed against Mr Jones’s adjudication on various grounds, including the contention that he had been wrong to find that the apparent complaint of victimisation was withdrawn. After a further detailed investigation, Mr Humbles dismissed the appeal, upholding the first-instance findings on the pay disparity, observing that the evidence favoured the view that other complaints (including the apparent allegation of victimisation) had not been pursued before Mr Jones but holding in any event that they also were without substance.[53]Miss Najeeb makes no legal claim before us based on the conduct or outcome of the grievance at either stage. Analysis and Conclusions Equal pay[54]As we have said, the only issue under the equal pay head is whether the material factor is made out. We have reminded ourselves of the language of the 2010 Act, s69(1)(a) and the well-known authorities, particularly Marshall.[55]In our judgment, the Respondent has established that the difference between Miss Najeeb’s base pay and that of Mr A was not because of her sex (or his) but because of the difference in their skills and experience on appointment and, from the start of 2023 onwards, the combination of that difference and the difference in the level of their performance after appointment.[56]As to skills and experience, the facts speak for themselves. Mr A came into post with a very substantial advantage over Miss Najeeb. He also came in to fill the shoes of a high-performing Associate. By contrast, she joined the Respondent with scant experience as an ‘entry-level’ recruit. The Respondent’s decisionmakers quite understandably saw the two appointments differently and had different expectations of each individual. We have found that positioning of base salaries was a matter of assessment, and that skills and experience were the key considerations. In our view, the initial differential of £5,000 in base salary is plausibly and rationally explained as resting entirely on the judgement of the decision-makers (ultimately Ms de Araujo) as to the skills and experience of the two appointees. And, for the avoidance of any doubt, we find that the explanation offered is true.[57]As to the widening of the gap in base salaries in 2023, we are again satisfied that the Respondent has provided a plausible, rational and truthful explanation for its decision. Mr Lee and Mr Bocchino judged that Miss Najeeb’s performance in 2022 had not been altogether satisfactory and that improvements were required. The crude instrument of the performance rating scheme did not, and arguably could not, reflect that assessment. But manifestly, the detailed and unambiguous calls for improvement in the annual review conveyed at best a mixed picture and substantiated the Respondent’s case that her ‘On Track’ reflected a much less favourable assessment of performance than the same rating awarded to Mr A. (As we have noted, under the Respondent’s system, a ‘Strong’ rating would have been more or less unattainable for Mr A in his first year, even with outstanding performance.) Consistent with that was the resolution to press ahead with a business case for Mr A’s promotion, which was accomplished by the end of 2023, contrasted with the firm refusal to back any case for Miss Najeeb’s promotion in 2023.[58]For the reasons stated, we conclude that the Respondent has amply discharged the burden of demonstrating that sex played no part in its decisionmaking relating to Miss Najeeb’s pay or that of Mr A. The material factor defence is made out and the equal pay complaint accordingly fails. Direct sex discrimination[59]The first question here is whether Miss Najeeb has demonstrated any detrimental treatment on which it is possible to hang any direct discrimination claim. We find that she narrowly succeeds on the first alleged detriment but fails on the other four. As to the first, we accept that she is likely to have felt disadvantaged in learning with very little notice that, unusually, her review meeting would be attended by both her first and second level line managers. It would be natural to feel a degree of anxiety ahead of such a meeting in ordinary circumstances and we think that it would have been more considerate of Mr Lee to pass on the news of Mr Bocchino attending at an earlier stage. Given the low standard which the concept of a detriment sets, we find that the delay in passing on that information was marginally detrimental. But we are clear that there was no arguable detriment in Mr Bocchino attending, only in the late revelation that he would do so.[60]The second alleged detriment is not made out. The lunch invitation came from the client as a result of an entirely reasonable suggestion by Mr Lee. It was no detriment to Miss Najeeb that Mr Lee put Mr A forward. There was no good reason for him to put her forward on that occasion – in preference to Mr A or alongside him. The incident does not gain significance by virtue of being part of a pattern of adverse or less favourable treatment (even if such a pattern could theoretically serve to turn an objectively innocuous event into a detriment): the evidence shows no such pattern.[61]The third and fourth alleged detriments also fail. Miss Najeeb complains about supportive managerial acts designed to help her to improve her performance. The fact that she appears unable or unwilling to accept that any such measures were appropriate cannot turn them into detriments. We find here no conduct on the part of Mr Lee about which she has any arguable ground for complaint.[62]Likewise, we find nothing in the fifth alleged detriment. There was no failure to support Miss Najeeb. Mr Lee gave her ample advice and assistance. It is certainly true that he did not encourage her to aim for promotion in 2023 but we see no detriment in that: he and Mr Bocchino were agreed that her focus for that year should be on improving her performance and consolidating her skills. That was a proper and reasonable assessment. The fact that she disagreed with it cannot operate to turn it into a detriment.[63]The second issue is whether any detrimental treatment was done to Miss Najeeb ‘because of’ her sex, or Mr A’s sex, or simply sex. We find no basis for the theory of sex discrimination, however put. We have found one minor detriment in the late communication of the fact that Mr Bocchino was to attend the December 2022 review meeting. We see no sensible reason for linking that small lapse of judgement to sex. We have every confidence that an imaginary male employee in like circumstances would have experienced the same treatment. We see no evidential basis for a contrary view.[64]Further, and for completeness, we would hold that, even if we are mistaken in finding none of the other alleged detriments made out, there is no rational basis on which an inference of sex discrimination could be based relating to any of the other acts or omissions on which Miss Najeeb relies.[65]For all of these reasons, we reject Miss Najeeb’s case on direct discrimination as unfounded. Victimisation[66]As to detriments, we cannot usefully add to our analysis on the detriments alleged in relation to the direct discrimination claim: one arguable detriment is made out, namely the late notification of Mr Bocchino’s attendance at the December 2022 review meeting.[67]We have noted above that Miss Najeeb relied on one further detriment for the purposes of her victimisation claim: Mr Lee and Mr Bocchino subjecting her to ‘sudden negative performance demands’ in December 2022. This allegation returns to the 2022 annual review meeting, placing the focus on the criticisms made of her performance. Here again, we find no evidential basis for the complaint of detrimental treatment. Mr Bocchino and Mr Lee did make it clear that, despite the ‘On Track’ rating, her performance had not been altogether satisfactory and improvements were required. But this message was not new or ‘sudden’: it was consistent with what Mr Lee had been saying, and documenting, in different ways through the latter part of the year. Moreover, we are satisfied that it reflected Mr Lee’s genuine and reasonable perception, based on his view of her work at close quarters over many months. He set high standards and properly judged that, in some material respects, she could and should do better. Mr Bocchino shared his opinion. The criticism was not unwarranted and the complaint here discloses no detriment.[68]Was the one (marginal) detriment (late disclosure that Mr Bocchino was to attend the December 2022 review meeting) done ‘because’ Miss Najeeb had complained of being paid less than Mr A (two of the four protected acts occurred before the review meeting)? In our judgment, there is no sensible reason to infer any link between either of the protected acts and the decision that Mr Bocchino should attend the meeting – much less that the timing of the communication of that decision was motivated by an intention to disadvantage her for having raised the matter of equal pay. The minor detriment which we have identified is, obviously we think, much better explained as a simple, small error of judgement of the sort which happens every day in workplace situations.[69]Further, in case we are wrong to find no detriment in any other part of Miss Najeeb’s case on victimisation, we are satisfied that there is no reason to attribute any unlawful motivation (conscious or subconscious) to any other act or omission on which she relies. The Respondent’s treatment of her is plausibly, rationally and, we find, truthfully explained and the explanations supplied exclude victimisation.[70]For the reasons given, our conclusion is that all complaints of victimisation are unfounded. Jurisdiction[71]The parties were agreed that, on the face of it, the direct discrimination and victimisation claims had been presented out of time. Mr Purnell argued that they should be dismissed for want of jurisdiction. Miss Najeeb contended that, by operation of s123(3)(a), all claims were to be treated as within time, her complaint being based on a history of ‘conduct extending over a period’ which ran from the most recent material event. We reject that submission. It is self-evident that ‘conduct’ in s123(3)(a) means unlawful conduct and, on our analysis, there was none. So the statute does not intervene to extend time. Alternatively, Miss Najeeb submitted that we should apply s123(1) to substitute a longer limitation period than the ‘default’ three months (plus the Early Conciliation period). But this argument is also unsustainable. It would obviously be an idle exercise to even consider extending time to bring within the Tribunal’s jurisdiction claims which we have already rejected as being without substance.[72]It follows that the direct discrimination and victimisation claims also fail on the ground that they were presented out of time and so fall outside our jurisdiction. Outcome and Postscript[73]For the reasons we have given, all claims are dismissed.[74]We regret this dispute, which will have caused both sides avoidable trouble, worry and expense. Nonetheless, parties can sometimes learn valuable lessons from litigation. We hope that Miss Najeeb may reflect on the value of avoiding an over-inflated view of her own ability (talented as she clearly is) and acknowledging (as we all must) that criticism on occasions, appropriately packaged, may be both constructive and beneficial.[75]As for the Respondent, we have two observations. First, we wonder whether its performance grading system is really up to the job of reflecting managerial assessment of the quality of employees’ work. The middle band of ‘On Track’ strikes us as extraordinarily wide, being apt to extend from the excellence of Mr A’s work to that of Miss Najeeb which called for significant improvement. She is not to be criticised for asking how her ‘On Track’ can bear a meaning quite different to that of Mr A. Second, we were puzzled by the decision to recognise Mr A’s strong performance in 2022 through an increase in his base pay rather than his performance-related element. The conventional approach is to treat base pay as ‘the rate for the job’. Accordingly, one would expect that any gap between base pay of two appointees coming into post at around the same time (which, as here, may be explained and justified at the time of appointment by differences in skills and experience) would tend to narrow over time (assuming that the job which each performs does not change), while the employer might reasonably mark differences in performance through discretionary annual awards. The policy of the law is to combat the pay divide. Decisions which do not merely leave the problem unaddressed but actually increase the gap in base pay will inevitably face strong challenges and become ever harder to defend as time goes by.