Case No 8001755/2024Venue GlasgowHearing 3, 4, 6 & 7 November 2025
Between
Ms Lauren MaynardClaimantM Group Services LtdRespondent
Before
Employment Judge C McManusDate 15 January 2026
JUDGMENT
The unanimous decision of the Tribunal is that:-• The claimant’s complaint of equal pay does not succeed and is dismissed.• The claimant’s complaint of equal value does not succeed and is dismissed.• The claimant’s complaint of direct sex discrimination under section 13 of the Equality Act 2010 does not succeed and is dismissed.• The claimant’s complaint of direct race discrimination under section 13 of the Equality Act 2010 does not succeed and is dismissed.• The claimant’s complaint of unlawful harassment under section 26 of the Equality Act 2010 does not succeed and is dismissed.• The claimant’s complaint of unlawful victimisation under section 27 of the Equality Act 2010 does not succeed and is dismissed.• The claimant’s complaint of breach of contract in respect of unpaid payment of notice pay does not succeed and is dismissed.• The claimant’s complaint of unpaid wages in respect of accrued but untaken holidays, having been withdrawn by the claimant is dismissed.
REASONS
[1]There were two Case Management Preliminary Hearings (CMPHs) in this case, both before EJ Robison. The Notes from those CMPHs summarise discussions and set out Orders made. The claimant’s position was that she was paid less than other employees and that that was because of her sex (gender) and / or because of her race (being, with regard to the Equality Act 2010 (‘EqA’) section 9(1)(c): Caribbean Scottish). The legal complaints were identified as being• Equal pay / equal value –the claimant relying on being paid less and being given less training opportunities than two named comparators (identified in this Judgment as Comparator 1 and Comparator 2).• Direct Discrimination on the grounds of the claimant’s race contrary to section 13 of the Equality Act 2010 (‘the EqA’).• Unlawful harassment on the grounds of the claimant’s race contrary to section 26 EqA.• Victimisation contrary to section 27 EqA, based on purported protected acts on 13 February and 22 February 2024)[2]As set out in the Note from the CMPH in May 2025, the claim proceeded on the basis that what had initially been framed as a sex discrimination complaint was for equal pay or equal value. It was agreed that at this Tribunal there would be consideration of the Material Factor Defence, on the basis of acceptance that the identified comparators shared the same job title and worked in the same place as the claimant. . In the event of our decision being that there was no Material Factor justifying the difference in pay between the claimant and her identified comparators, a separate hearing on whether the claimant carried out work of equal value to those comparators would be arranged. If we were satisfied on the evidence that the difference in pay between the claimant and her named comparators was for material factor reasons which were nothing to do with sex (gender), the complaints of sex discrimination, equal pay and equal value would fall to be dismissed.[3]This Final Hearing (‘FH’) was scheduled for 5 days but due to judicial resources did not sit on Wednesday 5 November. All evidence and submissions were heard. The claimant gave evidence herself and also relied upon evidence from her mother, Marion Beresford, and her former line manager Stephanie Stephens. The respondent relied upon evidence from Lorna Ormiston (Director of Operations), Pam Savill (HR Business Partner), Jay Honour (Head of People / HR) and Lisa Chinn (Head of Delivery). All evidence was heard on oath or affirmation.[4]Parties relied on documentary evidence in a Joint Bundle with pages consecutively numbered 1 – 230. Documents in that Bundle are referred to by their page number (JB1 – JB230). It was unhelpful that no index to this Bundle was provided.[5]In preliminary discussion at the start of this Final Hearing (‘FH’) it was confirmed that the correct identity of the respondent is M Group Services Ltd. On application of Rule 35(1) of the Employment Tribunal Procedure Rules 2024 (‘the Tribunal Rules’), on the agreement of parties, the respondent named in the ET1 claim form (Magdalene Limited) is substituted by:- M Group Service Limited. It was agreed that no issues arose from that and that the FH could proceed, with representation for the respondent being provided by Mr Davis.
Issues
[6]The draft issues for determination were identified in the CMPH Note issued on 28 May 2025. During the course of this FH, the claimant withdrew her claim in respect of reliance on one of her identified comparators and withdrew her claim for unlawful deductions from wages. The issues determined were:- Equal Pay 1. Whether the respondent can prove a material factor defence that any difference in pay between the claimant and(1) Comparator 1(2) Comparator 2 was not related to sex. Direct Sex Discrimination 2. Whether the claimant was less favourably treated than Comparator 1 or Comparator 2 by being paid less than them because of her sex (gender). Direct Race Discrimination 3. Whether the claimant was less favourably treated than Comparator 1, Comparator 2 or Comparator 3 by (a) being paid less than them because of her race; and (b) getting fewer educational opportunities because of her race. Harassment related to race 4. Whether the claimant was subjected to unwanted conduct related to race which had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading or humiliating environment for the claimant. Victimisation 5.Whether the claimant’s meetings with Ms Savill on 13 and / or 22 February 2024 were protected acts. 6.If so, whether the claimant was subjected to a detriment by (a) not being invited to be interviewed for the investigation; and/or (b) not being contacted when she first when on sick leave. 7.If so, whether any such detriment was because the claimant did any such protected act. Pay[8]Whether the claimant is entitled to notice pay. Findings in Fact 7. The following facts material to the issues to be determined were agreed, admitted, or found to be proven. It was not necessary for material findings in fact to be made in respect of all evidence heard. 8. The respondent is a specialist telecoms provider of UK- wide fixed, mobile and utilities infrastructure networks for public and private sectors. The claimant first worked for the respondent via an agency, from 30 November 2020. She was employed by the respondent directly from 1 February 2021. The claimant was initially employed by the respondent as a Project Coordinator (Grade 2), with a salary of £25,350. The claimant’s contract of employment with the respondent [JB150 – JB163], provides for notice period of one month [JB150]. After the 6 month probation period, the claimant required to give one month’s notice if she wished to terminate her employment with the respondent [JB153].[9]After school, the claimant had attended College and gained a SVQ (Scottish Vocational Qualification), then HSC (Higher National Certificate) then HND (Higher National Diploma) in Beauty and Cosmetology. She then worked in Executive PA and Legal Secretary roles in various companies, through an agency. In 2014/15 the claimant worked in a civil engineering company as a Project Co-ordinator. She then worked in further admin roles and as a Business Development Manager. She had a baby in 2019 and was on maternity leave, then helped in her partner’s motorcycle dealership business until starting with the respondent, through an agency, in 2021. The claimant had no experience of working in telecoms before working with the respondent.[10]The letter to the claimant at JB115 confirms that the claimant was promoted from Project Co-ordinator to the role of Project Specialist from 1 October 2021. The annual salary for that position was £29,153. That letter (JB 115) confirms that the claimant’s salary increase at that time ‘encompasses the inflationary increase which is due to be awarded October 2021’. The respondent annually reviews all employees’ salaries in October.[11]The Pay Review Policy [JB169 – JB173] sets out that the default position is that the respondent annually reviews all employees’ salaries, taking effect from 1 October [JB172]. The default approach includes:- “We wouldn’t normally include you in the annual pay review process if one of the following applies:-• You received any pay increase or started employment with us from 1 April of that year’s annual pay review….” In addition to that annual review (which may or may not lead to an increase), there are ‘out of cycle’ pay reviews which can take place in January, April and July each year. The Pay Review Policy criteria for ‘out of cycle adjustments’ i.e. for justification of a pay increase in January, April or July as being in the following categories [JB173]:- 1. Promotion, job change or significant increase in responsibility 2. Attainment of a recognised qualification or agreed development milestone 3. Pre-defined salary progression model for the job. 4. Market-related pay pressure 5. Some other exceptional reason.[12]On 3 July 2023, the then Head of HR sent an email to the respondent’s Executive Management Team re ‘Promotion and Salary Increase Process’ (JB116 – JB117). On 5 July 2023 Lorna Ormiston forwarded that email to line managers, including Stephanie Smillie. That email set out under the heading ‘Salary Reviews’ that “the default position is that salaries are reviewed annually taking effect on 1 October”. It referenced the 5 categories in the Pay Review Policy which may warrant an out of cycle increase on 1 January, 1 April or 1 July, and:- “For a member of your team to have their salary adjusted you will need to provide a full rationale for the increase and evidence (including quarterly 121) of their achievements to your Exec manager. You will need to be clear about milestones you expect the employee to achieve for their salary to be reviewed and this should be based on sustained and consistent achievement rather than achieving a milestone once.”[13]When in the Project Specialist (‘PS’) role, it was agreed that the claimant would seek to gain an ‘APM’ qualification. That APM qualification is the first level of the Advanced Practitioner Project Management qualification. The respondent paid for the claimant to sit the exam for that qualification. Prior to achieving that qualification, the claimant’s salary was increased from £29,153 to £35,000. The claimant gained the APM qualification on her third attempt at the exam, in June 2023 [JB164 – JB165]. In accordance with the agreement, because the claimant attained that qualification, the claimant’s salary was increased from 1 July 2023 from £35,000 to £40,028. Lorna Ormiston (Operations Director) approved that salary increase, because it had been previously agreed that the claimant would receive that increase when she gained the APM qualification. That increase was processed as an ‘out of cycle’ pay review. It placed the claimant’s salary within the respondent’s first tier for Project Manager’s salary, of £38k - £45k, although the claimant’s job title remained Project Specialist.[14]In October 2023 Stephanie Smillie interviewed candidates, including the claimant, for a Project Manager vacancy. The claimant was successful and appointed to that Project Manager (PM) role, starting in December 2023. Prior to her starting in that role, on 27 October 2023 (after the date of the October review), Stephanie Smillie sent an email to Lorna Ormiston in relation to the claimant being appointed Project Manager. That email included:- “Her last pay increase was July 23 – which increased her salary to £40,028. Based on the career pathways salary bands, she is now in the first tier of (£38k - £45k). Could we give her a small increase to reflect the change in role either now or in the next pay review cycle? [JB119].[15]Lorna Ormiston has 38 years’ experience of working in the Telecoms’ industry, with 13 years’ experience at Director level. Lorna Ormiston approved the claimant’s appointment to Project Manager but refused Stephanie Smillie’s request to increase the claimant’s salary on that promotion. The refusal was because the claimant’s salary was already within the salary range for Project Managers and the claimant had received two pay increases in the preceding 9 months (totalling over 33%) [JB216], i.e. increase from £29,153 to £35,000 then to £40,028. For those reasons, that refusal was consistent with the respondent’s Pay Review Policy [JB169 – JB173]. Lorna Ormiston’s email to Stephanie Smillie of 27 October 2023 (JB119) states:- “Given Lauren is already above the bottom of the band plus had an uplift as recently as 3 months ago I can't approve another pay increase at this time. I suggest you review her performance in the new role and if you feel an uplift is warranted, a request can be made then for consideration at the next out of cycle pay review - work with John on that. Next review is Jan so get organised for it. As an aside, Lauren has gone straight to Sam complaining about not getting PRP bonus this quarter. I'll set up a call and she says HR and line management haven't addressed her concerns - I wasn't aware of any issues?”[16]The email from the respondent’s then Head of Delivery (SPEN) to the claimant’s then line manager Stephanie Smillie on 15 December 2023 [JB125] states:- “There is a process whereby nominations can be made for pay rises in January to either address an anomaly where someone is low in their pay compared with their peers or to award someone who missed out on an October pay rise because they were either a new starter or newly promoted AND are performing exceptionally well so warrant a pay rise before the normal October one. Lauren got no pay rise in October when she was promoted as she had a pay rise in July so has her performance been strong enough to make a case for something extra in January.”[17]Stephanie Smillie sought a pay increase for the claimant in the January and April 2024 out of cycle review, for reasons set out in her emails of 28 December 2023 [JB220] and 26 March 2024 [JB218]. The requests were made to Stephanie Smillie’s line manager (the then Head of Delivery), who escalated them to Lorna Ormiston (Operations Director – Utilities Magdelene). In Stephanie Smillie’s email of 28 December 2023 requesting a pay rise for the claimant [JB124], her position on the justification for a pay rise included:-• “Current workstack: 24 projects• Combined value £1.6 million• No Red / Escalated projects.”[18]Lorna Ormiston’s response to the request in December 2023 is set out in email of 3 January 2024 [JB123], and gives her reasons for the claimant not being awarded a pay rise, as follows:- “Lauren received a pay rise for passing her APM qualification (pre agreed arrangement). That put her well above the minimum for PM role which is why she didn't receive a pay rise on promotion in October. Have you reviewed Lauren’s project documentation and her PDP with Steph? What elements of the Careers Pathways has she successfully completed and what is she currently working on? Is she on track to achieve her PRP bonus this quarter - she missed it last quarter as didn't hit the gateway measures but she also had outstanding accruals for her projects at that time. How does she compare to other PM's in terms of performance, values and etc. Given that she has only been a PM for three months and is well above the minimum banding already, I need a strong justification for another uplift for onward submission to MD. At the moment I can't see enough to justify another pay rise but you may present some more evidence from the above. Happy to chat through.”[19]Lorna Ormiston’s response to the request in March 2024 is set out in email of 2 April 2024 [JB216]. Prior to responding, Lorna Ormiston asked Pamela Savill to provide information on the salary levels and increases for the claimant and Comparator 1 [JB217]. Lorna Ormiston then replied:- “The increase to £40,028 was effective from July following her APM accreditation. I've never seen a PDP or updated career pathways development doc. Lauren was subsequently promoted to PM and I discussed with Steph at the time that as she was already above the minimum for PM and had received 2 pay rises in preceding nine months brackets (total over 33%) another pay rise wouldn't be given. Steph accepted that. Absolutely agree that we have to consider budget implications and role availability, hence out of cycle reviews should be for exceptions. The annual review is performance based (not a blanket uplift) so opportunity there to balance salary uplifts based on multiple factors (peer comparison, experience values, behaviours, etc) Always happy to consider requests provided they are evidence based. Worth having a look at the overall PM salaries across your team for some benchmarking? Steph appears to be comparing Lauren to [Comparator 1] which is why I asked Pam to provide his details for you.”[20]On 13 February 2024, the claimant sent an email to Pamela Savill headed ‘salary review’[JB126]. The claimant made a specific reference to the employee now relied on as Comparator 2. The claimant’s position was that Comparator 2 was paid £10,000 more than her (£50,000 compared to £40,000). She stated:- “He has just joined the company and is doing the same role as me and I want to determine why there is such a vast pay difference. I raised this with my SPM and was advised that when enrolling for the job they have no say, I have been promoted internally and have had no salary increase with the role. We carry out the same tasks and deliver the projects as a general role of a Project Manager and I would ask you to review the Equal Pay Act 1970 as I feel in my case this is being breached.” There were subsequent messages between the claimant and Pam Savill on the respondent’s internal messaging service [JB127]. The claimant’s position was ‘A PM should have a fixed rate. We all deliver on projects, I run a programme of works ANM which is extremely advanced and challenging…….it really feels like I am being discriminated, whether that is sex or another matter it needs to be addressed.”[21]Pamela Savill spoke to Jay Honour (newly appointed Head of People / HR) about the claimant’s email. Jay Honour advised Pam Savill to carry out an investigation and come back to her if she had any concerns. Pamela Savill did carry out an investigation. As part of that, she spoke to Lisa Chinn (then Senior Project Manager, now a Head of Delivery). The record of their conversation is at [JB128]. Lisa Chinn’s position was that Comparator 2 has ‘key niche skills in IP’, that prior to working for the respondent he had 4 years’ experience in project delivery (since 2019), came on a particular individual’s recommendation and that his salary was matched to that of his previous employer and sat at the top of the respondent’s Grade 2 level. They also spoke about another male employee who also had his salary matched when starting with the respondent and who has particular IP skills and more experience and sat in the respondent’s Grade 3 salary scale. The claimant met with Pam Savill on 22 February 2024 to discuss the issue [JB129]. Pam Savill informed the claimant that she was treating it as an informal grievance. The record of the meeting between the claimant and Pamela Savill on 22 February 2025 [JB129] records that Pamela Savill “ reassured Lauren that I am being through and would rather she raised this than not raise it and leave”[22]Following her investigations, Pamela Savill informed Jay Honour that she did not have any concerns about what had been raised by the claimant re Equal Pay. Pamela Savill met with the claimant and Stephanie Smillie to give them her findings following her investigations. Pamale Savill told them that as a result of her investigations she had found that in the overall broad range of banding for PM roles there were a mix of males and females and that the claimant was not paid less favourably than her peers. Pamela Savill wrote to the claimant with the outcome of the informal grievance in March 2024 [JB130 – JB131]. That included:-• “Across the wider Magdalene and including SPEN project managers there are a number of project managers within a range of salaries for both male and female employees, there are both males and females at the bottom, middle and top of the range. Salaries are determined by several factors including years of experience, skills (including any particular niche skills), length of service, qualifications, value and size of projects, out of cycle pay reviews based on performance and annual pay reviews, this has nothing to do with the sex of the employee.”• “Project managers have been hired with salaries matched to their skill sets, level and depth of experience, again this has nothing to do with the sex of the employee.”• “There is currently a career pathways document in place which shows the three levels of project managers and criteria for each level which can be used to set clear objectives and a performance plan with your line manager.”• “Career aspirations are discussed within quarterly 1 2 1s where objectives are set and performance plans are created and reviewed.”• “Out of cycle pay reviews can take place quarterly with the next one in April 2024, where a business case is put forward from line managers requesting an increase based on achieving the criteria set within a plan.”• “Since being promoted into the project manager role in December 2023, if not already in place, a clear set of objectives and performance measures should be put in place by you with your line manager support.”• “We have spent many hours completing a full and thorough deep dive investigation into your allegation and can find no evidence of a breach to the Equal Pay Act 1970. We are therefore satisfied that the pay difference between yourself and the comparator you named is not related to sex. If you wish to pursue this further you can submit a formal grievance as per the grievance policy. A copy of this is attached.”[23]The claimant did not raise a formal grievance. The job title of ‘Project Manager’ within the respondent’s business applies to a range of individuals, of both sexes, with varying experience, qualifications, performance, complexity and size of project portfolio and remuneration. Renumeration of Project Managers is between £75,392 and £33,660 (JB225 – JB226). The individuals relied on by the claimant as Comparator 1 and Comparator 2 and Comparator 3 were all employed as Project Managers. They all received salaries within the salary band for Project Managers within the respondent’s business. The information at JB225 – JB226 shows Comparator 1’s salary at £52,000, Comparator 2’s salary of £44,944 and the claimant’s salary of £40,000.[24]The individual relied upon by the claimant as Comparator 1 had attained a MA Degree in Business. One of the modules required for that degree was the APM qualification which the claimant had attained. As at February 2024, Comparator 1 had four years’ experience of working as a Project Manager. He was on the Respondent’s ‘Level 2’ career pathway. He had been recruited by the respondent on the same salary he had earned in his previous employment. He was recruited for his experience and knowledge of ‘IP’ (‘Internet Protocol’), including solutions in projects, of a sufficient level to be able to “drive forward” projects, on site, when issues arose, without needing to halt the operation whilst waiting for a specialist to attend. The respondent’s commercial client had specifically requested that the Project Manager in the role in which Comparator 1 was employed should have that level of IP experience to drive the transmission side of that cyber security project forward. Comparator 1 was able to ascertain if there was an alternative route as a solution rather than always have to revert to the Design Engineers. Comparator 1 worked on cyber security, on projects which presented a security risk. He was able to deliver the project at pace. He took part in joint calls between the customer and the Project Engineer and had the skill set to make decisions to drive the project forward. Comparator 1 did not require to attain the APM qualification separately as that qualification was a module as part of his degree. His degree was relevant to the PM role and was a higher qualification than APM. Lisa Chin was Comparator 1’s line manager and she was aware of the requirements of his PM role.[25]The other male employee who Lisa Chin was asked about by Pamela Savill on 23 February 2024 [JB128] has APM and Prince 2 Project Management qualifications. He has more PM experience than the claimant and has niche IP skills. His salary was matched on his recruitment. ‘[26]The individual relied upon by the claimant as Comparator 2 had “the largest portfolio” of the Project Managers (£8M). He deputised for his line manager in their absence. He met his performance targets and received his ‘performance related pay’ (‘PRP’) bonus. He performed on contracts of great complexity, to a high standard.[27]The respondent has 3 levels within their ‘gateway measures’ for the PM roles. These levels are set out as ‘Careers Pathways’. The claimant was at level 1. Level 1 is for PMs with 1 – 4 years’ experience as a PM and the basic qualification (APM). Level 2 is for PMs with 4 – 6 years’ experience of being a PM, with a higher number of projects and projects of a higher budgetary value. The factors considered by the respondent when determining a PM’s salary are:-• Experience in the position of ‘Project Manager’• The individual’s place in their identified ‘career pathway’• The complexity of their portfolio.• The size/value of their portfolio.• Their performance in the role.• The individual’s history of out of cycle pay reviews.• The individual’s salary prior to recruitment by the respondent• The individual’s salary in any contract which has transferred to the respondent under the Transfer of Undertakings (Protection of Employment) (‘TUPE’) Regulations.[28]Around April 2024 there was an incident in the canteen shared by employees of the respondent and employees of another company in the same building. Employees of the other company complained about overhearing racist comments being made by some of the respondent’s employees. Those complaints were brought to the attention of Jay Honour (Head of HR). An investigation was carried out, involving interviewing those of the respondent’s employees who had been present in the canteen at the time of the alleged comments being made. The claimant was not interviewed as part of that investigation because she had not been present in that canteen at that time. Disciplinary action was taken by the respondent as a result of that investigation. An employee received a final written warning and was later dismissed for an unrelated conduct reason.[29]From April 2024 the claimant worked mainly from home, aside from attending the office once a week for a Wednesday meeting. The claimant did not express to any manager any reason why she had chosen to work mainly from home. From the end of July or start of August 2024 Stephanie Smillie was on sick leave and then left her employment with the respondent, without returning. Lisa Chin took over from Stephanie Smillie as the claimant’s line manager, initially providing cover while Stephanie Smillie was absent. The claimant was certified by her GP as unfit for work from 29 July 2024 until 30 September 2024 (certification at JB195, JB196 and JB197]). The document at [JB132] records messages between the claimant and Lisa Chin on 29 July and 26 and 27 August 2024. That records that the claimant messaged Lisa Chin on 29 July 2024 saying “morning Lisa, can you drop me a quick call when you are free.” Lisa Chin arranged for the claimant to be referred to Occupational Health. Within the respondent’s business normally Occupational Health reports are triggered after an employee has 4 weeks absence. If the employee asks to see the report first then it goes to them for review and consent before being uploaded by OH to the respondent’s HR portal. The claimant spoke to the respondent’s Occupational Health provider on 5 September 2024. The OH provider prepared a report [JB133 – JB136]. That report was sent to the claimant. The OH opinion was that the claimant was ‘…fit to return to work on a phased basis starting 30 September 2024.” The claimant discussed the report with Lisa Chin. The claimant then emailed the OH report to Lisa Chin and provided her with the password to open it [JB133 – JB136]. The respondent were not sent and did not have access to the Clinical Notes at [JB198 – JB199].[30]While she was on sickness absence, the claimant decided to take up an opportunity with another employer. The claimant discussed this with Lisa Chin on 13 September 2024 and verbally resigned on that day. The claimant had agreed a start date with her new employer of 1 October 2024. The claimant requested that her termination date be 30 September 2024. The claimant informed Lisa Chin that she would have a significant salary increase with her new employer. The claimant’s contract of employment with the respondent provided that the contract of employment could be terminated on one month’s notice. The claimant believed that because of her length of service with the respondent, if she was certified as unfit to work then she would be entitled to full pay for 2 months. Lisa Chinn informed the claimant that after resigning her pay during her notice period would be Statutory Sick Pay (‘SSP’) only. The claimant was upset at that position. She referenced another employee who had left and was paid his notice. Lisa Chin explained to the claimant that that employee had not been on sick leave when he resigned and that he had been put on garden leave. Lisa Chin agreed to speak to HR to confirm the position. Lisa Chin clarified the position with Jay Honour (Head of People / HR) and then sent a letter to the claimant [JB138], dated 13 September 2024, as follows:- “Further to your verbal resignation on 13 September 2024 and I am sorry that you have decided to leave Magdalene [sic]. I would like to advise whilst we were happy to accept your requested last day as 30 September 2024 because you are off sick, in line with the absence policy, see attached, you will not be paid CSP for the period from your verbal resignation of 13 September 2024 until 30 September. Further to your comment that you would withhold your formal resignation, which you are within your rights to do so however if you were to take this route we would expect you to work your contracted notice period of 4 weeks. Therefore your leave date would be 30 October 2024. Please advise me of which course of action you wish to take by Friday 20 September 2024. Please ensure you enter your resignation on Oracle, under employment, resignation. You will receive your final payment on or around the 30th September 2024 and shortly after your P45 and final pay slip will be posted to your home address. This payment will include any accrued but untaken holiday which may be due to you. You are required to return all property belonging to Magdalene before your employment comes to an end, including laptops, phones and security passes. You are further required to delete any data relating to the company which you may hold on any private personal computer or other electronic device and destroy any paper copies made of such data. I would like to take this opportunity to thank you for your service and to wish you every success for the future.”[31]The claimant’s email to Jay Honour of 20 September 2024 [JB139] is the claimant’s response to Lisa Chin’s letter to the claimant of 13 September 2024 [JB138]. Attached to that email the claimant sent a letter setting out concerns under headings ‘Equal Pay’, ‘Drug and Alcohol Zero Tolerance Policy 1 April 2024’ and ‘Racism’ [JB140 – JB141]. Prior to her receipt of that communication from the claimant Jay Honour was not aware of the claimant raising any concerns re racism. Jay Honour knew that the claimant had not been directly involved in the canteen incident which had been investigated. The claimant also sent a copy of that letter to the previous Operations Director [JB142]. Jay Honour investigated the claimant’s concerns then wrote to the claimant [JB143 – JB144]. Under the heading ‘Racism’, Jay Honour wrote “We take your allegation of racism very seriously to enable us to carry out a full in depth investigation please furnish us with full details in order that we can investigate this matter in full.” The claimant did not reply and did not provide details of her allegations of racism to the respondent.[32]The claimant’s contract of employment with the respondent contains the following provisions in respect of holidays [JB153] and [JB160]:- “The holiday year runs from 1 April to 31 March and your holiday accrues at the rate of 1/12th of your annual holiday entitlement per full month worked.” And “If you decide to leave our employment, we will pay you for any accrued but untaken holiday or deduct any holiday that you have taken beyond your accrued holiday entitlement. “[33]There were deductions made from the claimant’s final salary payment. Those deductions were set out in payslip issued to the claimant dated 30 September 2024 [JB 200] The claimant was not expecting those deductions to be made. She was aggrieved by the amount of pay received in her final salary payment from the respondent. The claimant was paid company sick pay (‘CSP’) for the period from 1 September until 13 September 2024, and Statutory Sick Pay (‘SSP’) for the period from 14 September until 30 September 2024. Company Sick Pay is discretionary [Sickness Policy JB187 – JB193, particularly at JB191].[34]The respondent’s holiday year runs from 1 April to 31 March. On termination of her employment with the respondent, the claimant had taken more holidays in the holiday year than she had accrued from 1 April to 30 September 2024. As at 30 September 2024 the claimant had used all but 4 days of her full annual holiday entitlement. Deductions were made from her final salary in respect of the taken but unaccrued holidays. The claimant suffered financial hardship because the amount received was less than she had expected. The final payslip [JB200] shows the following:- - The claimant’s gross basic salary for the month was £3,336.67 - The claimant was paid company sick pay at full pay for part of that month (being £1,429.57 for the period from 1 until 13 September 2024) - The claimant was paid statutory sick pay of £490.35 (being for the period from 14 to 30 September 2024). - Deduction was made in respect of holidays taken but not accrued as at termination date (£1,147.83). Relevant Law Equality Act 2010 section 66 – Sex Equality Clause
Relevant Law
[35]Section 66 of the Equality Act 2010 (‘EqA’) imposes an equality clause in a contract of employment. That clause operates in circumstances where 'A' and 'B' are doing like work, work rated as equivalent or work of equal value under section 65, to modify any contractual terms of A which are less favourable than a corresponding term of B, A's term is modified so it is not less favourable. That ‘sex equality clause’ is relied on by the claimant to seek equal pay with her former male colleagues. Section 69 provides a defence. It provides:(1) The sex equality clause in A's terms has no effect in relation to a difference between A's terms and B's terms if the responsible person shows that the difference is because of a material factor reliance on which- (a) does not involve treating A less favourably because of A's sex than the responsible person treats B, and (b) if the factor is within subsection (2), is a proportionate means of achieving a legitimate aim.(2) A factor is within this subsection if A shows that, as a result of the factor, A and persons of the same sex doing work equal to A's are put at a particular disadvantage when compared with persons of the opposite sex doing work equal to A's. … (6) For the purposes of this section, a factor is not material unless it is a material difference between A's case and B's.” Equality Act 2010 section 69 – Defence of material factor[36]A useful summary of the law on the application of section 66 was set out by the EAT in Perkins v Marston (Holdings) Ltd [2025] EAT 170 (Andrew Burns KC, Deputy Judge of the High Court). Guidance on the application of the sex equality clause was given by Lord Nicholls in Glasgow City Council v Marshall [2000] 1 WLR 333, particularly at 339 (re. the Equal Pay Act 1970). That included an explanation on the applicable burden of proof, which was later approved by the Court of Appeal in Co-operative Group v Walker [2020] ICR 1450 as setting out the proper approach to section 69. Lord Nicholls in Marshall said: "The variation between her contract and the man's contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex. In order to discharge this burden the employer must satisfy the tribunal on several matters. First, that the proffered explanation, or reason, is genuine, and not a sham or pretence. Second, that the less favourable treatment is due to this reason. The factor relied upon must be the cause of the disparity. In this regard, and in this sense, the factor must be a "material" factor, that is, a significant and relevant factor. Third, that the reason is not "the difference of sex." This phrase is apt to embrace any form of sex discrimination, whether direct or indirect. Fourth, that the factor relied upon is or, in a case within section 1(2)(c) , may be a "material" difference, that is, a significant and relevant difference, between the woman's case and the man's case."[37]To prove the elements of a material factor an employer must satisfy an employment tribunal on the evidence. In BMC Software Ltd v Shaikh [2019] ICR 1050 Underhill LJ held that the burden of proof "is on the employer to prove (by sufficiently cogent and particularised evidence) that the factor relied on explains the difference in pay complained of". BMC Software held that an employment tribunal should require an employer who is seeking to justify a pay disparity based on a material factor such as merit or market forces to explain with particularity what those factors mean, how they were assessed and how they apply in the circumstances of the case. If the employer has a chaotic or non-transparent pay system it will be harder to persuade a tribunal that the material factor was genuine and was the cause of the pay disparity. It is not sufficient for an employer to show that a material factor is not directly discriminatory. If the material factor relied on is indirectly tainted by sex discrimination, then it does not prevent the equality clause taking effect.[38]Once the employer has proved a material factor and that it is not directly discriminatory, the burden shifts to the claimant. In McNeil v Revenue and Customs Commissioners [2020] ICR 515, Underhill LJ explained: "It is then for A [i.e. the Claimant] to prove that any such factor puts her, and other women doing equal work with her, at a particular disadvantage compared with men; but if she does so the burden of proving that the factor is a proportionate means of achieving a legitimate aim—for short, that it is justified—is on the employer."[39]Indirect discrimination involves a particular disadvantage being suffered by a group. It is approached the same way under s.69(2) as in s.19 of the Equality Act 2010. As Underhill LJ says in McNeil at paragraph 15: "The definitions of indirect discrimination in both section 19 and section 69(2) are concerned with group disadvantage. The essential comparison is between the positions of the men within the relevant pool, viewed as a group, and the women in the pool, likewise viewed as a group. The requirement that the claimant herself should suffer the same disadvantage is additional, and merely ensures that she should not be entitled to complain of a disadvantage to which she is not herself subject. The relevant pool for the purpose of the comparison is all (properly comparable) employees doing equal work to whom the factor in question applies."[40]There are different ways in which a claimant can discharge the burden of showing potential indirect discrimination under either s.69(2) or s.19, which an employer then needs to justify. The approach was summarised by Choudhury J in Dobson v North Cumbria Integrated Care NHS Foundation Trust [2021] IRLR 729 at paragraph 56 where he said: "In summary, when considering whether there is group disadvantage in a claim of indirect discrimination, tribunals should bear in mind that particular disadvantage can be established in one of several ways, including the following:a. There may be statistical or other tangible evidence of disadvantage. However, the absence of such evidence should not usually result in the claim of indirect discrimination (and of group disadvantage in particular) being rejected in limine;b. Group disadvantage may be inferred from the fact that there is a particular disadvantage in the individual case. Whether or not that is so will depend on the facts, including the nature of the PCP and the disadvantage faced. Clearly, it may be more difficult to extrapolate from the particular to the general in this way when the disadvantage to the individual is because of a unique or highly unusual set of circumstances that may not be the same as those with whom the protected characteristic is shared;c. The disadvantage may be inherent in the PCP in question; and/ord. The disadvantage may be established having regard to matters, such as the childcare disparity, of which judicial notice should be taken. Once again, whether or not that is so will depend on the nature of the PCP and how it relates to the matter in respect of which judicial notice is taken."[41]When a claimant is proving potential indirect discrimination in the application of the material factor it is not necessary to explore why the factor operates to the particular disadvantage of women, it is enough that it does. In Essop v Home Office; Naeem v Secretary of State for Justice [2017] ICR 640 the Supreme Court held that once it has been established that a PCP (or in s.69(2) terms, a material factor) places people with relevant protected characteristics at a particular disadvantage compared with others, that is sufficient to require objective justification by a respondent of its use of the PCP. It is irrelevant why the material factor puts that group at a particular disadvantage or whether the reason why is itself related to sex. The only required causal link is between the material factor and the particular disadvantage. Equality Act 2010 section 13 – Direct Discrimination -[42]The definition of direct discrimination in section 13 EqA is:- ‘A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’ A comparator must be identical to the claimant in all respects save the protected characteristic (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] I.C.R. 337). Equality Act 2010 section 26 – Harassment[43]The definition of harassment in section 26 EqA is:- ‘(1) a person(a) (A) harasses another(b) (B) if - (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating A’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B….. (4) In deciding whether conduct has the effect referred to in subsection 1(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect….. Equality Act 2010 section 27 – Victimisation[44]The definition of victimisation in section 27 EqA is:- ‘(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because - - (a) A does a protected act, or (b) A believes that A has done or may do a protected act. (2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that he or another person has contravened this Act….. Burden of proof 42. The standard of proof applied in Employment Tribunal cases is the civil standard of proof of ‘on the balance of probabilities’. 43. As noted by Lord Hoffman in Re B (Children) [2008] UKHL 35 “If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof.” 44. For claims under the EqA, the approach to the burden of proof is as set out in s136 of EqA and the Barton Guidelines as modified by the Court of Appeal in Igen Ltd. (formerly Leeds Careers Guidance) and ors. –v- Wong and others 2005 ICR 931, CA (as approved by the Supreme Court in Hewage –v- Grampian Health Board [2012] IRLR 870). The initial burden of proof lies with the claimant to demonstrate their case and prove facts from which, absent a reasonable explanation, the Tribunal could conclude discrimination has occurred.[45]For the burden of proof to shift in a claim of direct discrimination, a claimant must provide some basis upon which the Tribunal could infer that the protected characteristic itself was the reason for any treatment (Madarassy v Nomura International plc [2007] IRLR 246). If the claimant is able to show, on the face of it, that there has been treatment that could amount to discrimination, then the burden of proof will shift to the respondent. At that stage, the respondent must prove on the balance of probabilities that its treatment of the claimant was in no sense because of their protected characteristic.[46]The two stage approach is not necessary in circumstances where the Tribunal is satisfied that the reason for the treatment is genuine and does not disclose conscious or unconscious discrimination. Laing v Manchester City Council [2006] ICR 1519, EAT (paragraph 76). The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” - Madarassy v Nomura International Plc [2007] ICR 867 (Mummery LJ, paragraph 56) Code of Practice[47]In determining the complaints under the EqA, we had regard to the Equality and Human Rights Commissions Code of Practice on Employment (‘the EHRC’) (2011). Equal Treatment Benchbook[48]We took into account the relevant guidance in the Equal Treatment Benchbook, particularly in respect of litigants in person. Submissions[49]The claimant and the respondent’s representative both provided and spoke to written submissions. The Tribunal accepted or dismissed the submissions for reasons set out in this Judgment. Although the respondent’s representative’s submissions sought to deal with determination of whether the claimant’s work was of equal value or she was entitled to equal pay to her identified comparators, it was agreed those issues were not for determination at this FH. Comments on Evidence[50]At the outset, the claimant’s position was that she didn’t know if Lorna Ormiston’s treatment of her was because of her race, her sex or ‘just because she didn’t like me’. The claimant said “it could be several reasons, it could be personal, it could be the colour of my skin, no words were ever exchanged between us”. The claimant had worked with the previous Director of Operations in a different workplace. The claimant had a different relationship with that previous Director and considered that Lorna Ormiston ought to have spoken with her, particularly around the time when the claimant suffered a sudden close bereavement.[51]Throughout her evidence, the claimant’s position was based on her own perceptions, without an awareness or understanding of all of the material circumstances. The claimant said “the facts are that two male comparators were paid more than me.” When it was put to the claimant in cross examination that some female PMs were also paid more than the claimant, her evidence was “Not in my office. It’s a massive company.” She placed a high reliance on having attained her APM qualification. Her evidence were that the other PMs in the office were ‘not as qualified as me’. She did not dispute that an MA degree in Business includes the APM qualification as a module. The claimant showed a lack of understanding of the roles carried out by those she relied on as Comparators. The claimant showed a lack of understanding of the various duties which the PM role could encompass. Her evidence was that a salary range of £35,000 - £73,000 “is a big jump when we’re all doing the same work”. Her position was that all Project Managers (‘PMs’) in the respondent’s business ‘do the same’. She relied on being “the only one with APM” and “dealing with complex processes”. The claimant presumed that there was no material difference between the work carried out by her and by her identified comparators. When explanations were given, including that others did have relevant qualifications, the claimant did not contest that. It was significant that Lisa Chan’s position in respect of Comparator 1 was ‘He worked for me. I know what he done.” [sic]. The claimant’s evidence was that ‘no one got a bonus’. The bonus was dependant on accrual levels and 3 site visits being carried out as well as timesheets being submitted on time. The claimant described accruals as ‘flagged in red - unpaid bills” and that ‘across the board people didn’t meet their accruals.” The claimant was aggrieved because she had not submitted timesheets in time in the period when she was absent for the funeral of her close bereavement. We accepted Lorna Ormiston’s evidence that time sheets are ‘a basic way of recording time’ and are ‘one of the gateway measures’ for the bonus scheme. We accepted her evidence that ‘accruals are work done but not invoiced.’ Lorna Ormiston further explained ‘When work is completed we have incurred a cost & not invoiced the customer. Accruals disappear the minute we invoice a customer’. All of the respondent’s witnesses were credible, straightforward and consistent in their evidence. We accepted the evidence of the respondent’s witnesses that some employees did receive bonus based on them meeting these KPIs.[52]In her responses to the requests for a salary increase for the claimant, Lorna Ormiston had noted that she had not had sight of the claimant’s “PDP or updated career pathways development doc”. Lorna Ormiston had emphasised the need for salary increase requests to be evidence based. We did not have sight of those documents. It appeared that Stephanie Smillie had not submitted the evidence required to support a salary increase for the claimant. The claimant’s position in her submissions was that her pay increase requests had been ‘held back by Lorna Ormiston because she didn’t believe I deserved it.” That is not necessarily unlawful. We accepted Lorna Ormiston’s position re JB212 that she was not provided with sufficient evidence to support further pay rises for the claimant (‘I was asking for evidence and didn’t receive it.”). There was no documentary evidence to suggest that a training request had been submitted in respect of the claimant. The claimant’s position that there were ‘no milestones’ for her is indicative of possible issues with her line manager not having set out the claimant’s ‘career pathways’ document. We did not have sight of the claimant’s careers pathway document. There was no evidence of the claimant or Stephanie Smillie seeking to provide the documentation or address the reasons why the claimant was not awarded a pay rise set out by Lorna Ormiston in her emails at [JB123] and [JB216].[53]It was significant the claimant was initially adamant that she had not received letter from Lisa Chin of 13 September 2024 [JB138]. Her evidence was ‘How could I have received that, I didn’t live at that address.’ On that basis, the claimant’s position was that she had no explanation why she was paid SSP pay from 14 September. The claimant later accepted under cross examination that she had received that letter [JB138] and that her email to Jay Honour of 20 September 2024 [JB139] is her response to Lisa Chin’s letter of 13 September 2024 [JB138]. On the basis of the content of the letter at JB138 and Lisa Chin’s evidence we accepted that the position had been explained to the claimant. Similarly, the claimant’s initial evidence was that she was not given the reasons why her informal grievance was not upheld, although she later accepted that she had received the document at [JB130 – JB131] and that sets out the reasons.[54]There were inconsistencies in the claimant’s evidence. Her evidence that she did not raise a grievance because she was ‘scared of losing job’ was inconsistent with her having raised concern about possible equal pay communicated about equal pay [JB126] and inconsistent with her seeking to escalate matters to the Operations Director in October 2023 (as referred to by Lorna Ormiston at JB119). The claimant’s evidence that she had been doing the work of a Project Manager while being paid as Project Specialist was inconsistent with her position that her work duties changed when she was appointed in the role as Project Manager. Her evidence was “I was doing exactly the same work. It was just a change in job title, I was doing exactly the same work as a Project Specialist”. Under cross examination, when asked about her pay rise from £35,000 to £40,000 in July 2023 being when she was in the Project Specialist role, the claimant’s evidence was “Technically I was employed as one. I had the PM qualification. I was working as a PM.” And “I was working on PM work when a PS.” The claimant did not recognise that that position was inconsistent with her then being awarded a pay rise on appointment to the PM role. Her position was that she had expected a salary increase when she became a Project Manager in October 2023. Her evidence was “It was never shared with me that when I passed APM and got promoted I would not get a pay rise. That wouldn’t have made sense to me.” The claimant could not give any information on what had been communicated about the salary commensurate with the Project Manager role. We did not have sight of any information communicated at the time of the vacancy about the salary or salary range of the Project Manager role which the claimant applied for. The claimant did not dispute that a salary of £40,000 was within the first tier of the salary range for a PM role, although her position was that she was not aware of that at the time. The claimant’s position was “I had to pass APM for any salary increase and to be promoted to PM. Noone else in the team had to. I was singled out.” That position does not take into account that others in the team had the APM qualification as part of their degree. The claimant’s position that she was more qualified and had more experience than her comparators was not supported by the evidence. The claimant’s evidence was that she had ’10 years experience in total from 2015’. When asked for details of her positions that was not consistent with 10 years’ experience of project management. The claimant relied on ‘training up’ new colleagues. In cross examination it was clarified that the claimant would show new colleagues the respondent’s internal processes, rather than provide substantive training. The claimant accepted that the training she gave new colleagues was on company processes.[55]During the hearing the claimant’s position changed. At the stage of her cross examination of Pam Savill, the claimant sought to rely on having racist comments having been made in her presence. This was inconsistent with her initial position when giving her evidence which was ‘I didn’t directly hear them’. There is no mention in her ET1 or completed Agenda forms of allegations of the claimant having heard racist comments while at work for the respondent. The Note issued after the CMPH specifically records, at paragraph 6, that the claimant was not alleging that she had suffered racist abuse directly. In the further particulars which the claimant submitted following that CMPH the claimant gives no details of having suffered racial abuse directly. The contemporaneous documentation does not support that it was the claimant’s position throughout that she was paid less than others because of her race. There is no mention of that in the various communications.[56]The claimant’s evidence that her desk was moved to be further away from the individual she relied on as making racist comments was not supported by the claimant’s own witness, Stephanie Smillie. Stephanie Smillie’s evidence was that the desk move was to ‘to bring teams together’ and that after the desk move the claimant was sitting ‘probably closer than before’ to that individual (‘probably across the desk and three down’) and that the claimant had not raised any concerns with her about that desk move. Stephanie Smillie’s evidence on whether the claimant had flagged any issues with her was that they had had discussions in the claimant’s 121s about ‘favouritism going on’. Her evidence was that that was ‘not a formal escalation: discussion’ and that ‘it was formal when asked Pam to do an informal grievance’. That was in respect of the equal pay issue and not in relation to any issue re lack of training opportunities or in respect of racist comments.[57]The individual relied on by the claimant as Comparator 3 in her race discrimination complaint is a female who was paid more than the claimant. Stephanie Smillie’s evidence was that the respondent employs ‘males and females of different backgrounds, ethnic minorities, races.” Stephanie Smillie’s evidence was that she had put the claimant forward to achieve the APM qualification because it was ‘part of her career pathways – it was clear what matrix she had to achieve.” The claimant’s evidence that she began to work from home because of racist comments in the office and that she had spoken to Stephanie Smillie about that was not supported by Stephanie Smillie. Stephanie’s Smillie’s evidence was ‘‘it happened naturally’. When Stephanie Smillie was asked if the claimant had ever raise concerns to you as her manager about racism, her response was ‘no’. Stephanie Smillie’s evidence was that she had had discussions with the claimant ‘about the culture being toxic’ and ‘favouritism’. The evidence of the claimant’s own witness did not support her having raised issues about racism.[58]It was significant that the claimant’s mother’s evidence was that the claimant was happy at work until Lorna Ormiston began. Lorna Ormiston has considerable experience in the Telecoms industry, including at Director level. Her style of management was different to her predecessor. The claimant had worked with Lorna Ormiston’s predecessor previously and had a good relationship with him. The claimant did not have the same relationship with Lorna Ormiston. The claimant was upset that Lorna Ormiston had not spoken to her when the claimant suffered a close and tragic bereavement. That bereavement has affected the claimant, as mentioned in her GP records and issued sickness absence certificate. Both the claimant and Stephanie Smillie expressed concern about lack of personal contact with Lorna Ormiston.[59]Although it had been clarified that the claimant sought to rely on protected acts in February 2024, in her evidence, the claimant sought to also rely on having spoken to Pamela Savill in July 2023. Her evidence was that they had ‘discussed pay differentials’ and also told Pam Savill that she had heard an employee reference people from Pakistan in a derogatory way. Her evidence was that ‘nothing was done about the race complaint until the complaint from upstairs’. That was in reference to the undisputed position of the respondent having carried out an investigation following racist comments being overheard in a shared canteen. In her evidence the claimant also relied on a meeting with Pamela Savill in February or March 2024 when she said she again raised that the same employee was making derogatory racist remarks about those of Asian origin and that in her meeting with Pamela Savill on 22 February 2024 [JB128], she had again raised that racially discriminatory comments were being made. There was no documentary evidence to support the claimant’s position, and no explanation for there not being such documentary evidence. Pamela Savill denied that these communications had taken place. Taking into account the factors listed above, on the balance of probabilities, we preferred the evidence of Pamela Savill to the claimant in that regard.[60]For the reasons set out above, we did not find the claimant’s evidence to be entirely credible or reliable.[61]We accepted Jay Honour’s evidence that decisions on whether an employee who is leaving the respondent’s employment is placed on garden leave or paid in lieu of notice, is based on commercial risk to the respondent of that person leaving. That there was no suggestion of the claimant being put on garden leave or being paid in lieu of notice suggests that the claimant leaving did not expose the respondent to the same commercial risk as other employees who the claimant knew had left their employment with the respondent. The claimant’s position was ‘no one asked me where I was going’. That suggests that the claimant had a position which exposed the respondent to a lower commercial risk than some other employees. The claimant did not appear to appreciate that by agreeing a start date with her employer without giving 4 weeks’ notice to the respondent of her leaving, the claimant was in breach of her contract with the respondent.[62]There was a direct conflict of evidence between Stephanie Smillie and Pam Savill on a particular point. It was Stephanie Smillie’s evidence that in the meeting when Pam Savill told the claimant and Stephanie Smillie about the outcome of her investigations, after the claimant had left the room, Pam Savill had expressed to Stephanie Smillie that she ‘thought Lauren had been treated unfavourably comparer to her peers’. The claimant’s position on that was that Pam Savill has said that she ‘had a case’. There was no contemporaneous documentation supporting that position. That position would have been inconsistent with Pam Savill’s position in her outcome issued to the claimant [at [JB130 – JB131]. There was no explanation why Pam Savill would have expressed that view verbally yet have set out a different view in her written response. Pam Savill denied having expressed that view and commented that that would be inconsistent with her written position and that there would have been no reason for her saying that. On the balance of probabilities, we preferred the evidence of Pam Savill to that of Stephanie Smillie. Pam Savill was open in answering questions: she did not seek to avoid questions and gave credible explanations of her position. We accepted Pam Savill’s evidence that ‘after I presented my report I explained that I would email a copy and I remember we had a conversation about the out of cycle pay review process. I remember exploring that the next one was in April. I remember that as Steph was not aware that the next out of cycle was in April.” We accepted her evidence that ‘because of the seriousness I made the decision to do a full investigation and I wanted a record of my investigations & the outcome in writing’. That position, and the findings from the investigations, would be inconsistent with Pam Savill having informed Steph Smillie after the meeting that she believed the claimant ‘had a case’. We accepted Pam Savill’s denial of that (‘No. Absolutely not. I’d just given my findings on the allegations. The next stage was to submit a grievance’). We considered Pam Savill’s evidence on what occurred at the end of the meeting to be more plausible. Pam Savill’s evidence was “I explained that the next pay review process was in April. Then Lauren made a comment about racist comments being made in the canteen and that HR had done nothing. I explained that there had been a full and final investigation into the allegations and that I could discuss it no further. At that point I left the room.”. We accepted Pam Savill’s evidence that the statement in the record of her meeting with the claimant on 22 February 2024 [JB129] (‘She been feeling quite stressed about it and paranoid’) is a record of how the claimant said she was feeling, and is not Pam Savill calling the claimant paranoid. We accepted Pam Savill’s evidence ‘I wrote that because that was the word you used’.[63]We accepted Pam Savill’s evidence on the steps she had taken to investigate if there was any equal pay issue affecting the claimant. Her evidence that ‘There are PMs in Magdelene’s salary rage, male and female, at the bottom, middle and top of the scale.” The claimant did not contest that evidence. We accepted Pam Savill’s evidence in respect of the claimant’s equal pay complaint that she ‘took it extremely seriously’ and ‘wanted to do a full investigation.’[64]The following factors were significant:-• There was no contemporary documentation such as meeting records, emails or Teams messages recording or indication that the claimant had raised concerns about racist behaviour.• The respondent had investigated the complaint made about its’ employees making racist comments when in the shared canteen• The respondent had taken disciplinary action against at least one of their employees in respect of that behaviour• There was contemporary documentary evidence showing that the claimant had raised an issue about equal pay with the respondent on 13 February 2024 [JB126 & JB127]• There was contemporary documentary evidence showing that Pamela Savill had investigated the claimant’s equal pay complaint [JB128 – JB131]• The record of the meeting between the claimant and Pamela Savill on 22 February 2025 records Pamela Savill’s position as being “I am being through and would rather she raised this than not raise it and leave”• Pamela Savill’s evidence was that the claimant had not raised with her concerns about racially discriminatory comments having been made.• Pamela Savill was consistent in her evidence , did not seek to avoid questions and her evidence was supported by the contemporary documentation• The claimant did not seek to provide an explanation for why the respondent would not have investigated her concerns when raised• The claimant had not mentioned in her ET1 that she had raised concerns about racially discriminatory comments having been made.• There were inconsistencies in the claimant’s evidence.• The claimant accepted in cross examination that she had invited the alleged perpetrator of the racist comments to her son’s birthday party in January 2024, on the basis of him bringing his dog.• Inviting a person to her son’s birthday party in January 2024 is inconsistent with the claimant having concerns about that person making racist comments.• In document at [JB130 – JB131] Pamela Savill set out to the claimant the reasons why her informal grievance about equal pay was not upheld.• The claimant did not express to any manager her reason(s) for working mainly from home after April 2024.• The claimant did not reply to Jay Honour’s letter [JB143 – JB144] and did not provided details of her allegations of racism to the respondent.[65]On the balance of probabilities, taking these factors into account we did not find that in February 2024 the claimant had done a protected act by raising concerns about racially discriminatory comments having been made. We preferred the evidence of Pamela Savill to the claimant in that regard.[66]These factors were also considered separately, in relation to the claimant’s evidence that at the end of the meeting with Pam Savill and Stephanie Smillie in March 2024, Pamela Savill had indicated that the claimant ‘had a case’ for equal pay. On the balance of probabilities, we did not find that Pamela Savill had said or indicated that. That would be inconsistent with Pamela Savill’s position in her report and no explanation was provided as to why Pamela Savill would do that. We preferred the evidence of Pamela Savill to the claimant in that regard. We accepted Pamela Savill’s evidence that that would be inconsistent with the document at [JB130 – JB131] and that there was no reason for her to be inconsistent on the matter.[67]Although the Bundle was paginated it was unhelpful that it was not indexed. The Notes issued after both Case Management Preliminary Hearings set out provisions for exchange of documents. Despite this there were several significant documents referred to in evidence which were not produced. The claimant relied upon being refused training opportunities. There was no documentary evidence showing that any request for training had been made by her. There was no evidence that Stephanie Smilie had asked that the claimant be put forward for the Advanced Practitioner course. There were a number of references in the documentary evidence to the ‘Career Pathways’ document (e.g. JB119). Although it was not disputed that this was in place, and that it set out three levels or bands within the PM role, we did not have sight of that document. It was not disputed that the claimant was at level 1 of that Career pathway, which was commensurate with basic level qualification (APM) and 1 – 3 years’ experience in a PM role.[68]During the course of the claimant’s evidence she accepted that one of the individuals she had relied on as a comparator for her direct race discrimination claim (a female relied on as having more training opportunities than the claimant) was in a more senior role than the claimant and so was not an appropriate comparator.[69]The claimant had based her unlawful deductions claim on the position that she had not used her full annual entitlement to holidays as at the termination date. It was not until during the course of this hearing that the claimant appreciated that entitlement to holidays accrues, and that as at the termination date she had taken more holidays than she had accrued by that stage in the holiday year. The claimant then accepted that position and withdrew her complaint under section 13 ERA. Discussion and decision Equal Pay[70]The respondent’s position was that the factors considered when determining salary are those of;• Experience in the position of ‘Project Manager’• Directly related to the ‘pathway’ on which the ‘Project Manager’ was currently employed.• Complexity of portfolio.• Size/value of portfolio / project.• Performance in the role.• The individual’s history of out of cycle pay reviews. That evidence was not contested by the claimant.[71]Following the guidance from the EAT in Perkins v Marston (Holdings) Ltd [2025] EAT 170 on the application of section 66 ,we approached our analysis of the ‘material factor defence’ on the basis that the differences in salary between the claimant and Comparator 1 and Comparator 2 were presumed to be due to the difference of sex. The burden was then on the respondent to show that the explanation for the variation was not tainted with sex. The respondent proved that the explanation / reason for the differences between the claimant’s salary and that of Comparator 1 and Comparator 2 was genuine and not a sham or pretence. The differences were because of the factor set out as being relied on by the respondent. The claimant’s lower salary in comparison (the ‘less favourable treatment’ was due to those reasons. The factors relied upon as the reasons for the difference in pay were the cause of the disparity. These factors were "material". They were significant and relevant factors. The reason was not "the difference of sex.", either directly or indirectly. There were material differences between the claimant and her comparators 1 and 2 in respect of qualifications, experience in a PM role, and size, complexity and value of the projects worked on. The differences in their work assigned, performed and delivered merited a higher level of remuneration. That explained the difference in pay. Pamela Savill’s position in her outcome of the informal grievance was very significant. The claimant did not challenge the position set out in that report [JB130 – JB131]. That included:- “Across the wider Magdalene and including SPEN project managers there are a number of project managers within a range of salaries for both male and female employees, there are both males and females at the bottom, middle and top of the range. Salaries are determined by several factors including years of experience, skills (including any particular niche skills), length of service, qualifications, value and size of projects, out of cycle pay reviews based on performance and annual pay reviews, this has nothing to do with the sex of the employee.”[72]With regard to the correct approach to the application of the burden of proof outlined in BMC Software Ltd v Shaikh [2019] ICR 1050 , on the evidence before us, the respondent proved that the factors relied on explained the difference in pay. The respondent showed that that what they relied upon as material factors were not directly or indirectly discriminatory.[73]As the respondent had proved the material factors and that they are not directly discriminatory, the burden shifted to the claimant. (McNeil v Revenue and Customs Commissioners [2020] ICR 515). The claimant did not seek to rely on any evidence to show that other women doing equal work with her were put at a particular disadvantage compared with men. The claimant did not seek to prove any indirect discrimination: she did not seek to prove any group disadvantage. The claim was based on the claimant’s salary in comparison to the male employees identified as Comparator 1 and Comparator 2. On consideration of the approach in Dobson v North Cumbria Integrated Care NHS Foundation Trust [2021] IRLR 729, in the particular circumstances of this case, group disadvantage could not be inferred from the particular disadvantage to the claimant (the claimant being on a lower salary than Comparator 1 and Comparator 2). Those circumstances included the claimant’s work history and qualifications.[74]Following Perkins v Marston (Holdings) Ltd, we reminded ourselves that in applying s.69(2) the fundamental question is whether the material cause of the pay difference between the Claimant and her comparators is tainted by sex-related factors. We noted that we should take a pragmatic approach, focusing on substance rather than form. There was no evidence before us that the material factors resulted in some disadvantage to women and to the claimant. The evidence of Pamela Savill re the outcome of the informal grievance in March 2024 [JB130 – JB131] and the evidence of the claimant’s own witness, Stephanie Smillie, was significant in that regard. Stephanie Smillie’s evidence was that the respondent employs ‘males and females of different backgrounds, ethnic minorities, races.”’ The burden did not pass to the respondent to justify the reliance on the material factor.[75]For these reasons, the respondent proved a material factor defence that any the difference in pay between the claimant and(1) Comparator 1(2) Comparator 2 was not related to sex Equality Act 2010 section 13 – Direct Discrimination - Sex[76]The claimant’s reliance on section 13 EqA in respect of her protected characteristic of sex (gender) was based on her being paid less that her identified comparators (Comparator 1 and Comparator 2). In circumstances where the respondent proved that those differences in pay were because of material factors, the claimant was not less favourably treated than Comparator 1 or Comparator 2 by being paid less than them because of her sex (gender). Equality Act 2010 section 13 – Direct Discrimination - Race[77]The claimant’s reliance on section 13 EqA in respect of her protected characteristic of race (mixed race Caribbean black) was based on her treatment by the respondent compared to the identified comparators (Comparator 1, 2 & 3) in respect of(1) being paid less and(2) having less opportunities for training. All comparators relied on are white. Comparators 1 & 2 are the males relied on in the equal pay complaint. Comparator 3 is relied on as being a while female PM paid more than the claimant and going on the Advanced Practitioner course.[78]The initial burden of proof was on the claimant. The claimant did not prove facts from which it could be inferred, absent any lawful explanation, that the difference in treatment was because of the claimant’s race. In circumstances where the respondent proved that those differences in pay were because of material factors, the claimant was not less favourably treated than Comparator 1 or Comparator 2 by being paid less than them because of her race. The claimant did not prove facts from which it could be inferred, that she was not put forward for the Advanced Practitioner qualification because of her race. The claimant did not prove that she had been put forward for that qualification at all. The claimant’s position that a female PM was paid more than her did not support her equal pay complaint.[79]The claimant did not prove primary facts from which we could conclude that she was less favourably treated than Comparator 1, Comparator 2 or Comparator 3 by(a) being paid less than them because of her race; or(b) getting fewer educational opportunities because of her race. Equality Act 2010 section 26 – Harassment[80]The claimant relied on unlawful harassment relating to her protected characteristic of race. The claimant relied on comments having been made by employees of the respondent while in a canteen shared with another business. She relied on employees from that business having heard employees of the respondent using racially discriminatory language. She relied on not having been interviewed as part of the respondent’s investigations on those allegations. It was a matter of agreement that the respondent had investigated the complaints and had taken disciplinary action against an individual. The claimant’s position was that that individual should have been dismissed. It was not in dispute that that individual was then dismissed by the respondent for an unrelated conduct reason.[81]The factors set out in the ‘Comments on Evidence’ section re the claimant were considered. That included that the claimant had raised her concerns in respect of equal pay and not receiving a bonus, but had not raised concerns about racist comments. We noted Stephanie Smillie’s evidence that there had been ‘a discussion about things going on’. It was significant that Stephanie Smillie’s evidence was that the desk move placed the claimant closer to the person she had alleged made racist comments, while it was the claimant’s evidence that the desk move had been because she had raised with Stephanie Smillie that that individual was making racist comments. It was the claimant’s evidence that Stephanie Smiliie had moved the desks so that that person would be further away from the claimant.[82]Taking into account the provisions of section 26(4),the claimant did not prove primary facts from which it could be concluded that that unwanted conduct had the effect of violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant in circumstances where:-• the claimant was not in the canteen when the racist comments were made,• the respondent’s investigation had included interviewing all those employees who had been in the canteen when the alleged comments were made• the respondent had taken disciplinary action against the employee who had made the comments.• the claimant had not raised a complaint or grievance in relation to alleged race discrimination• the claimant had raised a complaint about equal pay, which had been progressed as an informal grievance• the claimant had escalated her discontent at not being paid a bonus to the former Director of Operations.[83]Additionally, during the course of the FH, the claimant relied on a racially discriminatory comment having been made in her presence. That allegation had not been mentioned in the ET1 and is not noted in either of the Notes issued following the Case Management Preliminary Hearings. In those circumstances, and in the circumstances outlined under the ‘Comments on Evidence’ section in relation to the claimant’s credibility and reliability, and where the claimant did not rely on any other witness supporting her position that that comment had been made, the claimant did not prove that that comment had been made in her presence. The initial burden of proof was on the claimant and she did not satisfy this. The claimant did not on the balance of probabilities prove facts from which we could conclude, in the absence of an adequate explanation, that the respondent had subjected the claimant to that alleged unwanted conduct in terms of section 26. We took into account the evidence, the credibility and reliability of witnesses and the parties’ representatives’ submissions. For these reasons we did not find that racist comments had been made in the claimant’s presence.[84]We approached our considerations under section 26 on the basis that the following was unwanted conduct related to the claimant’s protected characteristic of race in terms of section 26(1):-• racially discriminatory comments made in the canteen (not in the claimant’s presence)• the decision not to interview the claimant as part of the investigation into those comments• the decision not to dismiss the individual concerned.[85]We considered whether that conduct had the effect of violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. Section 26(4) provides that in determining whether the unwanted conduct was harassment in terms of section 26, we must take into account the perception of the claimant, the other circumstances of the case and whether it was reasonable for the conduct to have that effect. The following facts were significant in terms of section 26(4):-• The decision not to interview the claimant as part of the investigation was because the claimant was not in the canteen at the time of the racist comments having been made.• Disciplinary sanction was taken by the respondent as a result of the investigations.• The claimant had not raised a complaint or grievance about racist comments, but had done about equal pay• The claimant had contacted the former Operations Director about not being paid a bonus but did not seek to escalate concerns about a racist environment• The desk move which the claimant claimed had been done to move the alleged perpetrator further away from her had been done to bring team members closer together and placed the alleged perpetrator closer to the claimant• The claimant had invited the alleged perpetrator to her son’s birthday party.[86]Taking into account those factors, we did not find that the claimant was subjected to harassment in terms of section 26 EqA. The primary facts did not support an inference of discrimination. For these reasons, the complaint of unlawful harassment in terms of section 26 EqA does not succeed and is dismissed. Victimisation[87]The claimant relied on protected acts on 13 and 22 February 2024. There was contemporary documentary evidence showing that the claimant had raised an issue about equal pay with the respondent on 13 February 2024 [JB126 & JB127] and that the claimant had met with Pamela Savill to discuss her equal pay complaint on 22 February 2024 [JB129]. Raising the equal pay issue and meeting with Pamela Savill to discuss the equal pay issue were protected acts in terms of section 27 EqA.[88]It was the claimant’s evidence that in her meeting with Pamela Savill on 22 February 2024, the claimant had also discussed her concerns in relation to racist comments being made in the office. For the reasons set out in the ‘Comments on Evidence’ section above re the claimant’s credibility, we did not accept that the claimant had raised a complaint of racial harassment with Pamela Savill in February 2024. The meeting on 22 February 2024 was documented and there is no mention of the claimant raising an issue of race discrimination. There was no explanation offered by the claimant as to why that would not have been documented or progressed. The record of the meeting between the claimant and Pamela Savill on 22 February 2024 [JB129] records (re the equal pay issue) that Pamela Savill “ reassured Lauren that I am being through and would rather she raised this than not raise it and leave.” We accepted Pamela Savill’s evidence on what had occurred at the end of that meeting and that she had left the room because she couldn’t discuss an investigation concerning another employee. For these reasons we accepted the evidence of Pamela Savill that the claimant had not raised an issue of racial harassment in February 2024.[89]We considered whether the claimant had suffered a detriment by doing the protected acts on 13 and 22 February 2024 re the equal pay issues. The claimant relied on the following as detriments under section 27 EqA:- ▪ not being invited to be interviewed for the investigation; and/or ▪ not being contacted when she first when on sick leave.[90]The accepted the respondent’s witnesses’ evidence that the reason the claimant was not invited to be interviewed for the investigations into racist comments in the canteen was because the claimant had not been present at the time the comments were alleged to have been made. It was the claimant’s position that she ought to have been interviewed because she had previously raised concerns about the same individual making racist comments. For the reasons set out in the ‘Comments On Evidence’ above re the claimant’s credibility we did not accept the claimant’s position on that. The claimant did not prove facts on which it could be inferred that the reason why the claimant was not interviewed for the investigation could be because she had done the protected acts.[91]The record of contact at JB132 shows that the claimant messaged Lisa Chin on 29 July 2024. That is inconsistent with the claimant’s evidence that she was not aware that Stephanie Smillie was absent on sick leave from the end of July or start of August and so did not know that Lisa Chin was standing in as her line manager. Taking that into account, and taking into account what is set out in the ‘Comments on Evidence’ section re the claimant’s credibility, we di not accept the claimant’s evidence that there had been a lack of contact from the respondent when she first commenced sick leave. We preferred the credible evidence of the respondent’s witnesses. The claimant did not prove that there was a lack of contact with her when she first started sick leave. The claimant did not prove facts from which it could be inferred that she had been subjected to a detriment because of having done the protected acts.[92]For these reasons the complaint under section 27 EqA does not succeed and is dismissed. Pay[93]The claimant resigned on 13 September 2024, to start a new job on 1 October 2024. The contract provides for a one month notice period. In circumstances where the claimant acted in breach of contract by not giving one month’s notice the claimant is not entitled to sums in respect of notice. The respondent agreed to accept a termination date of 30 September 2024. The respondent’s Company Sick Pay Scheme is discretionary and they were entitled to withdraw CSP and only pay SSP for the period of the claimant’s notice while she was on sickness absence (14 September until 30 September 2024).[94]The respondent’s holiday year is from 1 April to 31 March. The claimant had taken more holidays than she had accrued as at the termination date. The respondent was entitled to deduct from the claimant’s salary amounts in respect of holidays taken but not accrued as at 30 September 2024. The claimant is not entitled to any sums re holiday pay. The number of holidays showing on the IT system was in respect of the full annual entitlement. The claimant has withdrawn her complaint re holiday pay.