Mr J Hussain and Mr M B Aubdool v Transport for London: 2304178/2022 and 2304179/2022
EMPLOYMENT TRIBUNALS
Case No 2304178/2022, 2304179/2022
Between
Mr J Hussain and Mr M B AubdoolClaimantTransport for LondonRespondent
Before
Employment Judge Fredericks-BowyerDate 19 August 2024
JUDGMENT
The claimants’ complaints of having suffered less favourable treatment because of their race and/or religious beliefs are not well-founded and are dismissed.
REASONS
[1]This is our reserved judgment following a six day final hearing. The claim arises from the claimants’ discovery that they, British Asian Muslims, are paid significantly less than the only other person performing their roles at the respondent, a White British non-Muslim.[2]This is the unanimous decision of the Panel. The Panel agree on all facts and conclusions within this judgment. We are sorry for the length of time it has taken to 1 of 16 produce this judgment. The case required careful thought and further delay was introduced by summer leave. The claim and issues[3]The issues were agreed between the parties prior to the hearing and the list of issues was found at pages 51 to 53 of the bundle. We did not hear remedy issues in the hearing, and so the issues we have determined are set out below.[4]Direct race discrimination (section 13 Equality Act 2010) 4.1.The claimants are both British Asian Muslims and compare themselves with their comparator, a White British non-Muslim. 4.2.Did the respondent do the following things: 4.2.1. Pay the 1st claimant less than the comparator at any time in the period from: 4.2.1.1. 11 December 2017 (the date when the 1st claimant became a Senior Application Engineer) to present; and/or 4.2.1.2. 22 April 2022 (the date when the job title of both claimants and the comparator was changed to “Senior Application Engineer – ITSM” following a review to their roles) to present? 4.2.2. Pay the 2nd claimant less than the comparator at any time in the period from: 4.2.2.1. About September 2015 (the date when the 2nd claimant became a Senior ASD Analyst) to present; and/or 4.2.2.2. About July 2017 (the date when the job title of both claimants and the comparator was changed to “Senior Application Engineer”) to present; and/or 4.2.2.3. 22 April 2022 (the date when the job title of both claimants and the comparator was changed to “Senior Application Engineer – ITSM” following a review to their roles) to present? 4.3.Was that less favourable treatment? 4.3.1. The 1st claimant says he was treated worse than the comparator because he performed the same or substantially the same job as the comparator for all, or part of, those periods but received less pay. 4.3.2. The 2nd claimant says he was treated worse than the comparator because he performed the same or substantially the same job as the comparator for all, or part of, those periods but received less pay. 2 of 16 4.3.3. The respondent says that the comparator is not a valid comparator, because his circumstances are not (and were not, during the periods of time listed above) materially the same as those of either claimant. 4.4.In respect of each claimant, if he was subject to less favourable treatment than the comparator, what is the reason why he was subjected to it? 4.4.1. Each claimant says it was because of his race, and/or his religion.[5]There was disagreement in the hearing about the scope of these issues. The claimants sought to argue that the claim covers all of the opportunities that the respondent had not taken to consider equalising the pay between the claimants and the comparator. Mr John argued that this is on-going discrimination in that at each point of review or potential review (such as at the grievance stage), the respondent had decided not to inflate the claimants’ salaries to match the comparator because of something to do with race or religion. Ms Ferber KC resisted that notion, submitting that the claimants had not pleaded that claim in their documents.[6]We considered it implicitly the case that where someone is saying they have been, and still are being, paid less than a colleague because of discrimination, then it is relevant to examine opportunities where the pay differential could have been addressed. If nothing else, such analysis also assists us to determine the reason why the pay differential could or does exist – a critical question for the claim. We have considered those opportunities but, for the reasons set out below, that consideration has not assisted the claimants in this claim.[7]We had access to the identity of and information about the comparator during the hearing. The parties presented an agreed position that the comparator should not be named in this judgment, because it would involve revealing their salary and elements of their career history which is not obviously in the public interest. The public interest is served only by outlining the relevant information for the comparison. We adopt the parties’ proposed approach. The comparator is not identified, although the requirements of the comparison means they may well be easily identified by those who know the claimants or the relevant departments within the respondent. We can do nothing about that possibility.
The hearing
[8]The claimants were represented by Mr John of Counsel. Each gave sworn evidence to support their claims, and also relied on sworn evidence called from:(1) Mr Arif Patel (Senior Service Performance Manager at the respondent);(2) Mr Leslie Jackson (Operational Contract Manager at the respondent, and Unite the Union shop steward and Branch Vice Chair); and(3) Mr Simon McCartney (Regional Officer at Unite the Union). The respondent was represented by Ms Ferber KC, and relied on sworn evidence called from Mr Mark Bulle (Head of Technology Infrastructure at the respondent).[9]We had access to an electronic bundle of documents which ran to 817 pages. In this judgment, references to ‘pages’ or ‘page’ refers to the pages in that bundle. Additionally, each Counsel produced written submissions to which we have made reference during our deliberations. 3 of 16
Relevant facts
[10]The relevant facts, as we find them, are as set out below. These facts are found, as a Panel of three, on the balance of probabilities. Almost all of the essential facts were agreed. Where we have resolved a conflict in the evidence, we explain how we have done so at the relevant point.[11]Most of the facts are not disputed, and are indeed documented clearly in the bundle. In terms of job role banding and pay structure, we find the following key principles as facts based on the evidence we heard:- 11.1. The respondent operates a pay banding structure; 11.2. Job roles are mapped on to a particular band, the relevant ones for this dispute being ‘pay band 2’ and ‘pay band 3’; 11.3. Since cross respondent internal restructures in 2012 and 2017, the respondent conducts a ‘pay parity’ evaluation for new starter salaries to maintain standardisation across all roles within the bands regardless of the department the role sits in; 11.4. Pay band 2 is for more junior roles and pay band 3 are for more senior roles; 11.5. The pay bands are broad, with somewhere in the region of £15,000 to £20,000 between the bottom and top of the bands depending on the band and the relevant year; 11.6. Usually, someone new to a pay band started at or towards the bottom and then progressed incrementally year on year (this was accepted by all of the witnesses although the claimants pointed out that this principle had not been applied to the comparator in 2011); and 11.7. Additionally, the respondent engaged in collective bargaining with Unite over the % annual uplift to be applied universally across all pay points and then applied that uplift across those points. The comparator[12]The comparator did not give evidence in the hearing. No witness with direct knowledge of the comparator’s work history (prior to working with the claimants). The facts we find in relation to the comparator are drawn from(1) the contemporaneous documents found in the bundle,(2) what evidence there was which we accept and which was drawn from other witnesses in the hearing.[13]The comparator is a white non-Muslim male, and has continuous employment which began on 11 March 1991 (page 108). He joined the respondent as a Systems Engineer on 27 September 2009 by way of a TUPE transfer. We have no information about his age but it is overwhelmingly likely that he was at least 16 on 11 March 1991. He is more likely than not to now be at least 49 years old. When he joined the 4 of 16 respondent as a Systems Engineer in 2009, he was paid £45,000 and was placed in payband 3 (page 109).[14]Prior to the TUPE transfer, the comparator worked at CSC as a ‘Remedy Support Analyst’ in the Remedy Support and Development Team (page 553). The ‘Remedy’ application is a tool used by the respondent, and the comparator and claimants still work with an iteration of this programme. CSC and the comparator were involved with developing the programme. The Remedy Support Analyst role was a less specialised and junior role to the ‘developer’ work which the claimants and the comparator now undertake.[15]We were given no information about the comparator’s work history or job titles prior to this role. The claimants questioned whether the comparator was doing any relevant IT related work prior to the Remedy role which might have informed his seniority and salary when working for the respondent. It was suggested, in their evidence, that the comparator did not have any greater experience in the sector than either of them did on the basis that the comparator was not doing IT work prior to 2009.[16]Mr Patel confirmed that he was aware of CSC as an organisation. Aspects of CSC’s remedy team had been TUPE’d into the respondent. We understand, and find, that CSC (Computer Sciences Corporation) was a specialist information technology services organisation. The comparator worked as an analyst in 2009. In our view, it is more likely than not that the comparator was doing IT related work prior to the Remedy work in 2009. He had continuous service in the sector stretching back to 11 March 1991. It is extremely unlikely that that employment in the IT sector involved 18 years of non-IT work. We find that the comparator had IT sector experience dating back to 1991.[17]Prior to TUPE transfer, the comparator worked with a Mr Pusey at CSC. Mr Pusey also transferred into the respondent’s employment and was then the comparator’s line manager (page 544). Mr Bulle and Mr Patel explained that the line manager at the respondent had a role to play in setting the starting salary of a direct report at the respondent. We accept that evidence. We find that Mr Pusey had some involvement in the setting of the comparator’s salary at £45,000 on payband 3. This was roughly in the middle of pay band 3 at that time (page 488).[18]Mr Bulle and Mr Patel also gave evidence to the effect that, when setting salary, the respondent would seek to benchmark the role through considering the experience of the candidate and having some consideration of the commercial environment around that recruitment exercise. We accept that evidence, also noting that this is an extremely common process when conducting recruitment across all sectors.[19]In 2009, the respondent and CSC decided to transfer the Remedy team into the employment of the respondent. A series of slides about this change prepared by Mr Pusey was shown at pages 542 to 566. The claimants disclosed these pages following discovery of it on the respondent system. There is some uncertainty about when the pages were written. What is clear, though, is that some of the pages predate the transaction which brought the comparator, Mr Pusey and another colleague into the respondent’s employment. This is clear because the pages talk about the upcoming transfer, and who would transfer. 5 of 16[20]The relevant parts in relation to the comparator’s transfer, and the position of the comparator and the respondent, are as follows: 20.1. The team structure chart (page 544) shows Mr Pusey leading the team. The comparator and Mr Winsborough, who transferred, are shown as ‘Remedy Application Support’. There is a vacancy of that grade. A Mr West holds the (agreed) more specialised role of ‘Remedy Application Development’, and there are two vacancies of that grade. There is one vacancy under the role ‘Remedy Business Analysis’. 20.2. Page 545 shows that the headcount of the team will be three ‘after 10 August’. It records that eight people are required. Under ‘recruitment plans’, it records “unlikely conversion to permanent possible – due to TfL salary scales for development roles”. 20.3. Page 549 records that the team “require 2-3 replacement developers to enable continued improvement of the vast investment in this area for Service and Operations”. 20.4. Page 553 shows that every person in the project who was in a ‘developer’ role at this time period left between 3 July and 10 August of the year in question. We consider this refers to 2009 because the comparator is named as being due to transfer (to the respondent) on 27 September. 20.5. Page 557 records that developers from third party suppliers cost between £1000 and £2000 per day. Developers from direct contractors cost between £400 and £500 per day. It repeats that TfL rates of pay means it is not possible to recruit such professionals into the respondent. There is then a commitment to “continue to train up existing support analysts [ie. The comparator and Mr Winsborough] via BMC developer courses to the permanent roles..”. 20.6. Page 558 then shows that the comparator and Mr Winsborough have moved to the role ‘Remedy Application Developer’. At the same time, Mr Aubdool the second claimant is shown as holding the role of ‘Managed Applications Support’ to move to ‘Business Analysis’. 20.7. Pages 559 and 560 describe the comparator as being a ‘Senior ASD Analyst’ at the same time that Mr Aubdool is described as being an ‘ASD Analyst’.[21]On 11 July 2011, the comparator was given the role of ‘Remedy Applications Senior Development’ (page 118 to 119). The role was expressed to have been offered on behalf of Mr Pusey. It remained in payband 3 but the salary was increased to £55,650. This was around £1500 beneath the top end of pay band 3 at that time (page 488). All other terms of employment remained the same. Mr Pusey was the hiring manager for this role. Mr Pusey had written the slides referred to above which expressed that the respondent’s salaries were too low for the development role. We find that this view informed the increase in the comparator’s salary.[22]The comparator remains in this role, although the title has changed. It is agreed that subsequent salary increases were secured automatically in respondent-wide union negotiated pay rises. These changes affected the comparator and his claimant 6 of 16 colleagues in the same way, albeit any differential in salary was exacerbated by percentage rises.[23]When asked to comment on the comparator, Mr Bulle said that he was an outlier. Having done an investigation, Mr Bulle considers that the comparator TUPE transferred across at a time when the role was greatly needed and where the respondent’s usual pay level was not high enough to recruit. This likely led to an inflated initial salary which has increased in the usual manner over time. We accept this evidence and, after hearing from Mr Patel and considering the bundle documents, we find that the circumstances of the comparator’s recruitment were unusual in a way which led to him having a higher appointment salary than might be expected.[24]Quite simply, we find that the commercial pressures in the summer of 2009 led to the respondent having to pay more to secure required resource. We consider that the same factors applied when the claimant progressed in 2011. Once on that base salary, the respondent was not entitled to reduce it unilaterally or choose to not apply the work-force wide union negotiated uplifts to salary. Mr Bulle expressed this position to mean that the comparator was an ‘outlier’ in terms of usual respondent practice. He said that there were some outliers at the respondent who were paid differently or on legacy contracts as a result of historic changes at the respondent.[25]In 2012, as a result of an internal restructure, the comparator’s job was re-mapped with the title “IM Senior ASD Analyst”. On 23 July 2017, another restructure resulted in the job title ‘Senior Application Engineer’. Mr Aubdool (the 2nd claimant)[26]When the comparator began his current stint of continuous employment on 11 March 1991, Mr Aubdool was 6 years’ old. He completed a BSc in Information Systems and then began working at Accenture Technology Solutions in 2007, when he was 23 years’ old.[27]Mr Aubdool joined the respondent on its Information Management Graduate Scheme on 8 September 2008. He was recruited on the standard graduate salary grade, £24,488 (page 79-89). Upon completion of the graduate programme, Mr Aubdool joined the “Your IM, Collaborative Applications Department”. His contract for that role shows that it began on 30 August 2010 with the job title Collaborative Applications Business Analyst (page 96). The role was in pay band 2, with a salary of £35,000 per annum.[28]In this role, the claimant does different work to the comparator and they did not directly work in the same team, although both were supervised by Mr Pusey. It is not a time which is complained about. It is, though, relevant to us that Mr Aubdool was in a role which was a pay band beneath the comparator at this time, when we also know that the comparator was significantly further progressed in his career and earning at least £10,000 more than Mr Aubdool. Mr Aubdool did not apply for the role that the comparator secured in 2011 and which led to a further £10,000 pay rise for the comparator. 7 of 16[29]In the 2012 restructure, Mr Aubdool’s role was re-mapped with the title “ASD Analyst”. He did not have the ‘Senior’ title or grade of the comparator because he was at a more junior level in his career, being only 2 years’ from exiting the graduate scheme.[30]Following the restructure, for staffing reasons, Mr Aubdool began to work more closely alongside the comparator and formed a more seamless service alongside him. Mr Aubdool considers he was working at the same level as the comparator. The respondent does not dispute this, although it says this does not mean that the two should automatically be paid the same. Mr Aubdool himself, though, draws a distinction between the two. In his evidence, he says that: “emulating [the comparator’s] career progression from 2009 to 2011, I set a goal for myself to advance towards a Senior Remedy role within the team”. This is an acknowledgement of the obvious fact that the comparator was ahead of him in terms of career and career structure at the respondent.[31]On 23 February 2015, Mr Aubdool joined the comparator in the role ‘IM Senior ASD Analyst (Remedy Developer), a role in pay band 3 and with a salary of £47,000 (page 106). Mr Aubdool joined pay band 3 four years and five months after the comparator was appointed on to that pay band. Mr Aubdool says that the work he was doing from this point on was directly comparable to the comparator and that the work being done was of equal value. We have no evidence which contradicts that assertion, and indeed Mr Patel and Mr Bulle agree that those in that team at this grade were providing a broadly seamless service. We accept Mr Aubdool’s view as fact.[32]On 23 July 2017, Mr Aubdool’s job title also changed to ‘Senior Application Engineer’. His salary progressed along the band and was increased along with the union negotiated uplifts in the same way as the comparator throughout his employment.[33]Mr Aubdool received a pay rise to £50,000 on 23 January 2018, backdated to 23 July 2017. This was done because Mr Aubdool’s pay was behind that of Mr Hussain when Mr Hussain joined him and the comparator in January 2018. Mr Patel gave evidence about this as he line managed the three at the time. He had wanted to increase the salary to £51,000 to match an offer which had been extended to Mr Aubdool from elsewhere (page 131), but the respondent’s pay team in HR did not agree to this. Mr Hussain (the 1st claimant)[34]When the comparator started his current period of continuous employment on 11 March 1991, Mr Hussain was 8 years’ old. He completed a BSc in Computer Science before doing an internship at Grant Thornton in tax and finance between 2003 and 2004. Between 2005 and 2008, Mr Hussain worked at the London Borough of Newham as a Senior Library Officer/IT analyst. His evidence indicates that IT analysis or development were not part of these roles, although naturally he used various systems and software to carry out those duties. At Newham, we accept that Mr Hussain did take an IT lead in the part of the organisation he worked in.[35]Mr Hussain joined the respondent on 14 January 2008 as a Customer Services Administrator within the Oyster card team. This role was at pay band 1 with a salary 8 of 16 of £21,489 (pages 59 to 68). In the 2012 restructure which led to the comparator being an ‘IM Senior ASD Analyst’, and Mr Aubdool being an ‘IM ASD Analyst’, Mr Hussain became a ‘Customer Service Agent’. This is said to be a band 2 role with a salary of £27,762 (page 335). That salary would be at the very bottom of pay band 2 in the 2010 pay award. It is beneath the floor of pay band 2 in the 2011 pay award. Regardless of the pay band, we accept that Mr Hussain was being paid in the region of £30,000 less than the comparator at this time. This is a reflection on the different roles but also the relative seniority in experience of the comparator.[36]On 15 April 2013, Mr Hussain became an IM Service Analyst at pay band 2, earning £34,000 (pages 69 to 70). From 11 August 2014, he worked as an ‘IM ASD Analyst’. On 15 November 2016, Mr Hussain was seconded into the role of ‘IM Senior ASD Analyst’ on a higher duty pay salary of £37,774. He did not move into pay band 3, but was paid at a higher rate to reflect that he was seconded to a senior role. On 9 January 2018, Mr Hussain was offered the role ‘Senior Application Engineer’, on pay band 3, with a salary of £50,000. This was 2 years and 11 months after Mr Aubdool was placed on that grade with a salary of £47,000. It was 7 years and 4 months after the comparator was TUPE’d into the respondent at the middle of pay band 3 on a salary of £45,000.[37]Prior to taking the role, on 15 December 2017, Mr Hussain had asked for his salary offer of £50,000 to be increased on the basis it had more responsibility and technical knowledge required than other roles at the same salary (page 129). That effort was not successful, with Mr Patel being told that the respondent’s ‘pay parity’ review meant that £50,000 was the allotted starting salary, even taking account of the points made (page 128). The claimants and the comparator[38]From 9 January 2018, both claimants and the comparator had permanent jobs with the same job title on the same grade. The claimants were both paid £50,000 before additional bonuses and entitlements. It appears, and we accept, that the comparator was paid around £16,000 more per annum.[39]All three felt that their job title and scope, part of the respondent’s standard job descriptions across all departments, did not match their actual job role. They approached respondent management in an effort to have their jobs re-evaluated or re-aligned. We are satisfied that the claimants did not know, at that point, that they were paid so much less than the comparator.[40]The three started the process on 14 May 2019 (pages 139 to 143). There was a delay due to the Covid-19 pandemic. A meeting took place on 2 September 2021 (page 151). The three approached the union on 14 January 2022. On 22 April 2022, all three had their job titles changed to ‘Senior Application Engineer – ITSM’. That alteration had attached a 5% of salay ‘Attraction and Retention Allowance’. For the claimants, this translated into an uplift of around £2,700. The comparator received a greater uplift because of his greater salary.[41]During this process, the claimants discovered that they were paid significantly less than the comparator. 9 of 16 Claimants’ grievance[42]The evidence about the grievance and investigation into reasons for the discrepancy between the pay of the claimants and the comparator took up a large part of the hearing and the bundle. Only the parts relating to headline pay are relevant to the claim, and those facts can be found here briefly without rehearsing evidence which we do not ultimately consider to be relevant to this type of claim.[43]The claimants’ grievances were heard together on 12 August 2022 (pages 233 to 241). The grievance submitted was not focused on direct race discrimination. Instead, it drew grounding from the respondent’s ethnicity pay gap report, which is more about the distribution of different backgrounds across the roles (ie a structural issue), rather than specifically about those of Asian background being paid less whilst working in the same role. Similarly, much like the claimants’ evidence in the hearing, there were arguments about ‘equal pay for equal work’ which are only relevant to equal pay legislation (concerning only sex), and not remotely relevant to arguments centred on race.[44]Mr McCartney summarised the grievances’ approach succinctly in his statement when he said the claimants and the comparator seemed to have “equal roles and responsibilities in TfL, and therefore it was natural to expect them to be on equal pay and terms and conditions”.[45]We consider that the respondent was confused about the approach adopted by the claimants, because the grievance was treated initially as if an equal pay claim. There was regrettable delay in dealing with the grievance, but ultimately the race discrimination grievance was not upheld because the respondent considered that the comparator was an outlier who had joined the respondent in a non-standard way through the operation of TUPE, and then had had his salary increased in the same way as the claimants ever since they worked together (pages 271 to 273). That outcome was generated on 5 October 2022. The outcome explains that equal pay legislation does not apply to race.[46]The claimants appealed that outcome and Mr Bulle was asked to consider that appeal. The only appeal argument made which goes to this claim (that the claimants have been less favourably treated than, specifically, the comparator because of their race) is the second argument. Mr Bulle explained (and was not challenged), that that ground of appeal related to the missed opportunity of the grievance to ‘right the wrong’ of the pay disparity and match the claimants’ salary to that of the comparator.[47]In his investigation, Mr Bulle spoke to a Ms Shears, who explained to him the benchmarking process which was done in the sort of ‘pay parity’ review which was done to set the claimants’ salaries at £50,000. Mr Bulle understood that the respondent would do a review, but would screen out anomalies such as the comparator, whose particular circumstances meant that their pay could not be ‘benchmarked’ or used for ‘parity’ purposes because they were not in a parity position. This evidence was confirmed, in part, by Mr Patel, who agreed with that general approach to anomalies and outliers along with how salaries are set.[48]We accept that evidence. It explains why the claimants are paid less than the comparator. It explains why the comparator’s pay is at odds with the general 10 of 16 principles that all of the claimants agree were normally applied. It also makes sense to us because the comparator’s career journey is unusual or non-standard compared to the routes followed by the claimants, where they are not TUPE’d in and have built their careers within the respondent from a relatively low level in the career ladder when they joined.[49]Neither the claimants nor the union were satisfied with the outcome of the grievance and appeal. These proceedings were launched thereafter.
Relevant law
[50]Section 4 Equality Act 2010 lists protected characteristics for the purposes of that Act. Age, race, and religious belief are all listed as protected characteristics. Each of the protected characteristics that the claimant identifies as holding are within the list at section 4, and are therefore protected characteristics which the claimant has (by operation of sections 9, 10 and 11 Equality Act 2010. 51.Section 13(1) Equality Act 2010 provides:- “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[52]This means that the claimant would have suffered from direct discrimination if we find that he was treated less favourably than someone who was not a man, Pakistani, or Muslim, because of one of those characteristics.[53]The claimant must establish that he was objectively treated in a ‘less favourable’ way. It is not sufficient for the treatment to simply be ‘different’ (Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 HL). The person(s) with whom the comparison is made must have “no material difference in circumstances relating to each case” to the person bringing the claim (section 23(1) Equality Act 2010). The comparator should, other than in respect of the protected characteristic, “be a comparator in the same position in all material respects as the victim” (Shannon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL). There is no requirement for a comparator to be identical, but the greater the differences, the less likely it might be that the difference in treatment was because of discrimination and so more is likely to be required to shift the burden of proof (Virgin Active Ltd v Hughes [2023] EAT 130.[54]If there is no such comparator in reality, then the Tribunal should define and consider how a hypothetical comparator would have been treated if in the same position as the claimant save for the fact that they would not have the protected characteristic relied upon (Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 646, CA).[55]The phrase ‘because of’ is a key element of a direct discrimination claim. In Gould v St John’s Downshire Hill [2021] ICR 1 EAT, Mr Justice Linden said, in respect of determining ‘because of’:- “It has therefore been coined the ‘reason why’ question and the test is subjective… For the tort of direct discrimination to have been committed, 11 of 16 it is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of. In need not be the sole ground for the decision… the influence of the protected characteristic may be conscious or subconscious.”[56]Under section 136(2) Equality Act 2010, the claimant needs to show facts, found on the balance of probabilities, which could lead the Tribunal to properly conclude that the discrimination has occurred before any other explanation is taken into account. If the claimant succeeds with this, then it is for the respondent to show that the contravention has not occurred (section 136(3) Equality Act 2010). The Tribunal must first consider whether the burden does shift to the respondent. The claimant must show more than simply there is a protected characteristic and a difference in treatment (Madarassy v Nomura International Plc [2007] IRLR 246). The operative point is whether the Tribunal could conclude there had actually been discrimination, not simply that there might have been (Hammonds LLP v Mwitta [2010] 0026/10). 57.S136 clearly sets out a two stage test, but the Tribunal is cautioned against applying that test in a way which is too mechanistic. This is important to ensure that discrimination is not incorrectly imputed into circumstances where the case is simply about unreasonable treatment for other reasons, or unfortunate circumstances (Chief Constable of Kent Constabulary v Bowler [2016] EAT 0214/16). There is a manifest difference between unreasonable treatment of a claimant, and unlawful discrimination (Bahl v The Law Society [2004] EWCA Civ 1070).[58]Once the burden has shifted, if it does, the respondent must show that the treatment was ‘in no sense whatsoever’ due to the protected characteristic (Igen Ltd v Wong [2005] IRLR 258). In weighing up whether or not there has been discrimination, the Tribunal should consider all of the evidence from all sides to form an overall picture. Causation, or the ‘why’ the conduct was committed, is a subjective conclusion of law rather than objective conclusion of fact: what is the reason for the conduct and is that reason discriminatory (Chief Constable of West Yorkshire Police v Kahn [2001] UKHL 48). It is almost always the case that the Tribunal needs to discover what was in the mind of the alleged discriminator (The Law Society v Bahl [2003] IRLR 640).
Discussion and conclusions
[59]This discussion and conclusion is relatively short because the issues are resolved simply upon the facts we have found. The claimants’ arguments[60]The claimants’ claims as now advanced do not align neatly with the evidence presented to us. This is principally because the grievance was angled from the perspective of equal pay legislation, and founded on a moral argument that, because the ethnicity pay gap should be closed, so too should this discrepancy. These arguments were carried through in the claimants’ witness statements and those of the union officers who gave evidence in the hearing.[61]There is no duty for the respondent to pay equal pay for identical/like work where the differential is between individuals of same sex but different race. Similarly, this is not an indirect race discrimination claim which might mean that an analysis of seniority 12 of 16 distribution across the respondent is highly relevant. This is a claim for less favourable treatment on the grounds of race.[62]Under cross examination, both claimants took issue with the decision to pay the comparator an allegedly inflated salary(1) when he transferred to the respondent, and(2) when he obtained his significant pay rise in 2011. These decisions cannot form the basis of the complaint. The complaints we are examining are (1) the decision to place each claimant where they fell on the pay scales when they started on the same role as the comparator, and (2) where the respondent effectively refused to provide redress by rejecting the grievance and the appeal.[63]Clearly, a key consideration for us is whether or not the comparator (although named as such throughout this judgment) is in fact a proper comparator under the Equality Act 2010, as further defined by Shannon and Hughes. On its face, the discrepancy between race and pay appears stark in this case. There are only three people doing this work at the respondent. That work is essentially identical and seamlessly interchangeable. All are agreed about that. One of them is a white non-Muslim, and he is paid significantly more than the other two. The other two are paid the same as each other, and they are British Asian Muslims. Mr John submits that that alone must be enough to shift the burden under s136.[64]Repeatedly, from the initial grievance to closing submissions, the claimants have argued that the comparator’s career history is irrelevant to the question of the comparison. It is variously argued that:- 64.1. The work being done is now the same and so the pay should be the same; 64.2. The comparator did migrate on to TfL terms in 2009 and/or 2011; 64.3. Discrepancies could have been corrected at each restructure and review; 64.4. TUPE does not justify significant pay gaps; and 64.5. It is not clear what the comparator’s prior experience really was.[65]We have found facts on the last point based on the evidence presented to us, and those facts simply conclude that the claimant worked in the IT sector since 1991. In our judgment, we do not need to determine precisely what he did. The facts are that that is when his continuous service started from, he was employed in the sector, and his experience and skills in 2010 and 2011 were sufficient to justify him moving to the respondent on the middle of band 3 and then obtaining a significant salary uplift.[66]The other points, again, are predicated on an assumption that there is an obligation to pay people the same salary if they are doing the same work. That simply is not an obligation which is upon the respondent. It is not entitled to pay someone less because of their race. To say that means there is an obligation to uplift ignores that there may be other good reasons for the discrepancy, such as where that person is in their career and what that career history has meant for their contractual terms. Is the comparator appropriate in this case? 13 of 16[67]The respondent rejected the comparison in the grievance outcome, citing the historical matters which meant that the comparator arrived at the respondent on inflated pay, and stayed on that inflated pay. Ms Ferber KC repeated those arguments, and emphasised the particular factual circumstances around the comparator’s recruitment and retention (which we have found as facts).[68]In our judgment, the comparator is not in the same position in all material respects as the claimants when it comes to this particular claim. This claim is about pay. It is said that the pay differential is caused by race discrimination. The crucial point of comparison, then, the bit which must go to the ‘same position’, is the position at the entry on to the particular pay band in question.[69]The comparator’s entry to pay band 3 was through a TUPE transfer at a time where the particular commercial factors at play meant that an inflated salary was more likely to have been justified. These are the facts we have found. The claimant was more advanced in his career in terms of time at the point of entry. He had been working on the project already for some time, and was one of only a few on the project who was available to be transferred. We consider that he was needed by the respondent. Those factors likely led to his inflated salary. The respondent, clearly, is unable to unilaterally reduce the salary lawfully. He was therefore placed on the middle of the band and then had an uplift to the upper end of the band, overseen by a manager who had publicly stated that the respondent did not pay enough to retain key staff on the Remedy project.[70]If the claimants had arrived at the respondent by similar means at a similar sort of time, then the comparison would more likely be one which could be adopted. They did not. Each began employment with the respondent at a far junior level than the comparator did, and worked their way up internally. This is, we consider, far less likely to generate the anomalous pay of the comparator in the pay band 3 role for two reasons. First, each was promoted into that role from another place on the pay band. This meant that the usual respondent practice of placing people towards the bottom of the band at each band progression applied to them when it did not apply to the comparator in his case. Second, each joined the comparator in that role on that grade a significant amount of time after him, and without being in the commercially advantageous position he was in when he transferred across from the external organisation which was developing the very project that the respondent was bringing in house.[71]Additionally, the claimants seek to ignore the years difference in career experience and age, as well as years on a pay band in a system which has broad progression bands precisely so that someone’s pay progresses in line with the time they spend in a role. It is then highly relevant that the comparator began working in that role at that band in 2011. Mr Aubdool joined him in 2015, and Mr Hussain joined both of them in 2018. These essential differences mean that we do not consider that the comparator is, in fact, appropriate for this claim. We do not adopt him.[72]Even if we had, then we do not consider that it would assist the claimants. In our judgment, it would be unusual for pay to be equalised where there is a difference in experience in the role as well as such a commercially different landscape at each appointment decision. This conclusion means that the warnings in cases such as Bahl would lead us to be cautious about assuming that the difference in treatment 14 of 16 was caused by discrimination alone. The claimants have not put forward really anything in terms of a positive case other than(1) their protected characteristics, and(2) their pay relative to the comparator. There is no pleaded or alleged discriminator whose motives we could examine. The claimants accept that Mr Patel was not motivated by race, but he was involved with recruitment and salary adjustment. We would be left with a rather shadowy allegation that someone somewhere in HR chose to artificially deflate the claimants’ salaries because they were British Asian Muslims. In our view, such arguments would fall foul of Madarassy and Mwitta because there is not the evidence to establish ‘something more’ required.[73]It is also clearly the case that any complaint around a failure to equalise pay with that comparator also falls away where the comparator is rejected. Even if not, then, in our view, the very different and unusual circumstances leading to the ‘comparator’s’ salary was justifiably cited as the reason for the discrepancy rather than any race discrimination. The case with a hypothetical comparator[74]Shamoon requires us to adopt a hypothetical comparator for each claimant. We therefore consider how a White British Male would have been treated at entry on to pay band 3 in the claimants’ roles. We have seen no evidence that that comparator would have been treated any differently to the claimants because the claimants were treated entirely in line with the respondent’s principles when appointing employees into new roles. This is a weakness in the claimants’ case – their complaint is that they were not treated as well as a colleague who was treated unusually well. As soon as that colleague is removed as a comparison, there is no ‘less favourable treatment’ at all.[75]In our judgment, there would be no salary discrepancy with a hypothetical comparator, and so it is difficult to adopt the hypothetical comparator when considering whether salary should have been equalised because there would be no grounds for grievance. In that circumstance, there would be no discrimination on the grounds of race either.