Miss J Dowling v KPMG UK Ltd: 4107832/2020
| Judgment Date | 19 July 2021 |
| Published date | 06 August 2021 |
| Court | Employment Tribunal |
| Subject Matter | Sex Discrimination |
ETZ4(WR)
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IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH
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Judgment of the Employment Tribunal in Case No: 4107832/2020 Heard at
Edinburgh on the Cloud Based Video Platform, on 15th and 16th June 2021
Employment Judge J G d’Inverno
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Tribunal Member Ms Mary Watt
Tribunal Member Ms J Copeland
Miss J Dowling Claimant
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Represented by:
Ms Nicole Dowling
(Friend)
KPMG UK Limited Respondent
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Represented by:
Mr A Sendall of Counsel
Instructed by Mr Mark
McCanney – Solicitor
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JUDGMENT OF THE TRIBUNAL
The unanimous Judgment of the Tribunal is that the claimant’s claim for equal pay
pursuant to sections 64-71, of the Equality Act 2010, is dismissed.
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REASONS
1. This case, in which the claimant gives notice of a claim for equal pay
pursuant to sections 64-71, Part 5 Chapter 3 of the Equality Act 2010 (“EqA”),
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called for Final Hearing on the Cloud Based Video Platform, before a full
Tribunal at Edinburgh, on 15th and 16th June 2021. The claimant,
Miss Jennifer Dowling, was ably represented by Ms Nicole Dowling. The
4107832/2020 Page 2
Respondent Company KMPG UK Limited was represented by Mr A Sendall,
of Counsel, instructed by Mr McCanney, Solicitor.
2. The Tribunal, at the outset records its appreciation of the assistance afforded
it by the balanced and measured eliciting of evidence from witnesses, and
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submissions made, by both parties’ representatives.
The Claim
3. The claimant had confirmed, in the course of Closed Preliminary Hearing
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which proceeded before Judge Macleod on the 12th of April 2021, and as is
recorded in the Note of Output issued by Judge Macleod following that
Hearing and she reaffirmed in the course of Case Management Discussion
conducted at the outset of the Final Hearing, that the claim of which she gave
notice and which she sought to have determined by the Tribunal was an
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equal pay claim which was accurately described in its constituent parts in the
paper apart to Response Form ET3 at paragraph 4 thereof and, in the
following terms:-
“On the Respondent’s reading, the Claimant’s cl aim is for Equ al Pay
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brought under s.64-s.71 of the Equality Act 2010 (“EqA”). In
particular, the Respondent understands the Claimant’s case to be
that:
a. A male colleague, Mr. Michael Leonard (“Mr Leonard”) does
the same role as the Claimant, amounting to Equal Work
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within the meaning of s.65 of the EqA.
b. Mr. Leonard is paid significantly more than the Claimant.
c. Consequently, the term of the Claimant’s contract of
employment relating to pay is less favourable, within the
meaning of s.66 EqA, than the corresponding term in
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Mr. Leonard’s contract.
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d. Therefore, by virtue of s.66(2)(a) EqA (the ‘Sex Equality
Clause’) that term in the Claimant’s contract must be modified
such that it is not less favourable than the corresponding term
in Mr. Leonard’s contract.
e. In not having done so, the Respondent is in breach of its
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obligations under the EqA.”
4. The Respondent Company, which has entered appearance resisting the
claim, denies that it is in breach of the terms of the Equality Act and denies
that it has discriminated against the claimant on the basis of her sex or at all.
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In particular the respondent gives notice of relying upon the statutory Material
Factor Defence provided for in terms of section 69 of the EqA 2010.
Issues
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5. The Issues, requiring investigation and determination by the Tribunal at Final
Hearing and agreed by parties pursuant to Employment Judge Macleod’s
Direction of 12th April 2021 were:-
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Claim
1. (First) C’s claim is for equal pay pursuant to ss. 64-71, Equality
Act 2010 (“EqA 2010”).
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Issues
2. (Second) C’s male comparator is Michael Leonard (“ Mr
Leonard”).
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3. (Third) R admits that C and Mr Leonard do equal work for the
purposes of s. 65(1), EqA 2010.
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