Employment Judge QuillIn person for claimantDate 14 February 2025
JUDGMENT
[1]The Equal Pay complaint is not a “concealment case” as defined in section 130(4) of the Equality Act 2010 (“EQA”).[2]It is a “standard case”, as defined in section 130(2) EQA.[3]I do not make any decision, intended to bind any future tribunal, about the specific termination events, as it is not necessary, and it touches on acts/omissions that will be the subject of a later final hearing. However, the equal pay claim is out of time, because the “last day of employment” was no later than one of the following. 3.1. If the “last day of employment” was 21 March 2024, then (that was after ACAS early conciliation had ended and) time expired on 20 September 2024. 3.2. If the “last day of employment” was 13 February 2024 and if section 140B EQA does not apply, and the time limit for bringing an Equal Pay claim, as defined by section 129 EQA expired on 12 August 2024. 3.3. If the “last day of employment” was 13 February 2024 and if section 140B does apply, the time limit for bringing an Equal Pay claim expired 26 August 2024.[4]The application to amend claim number 3303452/2024 (presented on 25 March Case No: 3303452/2024 2024) so as to add a new claim alleging breach of an equality clause, was made on 9 October 2024.[5]Thus the entire Equal Pay claim is out of time and is dismissed.[6]This judgment does not affect any of the other complaints, and the final hearing is still due to take place on the dates as previously notified. Approved by
REASONS
[1]Judgment with reasons was given orally on 14 February 2025. Written judgment was sent to the parties on 8 March 2025. Written reasons were requested in accordance with the rules and time limits. These are those reasons.[2]A final hearing is scheduled to take place in this matter. At a preliminary hearing last December (which was before me), an amendment application was granted to add “equal pay” complaints and a public preliminary hearing to determine preliminary issues was scheduled. This was that hearing.[3]The Claimant is a former employee of the Respondent and the preliminary issues were to decide whether the “equal pay” complaints were in time or not.
The Issues
[4]As identified at the previous preliminary hearing, this hearing was to decide:4.1 Is the Claimant’s Equal Pay claim a concealment case, as defined in section 130(4) EQA? 1 of 374.2 If so, was(i)25 September 2024 and/or(ii)9 October 2024 within the period of 6 months beginning with the day on which the worker discovered (or could with reasonable diligence have discovered) the qualifying fact.4.3 Alternatively, is the Claimant’s Equal Pay claim a standard case, as defined in section 130(2) EQA.4.4 If so, had the time limit already expired (around 26 July 2024) prior to the Claimant writing to the Tribunal or the Respondent about the possibility of an Equal Pay claim (within her case management agenda for the preliminary hearing on 25 September 2024). Deciding this will require:4.4.1 The Tribunal to decide the effective date of termination and4.4.2 The date on which the completed agenda was sent to parties4.5 If the Equal Pay claim was already out of time by the date on which the agenda was sent to the Tribunal and the Respondent (circa 18 September 2024) then it will be dismissed, and the final hearing of this claim will remain on 23, 24, 25 and 26 June 2025.4.6 If the Equal Pay claim was not already out of time by then, then the final hearing will be postponed and there will be further case management in due course (potentially with one of the dates 23 to 26 June being used for a further preliminary hearing). The Hearing and the Evidence[5]I had a bundle of about 437 pages, and 8 written statements: 2 from the Claimant and 6 from the Respondent.[6]The Claimant gave evidence on oath and asked me to take into account a written statement from Nikhil Kamble.[7]For the Respondent, the following witnesses gave evidence on oath:7.1 Cass Khan7.2 Harrise Khan7.3 Ernest Didehvar-Sadr7.4 Matthew Philipps7.5 Avnish Vithlam 2 of 37[8]The Respondent asked me to take into account a written statement from Paige Wykes.[9]The hearing took place entirely by video, and there were no significant connection issues or interruptions to the hearing.
The findings of fact
[10]The Respondent is a small niche pharmaceutical company with just one product[11]The Respondent employs around 7 staff carrying out specific roles. Most of the company's major functions are sourced out to specialist providers. The outsourced functions include IT, HR, Regulatory, Finance amongst others[12]The claimant became an employee of the Respondent in around June 2017[13]Her role at the time was Business Development Administrator[14]The contract specified “The Employee shall be paid an initial salary of £23,000 rising to £24.000 per annum on successful completion of the 6 month probation period”. [Bundle 107][15]Contractual notice was 3 months if given by the employee (clause 2).[16]The claimant was not issued with a further written contract though she did have subsequent pay rises and promotions[17]As well as salary the contract provided for discretionary bonus payments.[18]Clause 4.3 stated: 4.3 The Employee shall comply with any rules, policies and procedures set out in the Staff Handbook. The Staff Handbook does not form part of this agreement and the Company may amend it at any time. To the extent that there is any conflict between the terms of this agreement and the Staff Handbook, this agreement shall prevail.[19]In the definitions section of the contract [Bundle 104], there is the following definition: Confidential Information: information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory or cloud-based storage system) relating to the business, products, affairs and finances of the Company or any Group Company for the time being confidential to the Company or any Group Company and trade secrets including, without limitation, technical data and know-how relating to the business of the Company or any Group Company or any of its or their business contacts.[20]Clause 13 [Bundle 111] stated: 3 of 37 13. Confidential Information13.1 The Employee acknowledges that in the course of the Appointment he will have access to Confidential Information. The Employee has therefore agreed to accept the restrictions in this clause 13.13.2 The Employee shall not (except in the proper course of his duties), either during the Appointment or at any time after its termination (however arising), use or disclose to any person, company or other organisation whatsoever (and shall use his best endeavours to prevent the publication or disclosure of) any Confidential Information. This shall not apply to:(a) any use or disclosure authorised by the Company or required by law;(b) any information which is already in, or comes into, the public domain other than through the Employee's unauthorised disclosure: or(c) any protected disclosure within the meaning of section 43A of the Employment Rights Act 1996.[21]Thus, as per the wording of clause 13.1, the Claimant did accept the restrictions. The exceptions speak for themselves.[22]Clause 20 [Bundle 116] deals with grievance procedure.[23]Employee handbook is at [Bundle 119]. I have taken account of all of it, but the only parts that I need to specifically highlight are as follows.[24]Section 2.1 [Bundle 129] 2.1 CONFIDENTIALITY Information concerning the Company’s clients, products, services, plans, records, etc. should be regarded as confidential and should not be disclosed or talked about to those other than company employees or appointed advisers. The Company’s business requires a close working relationship with its clients and any information given to the Company by a client must be deemed to be confidential and the leakage of any such information to other parties whether by accident or design is potentially damaging. No client or company information may be removed from the premises (other than in the ordinary course of business) without the prior written authority of a manager. Any deliberate infringement of these rules will be regarded as a most serious breach of conduct and could lead to instant dismissal. Accidental breach will also be regarded as a breach of rules and may be subject to disciplinary action. It is a condition of employment that if requested to do so, employees will sign a nondisclosure agreement.[25]In summary, that section of the handbook does not impose any greater restrictions than those which formed part of the Claimant’s written contract of employment. 4 of 37[26]Section 2.6 dealt with data protection.[27]Section 3.5 [Bundle 155] is Equal Opportunities. There is no specific reference to the rights that were formerly part of the Equal Pay Act 1970, and which were incorporated into EQA. Although paragraph 3.5(c) stated that the company would avoid unlawful discrimination “in all aspects of employment including …”. Various examples are given and “pay and benefits” was one of the specific examples stated[28]Paragraph 3.5(g) referred to bringing grievances and/or dignity at work complaints for discrimination or harassment.[29]Paragraph 3.6(c) refers to victimisation[30]At [Bundle 210] the handbook refers to termination of employment. It includes: 3.24a) Resignation Your employment may be terminated by: a) giving the Company written notice of resignation of employment as per your contract. b) the Company giving you written notice as per your contract Notice of resignation should be given in writing to your Manager, stating the final date of employment with the Company. Your Manager will check that the appropriate period of contractual notice has been given. Oral notice will not be accepted. Where an employee gives shorter notice than that required under the Contract of Employment, they will be advised that this action is in breach of contract and be requested to submit proper notice. An early leaving date may be mutually agreed with the employee, at the complete discretion of the Company. A formal acknowledgement of resignation, confirming the employee’s final day with the Company and providing administrative details of final payments, etc. will be issued to the employee. In certain circumstances, an employee who has resigned will be asked to leave immediately and receive pay in lieu of notice. Where a person disappears without giving notice, the situation must be thoroughly investigated before the Company decides on appropriate action.[31]So oral notification is stated to be insufficient, and the correct approach to supplying written notification is specified.[32]As well as comments about garden leave and payment in lieu of notice, the handbook stated [Bundle 211] When a decision is taken to dismiss, notice will be given in writing to the employee, specifying the effective date of termination. Notice cannot start to take effect until the individual concerned receives it. 5 of 37[33]Each December, the Respondent’s employees received a letter about that year’s bonus (if any) and next year’s pay. Prior to the letter, there would be a meeting between the employee and management to discuss those points. Sometimes, but not always, the information about pay and bonus was supplied orally in the meeting.[34]I reject the Respondent’s argument that the letters were not important, and/or that the employer knew, or believed, that the employees did not regard them as important.[35]Even when the employee had been given information orally at a meeting, my finding is that the employees would have checked the letter to check it matched what they were told. My finding is that the employer expected them to do so. The suggestion that the Respondent regarded these letters as unimportant and/or that it thought the employees would not open the letters, or read them carefully, is not credible.[36]The letters all tended to have a paragraph towards the end that said something similar to: As always, salary information should remain confidential and not discussed within the business.[37]Sentences similar to that are included in the letters at: [Bundle 213]; [Bundle 215]; [Bundle 217]; [Bundle 222]; [Bundle 223].[38]I note that the precise wording differed from year to year. My finding is that this shows(i) that it was not simply copied and pasted without thought, and(ii) that this was not simply wording which left over from an out of date template. The wording was consciously and deliberately included in the letters each time.[39]The signatories to letters sent to the Claimant (which included that wording) were the Senior Vice President, Cass Khan, and the President, Matt Phillips. In most of those in the bundle, the letters have their ink signatures. These were not simply auto-generated letters, or letters produced on the Respondent’s behalf by an outside organisation without the signatories’ specific input. On the contrary, this was a small employer and the signatories carefully considered the contents of the letters before supplying the letters to the employees.[40]My finding is that the information contained in that paragraph was intended to tell the Claimant that she should not disclose her own salary to colleagues and she should not ask her colleagues to tell them what their salary was[41]The letter does not say – and my finding is that it was not the author's intention - that the Claimant was unable to speak to the president or senior vice president about her pay. The letter did not prevent, for example, the Claimant seeking a pay 6 of 37 rise and referring to her current pay as part of those discussions. At the risk of stating the obvious, the signatories did know what information the letters contained, and – therefore – there was no breach of confidentiality by discussing the contents with the signatories.[42]The letter does not say – and my finding is that it was not the author's intention - that anything in that letters (including the final paragraph) was intended to override the ability to raise allegations of discrimination about pay or anything else through the proper channels. The staff handbook expressly referred to the right to bring a grievance.[43]The letter does not say and my finding is that it was not the author's intention that there could not be proper inquiries made of HR and payroll where necessary, for example to query a late payment or a deduction etc.[44]I do consider that the meaning of the instruction was plain and obvious and that all employees were likely to have understood it to mean that they were not supposed to be discussing their own salary with colleagues or asking their colleagues for details of what the colleagues earned[45]The suggestion that the employer merely intended to inform the employees that the employer would respect the employees privacy or data protection rights in connection with their pay is not credible and I reject it.45.1 Nor is it credible that the employer thought that the comment would be interpreted that way by staff.45.2 If it had been the authors’ intention to simply say that employees were free to discuss their own salary with colleagues if they wanted to do so - but were under no obligation to reveal the information to colleagues if they did not want to do so - then the letter could and would have said that in plain language.45.3 The reason that it did not specify that proposition is because that was not the intended meaning of the letter.[46]The letter does not specifically say that disciplinary action would be taken. However, my finding is that the signatories to the letter intended to convey to the Claimant (and all the recipients of letters with similar instructions) that there would potentially be adverse consequences if she (or they) did breach the instruction.[47]Similar sentences were included in some or all of the letters to other employees.[48]Notwithstanding those instructions, I do accept the evidence of Ernest DidehvarSadr, as mentioned in paragraph ten of his statement and as per his oral evidence that he heard colleagues discussing the salary. This was in the absence of senior 7 of 37 managers. He did not report these conversations to senior managers. He did not believe that he was required to do so[49]I also accept Harrise Khan’s evidence to the effect that he also overheard Oliver - one of the people mentioned by Ernest Didehvar-Sadr - discussing salary. I also accept his evidence that he mentioned this to Cass Khan and that Cass Khan’s response was to say words to the effect that it was inevitable that employees would talk about pay and there was nothing the employer could do about it[50]The specific context of Oliver's comments were that Oliver was suggesting that he was getting paid less than everybody else. It would be a matter of speculation as to whether the employer would have taken the same relaxed approach if a high earner had been talking about their own salary. However I accept that the witnesses who gave evidence at the hearing were genuinely unaware of any examples of anybody having been disciplined, or spoken to informally, for alleged breaches of the paragraph in the pay and bonus letter about confidentiality. Furthermore, despite Cass Khan’s knowledge that at least one employee was discussing pay, the Respondent did not take any action.[51]According to her written statement Paige Wykes is Office and HR Manager for the Respondent, and worked for the Respondent since 2018.[52]My finding is that there has been no satisfactory explanation for her nonattendance. If she was not needed because the contents of her statement could be addressed by other witnesses, then those other witnesses should have included the information in their respective witness statements, and no statement from Ms Wykes should have been sent to the Claimant. I warned the Respondent before the evidence started that I might draw adverse inferences if they did not produce Ms Wykes to give evidence; I reject the Respondent’s argument that the Claimant or I could simply ask questions about Ms Wykes evidence to Cass Khan instead. Given her position within the organisation, and the findings of fact that were required at this hearing, the issue of whether Ms Wykes’ genuinely believed the contents or her written statement to be true was potentially relevant. In any event, having purported to provide evidence that Ms Wykes genuinely did believe what was written, a fair hearing required the Claimant to have the opportunity to(i) challenge that and(ii) ask about relevant matters that might have been omitted from the express wording of the statement.[53]In paragraph 9 and 10 of Ms Wykes statement, she says: 9. I have never been asked by Senior Management not to discuss my salary and in my capacity of HR I have never asked any of the team not to discuss salaries. 10. I have not observed or experience any instances where LDC’s policies or practices might prevent employees from discussing or addressing pay concerns. 8 of 37[54]She has not given evidence, and the weight, if any, that I can put on those paragraphs has to be set against the fact that in paragraph 5 she says: 5. If I was ever asked by an employee about another employee’s salary I would seek advice from our HR experts on what the correct procedure is to follow.[55]Pausing there, my finding is that “HR experts” is a reference to an external provider. She probably was referring to Peninsula, but there has been no opportunity to ask her, and the point is not a crucial one. Paragraph 5 continues: I can affirm that the company always acts fairly and would never deliberately conceal any relevant information from employees if they had requested this. That being said, I have never received a request from an employee in regard to another employee’s salary. Therefore, if this question has not been raised, it is not possible for the company to have concealed this information.[56]My finding is that the contents of paragraph 5 are inconsistent with Ms Wykes’ email of 9 January 2024 [Bundle 225] which replied to the Claimant’s email (sent at 16:52) and which opened: Dear Sam, Unfortunately, I cannot confirm people's pay details as these are confidential to those individuals.[57]That was an email copied to Cass Khan.[58]I do understand that the specific query (in the Claimant’s email of 9 January 2024 at 16:52) was not about salary levels (and was specifically about when colleagues had received their bonuses) but Ms Wykes has not attended to confirm or deny that she only meant that the timing of bonus payments was confidential. As written, the email refers to “pay details” without any qualification.[59]Further, while Ms Wykes statement asserts that “relevant information” would not be concealed, neither the Claimant nor I have had the opportunity to ask if that means that the Respondent would decline to disclose information if the Respondent decided that it was not “relevant”. Further, in the absence of any evidence from Ms Wykes to the contrary, my finding is that she did understand the point of the Claimant’s query, which was that the Claimant was implying that if colleagues had received their bonus at the usual time, and that she was the only employee whose bonus was delayed, then there was differential treatment which potentially required an explanation. On the face of Ms Wykes’ reply, it was carefully worded to specify that the Claimant had been treated the same as others in one respect (the timing of receipt of the letter) without answering whether she was the only person who would not receive the bonus before January. 9 of 37[60]In short, the credibility of the written statement is undermined by both Ms Wykes non-attendance and by my comparison of what she wrote on 9 January 2024 to the contents of the statement.[61]Furthermore, and in any event, Cass Khan was copied into the email. He had the opportunity to comment on, or clarify, or correct, what Ms Wykes had written, and he did not do so.[62]The Respondent has not satisfied me that it was generally open about salaries. In particular it has not proven that it generally advertised jobs with the pay or pay range included within the adverts.[63]On the contrary, the evidence clearly demonstrates that the Respondent’s culture was that each employee was paid a particular salary and the intention was that that employee’s colleagues would not know what that person was earning. There was no formalised pay and grading system, for example, and no other way of one colleague being able to deduce what a different employee was earning.[64]The Respondent’s arguments that - by looking at information produced by other employers within the sector - an employee could gauge their own pay relative to market value might be correct. However, that assertion is irrelevant to the issue of whether or not one of the Respondent’s employees could readily gauge their own pay relative to what the Respondent was paying to their colleagues. They did not have a way of learning that specific information, whether by doing research on other employers, or at all.[65]My finding is that some of the time, when the Claimant was involved in making offers to new recruits, she was not told about their salary, and that some of the time she was told.65.1 The fact that she did know some of the time does not contradict my finding that the Respondent’s intention was that salary information was confidential. The reason she knew some of the time is that she was involved in the production / supply of the employment contract to the recruit / chosen candidate.65.2 The fact that she was kept in the dark about salary information some of the time, even if she was intended to be involved in recruitment or line management of the employee is consistent with my finding that employees were expressly told to keep their own salaries confidential from their colleagues.[66]My finding is that the Respondent did not intend that any remuneration information at all (other than about their own remuneration) would be readily available to its employees.[67]The Claimant’s salary increased to: 10 of 3767.1£48,342.28, with effect from 1 January 2020. [Bundle 213]67.2£50,759 with effect from 1 January 2021 [Bundle 214]67.3£57,865 with effect from 1 January 2022. [Bundle 216].67.4£65,000 after around 6 months in the role of Head of Business Operations, which she commenced around January 2022.67.5£70,200 with effect from 1 January 2023[68]Harrise Khan began working for the Respondent in around July 2014. He was originally supplied via an intermediary company owned by Cass Khan who is his uncle.[69]Harrise Khan worked as Commercial manager until around January 2022. In around January 2022 (approximately) two things happened. Firstly, he became Head of Commercial. Secondly, he became directly employed by the Respondent; that is he began working under a contract of employment. The two things did not necessarily happen on the exact same date.[70]In around January 2022, the Claimant started in her own new job, Head of Business Operations. In other words, at a similar time, the Claimant and her male comparator, Harrise Khan, each started work in a new job, and each job title started with the words “Head of”.[71]Before the Claimant started in the new job, and in the course of discussions about the (potential) new job, the Claimant attended one or more meetings with Cass Khan and Harrise Khan. They spoke with each other about the future direction of the company and their respective roles in it. There is not necessarily agreement about whether the Claimant was shown an organogram. [About a year later (in her email of 8 January 2024 [Bundle 229]), the Claimant’s recollection was that she had been shown an organogram on 5 December 2022, and that this showed some changes in reporting lines/responsibilities]. In any case, the Claimant does not have an organogram from before, or immediately after, January 2022, and the Respondent has not disclosed one.[72]I accept the information supplied to the Claimant in late 2021, or early 2022, was to the effect that the Claimant (or the post of Head of Business Operations, at least) and Harrise Khan (or the post of Head of Commercial, at least) each would report directly to Cass Khan (or to the post of senior vice president, at least).[73]Regardless of whether any specific document was produced to show these reporting lines, Cass Khan and the Respondent do not dispute that – from around January 2022 until the end of the Claimant’s employment - each of the Claimant 11 of 37 and her comparator(i) were employees of the company and(ii) had roles in the structure which each reported directly to the senior vice president, Cass Khan.[74]I do accept Cass Khan’s account that the Claimant and Harrise Khan were not the only two people/posts reporting to him directly. I do accept Cass Khan’s account that the Claimant and Harrise Khan were not the only two people whose job title included the words “Head of”. The others included people on much lower salaries than the Claimant.[75]The Claimant’s evidence in the tribunal is that she believed at the time several things based on the discussions surrounding her new job and Harrise Khan's new job75.1 Firstly, she says that she believed that her new job and Harrise Khan's new job were similar in terms of value to the company and seniority within the business.75.2 Secondly, she says that she believed that the company also agreed with that proposition.75.3 Thirdly, she says that she believed that because the company agreed with that proposition, it was clear to her that the Respondent was representing to her that she and Harrise Khan would be paid the same in their respective “Head of” jobs, which commenced at approximately the same time in around January 2022. She does not allege that there was any express discussion that they would each be paid the same, or similar, amounts. She did not ask about Harrise Khan’s pay, and nothing was said to her about it.[76]In cross examination, the Claimant accepted that she did not necessarily think she and Harrise Khan were paid exactly the same. She pointed out that he had not been an employee longer than her or even for as long as she had been, because he had been working via an intermediary prior to January 2022. However, her oral evidence was she had thought that it was possible that - because of his longer connection with the Respondent and/or his longer period of time working in the industry - he might have a slightly higher salary then she was paid. She says she did not think any difference would be significant.[77]In paragraph 19 of her witness statement, the Claimant says that she expressed concerns to Cass Khan about salary. My finding is that she is referring to a discussion that took place around December 2021, or no later than early January 2022. The comments which she made were that the new job she was about to undertake did not come with any pay increase other than the one that she was informed of in the letter dated 21 December 2021 [Bundle 216]. In other words, the Claimant told Cass Khan that - while she was getting her annual pay rise - she was not receiving a specific pay rise to specifically reflect the new job. 12 of 37[78]The Claimant was cross-examined about the conversation. Although the Claimant relies on it as an example of her being reluctant to raise pay issues, my finding is that it does not show that.[79]In any event, whether she was reluctant to raise issues about salary/remuneration or not, my finding is that the Claimant’s account of what she said to the employer at the time (which is broadly similar to Cass Khan’s account of what they each said to the other in the discussion) is inconsistent with the Claimant’s assertion that she thought, at the time, that the Head of Business Operations and the Head of Commercial would be receiving the same or approximately the same salary.79.1 On the Claimant’s own account, she thought that what the Respondent was proposing as her starting salary was not a fair reflection of what the salary ought to be for the post.79.2 It is certainly significant that she did not say that her salary should be matched to Harrise’s. She did not use that as one of her arguments for a higher salary, and nor did she ask how much he was to be paid.79.3 It is certainly significant that Cass Khan’s comments did not include any suggestion that the Claimant’s salary was comparable to Harrise’s. He did not use that as one of his arguments for rejecting the Claimant’s request for a higher salary immediately, and nor Cass state how much Harrise was to be paid.79.4 Neither the Claimant nor Cass Khan thought that Harrise Khan’s salary was relevant to the issue that they were discussing, and that is why neither of them brought it up.[80]For me to accept that, at the time, the Claimant believed that the Respondent was representing to her that she and Harrise Khan were going to be paid the same, I would have to believe that one of the following was true:80.1 That the Claimant believed that the Respondent was intending to underpay each of her and Harrise.80.2 That the Claimant believed that the Respondent was intending to pay the same / similar fair market salary to each of them but might be willing to pay her a higher rate than that (and, it would seem to follow, pay her a higher rate than it paid to Harrise).[81]I do not accept that the Claimant did have either of those beliefs at the time.81.1 It may well have been her opinion (and I have no reason to doubt that it actually was her opinion) that the proposed starting salary for Head of Business Operations was too low. However, I do not accept that she thought that both 13 of 37 she and Harrise were going to be receiving the same (or similar) salary that was “too low”.81.2 I do not accept that it was her opinion (and the Claimant has not claimed that she did genuinely think this at the time) that the Respondent would be willing to pay her more than it paid Harrise.[82]In other words, this conversation about a pay rise satisfies me that, at the time, the Claimant did not believe that there was any silent representation to her that hers and Harrise’s salaries / remuneration packages would be the same or similar. At the time, her belief was:82.1 Her own salary was a matter of individual negotiation82.2 To the extent that she thought about Harrise’s salary at all, she knew that Harrise’s salary was irrelevant to her pay negotiations with Cass Khan and the Respondent, and she was aware that he was potentially going to be paid more than she was.[83]In the meeting, the Claimant said that it was her opinion that the salary for Head of Business Operations should be higher than the Respondent was offering because she would be supervising employees who were on a higher salary than her.83.1 I accept the Claimant’s account that she did not know the specific salaries of the people who would be reporting to her but rather was making an assessment based on what she thought they were probably earning.83.2 However, again, the fact that she made this point at the time is inconsistent with her current argument that she believed (at the time) that she would be receiving a salary that was similar to that of the Head of Commercial. Rather, she was making a specific point about the duties and circumstances of the Head of Business Operations post.83.3 Further, even if, before this conversation, she had thought the Respondent would take other people’s salaries into account when setting her own (and I do not accept that she incorrectly believed that there was a formal pay and grading structure; on the contrary, she knew that there was not), Cass Khan rejected the argument that her pay needed to take account of the salaries of those who were going to be reporting to her.[84]In their evidence to the Tribunal, Cass Khan and the Claimant both agree that his response was to the effect that if she did not wish to take up the new position with the salary that was on offer then she did not need to do so. They also both agree that he stated that he was prepared to offer her a £5000 pay rise after six months 14 of 37 and they also both agree that she accepted the job on those terms and did get the pay rise after 6 months.[85]My finding is that at the time the Claimant was aware that she was negotiating as an individual for the pay for one specific job namely Head of Business Operations and she was not under the impression that the Respondent was operating any kind of formal or informal arrangement such that it had decided that the Head of Business Operations salary/remuneration would in anyway be set by reference to anything that the Respondent was paying to any other employee, including to the incoming Head of Commercial.[86]At the end of paragraph 14 of her statement, the Claimant says that - in a small and closely controlled company - challenging or evening questioning salary differences was virtually impossible. In context she is suggesting that Cass Khan made the relevant decisions and did not allow those decisions to be challenged.[87]However. the first sentence of paragraph 15 states: My inability to challenge my comparator’s salary is further compounded by the fact that my comparator, Harrise Khan is Cass Khan’s nephew.[88]Taking those two sentences together (the last of paragraph 14 and the first of paragraph 15), the Claimant is accepting that she was aware (or believed that it was likely) at the time that there was a salary difference between her and her comparator. The remainder of paragraph 15 is consistent with that proposition. She wrote: Given Cass Khan’s significant control over the organisation and his personal connection to my comparator, it would have been highly inappropriate—and potentially damaging to my career—to raise any questions about salary. There was simply no avenue for me to question or challenge the issue without serious personal and professional repercussions.[89]The Respondent disputes the truthfulness of the latter assertion (suggesting to me that there are various examples of the Claimant raising issues about remuneration). However, on the assumption that the Claimant genuinely did think, at the time, that – for the reasons stated in paragraph 15, or at all – that the Respondent did have opaque and/or unfair pay practices, then that is inconsistent with her professed belief to have thought that the Respondent was making an implicit representation to her that she and Harrise were to be paid the same (or similar).[90]I believe the claimant when she says she did not find out about the specific details of Harrise Khan’s salary until April 2024.90.1 The Claimant’s account is that, “in late April 2024”, her former colleague, Sofia Keilholz, gave her the information about Harrise Khan’s salary. 15 of 3790.2 The Claimant’s account is that Sofia Keilholz came into possession of the information around the previous October, but did not mention it to the Claimant until April.90.3 I do not find the Claimant’s refusal to provide every single WhatsApp message between her and Sofia Keilholz to be suspicious. As the Claimant correctly pointed out, the Respondent had made an application for specific disclosure of every item and the judge who decided the application (which was me) had refused it on the basis that only documents relevant to the claims and issues had to be disclosed. The Claimant accepted that any communications between her and Sofia Keilholz about what the Respondent paid its staff (and Harrise Khan in particular) were relevant.90.4 For completeness, I add that during cross-examination, she did offer to disclose all the WhatsApp messages, regardless of relevance. The Respondent declined to receive them, stating that it was too late. However, that is circular. If the Claimant was in breach of the orders for disclosure, then it was – arguably at least – too late to comply part way through the hearing. However, if she was not in breach of the orders, then her offer to voluntarily disclose the items was an offer which the Respondent was free to accept or reject, but was not an offer which the Claimant had been obliged to make.90.5 The evidence does demonstrate – as the Respondent has argued that it does – that the Claimant and Sofia Keilholz were reasonably close acquaintances from before Sofia Keilholz started work with the Respondent, and until after each had ceased their employment. My finding is that – for that reason – it is inevitable that there would have been some discussions between the Claimant and Ms Keilholz which had nothing to do with the equal pay claim, and nothing to do with the Claimant’s other claims, and - in particular - nothing to do with either side’s arguments about whether the Respondent had concealed a qualifying fact from the Claimant.90.6 The Claimant’s position is that she has searched all her emails, WhatsApp messages etc and disclosed everything relevant, and I believe her.[91]The Respondent invites me to infer that the Claimant’s refusal to disclose every single message implies that she is lying about the contents and that in fact the contents would demonstrate that she was aware of Harrise's salary during her employment.91.1 The Respondent invites me to infer that Ms Keilholz told the claimant about Harrise’ salary not long after seeing the bank statement [Bundle 268-270] in around September or October 2023. 16 of 3791.2 The Respondent argues it is more likely than not that Ms Keilholz would have informed the Claimant straight away about Harrise’s salary because Ms Keilholz and the Claimant were friends.91.3 Neither side has produced Ms Keilholz as a witness. The Claimant argues that the Respondent’s reaction to the news that Ms Keilholz had revealed the information (see “cease and desist” letter [Bundle 310]) supports her argument that the Respondent insisted on confidentiality about pay. I do not agree that writing to Ms Keilholz about Ms Keilholz’s disclosure to the Claimant is something which helps me to decide whether the Respondent deliberately concealed information from the Claimant. It is simply a reflection of the fact that Ms Keilholz was not authorised to reveal the information, and the Respondent does not claim that Ms Keilholz was not authorised to reveal such information; that is not part of its argument for why it claims the information was not deliberately concealed.91.4 In any event, that Ms Keilholz’s responses to the Respondent’s solicitors’ letter included giving information that is consistent with the Claimant’s account. [Bundle 272].[92]The fact that the claimant has not called Ms Keilholz as a witness counts against the Claimant’s argument that she only found out about the salary by speaking to Ms Keilholz in April 2024. The claimant had the option of applying for a witness summons but did not do so.[93]That being said, I do have the Claimant’s evidence, and the Respondent has not produced any evidence to directly contradict it. The Respondent also had the option of seeking a witness order for Ms Keilholz. I do not hold that against them. However, I do not find the Respondent’s argument that I should disbelieve the Claimant’s account, based on the inferences the Respondent asks me to draw, to be a strong one.93.1 Certainly the Claimant and Ms Keilholz were close enough friends to know each other outside work and to go on a holiday together as part of a large group.93.2 That being said I do not agree with the proposition that the fact that two people are friends means that one of them will automatically tell the other about a third colleague’s salary just because they come into possession of that information.93.3 There is nothing inherently implausible about Ms Keilholz keeping the information confidential when she first received it, but later disclosing it to the Claimant.93.4 For one thing, April 2024 is after Ms Keilholz was aware that the claimant had put in an employment tribunal claim. 17 of 3793.5 For another thing, April 2024 is around the time that Ms Keilholz had a falling out with the Respondent, as demonstrated by the text on [Bundle 304]. The rights and wrongs of the differences between Ms Keilholz and Cass Khan do not matter to the point at hand. However, the tone and content of what she writes about him is entirely consistent with a decision by Ms Keilholz that she would choose, in April, to disclose some information to the Claimant that had previously kept confidential.[94]I am satisfied by the Claimant’s evidence that she only found out about Harrise Khan’s salary in April 2024, when she was given information by Ms Keilholz about Harrise’s net, from which she estimated his gross. Prior to receipt of that information, she had not asked the Respondent about his salary, or brought any complaint or grievance based on any differences between Harrise’s pay and her own.[95]However I am not persuaded that – when the Claimant received this information from Ms Keilholz – it came as a surprise to her that Harrise was receiving much more pay than she had been receiving when she worked for the Respondent.[96]I have already said why I reject the Claimant’s evidence that she believed, in January 2022, that the Respondent was making any kind of implied representation that she and Harrise Khan were to receive the same pay. My finding is that there was no reason to think that her pay was the same as his, and she did not do so.[97]Furthermore, in April 2024, on receipt of the information which the Claimant says was new to her, the Claimant did not act on the information straight away. The specific details of his salary (as she calculated it from his net) was new information to her; however, if, as she now claims, the had previously thought that he was only getting slightly higher salary than her, and the new information had been startling to her (for that reason), then she might have been expected to react to the new information more quickly.[98]I do accept that the Claimant put forward reasons as to why the Claimant did not immediately follow up on the possibility of an equal pay claim including: her father's health; wanting to focus on the main substance of the existing claim; when speaking to a lawyer, being aware of the fact that she only had the possibility of up to 20 minutes free advice, so not necessarily long enough to delve into equal pay issues, when there were other matters to discuss.[99]However, it is also true that the Claimant had undertaken early conciliation between 1 and 27 February 2024, presented her claim on 25 March 2024, and stated in the claim form that her employment had ended on 2 January 2024. If she had genuinely believed, before receiving the information from Ms Keilholz, that the Respondent had made a representation to her (albeit an unspoken one) that she and Harrise Khan were going to be receiving the same remuneration package, she 18 of 37 had the opportunity to raise that with the Respondent, and/or to write to the Tribunal, and she did not do so. This is not a comment about “reasonable practicability” or any legal test for extending time limits; it is simply part of my fact finding that the Claimant states now that the information was very surprising indeed, but there is no contemporaneous evidence to support the assertion that she was surprised.[100]Based on the totality of the evidence I am satisfied that the Claimant had not previously thought - until April 2024 - that she and Harrise Khan were on the same – or approximately the same – salary.[101]I do take the Claimant at her word that the actual difference was larger than she had expected; she was surprised to some extent by the new information in that the specific amount which Harrise was earning more than the Claimant had realised. However, the fact that he was earning significantly more than she was did not come as a surprise.[102]Turning now to the termination of the Claimant’s employment, on 22 December 2023, the Claimant sent a resignation email [Bundle 238].[103]EJ Knowles has identified the issues which are to be decided in June 2025. I am intending to say nothing that might tie the hands of the Tribunal for that hearing, which will receive much more detailed and wide-ranging evidence than I have received. However, as noted in the list of preliminary issues, I do have to make some findings about the end of employment to determine the time limit point.[104]Cass Khan responded to the Claimant’s email on 27 December 2023, but I infer he first read the Claimant’s email on or around 22 December.[105]The Claimant’s email made clear that she was resigning with notice, not without notice. Cass Khan understood that.[106]On 28 December, the Claimant said her resignation stands. This was not a change to what she had said earlier [Bundle 236].[107]On 31 December, she wrote again, offering to discuss handover arrangements. This did not change her intended end date either.[108]In a long email on 8 January 2024, the Claimant concluded by asking if the Respondent wanted her to return to the office for her notice period (on the terms she specified) or else to be on garden leave[109]Ms Wykes, who has not given evidence, responded on 9 January 2024, [Bundle 226] in a long email which included: If you do not wish to work your notice period, then we will not be using garden leave, and it will be unpaid. If you wish to be paid for your notice period on your current 19 of 37 terms, then you are expected to return to work on those terms and work 5 days per week. Those are the terms of your employment and what would be expected from you regarding your contractual obligations. We would only be required to pay you for your notice should we stop you from working to those terms and conditions. We are more than happy as a business to you to return on 5 days per week. Should you not be able to do this, then you would be forfeiting any right to your notice. As a compromise, you could work 2.5 days per week for your notice period, but it would be in the new role. This however would be at the reduced salary as it would be reflective of the work you would be completing. 1. Return to work as the Head of Business Operations working 5 days per week with no changes to your terms and conditions, plus a 5% salary increase. 2. Return to work in the new role on the proposed terms and working 2.5 days per week. 3. Continue with your decision to resign. If you do not return to work to complete your notice period then your notice period will be forfeited. This is your choice to make, however, we cannot deviate from these 3 clear options in any way. I welcome your decision by COB Thursday, 11th January 2024.[110]There was an exchange of emails on 9 January [Bundle 225]. The Claimant did not expressly choose one of the options, and started her email: Before I reply to your email in it's entirety, please may you confirm the following, which I specifically asked in my previous email, and seems to be missing from your response:[111]Ms Wykes responded to the email. Her answer was mentioned above in so far as it was relevant to a different issue. However, the substance does not matter for present purposes. What matters is that it gave no further reminder or clarification of the consequences of no reply to her 8 January email.[112]The Claimant did not reply again either to Ms Wykes 8 January or 9 January emails.[113]On 1 February 2024, the Claimant commenced early conciliation.[114]On 13 February 2024, the Respondent sent an email to the Claimant which contained no text. It attached a P45 which stated that her last day of employment was 31 December 2023.[115]On 25 March 2024, the Claimant submitted a claim to the Tribunal. The claim form stated dates of employment as being 1 June 2017 to 2 January 2024. The box for unfair dismissal was not ticked. At a hearing on 25 September 2024, EJ Knowles agreed that complaints alleging constructive dismissal were included in the claim form. 20 of 37[116]EJ Knowles did not agree that Equal Pay claims were included in the claim form, and told the Claimant she would need to apply to amend the claim if she wanted to pursue.[117]On that basis, she made the written application dated 9 October 2024 at [Bundle 60]. On 9 December 2024, EJ Quill allowed the amendment, but subject to dealing with time limits as a preliminary issue/ [Bundle 70].[118]The orders for the hearing made clear that decisions about effective date of termination might be required, and evidence about the date on which the Claimant submitted a case management agenda including proposed amendments to add equal pay claims would be significant.[119]As per the Claimant’s witness statement and the documents in the bundle which are cross referenced, the Claimant notified the Respondent in September prior to the preliminary hearing that she was seeking to amend the claim to add an equal pay complaint. However, she did not write to the tribunal to mention this. The first time it was raised with the tribunal was at the hearing before Employment Judge Knowles on 25 September 2024The Law Equality Act 2010 (“EQA”)
The Law
[120]Within Part 5, “Work”, Chapter 3 deals with “Equality of Terms”.[121]Section 77 EQA make certain contractual terms unenforceable where those terms purport to prevent (certain) discussions about pay. It includes:(1) A term of a person's work that purports to prevent or restrict the person (P) from disclosing or seeking to disclose information about the terms of P's work is unenforceable against P in so far as P makes or seeks to make a relevant pay disclosure.(2) A term of a person's work that purports to prevent or restrict the person (P) from seeking disclosure of information from a colleague about the terms of the colleague's work is unenforceable against P in so far as P seeks a relevant pay disclosure from the colleague; and “colleague” includes a former colleague in relation to the work in question.(3) A disclosure is a relevant pay disclosure if made for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether or to what extent there is, in relation to the work in question, a connection between pay and having (or not having) a particular protected characteristic.[122]Within Part 9, “Enforcement”, Chapter 4 deals with “Equality of Terms”.[123]The sections on time limits are sections 129 and 130. 21 of 37[129]Time limits(1) This section applies to— (a) a complaint relating to a breach of an equality clause or rule; (b) an application for a declaration referred to in section 127(3) or (4).(2) Proceedings on the complaint or application may not be brought in an employment tribunal after the end of the qualifying period.(3) If the complaint or application relates to terms of work … the qualifying period is, in a case mentioned in the first column of the table, the period mentioned in the second column subject to section 140B. Case Qualifying period The period of 6 months beginning with the A standard case last day of the employment or appointment. A stable work case (but not if it The period of 6 months beginning with the is also a concealment or day on which the stable working relationship incapacity case (or both)) ended. The period of 6 months beginning with the A concealment case (but not if it day on which the worker discovered (or is also an incapacity case) could with reasonable diligence have discovered) the qualifying fact. The period of 6 months beginning with the An incapacity case (but not if it day on which the worker ceased to have the is also a concealment case) incapacity. The period of 6 months beginning with the A case which is a concealment later of the days on which the period would case and an incapacity case begin if the case were merely a concealment or incapacity case.[130]Section 129: supplementary(1) This section applies for the purposes of section 129.(2) A standard case is a case which is not— (a) a stable work case, (b) a concealment case, (c) an incapacity case, or (d) a concealment case and an incapacity case. 22 of 37(3) A stable work case is a case where the proceedings relate to a period during which there was a stable working relationship between the worker and the responsible person (including any time after the terms of work had expired).(4) A concealment case in proceedings relating to an equality clause is a case where— (a) the responsible person deliberately concealed a qualifying fact from the worker, and (b) the worker did not discover (or could not with reasonable diligence have discovered) the qualifying fact until after the relevant day.(5) …(6) A qualifying fact for the purposes of subsection (4) … is a fact— (a) which is relevant to the complaint, and (b) without knowledge of which the worker or member could not reasonably have been expected to bring the proceedings.(7) …(8) …(9) …(10) The relevant day for the purposes of this section is— (a) the last day of the employment … 124. Sections 132 and 135 deal with remedy (and the period for which a remedy can be awarded) rather than time limits. However, the definition of “concealment” in section 135 is comparable to that in section 130. 125. Section 140B EQA contains fairly standard and familiar wording about the extension of time provisions for early conciliation. There is no alteration to the time limit if early conciliation starts and finished before the time limit clock begins to run. There is also no alteration to the time limit if early conciliation does not start until after the time limit (as it would apply but for section 140B EQA) has already expired. Subject to those points, a new time limit is calculated by applying the date calculated in accordance with sub-section (3) and sub-section (4), as appropriate. 126. The burden of proof provisions are codified in s136 EQA. (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. 23 of 37 127. The Equality and Human Rights Commission has produced a statutory code of practice. It includes, at paragraphs 7 to 9, some comments about the purpose of the legislation. Tribunals are obliged to interpret the legislation to give effect to the intended purpose. 7. The full-time gender pay gap has narrowed since 1975 when equal pay legislation first came into force but there remains a gap of over 16 per cent between women’s and men’s pay. 8. Historically, women have often been paid less than men for doing the same or equivalent work and this inequality has persisted in some areas. 9. The Act’s provisions on equal pay and sex discrimination are intended to ensure that pay and other employment terms are determined without sex discrimination or bias. 128. At paragraph 143, the Code states: Where the fact of the pay inequality was deliberately concealed and the woman could not reasonably have been expected to discover it, the time starts to run from the date she actually discovered or could reasonably have discovered the inequality. This is referred to as a concealment case. 129. In December 1998, the European Court of Justice gave its decision in Levez v TH Jennings (Harlow Pools) Ltd (C-326/96). The issue was whether the wording in the Equal Pay Act 1970 properly complied with the obligation on the member state, the UK, to properly implement Council Directive 75/117/EEC. On the facts, the employee in that case had been given a promotion in December 1991, and a pay increase to £10,800 per year. The new job was exactly the same as the one which her predecessor had done. Her male predecessor’s salary had really been £11,400, but the Claimant was specifically told that it had been £10,800. The employee did not find out about this lie until the end of her employment in March 1993. She presented her claim in time, but an issue arose about how far back the remedy award could go. 130. The ECJ’s decision was that a hard and fast rule about the maximum period for remedy which takes no account of the fact that “the delay in bringing a claim is attributable to the fact that the employer deliberately misrepresented to the employee the level of remuneration received by persons of the opposite sex performing like work” would not comply with the Directive. The court’s comments (in italics in this paragraph) take account of the facts as stated in paragraph 11 of the judgment that the employer had “falsely declared to her that that was the salary paid to her male predecessor”. Put another way, it had been an express lie, rather than simply remaining silent. Paragraphs 27 and 31 also commented on the fact that the Claimant had specifically been given false information.[131]The legislation was subsequently changed to seek to give effect to the ECJ decision. 24 of 37[132]Thacker v Secretary of State for Education & Skills was decided after the change of the wording of the Equal Pay Act 1970. It twice came before His Honour Judge McMullen QC. The first time he sent the matter back to the tribunal to consider whether the claims fell within the deliberate concealment provisions of the Equal Pay Act 1970 and/or Article 141 of the Treaty of Rome. This was not on the basis of an argument that the employees had been misled about pay; it was a pensions case, and the judge considered that it was potentially arguable that, if they had been given inaccurate information about membership of the scheme, then that might make it a concealment case. When it came to him a second time, after further fact finding and decision making by the Tribunal, he decided that the Tribunal had been correct to decide that it was not a concealment case.[133]His decision included: 3. The Claimants expressly accepted that the concealment of which they complained was not deliberate. The first active involvement of either Respondent was in 2000 when the claims were already out of time and, to put it at its highest, the Respondents failed to inform the Claimants of any need to present a complaint to the Employment Tribunal.[134]This was not the only reason that the claims and the appeal failed, but in the analysis (including at paragraph 9), the fact that there was, at most, a failure to supply information was considered relevant, and a feature which distinguished Levez. That being said, it was more important to the decision that the failure to supply the information was not deliberate rather than that it was a failure to supply information, as opposed to an act of supplying false information. Cases mentioned by the parties[135]The Respondent has referred to British Coal v Keeble EAT/496/96. This was a case about potentially extending time under the Sex Discrimination Act. So under the provisions that are now in section 123 EQA. Amongst other matters, it discussed the Limitation Act 1980.[136]The Limitation Act 1980 features in the case that the Claimant invited me to take into account, namely the Supreme Court decision in Canada Square Operations Ltd (Appellant) v Potter (Respondent) [2023] UKSC 41. That was a case in which a consumer, Mrs Potter, entered into a financial transaction on the other party’s pre-printed standard forms.[137]The Supreme Court had to address the issue that a claimant seeking to rely on section 32(1)(b) to defeat a Limitation Act defence has to prove that there was a fact relevant to the claimant’s right of action, which was deliberately concealed from her by the defendant. 25 of 37[138]For the purposes of that legislation, the Supreme Court decided that a fact will have been concealed (within the meaning of the definition in the Limitation Act) if the defendant has kept it secret from the claimant, either by taking active steps to hide it or by failing to disclose it. The claimant would not need to establish that the defendant was under a legal, moral or social duty to disclose the fact, nor that the defendant knew the fact was relevant to the claimant’s right of action. All that is required is that the defendant deliberately ensures that the claimant does not know about the fact in question and so cannot bring proceedings within the ordinary time limit.[139]In order to show that the concealment had been done “deliberately”, the decision was that the defendant’s concealment of a relevant fact will be deliberate if the defendant intended to conceal the fact in question. Simply proving that the defendant had been “reckless” about concealment would be insufficient.[140]For one party to terminate the employment relationship, clear enough words have to be used, and have to be communicated to the other party. Once that has happened, however, the resignation or the dismissal (as the case may be) cannot be unilaterally retracted.[141]If an employee resigns by giving a notification which says they will work out their notice period, but then, before the notice period has expired, the employer decides to bring the employment contract to an end, on a date earlier than the expiration of the notice period, then, arguably, the reason the employment contract ends on that particular date is that the employer has decided that will happen and, hence, there is an actual dismissal on that date. However, for today’s purposes, I would not need to decide whether the termination event should properly be characterised as an actual dismissal, a constructive dismissal, or a simple resignation. I only need to decide the date on which termination occurred, or, as a minimum, the latest date by which it occurred.[142]Section 18A of the Employment Tribunals Act 1996 requires employers to have undertaken early conciliation prior to the commencement of proceedings “relating to any matter” (my emphasis). Once a potential claimant has obtained a certificate, and then has later presented one or more claim forms in reliance on that certificate, questions about whether the “matter” to which the early conciliation related are the same “matter” to which the claim relates are decided by the Tribunal. Once a claimant has commenced proceedings which do comply with the requirements of section 18A of the Employment Tribunals Act 1996, they are not required to go through early conciliation again prior to obtaining permission to add new complaints to the proceedings. However, potentially arguments about whether the new complaints where the same “matter” for which the certificate was produced could be relevant to time limit issues. When new complaints are added by way of amendment, it does not follow, and often will not be the case, that – for 26 of 37 time limit purposes – the new complaint is treated in the same way as if it had been part of the original claim form. Analysis and conclusions[143]In this case, my decision is that the exact salary which Harrise Khan was receiving from the Respondent was not an essential ingredient of the claim, or a fact that the Claimant needed to be aware of in order to present an equal pay claim relating to the period from January 2022 onwards, when Harrise Khan became an employee, and when the Claimant became Head of Business Operations.1[144]Some facts / alleged facts that the Claimant needed to be aware of in order to present such a complaint included:144.1 That she and Harrise Khan had the same employer. [She knew this was the case at all relevant times; it was not concealed from her and she has not argued that it was concealed from her.]144.2 Either that he was doing like work with her, or else that he was doing work of equal value. [The Claimant has not alleged that any facts to assist her with either such argument were concealed. My decision is that such facts were not concealed. In any event, the Claimant’s own argument is that, as of late December 2021 / early January 2022, when her proposed new role of “Head of” was being discussed, it was apparent to her – and she alleges that it was apparent to the Respondent too, though that is a separate point – that her “Head of” role and Harrise’s “Head of” role were similar and/or of equal importance / value to the business.]144.3 That she is a woman and Harrise Khan is a man. [The Claimant knew both of these facts, and does not allege they were concealed.]144.4 That Harrise Khan was getting paid more than her. [In cross-examination, the Claimant admitted that she suspected this to be true, though she asserts that her assumption and belief was that the difference was fairly small.][145]None of the first of the three sets of facts mentioned in the previous paragraph were “deliberately concealed” from the Claimant. I will address whether the fact that Harrise Khan was getting paid more than the Claimant was “deliberately 1. The alleged breach of the equality clause would run from whichever was the later of these two events, but the exact date does not matter for present purposes. 27 of 37 concealed” from the Claimant when discussing the suggestion that the “qualifying fact” which the Claimant relies on is Harrise’s exact salary.[146]To the extent that the Claimant did not know Harrise’s exact salary, had the Claimant wanted to know his exact salary, she could have asked formally at any time.146.1 She could have done so by raising a grievance in accordance with the policy mentioned above.146.2 She could have done so by making some different type of query. In particular, when she had the conversation with Cass Khan in around December 2021 (the outcome of which was that she would not get an immediate salary increase when starting in the “Head of” role, but would get a £5000 increase after 6 months), she could have brought up Harrise Khan’s salary then. She could have suggested that she wanted to receive the same salary as him, or else that she wanted to receive a salary that was comparable to his, but was slightly less to take account of the fact that he had been working in the Respondent’s business for longer than she had.[147]She made no information requests about Harrise’s salary during employment, not even during the exchange of emails towards the end of her employment about the matters which (on the Claimant’s case) led to her resignation, ie to the alleged constructive dismissal. She did ask for other information then (for example, about when her colleagues bonuses had been paid).[148]After the end of her employment, prior to presenting her claim form, she could potentially have formally asked the Respondent for information about Harrise’s salary.[149]If it was the Claimant’s opinion, at the time of presentation of the claim form, on 25 March 2024, that she was entitled to receive the same salary as Harrise Khan, then she could have stated that in the claim form. That is, she did not need to know his exact salary in order to make the assertion.[150]The Claimant does not dispute the proposition in the previous paragraph. Rather her argument is a different one. To paraphrase, her argument is that she could not reasonably have been expected to include an equal pay claim (that is “a complaint relating to a breach of an equality clause” to use the language of section 127 EQA) in the claim form submitted to the tribunal on 27 March 2024; her argument being that the information supplied to her by Ms Keilholz in April had(i) been ”deliberately concealed” and(ii) was such that, without it, she could not reasonably have been expected to present a complaint asserting a right to equal pay with Harrise being the comparator. 28 of 37[151]Her submissions and her witness evidence have tended to blur the distinction between(i) not knowing Harrise’s exact salary and(ii) not knowing that Harrise was paid more than her.[152]Her application to amend (which was granted) dated 9 October 2024 [Bundle 60] included: Given that the Respondent is not transparent about their salaries and deliberately conceals pay inequalities, I was not aware of this pay discrepancy prior to this conversation. As such, I consider this to be a concealment case, and I consider April 2024 as the date I became aware of the qualifying fact that underpins this claim.[153]Given the Claimant’s assertion that she believed that, at the time of appointment to “Head of”, she was to be placed on the same salary as Harrise Khan, at first sight the argument presented seemed to be that “the qualifying fact” was “this pay discrepancy” and that the word “this” referred to the fact that Hariss was on a higher salary.[154]However, in cross-examination, the Claimant accepted that she had thought that Harrise may have received more than her, but she assumed that the difference was small. She referred in particular to paragraphs 41 and 42 of her witness statement, which are really more by way of legal submissions. I do not accept that, in January 2022, or during the Claimant’s employment, she actually consciously had a thought process that was along the lines of “Harrise gets more than me, but the employer can justify the difference based on clear, non-discriminatory criteria that are proportionate to the roles and responsibilities of the individuals involved.” Equally, she did not think “Harrise gets the same as me” or “my employer has acknowledged to me that Harrise and me should get similar pay”.[155]When read carefully (and in light of the Claimant’s cross-examination answers) the Claimant is seeking to allege that the qualifying fact is the amount of the difference in pay between her and the comparator, as opposed to the fact that there was some difference. Specifically, in her words, but with my emphasis, one of her arguments is that the qualifying fact is that there was “a significant pay discrepancy”.[156]However, she has not specified where the borderline lies between the size of the pay difference about which she would have had no complaint, and the size of the pay difference which would have caused her to bring an equal pay complaint.[157]A “qualifying fact” has to meet both of the criteria:157.1 being relevant to the complaint, and157.2 being a fact that, without knowledge of which the employee could not reasonably have been expected to bring the equal pay complaint. 29 of 37[158]The size of the pay differential has some relevance to a complaint relating to a breach of the equality clause. It would be relevant to the compensation if the claim was successful. I also accept the point that the Claimant hints at in her witness evidence, namely that, if the Respondent raises a material factor defence, then the size of the pay differential will (potentially, at least) be relevant to that defence.2[159]On these facts, however, I am not persuaded that, without knowledge of the specific amount of Harrise Khan’s salary (or, more specifically, the knowledge of the net sum that the Respondent paid to him in a particular month, from which she inferred his salary) that the Claimant could not reasonably have been expected to bring the equal pay complaint.159.1 Amongst other things, the Claimant was intending to (from the start of early conciliation, at the latest) and did, in fact, present a claim which alleged discrimination.159.2 She knew that she did not know Harrise’s salary. She knew that no-one had ever purported to tell her (whether truthfully or untruthfully) what Harrise’s salary was).159.3 On her case, she knew, or believed, that they should have been getting a similar amount.159.4 On her own case, she thought that Harrise might be getting more than her (albeit only slightly more).159.5 On her case, the fact that Harrise was Cass’s nephew was relevant, in that she thought it might have affected Harrise’s pay.159.6 On her case, as per the ET1, she believed the following things at the time she presented that claim form: 2 At paragraph 96 of the Supreme Court’s decision in Potter, it was stated: “As to the words ‘a fact relevant to the plaintiff’s right of action’, that phrase has been interpreted as referring to a fact without which the cause of action is incomplete: see, for example, Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 883; [2015] Bus LR 1362. That interpretation is not in issue in this appeal, but it makes sense: if the claimant can plead a claim without needing to know the fact in question, there would appear to be no good reason why the limitation period should not run.” Since that comment was not part of the reasons for deciding the Potter case, and since it was referring to a different piece of legislation, I have not based my decision on that. However, it is my view that the Claimant could have pleaded an equal pay complaint without knowing Harrise’s specific salary. 30 of 37159.6.1 There was an inherent discriminatory culture within LDC towards women & mothers.159.6.2 The Respondent did not want her to return because “they felt [she] wouldn't fit with this sexist culture now”.159.6.3 Many females have left LDC on negative terms. This includes for reasons of gender discrimination.159.6.4 Women are constantly belittled.159.7 I do not accept that the Claimant believed that the Respondent had made any kind of implicit representation to her that her salary would be the same as or similar to Harrise’s.159.8 I do not accept that the Claimant believed that Harrise’s salary was similar to hers.[160]Thus, since, for those reasons, the information that was newly discovered in April 2024 was not a “qualifying fact””.160.1 To the extent that the Claimant argues that the “qualifying fact” was the exact amount of Harrise’s salary, I do not agree that she could not reasonably have been expected to bring a claim without knowing the exact amount.160.2 To the extent that the Claimant argues that the “qualifying fact” was that Harrise was receiving “significantly” more than her, I do not accept that she only discovered that fact when Ms Keilholz supplied the information from the Respondent’s bank statement which specified a specific net sum which had been paid to Harrise Khan.[161]Additionally, even if it were a “qualifying fact”, then it would only be a concealment case if both of the following criteria were met:161.1 The Respondent “deliberately concealed” it from the Claimant, and161.2 The Claimant did not discover (and could not with reasonable diligence have discovered) the qualifying fact until after the last day of the employment[162]If Parliament had intended to say that a case would be a concealment case unless the Respondent made salary information freely available, then it would have expressly said so. Similarly, if Parliament had intended to say that a case would be a concealment case unless the employer had specifically given information to the employee about the comparator’s remuneration, then it would have said so.[163]Furthermore, while Parliament enacted section 77 EQA (as quoted above) to make it (in theory, at least) easier for employees to have discussions about pay with a 31 of 37 view to assessing whether there was discriminatory pay, it did not see fit to specify that if an employer purported to have management instructions and/or contractual clauses restricting/preventing discussions about pay, then that would be deemed to be a concealment case (or, at least, to satisfy the requirement set out in section 130(4)(a) EQA). If Parliament had intended that an employer purporting to do those things would mean that equal pay claims against them would always be concealment cases then it would have said so expressly in the Equality Act.[164]Neither Levez nor Thacker were cases about mere silence. I do acknowledge that the Claimant is arguing that the Respondent did more than merely remain silent, and that it actively sought to prevent employees (including Harrise) from revealing their pay.[165]In my judgment, there is a distinction to be drawn between merely failing to disclose some information on the one hand, and deliberately concealing it on the other hand.[166]The issue about whether a fact has been “deliberately concealed” is going to be a question of fact, and the decision needs to take account of the nature of the relationship between the alleged concealer, and the person alleging concealment, as well as the nature of the information in question.[167]Although Potter was a case dealing with different legislation, not EQA, I do think that some of the comments about the phrase “deliberately concealed” should be deemed to be applicable to Section 130 EQA. In particular, as noted in paragraphs 98 to 105 of the judgment, the fact that there was no duty to disclose information to the other party is not fatal to the argument that the information was “concealed” (although, if there was a duty, then the fact that the defendant failed to disclose the information will be relevant to the assessment of whether it was “deliberately concealed”).[168]It does not follow, however, that just because there can sometimes be concealment by a failure to disclose a specific piece of information that there is always deliberate concealment whenever there is a failure to disclose a specific piece of information.[169]For example, if an employee joined an organisation to work in London, and privately hoped that they could move to a Glasgow office, it could not sensibly be said that the employer had deliberately concealed the fact that there was no Glasgow office. Or if an employee privately hoped to take over their boss’s job when the boss retired at 65, the mere fact alone that the boss had not mentioned that they did not intend to retire at until 70 would not have been deliberately concealed. It is not merely the fact that there was no “duty” to supply the information, it is the fact that, without something to alert the employer that the 32 of 37 employee might want the information, there is no conscious decision about whether to supply the information to the employee or not.[170]In the Claimant’s case, there was a lot of information that she did not have, because the Respondent had not supplied it to her. She did not have details of the salaries of Matt Philipps, President, or of Cass Khan, Senior Vice President. The Claimant had not asked for that information and she had not received it. It cannot be said, in my opinion, that the Respondent had “deliberately concealed” those salaries, just by the mere fact that they were neither published to the world at large, nor published somewhere that the Respondent’s own employees could view them.[171]The Claimant had also not asked for, and had not received, any information about Harrise’s salary. She points out that he was just offered the role without there having been a recruitment exercise, and (therefore) there was no job advertisement and (therefore) she did not have the opportunity to see any salary details in a job advertisement. That is true. However, the Respondent’s reasons for not advertising the role is that the role was specifically created for Harrise Khan; the Respondent’s reasons for not advertising the role were not to conceal the salary information from anybody.[172]The Claimant’s argument that this is a concealment case includes her suggestion that, in the discussions in the lead up to her being appointed to their respective “Head of” roles, there was some implied representation to her such that the remuneration would be the same, and such that the non-disclosure of Harrise’s specific salary (or non-disclosure that the differential would be “significant” to use the Claimant’s word) amounts to deliberately concealing that information.[173]However, my finding of fact is that, at the time, the Claimant did not believe that such a representation was being made to her, and my analysis is that no reasonable person would have believed that, just because details of Harrise’s remuneration were not discussed with her then it followed that she and the employer were both of the opinion that the Claimant and Harrise should and would be getting the same pay. This is particularly true in circumstances in which the Claimant made no queries about Harrise’s salary, but did make some arguments for why she should be offered a higher salary than the Respondent was proposing for her “Head of” post.[174]Harrise’s salary was not deliberately concealed from the Claimant. No employee’s salary information was supplied by the Respondent to other employees (save in the circumstances where, because their duties required it, one employee was part of the process for offering a contract to another). No deliberate decision was made by the Respondent to withhold Harrise’s salary information from the Claimant, because the Respondent simply did not hand out that information routinely. My finding is that the Respondent was not under the impression that just because two 33 of 37 roles were being offered to different people at a similar time, and both included “Head of” in the title, and both were reporting to Cass Khan, it was creating the impression that the two roles were going to be paid similarly. As Cass Khan stated, he already had some “Head of” posts reporting to him and they were each significantly different in pay and duties.[175]The Respondent did not consciously decide that it would not tell the Claimant what Harrise’s starting salary would be (when he converted to becoming a direct employee); it gave no consideration at all to supplying that information either to the Claimant or to other employees.[176]The Respondent did not consciously decide that it would not tell the Claimant that Harrise would be (in the Claimant’s phrase) earning “significantly” more than her. The Respondent saw no correlation between what it was going to pay to the Head of Business Operations and what it was going to pay to the Head of Commercial. These were two completely different decisions and completely separate pay negotiations as far as the Respondent was concerned. [As stated above, my finding is that that was how the Claimant saw it at the time too]. Cass Khan (and other senior employees) did not consciously decide that they would not say to the Claimant, something along the lines of “By the way, you will be getting significantly less than Harrise” because it did not occur to them that that might be necessary or appropriate.[177]Had the Respondent wanted to disclose Harrise’s pay information to the Claimant (or other employees), it would have had to give consideration to its data protection obligations. In contrast to Potter, where the information was of a type that a consumer might reasonably have been expected to be interested in, and where there was no duty to keep the information confidential, in this case, had the Respondent wished to go through the process of disclosing Harrise’s salary, it would have had to be doing so for a purpose allowed by data protection legislation, or else with Harrise’s informed consent.[178]Thus, even if Harrise’s exact salary (or the information received from Ms Keilhoz) was a qualifying fact), this is not a concealment case because the Respondent did not deliberately conceal it from the Claimant.[179]Further, the Claimant could have presented a grievance to the Respondent, but did not do so. It is speculation was to whether the Respondent would have disclosed Harrise’s salary to her had she alleged a right to know it, and/or had asserted the right to the same pay as him. The Respondent has not proven to me that it would have been willing to disclose that information in response to such a grievance. However, the Claimant made no attempt to obtain it; with “reasonable diligence” she could certainly have presented a grievance. If she thought a grievance would be pointless (ie would be met with a blank refusal to disclose any 34 of 37 information about other people’s pay), she could, with reasonable diligence, have included a complaint about her pay (in comparison to Harrise’s) in the claim form.[180]If there had been a grievance from the Claimant, potentially asserting that the Respondent was in breach of EQA, and/or implying that there might be litigation, then this would be relevant to the Respondent’s assessment of its data protection obligations, and, in particular, relevant to the assessment of whether it had a legitimate reason to supply the information to the Claimant even without Harrise’s express consent. It does not follow that the Respondent would necessarily have supplied the details of Harrise’s exact remuneration package to the Claimant in those circumstances, but it is an avenue which she did not explore.[181]However, as mentioned above, the Claimant effectively submits (given her admissions in cross-examination) that the qualifying fact was not so much Harrise’s exact salary (or the fact that he received more money than she did), but the fact that he received “significantly” more than her. Had there been a grievance from her that argued either(i) her salary / remuneration package should be exactly the same as Harrise’s or(ii) it should be fairly similar, such that he did not earn “significantly” more than her, then the Respondent would have been able to confirm / deny whether it agreed with either of those propositions without necessarily having to supply her with Harrise’s exact pay information. The Claimant made no attempt to find out from the Respondent whether it regarded her comparator’s pay as “significantly” higher than hers. She has not specified in this litigation how much higher than hers his pay could have been before it reached the level of being “significantly” higher than hers; she might have needed to be specific about that had she brought a grievance. However, the point is hypothetical because she made no submissions whatsoever to the employer about how closely her pay ought to have matched Harrise’s. This was because, during employment, she did not think that her pay was aligned to Harrise’s and she did not think that her employer thought that it ought to have been aligned to Harrise’s.[182]Turning to termination, while it is open to the Tribunal at the final hearing to make its own decisions about the precise identification of the last day of the employment (because that might be part of their analysis of whether the circumstances amount to constructive dismissal), for time limit purposes, in accordance with section 129 EQA, my decisions are as follows.[183]The Claimant’s email of 22 December 2023 [Bundle 238] was a resignation with notice. She did not expressly use the words “with notice” but she acknowledged that she was required to give notice, and when she wrote “formal resignation to run parallel to these discussions” she clearly meant that her resignation was not with immediate effect, but rather would take place at the end of the notice period (unless the parties came to some different agreement, which they did not). 35 of 37[184]Since her notice period was 3 months, the effect of the 22 December 2023 email was that her last day of employment would have been 22 March 2024.[185]At the final hearing, the Tribunal will have to decide whether the Respondent’s actions of sending the Claimant a P45, specifying an end date of 31 December 2023 amounted to an actual dismissal.[186]For today’s purposes, I do not regard Ms Wykes email of 9 January 2024 (which included the comment, “If you do not return to work to complete your notice period then your notice period will be forfeited.”) to amount to an unambiguous dismissal from 11 January, the date by which the Claimant was told she had to respond.[187]Furthermore, I take into account what is said in the handbook about the correct methods for either party to give notice to the other. I do think that the Claimant’s email complied with the requirement to resign with notice (and obviously the Claimant alleges it was constructive dismissal, but that is not relevant to the point at hand) and Ms Wykes’ email did not comply with the requirements for the employer to terminate (either with or without notice).[188]If it were hypothetically true that the Claimant’s employment ended on 22 March 2024, then there would be no extension of time limit due to early conciliation, because the entire period of early conciliation would have been before the time limit clock began to run. So the time limit would have expired on 21 September 2024, and had already expired before the hearing before EJ Knowles.[189]If it were hypothetically true that the Claimant’s employment ended on 13 February 2024 (receipt by the Claimant of her P45), then that was after early conciliation had started, and before it ended. I did not specifically ask the parties if there was any dispute about whether the Claimant should benefit from the early conciliation extension on those circumstances (ie whether it was agreed that the equal pay was part of the same “matter” about which there had been early conciliation), but it does not necessarily matter. Assuming that none of period from 14 February to 27 February counts, then the Claimant’s time limit – for a non concealment case – would have expired around 26 August 2024.[190]So, even assuming that the termination event was one of the things mentioned in the last two paragraphs, the claim was out of time. In the claim and response forms, the parties have suggested 2 January 2024 and 31 December 2023 respectively as the alleged termination dates. I do not need to comment on those suggestions other than to say that, if either is correct, then time expired earlier than 26 August 2024.[191]The amendment was granted by me in December 2024. However, in reliance on Galilee v Commissioner of Police for the Metropolis UKEAT/0207/16, the effect of the amendment is not that the equal pay complaint (which is a brand new cause of action, not included in the original claim form) is deemed to have been presented 36 of 37 on 25 March 2024. It is deemed to have been presented when the amendment was granted, or, at the earliest, when the amendment application was first made. It was first made at the hearing before EJ Knowles on 25 September 2024, and thus, even if deemed to have been presented on that date, it was out of time.[192]The complaint alleging breach of the equality clause is therefore dismissed because it was presented outside the time limit specified in section 129 EQA.