Employment Judge HolmesIn person for claimantMr S Brochwicz - Lewinski (instructed by Counsel) for respondentDate 24 November 2020
JUDGMENT
AND ORDERS ON PRELIMINARY HEARING It is the judgment of the Tribunal that:[1]The claimant’s application that the response should be struck out is dismissed.[2]No further orders as to disclosure are made.[3]The respondent’s application made on 23 June 2020 to amend the response is withdrawn.
REASONS
[1]This preliminary hearing was listed to determine applications made by the claimant on 15 January 2020.[2]The “Code “V” in the heading indicates that this was a remote hearing by Skype conference call , to which the parties have consented. A face to face hearing was not held because both parties were able to deal with the application and case management issues remotely. Both parties had provided the Tribunal with a bundle of the salient documents required for the purposes of the hearing. 1 of 20[3]The Skype hearing commenced on 24 June 2020, with the claimant making her submissions. Unfortunately, the connection was lost at around 11.15, and the hearing had to be abandoned.[4]The Tribunal wrote to the parties on 25 June 2020 explaining the options for the resumption of the hearing, and raising certain other matters relating to the application, and case management in general.[5]Both parties agreed to proceed by making written representations. The claimant did so on 26 June 2020, and the respondent on 10 July 2020. The claimant sent further representations , and attached a number of documents, on 24 July 2020.[6]The resumed hearing, in Chambers, was listed for 10 September 2020. It is appreciated that this is close to the final hearing listed for 14 September 2020, but this was unavoidable. The Tribunal has considered the oral submissions made on 24 June 2020, and the parties’ subsequent written submissions, and now gives its judgment. There is some unfortunate overlap between the bundles provided by each party, so references to page numbers will be in the format “C 1 to 4” , or “R 1 to 4”, and so on, depending upon which bundle is being referred to. The background : the claims and case management to date.[7]By a claim form presented on 3 June 2019 the claimant , who is unrepresented, brought claims of sex discrimination and for equal pay arising from her employment with the respondent between 28 July 2018 and 26 April 2019. Her claims were set out in a two and a quarter page narrative attached to the claim form. The respondent responded to the claims as it understood them.[8]A preliminary hearing was held on 20 August 2019 by Employment Judge Franey. The claimant attended in person. Her claims were summarised as follows in the Case Summary ( R 31 to 32). (7) The claimant was employed between July 2018 and April 2019 as a Global Category Procurement Manager – Substrates, Outsource and Packaging. For the purpose of this case she compares herself with the male comparator Graham Lanty, who was employed as Global Category Procurement Manager – Chemicals. The claimant was on a salary of £65,000 whilst Mr Lanty was paid £71,291. The claimant says that this was a breach of the equality term implied into her contract. (8) In addition to her equal pay claim, the claimant complains of direct sex discrimination in that she was treated less favourably than Mr Lanty because of sex. There are three elements to this. Firstly, she says that she had a heavier workload than he did. Secondly. she says that she was required to do work whilst on annual leave, unlike him. Finally, she says that she was expected to travel in the UK and overseas outside working hours so as to give her a full working day when she arrived. This created significant difficulties for her given her childcare obligations. She says that Mr Lanty was not required to do that in the same way. 2 of 20 (9) Additionally, the claimant complains that because of this alleged discrimination she was forced into resigning from the respondent and therefore that her resignation should be construed as a discriminatory dismissal. (10) The respondent resists all the complaints on their merits. In relation to equal pay, it denies that the claimant was employed on like work with Mr Lanty, but even if so it says that there were material factors unrelated to sex which explained the difference in their remuneration. These factors include differences in the job, the market forces which mean that chemical procurement attracts a higher rate of pay than the work the claimant did, and Mr Lanty’s comparatively longer experience in procurement. The respondent also denies that there was any less favourable treatment of the claimant because of sex in the way she alleges.” The list of complaints and issues as they appeared to be following this discussion was set out in the Annex to the Case Management Order. The claimant’s application to strike out the response .[9]The application made by the claimant was first made in her email to the Tribunal of 15 January 2020 (R 50 to 51). The relevant parts of it read as follows: “……..In the meantime, the respondent has provided a draft bundle. There is a number of serious concerns in this regard and I believe the respondent has falsified information and intentionally withheld plus disregarded information to support their defence. 1.Equal Pay I attach a copy of the letter provided to me by the respondent confirming the salary of comparator Graham Lanty. I also for comparison an email dated 28th May internally within the respondents business clarifying the salary of my comparator Graham Lanty. These two documents provide conflicting information. The letter states the salary is £71,290 yet the internal email denotes G Lanty salary to be 117.72% of the median market data- this calculates £73,428. On this basis the respondent has not provided a clear confirmation of my comparators salary. I have asked the respondent to provide payslips for clarification and also to demonstrate bonus amounts paid to my comparator. The respondent has refused to provide this information. I am unable to demonstrate the actual equal pay gap and mitigation of loss of earnings without this information. I believe the respondent is hiding information in this regard as it is detrimental to their case. It is also noted and of public record that the respondent has now replaced my role with that of another male comparator. The respondent refuses to supply a signed copy of this individuals contract of employment. The fact they have now employed another male in the same capacity as myself becomes further relevant as an additional comparator - Mr Peter Roebuck. 2) Travel Schedule 3 of 20 The respondent has provided the attached list of travel schedule of Graham Lanty my comparator. It is noted that a "red eye" flight is claimed on the 5th September 2018. Please also see attached a copy of my calendar for the 5th September 2018 and noted the flight was at 1pm. Myself and Graham Lanty travelled together on this trip. Clearly the respondent has falsified information to support their defence and the integorty of this document as whole now becomes questionable. 3) Job Description I attach my copy of the job description supplied to me by the recruitment agency Cast UK Ltd - 3 pages in total. I attach the copy of the job description the respondent has provided in the same, of 2 pages. The middle page which includes the date of this document has been excluded by the respondent. I feel the respondent has purposely removed this middle page due to it containing the date and also in light that it is an almost word for word replica of the job description disclosed for Graham Lanty Comparator dated 2011. It is also noted that on the hidden page 2 of this document refers a number of remits within both roles that the respondent has made reference to within their grounds of resistance - eg commodity markets. Furthermore this complete document reinforces the equal pay claim in like for like work. 4) Missing Information The respondent has withheld the attached correspondence notes between themselves and the recruitment agency Cast UK. This information has been denied of existence by Scapa under the subject access request and subsequent disclosure, however this was provided by the recruitment agency as a log of notes from all telephone calls with the respondent under a separate subject access request. This was included in my list of documents yet as it contains clear sexist remarks with regard to me carrying a handbagthe respondent has excluded this from the bundle. 5) Redacted Offer Letter I enclose a copy of my own and my comparators G Lantys offer letters from the respondent. Also enclosed in a redacted offer letter to Mr Peter Roebuck dated 2nd October 2019. As you will see this redacted offer letter does not resemble the similarities to that of my own or G Lantys and as such I believe this is a falsified document from a basic template. The document format has been edited and there is no list of accompanying documents nor is the letter signed. On this basis I feel this document is falsified to support the respondent defence that they have now employed a male replacement to myself on the same salary as myself. It is noted and apparent that following my departure the role was advertised publicly at a higher salary and I do not believe the respondent has provided a true and accurate confirmation of my replacements salary. Again this supports my equal pay claim and direct discrimination on the basis of sex. I have asked the respondent to provide a signed contract of employment and pay slips for Peter Roebuck but they have refused. I ask the court to assist in this regard. While the respondent is providing conflicting information and clearly falsifying documents, this is not only an abuse of the process but also unethical. A full hearing cannot be held with the tribunal with incorrect and purposely falsified and misrepresented information and now the respondents integrity is 4 of 20 in question as a whole. I do not consider these errors to be admissible under administration errors as there is too many errors which all coincidently support the respondent. The respondent has subsequently delayed the case management order by now totalling 3 weeks, of which I agreed to be amenable, however the delays have now resulted in the provision of falsified information and the purposeful withholding of information to support their defence. Clearly this is the second instance of withholding information following on from my email to the tribunal to assist dated 12th December 2019. On this basis and due to the respondents conduct I ask the tribunal to consider a strike out of the respondents ET3 and grounds of resistance as per below:• The respondent's manner in which the which the proceedings have been conducted are scandalous, unreasonable or vexatious as per the Employment Tribunal Rules of Procedure article 37.1 (b) by way of purposely withholding information, not complying with the case management order of disclosure and mis representing information for the purpose of falsified defence• It not no longer possible to have a fair hearing given the lack of integrity and honesty displayed by the respondent in the intentional falsifying of information and documentation. As per the Employment Tribunal Rules of Procedure article 37.1 (e)”[10]The Tribunal listed the preliminary hearing (originally for 26 May 2020) by letter of 6 February 2020. The purpose of the hearing was set out as : “To consider the claimant’s application to strike out the response, and any other issues about disclosure.” The claimant’s submissions.[11]The claimant’s submissions were as follows, taking them in the order of her application which she had then set out as a Statement of Issues document at C 1 to 2. In summary, combining her oral and written submissions, her application was advanced as follows. Item 1 : Disclosure of Internal communications The claimant addressed this issue in her oral submissions, and referred the Tribunal to the Information Commissioner’s response to her complaint to her (known as the “ICO” for short) at pages 43 to 44 of her bundle. She referred to the finding that the respondent had not complied with its data protection obligations in respect of a Subject Access Request (“SAR”) which she had made. In particular she believes that are emails, notes and other material that will have been generated during the time periods in issue. She referred the Tribunal to pages 90 and 91 of her bundle, in which she set out her concerns as to what documents the respondent was till withholding, especially in connection with her grievance and the provision of a reference to her new employer. As at 19 June 2020 the case was still open with the ICO. In her further submissions , after the postponement, she accepted that it was hard to prove that a document existed, but said that here were grounds for believing that more documents did exist, citing, as an example, an email from Phillip Spibey of 29 May 2019 , in which he made reference to an email from the claimant which clearly therefore existed, but had not been disclosed. Similarly it was 5 of 20 most unlikely that Amanda Whitehead in HR would not have any notes or emails in relation to her dealings with the claimant. She cited , as a further example, a letter from Amanda Whitehead to her on 17 May 2019. Item 2 : Equal Pay: The claimant contends that the respondent has provided conflicting (or false) information as to the salary, of Graham Lanty, her named comparator. She refers to a letter from the respondent dated 17/09/19 (R page 52) stating that Mr Lanty’s salary was £71,290, contrasting this to a disclosed email at R page 54 which refers to a “Compa Ratio” of 117.72% of a median of £62,375. This produces a higher figure of £73,428. She also complains that she has not been provided with a copy of the contract of employment of Mr Roebuck, her successor. In her oral submissions the claimant highlighted this discrepancy, and how she had by email of 28 May 2019 queried this. She had asked for the P60s of both Mr Lanty, and Mr Roebuck, but they had been refused. Item 3 – Travel Schedule The respondent has provided a schedule of Mr Lanty’s travel (R page 55) which claims a “red eye” flight on 5/09/18. This is incorrect because the claimant travelled on this flight with Mr Lanty, and her diary shows this flight to have been at 13.00 (R page 56). The respondent has clearly falsified information. Whilst the respondent has provided a corrected schedule, the claimant says that the respondent should now provide corroborative evidence of every entry on that schedule (ie. in respect of all travel undertaken, irrespective of the time of travel). Item 4 – Job Description The claimant refers to the job description (“JD”) provided to her by the recruitment agency (R 57-59), and to the same document placed by the respondent into the draft hearing bundle (R60-61). The document in the bundle has the middle page missing. The claimant feels this was done on purpose, and notes that the second page refers to a number of “remits within both roles that the respondent has made reference to within their grounds of resistance”. The claimant deals with this (out of order, and under a different heading “Missing Information”) on the second page of her submissions on 26 June 2020. She complains that the respondent removed this vital page without any discussion with her. She goes on to contend that the respondent also removed (i.e did not include in the proposed hearing bundle) other evidence, in the form of call logs of discussions with the respondent and the employment agency Cast UK Ltd. These included reference to Phillip Spibey making a remark about her not carrying a handbag which she considers very important to her claims. Whilst she appreciated that she could simply provide a supplementary bundle, that was not her point, she wanted to refer to this as another example of the respondent, unilaterally removing evidence from the bundle to its potential advantage, in support of her application that the respondent was conducting the proceedings unreasonably. She then moves on to make what are further applications for what she says is outstanding disclosure. 6 of 20 Item 5 – Redacted Offer Letter The claimant contends that the respondent as falsified the letter it has produced which it claims to be their offer letter of 2/10/19 to Peter Roebuck, her successor. The claimant relies upon the fact that the offer letters to herself and Mr Lanty were different. In particular, she relies upon a difference in format, an absence of attachments, and the lack of a signature. The claimant believes Mr Roebuck was in fact appointed on a higher salary than this letter sets out. The claimant requests disclosure of a signed contract of employment and payslips for Mr Roebuck. The claimant does not further address this Item in her submissions of 26 June 2020. Item 6 – Bonus Allocation Data The claimant contends that the data is not representative as she was not employed by Systagenix Management Manufacturing Ltd. The respondent will not remove this documentation from the bundle. The claimant now (in her 26 June submissions) appears to agree that this is not an issue for consideration in this application. The respondent’s submissions.[12]In response , the respondent replies to each point as follows, adopting the enumeration of the claimant’s original application, rather than her statement of issues document. Issue 1 – Equal Pay (claimant’s Item 2) The letter from the respondent at R52, dated 17/09/19, was in response to the claimant’s request for information dated 6/09/19 (C10) which asked for details of Mr Lanty’s earnings. This request obviously related to Mr Lanty’s earnings at the relevant time, ie. during the claimant’s employment (from 28/07/18 to 26/04/19), and the information given related to that period and was accurate. Some time after the end of the claimant’s employment, Mr Lanty received a pay rise, and the claimant has now seen, and has referred to, evidence relating to this. The following documents refer: i. 28/05/19 email from Phil Spibey to Amanda Whitehead (R54) – This is a contemporaneous document setting out the basis of calculations for Mr Lanty’s revised salary. ii. 10/06/19 letter from the respondent to Mr Lanty (R76), informing him of a salary raise of 3% to £73,429.58 with effect from 1/06/19. This figure is in accordance with and consistent with the figures set out in the 28/05/19 email. Mr Lanty’s salary rise post-dated the claimant’s employment, so was not relevant to her request for information. In any event, it is not inconsistent with the information provided re his salary at the time of the claimant’s employment for him to have been given a raise thereafter. This affords no grounds for strike out or criticism of the respondent’s defence. 7 of 20 The claimant and the Tribunal have referred to Mr Lanty’s payslips. Provided that there is appropriate redaction of personal information, the respondent does not take issue with providing these consistent with the Tribunal’s indication. Accordingly, the respondent has now provided the claimant with redacted copies of Mr Lanty’s P60 for the tax year ending 05/04/19 (which shows his total earnings for the prior year) and his payslips for the period 15/03/19 to 14/06/19. Mr Roebuck and his contract are irrelevant as the claimant cannot compare herself to a successor – as the Tribunal has already noted (Walton Centre for Neurology & Neurosurgery NHS Trust v Bewley [2008] IRLR 588, EAT, Elias J). Issue 2 – Travel Schedule (claimant’s item 3) This evidence is relevant to the issue defined at the previous case management hearing (EJ Franey at R41, para 3(b)) as: the claimant “was required or expected to travel to work appointments outside working hours whereas he was not”. The respondent has gone back to Mr Lanty and asked him to review the travel schedule. As a result, a slightly revised schedule has been provided to the claimant (see R136) which includes a number of changes which are set out in detail in the respondent’s submissions. Further the respondent has provided supporting documents for those occasions where Mr Lanty travelled outside of working hours (addressing the issue raised by the claimant’s case). These permit the claimant to doublecheck the occasions that the respondent says Mr Lanty travelled outside working hours. Reference is then made to the pages of the respondent’s bundle where these documents are to be found. The respondent does not agree that it should provide documentation evidencing every time Mr Lanty travelled for work as this is irrelevant and disproportionate. There is no dispute that he travelled for work. The issue is whether he was required or expected to travel outside of working hours, and the documentation relevant to this has been provided. Again, no grounds for striking out the respondent’s case are revealed. The respondent has gone to lengths to provide accurate information, and has now disclosed relevant documentation in support and to corroborate. If the claimant wishes to cross-examine at trial as to the differences between the 2 schedules supplied, she is free to do so, but there are no grounds for suggesting a fair hearing cannot take place. Issue 3 – Job Description (claimant’s Item 4). The 2nd page of the JD was accidentally omitted from the draft hearing bundle. Of course, it can and will be included, and has been added to the next draft bundle. For what it is worth, it makes no sense for the respondent to try to omit it from the bundle – as the claimant herself notes, it is relevant to the respondent’s own case, and the claimant already had a copy of the full document. This does not amount to grounds for striking out, but is precisely the sort of point that arises, and that parties check and clarify when putting together hearing bundles. 8 of 20 It is for the c to advance a case, if she wishes, at the substantive hearing, as to the materiality of the omission and any suggestion that it was deliberate. Issue 4 - Missing Information (no corresponding claimant’s Item in her statement of issues). The claimant’s allegations are that the respondent has withheld “correspondence notes between themselves and the recruitment agency Cast UK” (R62-5) which were provided by the recruitment agency to the claimant . The respondent has excluded this from the draft hearing bundle. Response: R62-5 is plainly the recruitment agency’s note from their computerised client management system of their discussions with their client, the respondent in this case. It was obtained by the claimant from the recruitment agency. It is not a list of correspondence. This document was not the respondent’s to disclose. There can be no criticism of the respondent for failing to disclose someone else’s document which it did not have. Inclusion in the bundle – This document is not relevant to whether the claimant was discriminated against by being required to work harder/during holidays/leave home earlier. Nor is it relevant to the issue of equal pay compared to Graham Lanty. However, the respondent will add it to the bundle given her expressed belief of its relevance. c. For what it is worth, it is not accepted that the “handbag/folder” reference was discriminatory – it is a simple observation that the claimant did not turn up with materials. It may also be noted that the claimant was still offered the job after this. Issue 5 – Redacted Offer Letter (claimant’s Item 5)a. The respondent denies that the offer letter to Mr Roebuck is falsified, or that there are grounds for making such an assertion. Comparing the offer letters to Mr Roebuck, Mr Lanty and the claimant , it can be seen they in fact follow very similar formats, perhaps with a different subject heading order. It may also be noted that the document disclosed in respect of the claimant is unsigned. If the claimant wishes to pursue the point that the document is falsified, she may of course do so in cross-examination, but the respondent cannot see the basis for this. The respondent refers to the documents at: R66 20/06/18 Offer letter to the claimant R69 19/08/11 Offer letter to Graham Lanty R71 2/10/19 Offer letter to Peter Roebuck (name & address redacted)b. Further, in any event, Mr Roebuck’s salary (and terms) may be noted to be irrelevant, 9 of 20 as he was simply a successor to the claimant, as already referred to by the Employment Judge and as per the Bewley case (above). There is therefore no proper basis for any further disclosure in relation to him.c. Again, this point discloses no grounds for striking out the respondent’s case. Further points raised by the C outside her application to strike out Issues over the claimant’s DSAR The claimant has referred to various matters in relation to the Subject Access Request she has made and in relation to which she has written to the Information Commissioner. This is not a matter over which the ET has jurisdiction. In any event, the respondent takes issue with the suggestion that there has been default on its part. An issue did arise over timings, although, as can be seen from the correspondence, the respondent took the view that the claimant ’s DSAR was properly raised by the claimant at a later date than possibly the claimant considers it was. The relevant correspondence is: R80 31/01/20 ICO letter – Scapa provided info outside 1 month and 2 month extension timeframes R119 11/03/20 Email R sols copying to ET: R83 11/03/20 Letter R sols to C re data request – This letter sets out in detail matters in relation to the C’s DSAR, addressing, inter alia: - the date of the DSAR, which was taken as 10 June 2019; - the identification of 18,000 documents/emails in the DSAR search which had to be and were duly processed and considered in the context of the Request; - confirmation that a further search has now been made extending to pre-employment documents (which were not originally requested by the C). The letter goes on to address other matters raised by the claimant of more relevance to these proceedings, such as bonus issues, details of travel out of hours for Mr Lanty, and confirmation of provision of the missing page from the bundle. For what it is worth, the respondent understands that the case with the ICO may have been closed, but then re-opened upon subsequent request by the C, upon her raising further matters. In any event, as stated, and as explained by Employment Judge Franey to the C at the last case management hearing (see para 24 of the Case Management Summary at R34), issues concerning the claimant’s DSAR are outside the jurisdiction of the Employment Tribunal and are of no relevance to the instant application. 10 of 20 Point re grievance-related documents at para 1 of C1 (claimant’s Item 1) The claimant raises a request for documentation in relation to her grievance. The respondent’s response to this is that no grievance was taken forward by the claimant , and there is thus no documentation resulting. This has already been dealt with in previous correspondence, which was not, at the time, challenged by the claimant – see: C28 12/12/19 Email from C to ET seeking disclosure of documents concerning her grievance/dispute/termination of employment. C38 17/01/20 Email from R’s solicitor to the ET re disclosure issues raised – in which it is confirmed that disclosure of all documents in relation to the C’s resignation has been provided, and confirming that the C stated she did not want to pursue a grievance and therefore there are no documents relating to a grievance process. It can also be seen to be confirmed from the latest documentation provided by the claimant – in particular, in the final paragraph of the letter to the claimant from Amanda Whitehead (HR Manager) of the respondent, dated 17/05/19 – that the claimant confirmed that she did not wish to raise a grievance. Further disclosure requests made in C’s post-hearing written submissions.[13]In her written submissions, which were supposed to be in support of her application to strike out, the C appears to be seeking additional orders for disclosure of the following documentation:a. Remuneration committee approval to change of company bonus structures;b. Risk assessment and policy re work related stress;c. Copy investigation into whistleblowing report allegedly made by the C.[14]This is a repetition of the requests made by the C in her email to the ET at C28 to which the respondent responded by its email of 17/01/20 at C38. Repeating the R’s position, the documents referred to at sub-paragraphs (a) and (b) above simply do not exist. The document/s referred to at sub-paragraph (c) are of no relevance to the C’s claim of sex discrimination arising out of the workload and working hours applied to the C, nor to her equal pay claim. There is accordingly no basis for any order for disclosure to be made. General Matters raised in conclusion of C’s written submissions[15]The claimant refers to a bundle being sent to her previous address. This was due to the solicitor handling the case file taking maternity leave and passing the case to a different solicitor. This new solicitor needed to send a revised draft of the bundle to Claimant, and used the address recorded on the solicitors’ system, not realizing that the Claimant had since moved to a new address. The claimant seems to suggest this was deliberate. It was not – it was entirely accidental. 11 of 20[16]The claimant further refers to the respondent’s solicitors having referred to the ET proceedings in dealings with the ICO. Insofar as the respondent’s solicitors have referred to the ET proceedings, there is nothing wrong in this. As has been pointed out to the claimant in correspondence, the ET proceedings are a matter of public record, and the c’s consent is not required in order for the respondent’s solicitors to refer to them when corresponding with the ICO. Insofar as the claimant is using the DSAR procedure as another means of obtaining disclosure beyond the ET process, it is potentially relevant for the ICO to know there are ET proceedings in the background.[17]The claimant suggests the respondent has been “underhand, negligent and dishonest”. This serious allegation is strenuously denied. Having addressed the particulars of the claimant ’s instant application, it can be seen there is no merit to this allegation. The claimant’s response.[18]In her document of 24 July 2020 the claimant , after addressing whether she does or does not have a victimisation claim before the Tribunal, responds to the respondent’s submissions, adopting the enumeration used in the response.[19]In relation to Issue 1, she acknowledges that Mr Lanty’s P60 has now been provided, which show a gross pay of £88,774. She suggests this shows the respondent has been concealing the true extent of his remuneration, which had previously been said to be £71,291. Payslips have still not been provided, which hampers her ability to prepare her schedule of loss.[20]In relation to Issue 2 , the claimant did not want each and every document proving Mr Lanty’s travel commitments , she merely wants to show how inconsistent and devious the respondent had been in trying to conceal evidence, which is part of the unreasonable conduct she is relying upon.[21]In relation to Issue 3, she makes much the same point that this is evidence of the respondent’s unreasonable conduct, especially when viewed cumulatively, which is designed to take advantage of her as an unrepresented party.[22]In relation to Issue 4 , she makes the same point, pointing out that all alleged errors seem to favour the respondent.[23]In relation to Issue 5, whilst the claimant accepts that Mr Roebuck, her successor, cannot be used as a comparator, she nonetheless seeks to establish that the offer letter to Mr Roebuck as disclosed by the respondent is not authentic. She seeks disclosure of his P60 and payslips to confirm, or otherwise, that his salary is as set out in the offer letter. She contends that if this is shown not to be the case, this will prove that the offer letter is a falsification. This is a highly relevant issue to her application in terms of the respondent’s conduct. Other matters relating to disclosure. 12 of 20[24]Finally, the claimant rightly points out that the preliminary hearing was to deal not only with her application to strike out the response, but also any outstanding disclosure issues. In that regard, she sets out her further disclosure requests. In passing, the relevance of the ICO request is further to show unreasonable conduct on the part of the respondent.[25]She sets out her request for documents relating to her grievance, in so far as she contends that she raised one, at the latest by 17 April 2019. She goes on to refer to documents relating to what she describes as her “whistleblowing” report, relevant to her victimisation claim.[26]The claimant then goes on to deal with the respondent’s cross – application for disclosure of her payslips in her new employment, which she contends she has sent to the respondent. She repeats her request for further disclosure in relation to the pay of Mr Lanty.
The law
[27]The relevant law is contained in rule 37 of the 2013 rules of procedure which provides:[37]Striking out(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above. 28. There are two stages to the consideration of this application. The first is whether the Tribunal is satisfied that there has in fact been unreasonable conduct on the part of the respondent. The second is, if so, whether the response should be struck out as the 13 of 20 appropriate sanction for that conduct. The two-stage test was recognised in HM Prison Service v Dolby [2003] IRLR 694, EAT, at para 15; approved and applied in Hasan v Tesco Stores Ltd UKEAT/0098/16 . The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim, order it to be amended or order a deposit to be paid. In Hasan, the EAT held that the failure of the employment judge in that case to consider 'whether to exercise his discretion in favour of not striking out following his finding that the claims had no reasonable prospect of success' amounted to a clear error of law (para 18). According to Lady Wise, the second stage is important as it is 'a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit' (para 19). Whilst these cases refer to “claims”, the principles apply equally to responses. Discussion and ruling. 29. The Tribunal makes the following determinations. Much of the claimant’s application relies upon alleged failures of disclosure by the respondent. In relation to disclosure generally, there is clearly a difference of view between the parties. There are two aspects to this. Firstly, there is the aspect which relates to documents that the respondent concedes have not been disclosed, but contends that the reason for this is that they do not exist. As observed, the Tribunal cannot order disclosure of something which does not exist, and determining whether it does or does not exist, without hearing all the evidence , cannot easily be done in a preliminary hearing. The claimant can point to expectations and likelihood, but without, in effect a “mini – trial” , it is hard to make such determinations of fact. It is hard, therefore, also to determine that any alleged failure to disclose has been deliberate. The second aspect is where the respondent agrees that there is documentation, but disputes its relevance. There is, it turns out, less of that than first appeared, and the respondent has, albeit the claimant would say grudgingly, and in piecemeal fashion, given some further disclosure, but she feels there is more. 30. Much of the claimant’s application is predicated upon the basis that in : withholding material that she claims the respondent in fact has; not including in the proposed hearing bundle documents that had been disclosed, and she considers should be included; promising to disclose documents that are then claimed not to exist; putting forward what she claims are incorrect (she would say false) documents or statements;and refusing to disclose documents that it accepts exist, but claims are irrelevant the respondent is guilty of unreasonable conduct, entitling the Tribunal to strike out the response. 31. Dealing with the first of these, the respondent does not, of course, accept that it has behaved unreasonably in the conduct of the defence to these claims. In relation to 14 of 20 the claimant’s specific contentions that it has, it submits that in relation to each instance there has either been a genuine error, or there is a genuine dispute as to the existence of, or the relevance of , the documents that the claimant seeks, and has sought. It is clear that the claimant and the respondent disagree as to the relevance of some of the documentation which the claimant says either it has failed to disclose, or, alternatively has previously failed to include in the hearing bundle, or still maintains should not be included. 32. Dealing with the claimant’s grounds, there are two admitted acts of the respondent in its conduct of the response upon which the claimant relies, and which should be considered first, as they are not in dispute. The first is Item 3, Mr Lanty’s travel schedule. The respondent concedes that the information originally provided was incorrect, and has been corrected. This, the claimant contends , shows unreasonable conduct. The allegation is that the original information was deliberately misleading, and the respondent has been forced to correct it. 33. The Tribunal does not accept that is necessarily so. It may be, and it is clearly fertile ground for cross -examination, but it equally may simply be sloppy and inaccurate preparation on the part of the respondent. 34. Similarly, the claimant complains that a page was missing from her job description when the respondent prepared the draft hearing bundle , Item 4. This is perhaps the high point of this ground of the application. The claimant contends this was deliberate, and intended to disguise the true position, to the detriment of her case, which the respondent hoped she would not notice.. 35. The respondent refutes this allegation, contending that any such omission was clearly unintentional, and was simple human error. The point is made that such an omission would be, as has proved, pointless, as the claimant would be aware of and alive to it, as she knew what the document should contain. 36. Whilst understanding the claimant’s concerns and suspicions, particularly against the background of the other issues she has raised, the Tribunal is not satisfied that this was a deliberate omission , done with the intention of weakening the claimant’s case. If it was, it was a clumsy and pointless exercise. The Tribunal does not accept that this was unreasonable conduct. 37. The remaining grounds really boil down to issues about disclosure. A genuine disagreement as to relevance is not unreasonable conduct. Parties often have differing views as to the relevance of documents to the issues in a case, and it is ultimately a matter for the Tribunal to determine whether a document or class of document is or is not relevant to the issues before it.[38]In the case of the documents relating to the remuneration of Mr Roebuck, the Tribunal considers that there is a genuine dispute as to relevance, and the respondent has not acted unreasonably in taking the stance it has as to their disclosability . The claimant seeks yet further documents to prove that his offer letter is false. There is no foundation laid for this, other than the claimant’s suspicions, aroused by the manner in which his offer letter was disclosed. She could be said, therefore , in short, to be fishing, for something that may prove this. That is not, however, a determination of whether she 15 of 20 is or is not entitled this material, it is however, a highly relevant factor in whether the Tribunal should regard the respondent’s failure to provide this material as unreasonable conduct. It is not, it is a legitimate stance to take, which may or may not be vindicated.[39]The same is also true of the remuneration of Mr Lanty. The respondent has now given disclosure of his P60, but the claimant is not satisfied with this.[40]This is a general ground, that the respondent has not given full disclosure. There is some basis for this view, and the two examples cited by the claimant in her submissions of 26 June 2020 do suggest that there may be more. That said, the second example cited, the letter from Amanda Whitehead of 17 May 2019 does come at a time when the claimant had started the early conciliation process with ACAS, on 25 April 2019, which did not end until 24 May 2019. This letter was therefore during that period, and actually refers to the ACAS correspondence. It may, therefore, arguably be part of the early conciliation process, and any emails from ACAS to the respondent, and vice versa, or indeed between the claimant and ACAS at this time are probably not disclosable, unless both sides are prepared to waive any privilege. Be that as it may, whilst suggestive that there may be more email documentation , notes, or other materials, the Tribunal is not satisfied that this is necessarily so, and considers this a matter to be pursued in cross – examination. The Tribunal is not persuaded , on this basis, that the respondent has behaved unreasonably.[41]By way of general observation, issues of relevance are not always best determined at the preliminary hearing stage. The best judges of the potential relevance of any documents or material are the Tribunal Panel conducting the final hearing. They, fully seized of the matter, with the benefit of all the other documents presented by both parties, and the witness evidence, will be in the best position to determine relevance. Similarly, as the existence or otherwise of any particular document is a question of fact, they too will be better placed to consider whether any assertion that a document does not exist is correct. Nothing in this judgment is, or could be, any final determination of relevance or disclosability of any document. Rather the Tribunal’s task has been to decide whether the respondent’s conduct has been shown to be unreasonable.[42]Whilst sharing some of the claimant’s misgivings, and understanding her feelings, the Tribunal is not persuaded that the respondent’s conduct has been shown to cross the boundary of reasonableness, though it may be close to it. That is sufficient to dispose of the application, but , even if, however, so satisfied, the Tribunal would have to go on to consider whether the Draconian sanction of striking out was appropriate, and in particular if a fair trial was still possible. In the Tribunal’s view it still is. The issues around disclosure are likely to arise upon the evidence, and the Tribunal hearing the claims will doubtless be highly vigilant as to whether any further disclosure should be given , or may draw inferences from the absence of disclosure that it would expect from the respondent. The Tribunal sees nothing which is so dramatically relevant to the main claims that the claimant makes but which is missing , so as to severely hamper her case, particularly on liability, that would require it to hold that a fair trial is not possible. The application therefore is dismissed. Disclosure. 16 of 20[44]As the claimant rightly points out , the preliminary hearing was not only to determine the claimant’s application to strike out the response, but also any other issues about disclosure. Sadly, there remain such issues. The claimant still seeks further disclosure of the various documents referred to in the application, particularly in relation to the remuneration of Mr Lanty and Mr Roebuck, and any internal documents realting to HR involvement with her “grievance”.[45]The respondent, by the same token, seeks disclosure from the claimant of payslips in her new employment. It is a remarkable and lamentable feature of this litigation that the parties cannot even agree whether the claimant has or has not given full disclosure of her payslips in her new employment. She says that she has, the respondent says that she has not. This must be capable of a simple resolution.[46]Clearly some unfortunate events have occurred in this case, such as the erroneous sending of a bundle to the claimant’s previous address, of which she again complains and contends that this was unreasonable conduct. Whilst this has been explained as an innocent mistake following a change of personnel within the respondent’s solicitors, it has done nothing to foster trust on the part of the claimant.[47]The Employment Judge is not now going to make any ruling upon further disclosure. As observed above , the Tribunal Panel will be in a much better position to do that once it is familiar with the case. Any such applications, from either side, will be held over to the start of the hearing. Without tying the hands of the Tribunal conducting that hearing, it may be best placed to decide any such applications once it has completed its initial reading.[48]To that end, however, where there is no issue but that documents exist, but there is an issue as to whether they have been, or should now be, disclosed, each party should attend (or appear by CVP) the Tribunal with copies, or electronic access to them, so that if any application made is granted, the Tribunal and the parties can then be provided with any further material that the Tribunal may order.[49]Whilst such piecemeal and late disclosure is regrettable, given that a six day hearing is listed, and such eventualities are not uncommon, the Employment Judge sees no reason why the hearing should not at least commence. Any consequences arising out of any late disclosure that is permitted can be considered by the Tribunal at the time.[50]The Tribunal would add this, by way of further observation. The equal pay claim is a like work claim. The respondent accepts that the claimant’s comparator , Mr Lanty, was paid more than she was. It may also be the case that her successor Mr Roebuck was too, but that is of limited relevance. The first issue in a like work claim, however, is whether the claimant and her comparator were engaged on like work. If they were not, it does not matter how much more than the claimant her comparator was paid. The focus upon what pay Mr Lanty and Mr Roebuck received is therefore rather misplaced , when the real issue is whether the claimant and Mr Lanty were engaged upon like work. It is appreciated that the claimant may require such information for formulating her loss of earnings claim, but that is quite a separate matter. The material factor defence (which, it is presumed , will be considered at the same time, and upon the same evidence) likewise is unlikely to require evidence, at the liability stage, of what Mr Lanty’s higher earnings in fact were. 17 of 20 Amendment.[51]Finally, whilst disclosure was an issue that was before the Tribunal in the preliminary hearing, amendment was not. Potential amendment arose on both sides. For the respondent, it made an application on 23 June 2020, by email , to amend the response in relation to remedy to plead , in a new para. 37 in the Grounds of Resistance, that the claimant would have been dismissed in any event, had she not resigned, for taking unauthorised absence on 25 February 2019, which she took as paid sick leave.[52]In its submissions received on 10 July 2020, at para. 24 , the respondent does not pursue this application at this time. It is therefore, taken as withdrawn.[53]For the claimant , however, she appears to be under the impression that her claims include a claim of “victimisation”. She clarifies this in her further submissions on 24 July 2020. She does so on the basis of an email (C pages 11 and 12) that she sent the Tribunal on 10 September 2019 (which she did not copy at the time to the respondent, but did on 16 September 2019 ) in which, having received the case management orders made on 20 August 2019, she said this: “Within my ET1 and Agenda form I had included aggravated damages in relation to victimisation which seems to have now been discounted or missed. In light that I was representing myself and am not legally trained I appreciate that I may not have been correct in my legal terminology , however, I tried to the best of my ability to include the details of discrimination and/or victimisation within my ET1 around the details of events. I therefore ask the tribunal to include the victimisation claim within the case management summary.” The claimant then sent the Tribunal an email on 20 September 2019 to which she attached Further Particulars, and other documents, and again on 27 September 2019 she sent a further email attaching her Schedule of Loss. In that document, in three instances, she uses the term “Victimisation”.[54]By letter of 6 November 2019 to the claimant , copied to the respondent, the Tribunal acknowledged the claimant’s emails of 20 and 27 September 2019, but made no mention of her email of 10 September 2019. The claimant claims that it was confirmed to her in a telephone call to the Tribunal on 18 November 2019 that “victimisation had been added”. There is no record on the file of this, and whoever may have informed the claimant so had no authority to do so.[55]By email of 12 December 2019 to the Tribunal ( C - page 28) , again not copied to the respondent, the claimant sought specific disclosure from the respondent. That was copied by the Tribunal to the respondent, whose comments were sought upon it, by letter of 4 January 2020 (C – page 32) . In her application of 12 December 2019 the claimant made two specific references to victimisation. The respondent’s response on 17 January 2020 ( C – page 38) disputed the claimant’s application on various grounds, and did say that the requested documents were not relevant to her pleaded claims. No specific reference, however, was made to victimisation.The claimant had , by then, of course, on 15 January 2020, made this application. 18 of 20[56]The position therefore, the Employment Judge considers, is this. The claimant’s claims did not include, or were not understood to include, any claim of victimisation, which would fall under s.27 of the Equality Act 2010. The claimant , by her email of 10 September 2019, did query this with the Tribunal, but, unfortunately this was never specifically addressed by the Tribunal. Equally, when the respondent was invited to respond to the claimant’s application for disclosure in which she used the term, no mention was made of the fact that there was no victimisation claim before the Tribunal. Hence this issue has, regrettably, been missed. This may be because the term was taken as being used (as indeed it may well be) in the lay sense of “being badly treated”. The term, however, has a specific meaning in s.27 of the Equality Act 2020, which requires the claimant to have been treated unfavourably because she had done a “protected act”. The act in question has to relate to the Equality Act, and would usually be some form of assertion by the claimant , in a grievance or otherwise, that the respondent had breached that Act. It was, and remains , unclear whether the claimant is seeking to make such a claim. If so, she would need to identify the protected act or acts, and then the allegedly unfavourable treatment to which she was subjected. That would require an amendment of her claims.[57]It may be, however, that the claimant on reflection, will not seek such an amendment. The context in which she has raised this issue appears particularly to be after she raised a complaint that Mr Lanty had acted improperly. That she refers to as whistleblowing. If that was the reason for her allegedly unfavourable treatment, that would not be any form of claim under the Equality Act 2010, but would potentially seek to add a whole new cause of action under protected disclosure.[58]Further, if the real relevance of what the claimant terms “victimisation” is simply bad treatment of her which increased the injury to feelings that she suffered, this is not a new claim as such, it merely falls to be considered in the overall context of the appropriate award for injury to feelings.[59]To be clear, however, the claimant does not presently have any victimisation claims before the Tribunal, and she would need to seek to amend to include any such claims, providing the necessary details outlined above. For completeness, the three bullet points at the end of the first page of her submissions of 24 July 2020 are not sufficient particularisation of any proposed victimisation claims. The protected act(s) relied upon must be specified with dates , to whom they were made, and why they amounted to protected acts. Similarly, the dates, perpetrators and details of each act of unfavourable treatment would be required for any such application to be considered. The Tribunal is not encouraging any such application, which, if made, and successful , may lead to other consequences, but it is important that the claimant is clear what claims are , and are not, before the Tribunal.[60]The Employment Judge apologises that these applications could not be determined any sooner before the commencement of the final hearing, but trusts that then parties will appreciate why this has not been possible. 19 of 20
Remedy
[61]The meeting on 20 March did not go ahead. The claimant contacted AW to say that she needed to go to Gargrave on that day. The claimant claims to have met AW face to face at the respondent’s Ashton office on 19 March 2019 and offered to meet with her on that day. AW claims that they spoke over the telephone. Whichever version is correct, the meeting on 21 March did not go ahead.[62]AW’s evidence is that, following her discussion with the claimant on 20 March, she felt that it was unlikely that the claimant would take matters further. She emailed the claimant late on 21 March (18:11) in the following terms:- “Good evening Nicola, as we have [not] had a chance to discuss the matter this week, I just wanted to confirm to you that the company has accepted the retraction of your notice and your employment will continue without disruption. For the avoidance of any doubt in the future, I would like to take this opportunity to clarify that your notice period is 3 months. I trust this brings matters to a close however please do not hesitate to contact me if you wish to discuss this or any other matter in more detail.”[63]The claimant responded on 25 March 2019, with a long email which ended with the claimant’s second formal notice of resignation. The claimant maintained that her notice period was still one month and that her last day of employment by the respondent would be 26 April 2019.[64]In this email the claimant also stated that she had felt pressurised in to retracting her resignation. She set out in some detail what her concerns were including in the following paragraph:- “The facts are pretty clear; Graham has a global spend of 47 million. Mine equates to 118 million. On top of this I have a larger volume of renegotiations for Gargrave synergies as outlined above on top of project Quantum outsourcing. With this in mind I would appreciate that you provide me with a copy of Scapa’s Equal pay policy and Equal rights policy. I am fully aware that Graham’s salary is higher than my own along with a higher % bonus structure. That being said as I have brought up many times this issue is not about remuneration. This issue is about unfair workload and treatment which is multi-faceted.”[65]The claimant also stated that she was not valued and that she was given considerable responsibility at such an early stage of her employment with the respondent. She claimed that her responsibilities were much greater than Graham’s. “The question begs as to if Graham is the more experienced and senior person as indicated then why was he not given this critical project? Why am I responsible for a much higher spend, in categories that have been neglected and need further work to reduce vulnerabilities? Why am I expected to leave my home at 5.00am to travel, knowing full well I have a young child at home? Yet my opposite number does not have these constraints, is paid more than me, seen as superior to the and there is no resolution from Scapa to address this.”[66]Clearly, as at the date of the second resignation, the claimant was raising issues of pay discrepancy between her and GL as well as the issue of unfair work burdens being placed on her. The claimant’s complaints following the second resignation[67]We note our findings of fact:-(1) The claimant was absent due to sickness following her second notice of resignation and she did not return before the termination of her employment.(2) Within the respondent, there were discussions and email exchanges about whether the claimant was entitled to contractual sick pay and whether to move her leaving date forward. We have no criticism of the respondent’s consideration of these issues.(3) Initially the claimant was provided with an opportunity to have the issues she raised addressed but she declined, stating she just wanted a clean break and to move on (email exchange 2-4 April 2019 at pages 262-4).(4) Also on 4 April 2019, AW informed the claimant that no bonus payment would be made to her. On 11 April (the last date of employment as agreed between claimant and respondent) the claimant asked for a copy of her “bonus letter.” On 16 April 2019, claimant wrote again, noting that she had not receive the bonus letter and claiming an entitlement to a pro rata bonus amount of £10,833 (p267).(5) On 17 April 2019, respondent sent a copy of the bonus letter to the claimant. The terms of the bonus letter make clear that, in order to qualify for payment, an employee must be employed on 1 June in the relevant year (assuming that the bonus scheme is making payments).(6) Also on 17 April, the claimant replied by email to say that respondent was missing the point that she had initially resigned on 6 April 2019, “as a result of direct discrimination, unfair treatment and workload plus lack of equal pay.” (Page 268)(7) The terms of this email also include the following:- “due to feeling that I just wanted to get out of this situation with urgency and it having an impact on my health I pushed to leave the business as soon as possible. Under normal circumstances of leaving for other normal courses I would have been subject to 3 months’ notice as per your statements prior. Following on from that and the pressure plus in effect bullying I was subjected to in order to stay within employment at Scapa. Again which you were aware of and has been raised my health and well-being deteriorated further resulting in my 2nd every notice of resignation on the 25th March 2019 and subsequently my sickness absence from work due to stress at work-clearly stated on my doctor’s note.” “Despite my decline to raise an official grievance at the time due to upset, stress and emotional distress coupled with the physical effects this situation was having on me, as a company you have failed to address the very serious issues I raised as expressed to you on the telephone as you have simply advertised my role back in the market as it was. Despite the business recognising previously that the workload required to people and despite the business being aware they had breached discrimination and unfair treatment with myself, it is clear Scapa are happy to do that again to the next candidate to take up my role.”(8) The claimant also offered to enter the “official grievance route” should the respondent wish her to do so. The claimant also noted that, had she not had to leave Scapa, she would have received her bonus payment and she considered that the payment was due to her on this basis. She asked the respondent to reconsider the position in relation to bonus payment or she would bring an Employment Tribunal claim.[68]The respondent declined to make the payment the claimant was insisting on, referring again to the bonus terms. The parties did not agree settlement terms.[69]For the avoidance of doubt, applying the terms of the respondent’s bonus scheme, the claimant had no entitlement to bonus. The terms of the scheme required an employee to be in employment on 1 June following the end of the previous financial year. We also find that the respondent’s bonus scheme did not make any payments for financial year 2018/19 Was the claimant’s work the same or broadly similar to that of the comparator?[70]Both the claimant and GL were employed as Global Category Procurement Managers. The role descriptions for both were the same. When the two GCPM roles were created in 2011, the same candidate briefing document was used when recruiting to both roles[71]In terms of work actually carried out, whilst each had their own categories, both carried out the same procurement tasks in their respective categories. Both were required to bring and maintain a global strategic focus to large parts of their categories; both were required to negotiate and agree supply agreements with a range of suppliers; the supply agreement template that both worked from and negotiated to was the same; both engaged in supplier relationship management and both sought to achieve the best value for the respondent from the suppliers; both worked with the various businesses within the Scapa Group, particularly in Europe and North America (USA and Canada).[72]The claimant’s activities included involvement in outsourcing. Whilst this may initially appear to be a different area of work, it was not. The claimant’s involvement was in the procurement of outsourcing. It was a category of procurement that was part of her GCPM role. Further, GL was also responsible for the procurement of some outsourcing manufacturing (see for example reference at page 389 to outsourcing arrangements being managed by GL including Eurotec/Ritrama, Italy and AA/Custom Laminating USA). What differences were there between the work that the claimant carried out and the work that Mr Lanty carried out?[73]The respondents have claimed significant differences between the 2 roles; particularly in relation to:-(1) The categories;(2) The particular expertise and knowledge required to undertake procurement in the chemicals category;(3) The difference in spend that the claimant and GL were responsible for;(4) the claimant’s claimed engagement in activities other than procurement – noting particularly her engagement in Projects Quantum and Yorkshire. We comment on each in turn.[74]The claimant and the comparator were responsible for different categories of procurement. As noted above, we do not find that this in itself, amounted to a significant difference in the work actually carried out. Each applied their procurement skills and experience to their categories, carrying out substantially the same activities.[75]The respondent provided a number of examples which it claimed, demonstrated the complexity of chemicals procurement compared to procurement in other categories.[76]One example was that the claimant would procure “drop in” products (such as a form of packaging) whereas at times GL would undertake procurement of specific raw materials which, when combined, would produce an adhesive product. We find that the role undertaken by GL in such exercises remained a procurement role. The respondent engaged technical experts to create and/or understand formulae of the respondent’s products and therefore what was required. GL would then, in his procurement role, be able to identify and secure the best supplier for those products on terms which he negotiated and agreed.[77]Another example was the application of GL’s extensive knowledge specific to the chemicals sector and that he was the person within the respondent and wider group that was able to source, provide and use, up to date market information for example about pricing, supply and threats to supply. We find that GL does have extensive knowledge of his procurement category. This knowledge has been acquired over the many years that GL has worked in chemicals procurement including nine years with the respondent. The claimant demonstrated that a fair amount of the knowledge the respondent claimed that GL had was in the public domain and demonstrated to us that market knowledge relevant to a procurement category is an important part of the role of a senior procurement professional. We find that the requirement to acquire, understand and use market knowledge of a particular category or sector, is an essential part of a senior procurement role and carried out by the claimant and by GL.[78]We also note, in relation to the claims of particular complexity of chemicals procurement, that the recruitment documentation in 2011 (for the exercise when GL was recruited, merely required chemical knowledge as preferable, not required. We find that to be particularly telling. The role required the application of procurement expertise in a chemicals category. It did not require chemicals expertise.[79]The respondent also claimed that GL was responsible for a higher spend than the claimant. The claimant claimed it was the other way round, relying on a power point presentation from November 2018 (pages 213A -M, particularly page 213E). Page 213E shows, in a pie chart, that the categories that the claimant had responsibility for had a spend of £118million throughout the Scapa Group whereas the chemical category spend was £47.8 million. The respondent’s claimed that this was far too simplistic as the claimant was not responsible for a large amount of spend within that total of £118 million. They provided a more detail at page 389/90 (which was referred to as the “Yellow Document”) which showed that there were considerable areas of the substrates, outsourcing and packaging categories that were not her responsibility as they were GLs or PSs responsibility or were part of a localised procurement process, carried out by the local businesses in Europe and north America. In fact, claims the respondent, the spend that GL was responsible for was about £10 million higher than the claimant’s spend responsibility.[80]We find that the claimant’s responsibility was not £118 million compared to a spend responsibility of GL of £47.8 million and that matters were much less straightforward, as indicated by the Yellow document. However, we also note that the claimant had not been recruited in to a settled role. The categories of packaging and outsourcing did not have a global procurement strategy, whereas there had been a development of a global strategy for the chemicals and substrates categories, since the creation of the two GCPM roles in 2011. Part of the claimant’s role was to develop a global procurement strategy for the packaging (and outsourcing) categories as well as to maintain and improve the existing global procurement strategy in substrates. Having considered all of the evidence, we find that the spend responsibilities for the two GCPM roles was not significantly different. How was the pay of the claimant assessed/evaluated?[81]The respondent recruited in to the relevant GCPM role in the first half of 2018. We have seen the wording of an advertisement for the role. It states the salary applicable to be £65,000 to £75000 and also sets out additional benefits applicable including a “bonus up to 20%” a car allowance, pension, healthcare and share scheme.[82]There was therefore a wide range of potential salaries applicable to the role. The respondent decided that the range of £65-75,000 was appropriate for the role.[83]PS and JM provided evidence of benchmarking within the respondent and their reliance on external consultants called Towers Watson. JM described to us an exercise of providing role descriptions to Towers Watson who then consider information from a variety of sources and respond with a salary range. The salary range provided by Towers Watson in relation to the GCPM role was: Lower £49,900 Upper £74,850.00 Median £62,375[84]These figures are set out by PS in an internal email dated 28 May 2019 as well as in an email from an employee called Robert Birley to JM. We note the following in relation to the figures:(1) It is apparent that the respondent sought benchmarking data from Towers Watson in relation to the GCPM role. They did not seek separate data for two separate roles.(2) The data obtained was stated to be relevant to GL’s performance review for 2019.[85]We find that the respondent does use the services of Towers Watson in order to be informed on an ongoing basis about whether the salary rates are competitive. The salary range chosen for the GCPM recruitment exercise in 2018 fitted with the information provided by Towers Watson. The respondent was willing to pay at the upper end of that range.[86]Cast UK introduced the claimant to the respondent. Cast provided the claimant’s CV which stated, “PACKAGE SOUGHT £65,000” (page 101).[87]This was in keeping with the salary range being advertised albeit at the lower end. Although “package sought” could be a reference to the remuneration package as a whole, we find it was a reference to the salary element of the overall remuneration package sought. The respondent has not sought to argue that the claimant did in fact ask for less than the value of the remuneration package she was provided.[88]The claimant’s CV demonstrated experience of packaging procurement as well as raw materials such as plastics and textiles. The CV showed the claimant had worked for a business called Minky (Vale Mill) for 6 years (2006-12) as a senior buyer, where she had been responsible for a spend of 6 million and had deputised for the company’s purchasing manager. Since 2012 the claimant had been engaged as a consultant on a series of shorter term contracts, the longest having been for a year with Tata Chemicals, where she had managed the packaging procurement category and had been responsible for a category spend of £9 million. Whilst the 12 months the claimant spent at Tata, provided experience in the chemicals industry it was not specifically chemicals procurement. The CV also showed the claimant gaining experience of procurement at an international level.[89]The claimant was offered the position with a salary of £65,000. Her evidence is that she asked the recruitment consultant whether she thought there was scope for the respondent to go higher than this and the recruitment consultant replied that she did not think so. The claimant accepted the offer. There was no negotiation about salary level directly between claimant and respondent.[90]PS set the salary range in consultation with CAST; that CAST (and other recruitment agencies used) would have a good knowledge of candidates on the market and their expectations and in the exercise that the claimant was recruited from, the respondent was provided with details of a range of interested candidates with a range of salaries. PS also noted that if there was a preferred candidate who, due to their experience commanded a higher salary, even one up to and including £75,000 then he would have considered it.[91]PS informed us (and we accept) that CAST were paid a recruitment fee which was a percentage of the annual salary of the successful candidate. There was some incentive therefore for CAST to try to negotiate a higher salary.[92]In relation to the setting of the salary of £65,000 for the claimant, PS noted that the CV had stated that the package sought was £65,000 and he had assumed that the claimant and CAST had discussed and decided on the value of package sought. The package sought fitted the salary range that the respondent had decided was applicable to the role; he offered the role to the claimant at that salary and that is what was agreed. How was the pay of GL assessed/evaluated?[93]There is more limited evidence about the recruitment of GL and particularly the decision about his salary. GL was recruited in 2011 and his starting salary was £63,000. We have no evidence about how this salary was set. We do not know (because no evidence has been provided) whether for example whether a salary range had been identified for the role (as it had when the claimant was recruited) and if so where the salary of £63,000 fell within any salary range.[94]JM had some recollection of supporting PS with the recruitment in 2011. It is understandable that JM’s recollection was not all that good. She was being asked to recall events of some nine year’s previously. JM recalled that the respondent had not at that stage engaged Towers Watson to undertake their salary benchmarking. JM recalled that PS was keen to recruit someone with chemicals experience. JM also recalled that the salary was set having talked to recruiters and gained an understanding of the market at the time.[95]We find that GL had significant procurement experience in the chemicals sector when recruited in to the role. He had spent some 14 years working in procurement roles with Novartis/Syngenta (a large chemicals company based in Switzerland) and then shorter periods working for Dannone and Rentokil. Whilst this was not essential for the role it was identified by the respondent as a desirable criterion. Clearly, GL met it. We accept that was worth something to the respondent.[96]PS’s evidence is that it is harder to find candidates with chemicals procurement experience and, when found, they would generally command higher salaries as they would tend to be recruited from large chemicals/petrochemicals companies. We have no independent evidence that this is the case and we note that GL’s role prior to his employment by the respondent was £55,000 (although other aspects of the remuneration package – we note a 30% bonus – may have been more valuable).[97]The respondent recruited Michael Maude (MM) in to the other GCPM role in 2012. Mr Maude’s starting salary was £60,000, therefore £3000 less than GL.[98]Both GL and MM received pay increases over the years of their employment. At the point of the claimant’s recruitment and during the whole time that the claimant was employed by the respondent (28 July 2018 to April 2019) GL’s salary was £71,291. As at the termination of his employment, MM’s salary was £65,800.[99]The respondent broadly looked at increases in salary for its more senior employees on 3 levels – where an employee had underperformed, they would not receive a salary increase; where an employee had provided satisfactory performance they would receive the increase that had been decided as a “standard” increase for that year; where an employee exceeded expectations, they would receive a higher than standard increase. GL’s salary increased from the initial £63000 to £71,291 due to salary increases received by him. He received standard increases but no higher than standard increases. What therefore is/are the reason(s) for the difference in salaries?[100]It is not the respondent’s evidence that there was a comparison of the claimant’s salary and GLs salary or a conscious justification of their differences at the point of the claimant’s recruitment. We find that no conscious comparison of salary took place.[101]As already noted, the respondent had a salary benchmarking method for these roles. From the benchmarking information received it applied a salary bracket to the GCPM role. The salary of its existing employee (GL) and new recruit (the claimant) fell within the salary bracket it applied to the role.[102]In the workplace/industrial experience of the Tribunal members, employers do sometimes advertise for posts, noting that a salary will fall within a particular range. Applicants, particularly to more senior and/or strategic positions may provide a range of different experiences and other offerings to the recruiter and one applicant may reasonably expect to receive a different salary to another applicant. The GCPM position was such a role.[103]The difference in salaries arose from the respondent’s decision to operate with a salary range for the GCPM role, rather than a fixed salary for the role.[104]As noted above, we find that the respondent did not consciously carry out a comparison of the claimant’s pay with GL’s pay when recruiting the claimant and agreeing her salary at £65,000. However, having regard to the experience that GL had at the point of his recruitment and particularly to the knowledge and experience gained over the years since his recruitment, we find the extent of the difference in the two salary levels to be unsurprising. We note here too, that the salary of MM on his departure was £65,800 and the salary applied to the claimant’s successor on recruitment was £65,000. What was the reason for the difference in bonus levels?[105]The respondent operated a bonus scheme. Bonus payments were based on a percentage of salary. Different bonus percentages applied to different categories of employees. The bonus percentage applicable to the claimant was 20%; that applicable to GL was 25%. Having heard and considered the evidence, particularly from JL, we make the following findings of fact:-(1) The respondent’s bonus arrangements were simplified in 2012. Prior to then there had been a larger number of bonus percentage categories. That number was reduced in 2012 so that the bonus percentages applicable were – 40% (executive level) 20% (senior/management level) and 10% (other employees).(2) The respondent decided that it would not change the potential bonus percentages of existing employees, where they were greater than the percentage that they would qualify for under the new arrangements. GL and MM had qualified for a 25% bonus. That percentage remained even though they were in a category of employees that, going forwards, would only receive 20%.(3) When employees were recruited after 2012, they were provided with the new bonus percentages. In the claimant’s case, this was 20%.(4) The “freezing” of the 25% bonus percentage applied to all employees then in post who qualified for the percentage, regardless of gender. Only three such employees are still in employment with the respondent. All are male. GL is one of those.(5) The respondent acquired the business in Gargrave and employees there had their own bonus percentage entitlements. The respondent did not change these.(6) The respondent did not make a bonus payment to employees for the 2018/19 financial year. Was there a requirement to work during holidays?[106]We find that the respondent did not require the claimant to work during her holidays. The claimant did attend – remotely – some meetings during the holidays that she took during half term. We find that she did so because she decided that it was better that she did this. She regarded the meetings as important enough and she was, at that early stage in her employment, finding her way and also to an extent asserting her position.[107]There was also a meeting scheduled to occur during the claimant’s holiday that she had received an invitation to and she declined that invitation. The decisions about attending meetings and declining invitations were the claimant’s alone.[108]The meetings attended by the claimant took up a few hours on one of her days of annual leave. Other days were undisturbed.[109]There have also been occasions when GL has undertaken work during annual leave. Those occasions are rare but he gave us a specific example and we accept his evidence in relation to this.[110]The respondent is not an employer who requires its employees (including the claimant) to undertake work during holidays. Occasionally there are circumstances when it is beneficial for one of its senior employees to take a call, reply to an email or attend a remote meeting/conference call whilst on holiday. In our industrial/workplace experience, this is not unusual and a senior manager sometimes prefers to be involved on those rare occasions when an activity needs to occur whilst they are on annual leave and there would be a significant advantage in them being involved.[111]We do not find that there were any different requirements or expectations on the claimant as there were on GL. What was the reason/were the reasons why the claimant terminated her employment with the respondent?[112]Our findings are as follows:-(1) The claimant applied for and was offered a role with AstraZeneca (AZ). The claimant had contacts there and had previously worked for AZ as a procurement consultant.(2) The claimant made her application in December 2018 and was offered the role at the beginning of March 2019.(3) The claimant was unsure about whether to accept the role or to remain in employment with the respondent. She had made an excellent start to her employment with the respondent, but was concerned about the travel and the workload. The role with AZ was based close to her home.(4) The claimant accepted that the workload issues with the respondent may be short lived as they were impacted by the year end and the two projects.(5) The claimant handed in her notice but even then remained uncertain about the decision.(6) The claimant was persuaded to stay, following discussions with PS and SD particularly. She remained uncertain however and the offer of employment with AZ remained.(7) In the days that followed, the claimant decided that she was unhappy about her having been persuaded to stay. She was also unhappy about the communication with Amanda Whitehead in the period 20-25 March 2019.(8) The claimant had little regard for GL and a higher regard for herself as a procurement professional. The claimant had considered that she was working harder than GL and he should have been provided with more work in order to ease some of her own workload. Those feelings grew, particularly in the lead up to her second resignation.(9) By the end of her employment she had built up a sense of grievance or resentment in relation to GL but this was not a well-informed position. Allegations of other discriminatory comments/practices[113]In her witness statement, the claimant mentioned a number of employees who, she claimed, suffered discriminatory treatment. The purpose of this evidence was to provide some indication to the Tribunal that the respondent is an uncaring employer, whose senior employees are prepared to engage in acts of gender discrimination. The claimant, in her submissions has claimed that the respondent ins blind to discrimination and it does not promote or encourage an inclusive and diverse workforce.[114]We considered the claimant’s responses to cross examination on these examples as well as the evidence from the respondent’s witnesses, particularly JM, denying these allegations and explaining the circumstances. The examples provided involve former employees Claire Charlesworth, Ellie Hines and Katherine Baxter. The matters raised by the claimant in relation to these employees are not directly relevant to the issues that we need to decide and we do not therefore deal with them in any detail in this judgment. We accept the evidence of the respondent’s witnesses. It was clear that the claimant had little first-hand knowledge of the matters raised by her and in relation to each issue raise, the respondent’s witnesses provided an account which we accept.[115]We also note and accept the evidence of JM about her own experience as a female senior employee of the respondent and her evidence that there are two female members of the respondent’s senior executive team.[116]It is also relevant in this part of the judgment to record our findings about PS comments which he made to the recruitment consultants (CAST) shortly after having interviewed the claimant, which the claimant referred to on a number of occasions during the hearing. The comments are noted at page 308: “Nicola. Really good meeting. Video was shortest but sharp. Very keen on her but he wondered if she was interested in the role? Turned up without a handbag/folder etc... very unusual. Very engaging, very communicative, polished, focussed” ….[117]The claimant’s argument is that the use of the term “handbag” is gender specific and derogatory. We do not read the comment as a whole as being derogatory at all. It is complementary of the claimant. The reference to handbag in isolation probably is gender specific although it is tied with the term “folder.” PS explained the comments, that every other person he has interviewed has attended with some sort of bag or folder containing notes. It struck him as unusual that the claimant attended without any notes. We accept this explanation. We also note, of course, that PS was impressed with the claimant. She was the preferred candidate and the one who was offered the role. E. Submissions[118]The claimant and Mr Brochwicz-Lewinski provided written submissions documents which they supplemented at the hearing. We have given careful consideration to the submissions from both parties and the points noted below are only a brief summary. Claimant’s submissions[119]The claimant submitted that there was really no difference between GL’s role and hers and that, whilst GL had extensive procurement experience in the agrochemical and fertiliser sectors prior to joining the respondent, he was not a chemist. Both she and GL were recruited for their procurement expertise, to carry out procurement roles.[120]The claimant noted that the roles were so similar that there was just one briefing document created in 2011 (when recruiting in to the 2 roles) and one role description.[121]As for the respondent’s position on bonus, the claimant points to a lack of evidence that the 25% bonus level was protected across the respondent business.[122]As for the claims of direct sex discrimination, the claimant submitted that the evidence shows a culture within the respondents to be “aggressive, male authority dominated and pressurised with a significantly lesser regard for females.” She comments on the various examples she referred to in her evidence which she claims indicates this type of culture. She notes that the respondent refused to investigate her grievances.[123]The claimant submitted that GL was treated more favourably than she was including in relation to travel and workloads and the only difference between the two was sex.[124]The claimant submitted that the respondent pressurised her to stay in employment whist disregarding her complaints and then, when they realised that they could not just brush the complaints away, forced the claimant out of employment with no notice.[125]The claimant also submitted that information from the respondent has been inconsistent including spend documentation and responses from PS and GL regarding the comment the claimant claims was made by PS “don’t waste time travelling.” Respondent’s submissions[126]Mr Brochwicz-Lewinski made submissions on the law which we have considered when setting out our section on the law below.[127]Mr Brochwicz-Lewinski submitted that the 2GCPM roles were distinctly different to each other. The claimant was not only responsible for dealing with a different area of procurement but she had additional and separate elements to her role namely responsibility for outsourcing and packaging. These elements should not be ignored, relying on the Maidment decision (see below)[128]Mr Brochwicz-Lewinski also noted the claimant’s activities on the 2 projects noting that she took the lead and devoted much of her time to these whereas GL did not[129]As far as spend responsibility is concerned, referring to the “yellow” document at page 389, he notes that on a proper analysis the claimant was responsible for a smaller proportion of spend than GL. S[130]Mr Brochwicz-Lewinski’s submissions included detail as to the knowledge and experience that was required in the GCPM role held by GL which he had and she did not.[131]As for the respondent’s material factor defence (only relevant if the Tribunal find that claimant and GL were engaged on like work) notes that the differences in salary were justifiable based on:-(1) the claimant’s requested salary on recruitment;(2) the market rate of pay;(3) GL’s experience knowledge and expertise;(4) the greater difficulty in recruiting candidates with specialist chemicals procurement experience.[132]As for bonus, Mr Brochwicz-Lewinski notes the evidence from the respondent’s witnesses that the view was that the percentage of bonus to which an employee was entitled was regarded as fixed and, regardless of whether that position bears up to legal that was the position they held and is not discriminative[133]On the allegations of direct sex discrimination, Mr Brochwicz-Lewinski’s submissions are effectively that the allegations are not supported by the evidence that we have received. F. The Law Equal Pay[134]The relevant parts of the EqA provide as follows:- “65(1) For the purposes of this Chapter, A’s work is equal to that of B if it is - (a) Like B’s work. ……………….(2) A’s work is like B’s work if - (a) A’s work and B’s work are the same or broadly similar (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.” ………………………………. 66 (1) If the terms of A’s work do not (by whatever means) include a sex equality clause they are to be treated as including one. (2) A sex equality clause is a provision which has the following effect- (a) if a term of A’s is less favourable to A than a corresponding term of B’s is to B, A’s term is modified so as not to be less favourable; (b) if A does not have a term which corresponds to a term of B’s that benefits B, A’s terms are modified so as to include such a term.” ……………………………………….. 69 (1) The sex equality clause in A’s terms has no effect in relation to a 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 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. …………………… (6) For the purposes of this section, a factor is not material unless it is a material difference between A’s case and B’s.”[135]The EAT in Baker v Rochdale Health Authority UKEAT/0295/91 confirmed the 2 questions that Tribunals are required to consider and decide upon in “Like Work” cases: “The first question is - Were the [Claimants and their comparator] employed on work which was the same or of a broadly similar nature? …... Secondly, where there was a difference between the things which the [Claimants and their comparator] actually did, and was it a difference of practical importance in relations to the terms and conditions of service?” In answering that question the industrial tribunal will be guided by the concluding words of the subsection. But again, it seems to us, trivial differences, or differences not likely in the real world to be reflected in the terms and conditions of employment, ought to be disregarded. In other words, once it is determined that work is of a broadly similar nature it should be regarded as being like work unless the differences are plainly of a kind which the industrial tribunal in its experience would expect to find reflected in the terms and conditions of employment."[136]Mr Brochwicz-Lewinski has referred us to a number of authorities on the Like Work issue including Maidment and Hardacre v Cooper and Co [1978] IRLR 462. The judgment in that case made clear that we should not disregard any part of the work actually done. In that case the claimant’s comparator did undertake the same role as the claimant, both were employed as packers. However the comparator also undertook storeroom tasks. Those tasks could not be ignored when deciding whether claimant and comparator were employed to carry out Like Work.[137]In the case of E Coomes (Holdings) Limited v Shields [1978] IRLR 263, the Court of Appeal set out the approach to be followed in deciding whether a claimant was employed to carry out like work to her comparator. The reference to s1(4) below is to the Equal Pay Act 1970, which applied before the Equality Act 2010. 28. When a woman claims equal pay with a man in the same employment, she has first to show that she is employed on 'like work' with him. This is defined in s.1(4), which proceeds in this fashion: 29. First, her work and that of the men must be 'of the same or a broadly similar nature'. Instances of the 'same nature' are men and women bank cashiers at the same counter; or men and women serving meals in the same restaurant. Instances of a 'broadly similar nature' are men and women shop assistants in different sections of the same department store; or a woman cook who prepares lunches for the directors and the men chefs who cook breakfast, lunch and teas for the employees in the canteen — see Capper Pass Ltd v Lawton [1976] IRLR 366. 30. Second, there must be an inquiry into(i) the 'differences between the things that the woman does and the things that the men do'; and(ii) a comparison of them so as to see 'the nature and extent of the differences' and the 'frequency or otherwise with which such differences occur in practice': and(iii) a decision as to whether those differences are, or are not 'of practical importance in regard to terms and conditions of employment'. 31. This involves a comparison of the two jobs — the woman's job and the man's job — and making an evaluation of each job as a job irrespective of the sex of the worker and of any special personal skill or merit that he or she may have. This evaluation should be made in terms of the 'rate for the job' usually a payment of so much per hour. The rate should represent the value of each job in terms of the demand made on a worker under such headings as effort, skill, responsibility, or decision. If the value of the man's job is worth more than the value of the woman's job, it is legitimate that the man should receive a higher 'rate for the job' than the woman. For instance, a man who is dealing with production schedules may deal with far more important items than the woman — entailing far more serious consequences from a wrong decision. So his job should be rated higher than hers, see Eaton v Nuttall [1977] IRLR 71. But, if the value of the woman's job is equal to the man's job, each should receive the same rate for the job. This principle of 'equal value' is so important that you should ignore differences between the two jobs which are 'not of practical importance'. The employer should not be able to avoid the principle by introducing comparatively small differences in 'job content' between men and women: nor by giving the work a different 'job description'. Thus where a woman driver in a catering department drives vans within the factory premises to and from the kitchens and a man driver in a transport section drives vans on the public highway, it could properly be held that the differences were 'not of practical importance' and she should receive the same 'rate for the job' an hour rate as he, see British Leyland v Powell [1978] IRLR 57. Again in a hospital, the attendance on patients may be done by women called 'nurses' and men called 'orderlies': and there may be differences in 'job content' in that, while both do many similar things, the men 'orderlies' deal with the special needs of men patients, but these differences are not such as to warrant a 'wage differential' between the nurses and the orderlies — see Brennan v Prince William Hospital (1974) 503 Fed Rep 2nd, page 282.[138]The House of Lords in Glasgow City Council v Marshall [2000] IRLR 272 (“Marshall”) provided guidance on the consideration of material factor defences. “The scheme of the Act is that a rebuttable presumption of sex discrimination arises once the gender-based comparison shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man. The variation between her contract and the man's contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex. In order to discharge this burden the employer must satisfy the tribunal on several matters. 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, in a case within s.1(2)(c), may be a 'material' difference, that is, a significant and relevant difference, between the woman's case and the man's case.[139]The recent Court of Appeal decision in BMC Software Limited v Shaikh [2019] EWCA Civ.267 comments on material factor defences. Paragraph 19 of the judgment includes the following:- “If an employer is going to seek to justify a pay disparity based on a factor such as the comparator’s promotion or superior “merit” or “market forces” it needs to be able to explain with particularity what those factors mean and how they were assessed and how they apply in the circumstances of the case.”[140]Mr Brochwicz-Lewinski referred us to the ECJ decision in Cadman v HSE [2006] IRLR 969, on the material factor defence of length of service. The key issue in that case was to what extent a differential in pay based on length of service had to be objectively justified. The ECJ decided that as a general rule, using length of service as a factor in determining pay, rewards experience which enables an employee to do his or her job better and the employer applying such a factor does not have to objectively justify each individual case.[141]Market forces is a potential material factor defence. In the case of Newcastle Upon Tyne NHS Hospitals Trust v Armstrong and others [2006] IRLR 124 the Court of Appeal made clear that Employment Tribunals should follow the approach set out in Marshall, and so must consider whether the particular market forces factor being put forward is discriminatory.[142]In MOD v Armstrong [2004] IRLR 672, the EAT noted that it was not necessary to adopt too formulaic an approach in determining whether there has been discrimination in pay. “What matters is whether, in any particular case, a tribunal is satisfied on the evidence before them and the facts found that the pay difference is caused by a factor or factors which are related to the difference in sex between the applicant and her comparator.” (see paragraph 42 of the Judgment). Direct Discrimination – section 13 Equality Act 2010[143]Section 13 states: “A person (A) discriminates against another if, because of a protected characteristic, A treats B less favourably7 than A treats or would treat others.”[144]The question for us is whether the effective cause of the treatment which we find was the claimant’s gender or was for another reason. (see for example O’Neill v. St Thomas More Roman Catholic School [1996] IRLR 372 in support of this). Burden of Proof[145]We are required to apply the burden of proof provisions under section 136 Equality Act 2010 when considering complaints raised under the Equality Act 2010. Section 136 states: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are any facts from which a court could decide in the absence of any other explanation, that a person (A) has 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.”[146]We also note the Court of Appeal decision in Wong v Igen Limited [2005] EWCA 142 and the guidance contained in that judgment. This case concerned the test as set out in discrimination legislation that pre-dated the EqA but the guidance provided in there remains relevant. The annex to the Court of Appeal’s judgment sets out the guidance.[147]We are also clear that the wording of the statute itself – s136 EqA is the key reference in relation to burden of proof when reaching decisions about whether there has been a contravention of the EqA.[148]Finally, on the issue of burden of proof, we are mindful of guidance from case law indicating that something more than less favourable treatment may be required in order to establish a prima facie case of discrimination; see for example Madarassey v Nomura International [2007 ICR 867] where the following was noted in the judgment: “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.” G. Analysis and Conclusions G 1. The Equal Pay Claim Was the claimant employed on work which was equal to that of GL because it was like work under section 65(1)(a) and 65(2)?[149]We find that the claimant was employed on like work to that of GL. In reaching this conclusion we firstly considered whether the work was the same or a broadly similar nature. We decided that the work was broadly similar. Our findings of fact make clear our reasons for this conclusion but in summary:-(1) Both claimant and GL were engaged as senior procurement managers.(2) Both applied the same tasks and skills to procurement in the categories they were required to look after.(3) The roles were not identical. In particular the difference in categories, types, identity and location of suppliers together with fluctuations in priorities and needs of the respondent and wider Scapa Group from time to time meant that the activities carried out by claimant and GL were different from day to day but when considering the tasks carried out over an extended period, we are satisfied that the same tasks will be carried out by both post holders in endeavouring to achieve the same outcomes in the categories assigned to them.(4) When considering the differences, we decided that none of those was material. If so, can the respondent show that the difference between the salaries of the claimant and GL was due to a material factor within section 69, specifically (a) material differences in the roles they perform and the skills involved;(b) Market forces arising out of the more limited availability of expertise in chemical procurement; and/or (c)The greater experience of GL in procurement?[150]We also note here, the potential material factor of the salary agreed on recruitment of the claimant.[151]As noted in our findings of fact, we find:(1) That the claimant was employed on £65000 because that was agreed between her and the respondent on recruitment. The respondent made clear that it expected to pay a salary of between £65,000 and £75,000 per year.(2) That GL was paid £71,279 per year because he had been recruited some 8 years earlier at a salary of £63000 per year and then, over the following eight years, had received a number of annual increase in salary.(3) That there was some recognition of GL’s chemical industry experience on recruitment and setting of salary in 2011.[152]We accept that these are genuine reasons and the reasons for the difference in pay between the claimant and GL. We do not find that there was any form of sex discrimination in these reasons which explain the difference.[153]We considered carefully whether there may have been anything inherently discriminatory in the circumstances which resulted in the claimant’s starting salary of £65,000. We do not find that there was.[154]We considered whether it was appropriate for the respondent to indicate a salary bracket for the post (rather than setting a fixed salary) or whether this approach might be discriminatory or be more likely to result in a discriminatory outcome. We do not find that the approach of having a salary bracket or range is inherently discriminatory and we have no criticism of the respondent deciding to advertise the role on that basis.[155]Nor do we consider that there was anything inherently discriminatory in setting GL’s starting salary at the rate set or anything inherently discriminatory in the increases awarded to GL in the years following.[156]Since his recruitment in 2011, GL has gained significant knowledge and experience of the respondent’s (and Group’s) business, suppliers and products. We accept that the knowledge gained over the 8 or so years that GL was employed by the respondent is of significant value to the respondent. GL could of course be replaced by another procurement professional, such as the claimant, but it would take time for (and investment in) a new recruit to build up the knowledge and experience that GL had at the relevant time.[157]We find that:-(1) The circumstances in which the claimant’s pay was set;(2) The experience of GL, to an extent his previous chemistry industry experience on recruitment and more significantly the length of service with and experience gained during employment with R; were significant and relevant differences between the claimant’s case and GL’s case.[158]As for bonus:-(1) No bonus was paid for the financial year 2018/19.(2) In any event, the claimant would not have been entitled to payment of a bonus – she did not meet the criterion of being in employment in the June following the end of the relevant financial year.(3) The respondent’s explanation for applying a larger bonus percentage to GL is (1) genuine (2) the difference in bonus percentage was due to that reason alone (3) the reason was not the difference of sex(4) the reason was the significant and relevant difference between the claimant’s position and GLs position as far as bonus percentage was concerned. Final observations relating to the differences in pay[159]The Tribunal observes that the respondent’s method for reviewing and benchmarking salary does not appear to include an opportunity for employees to understand the salary/grading of their colleagues. That level of transparency appears lacking.[160]The claimant was only in employment for eight months. Speculatively, had the claimant’s employment continued, a stage may well have been reached when her knowledge and experience of the respondent’s business, sector, suppliers etc was just as valuable as GL’s. Assuming we are right about a lack of transparency, it must be particularly important for the respondent to keep under review a pay disparity such as between claimant and GL and ensure that it is closed, once the material factor of greater experience is no longer relevant.[161]It was not necessary in this case for the respondent to provide evidence about how a pay gap between GL and the claimant might have been reduced in the future, had the claimant decided to remain in employment and it may well be that the respondent has such matters in hand. However, given ongoing gender discrimination in pay and potentially a lack of transparency in the respondent’s pay structure, it is important to members of this Tribunal that these observations are shared with the parties. G 2. The Direct Sex Discrimination Claims – during employment. Are the facts such that the Tribunal could conclude that because of sex the claimant was treated less favourably than her male comparator, GL, in that her workload was higher than his;[162]We find that the workloads of GL and the claimant fluctuated from time to time. The claimant was new to her role and the two projects noted in our findings of facts had commenced. We do not accept that the claimant was provided with a higher workload than GL.[163]Further, to the extent that the claimant’s workload was higher at any particular time. that had nothing to do with gender but was due to a fluctuating pattern of business priorities. Are the facts such that the Tribunal could conclude that because of sex the claimant was treated less favourably than her male comparator, GL, in that she was required or expected to travel to work appointments outside her working hours whereas he was not.[164]We find that there were no differences in requirements or expectations placed on the claimant and GL in relation to business travel. Are the facts such that the Tribunal could conclude that because of sex the claimant was treated less favourably than GL, in that she was required to undertake work whilst on holiday whereas he was not?[165]We find that there were no differences in requirements placed on the claimant and GL in relation to work whilst on holiday. G 3. Direct Discrimination claim - Termination of employment Can the claimant show that her resignation should be construed as a dismissal under section 39(7) in that by reason of a breach of the sex equality clause and/or the matters set out in paragraph 3 above, the claimant was entitled because of the respondent’s conduct to terminate her employment without notice, the respondent having committed a fundamental breach of the sex equality clause and/or the implied term as to trust and confidence? If so, are the facts such that the Tribunal could conclude that in constructively dismissing the claimant the respondent, because of sex, treated her less favourably than it treated GL? If so, can the respondent nevertheless show that there was no contravention of section 13 in relation to the constructive dismissal?[166]We have set out above our findings as to why the claimant resigned her employment. Further, we have made no findings of direct sex discrimination or a breach of the sex equality clause. The claimant’s resignation should not be construed as a dismissal under s39(7) EqA.