Ms L Edgar v Scottish Water: 4103706/2022
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 2023 |
| Date | 07 February 2023 |
| Published date | 16 February 2023 |
| Court | Employment Tribunal |
| Subject Matter | Equal Pay Act |
| Citation | 4103706/2022 |
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4103706/2022
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Preliminary Hearing in person held in Glasgow on 14, 15, 16 and 17
November 2022; parties’ further written representations on 22, 24 and 29
November 2022; and Members’ Meeting in chambers, held remotely on
Microsoft Teams, on 29 December 2022
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Employment Judge Ian McPherson
Tribunal Member E Farrell
Tribunal Member S Singh
Ms Lynne Edgar Claimant
Represented by:
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Mr Ronald Clarke -
Solicitor
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Scottish Water Respondent
Represented by:
Ms Samantha Mackie -
Solicitor
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JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The unanimous, reserved Judgment of the Employment Tribunal is that:
(1) Having considered the respondent’s representative’s case management
application dated 24 November 2022 seeking a privacy or anonymity
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Order, in terms of Rule 50 of the Employment Tribunal Rules of
Procedure 2013, and notwithstanding no objection by the claimant’s
representative to the making of the Order as sought at heads (1), (2) and
(3) of the respondent’s application, the Tribunal has refused the
respondent’s application in its entirety for the reasons given at
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paragraph 73 of the following Reasons for this Judgment, and the
4103706/2022 Page 2
Tribunal has also decided not to make any Rule 50 Order on its own
initiative, it not being in the interests of justice to do so, nor is it
necessary to do so to protect the Convention rights of the claimant’s
comparator, Mr Matthew Bingham.
(2) The respondent’s stated material factor defences, pled in terms of
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Section 69 of the Equality Act 2010, as per paragraphs 18 and 20 of their
ET3 response grounds of resistance intimated on 3 August 2022, are not
established on the evidence led before this full Tribunal at this
Preliminary Hearing.
(3) Accordingly, the claim and response shall be listed for a Final Hearing
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in person before a differently constituted full Tribunal, on dates to be
hereinafter assigned by the Tribunal, to determine whether or not the
claimant and her comparator, Mr Matthew Bingham, are or have been
doing like work, in terms of Section 65 of the Equality Act 2010.
REASONS
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Introduction
1. This case called before us, as a full Tribunal, on the morning of Monday, 14
November 2022, for a 4-day public Preliminary Hearing to determine, as a
preliminary issue, the respondent’s material factor defence to the claimant’s
equal pay claim.
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2. Notice of this Preliminary Hearing had previously been issued by the Tribunal
to both parties on 3 October 2022 but, in error, it stated it would be an
Employment Judge sitting alone, when it had been assigned for a full Tribunal.
3. An amended Notice of Hearing was issued on 10 November 2022 confirming
it was a full Tribunal, as has been ordered by Employment Judge Frances
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Eccles, on 31 August 2022, after a telephone conference call Case
Management Preliminary Hearing held by her with both parties’ solicitors.
Claim and Response
4103706/2022 Page 3
4. The claimant, acting through her solicitor, Mr Ronald Clarke, of Thompsons
Scotland, Solicitors, Glasgow, presented her ET1 claim form in this case to
the Tribunal, on 4 July 2022, following ACAS early conciliation between 11
January and 21 February 2022.
5. She complained of unlawful sex discrimination by the respondents, including
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equal pay, and specifically pled equality of terms with her named comparator,
Matthew Bingham, in terms of Sections 65 and 66 of the Equality Act 2010.
6. She sought a declaration and award of compensation for pecuniary loss, plus
interest, from the Tribunal, against the respondent as her continuing
employer.
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7. Her claim was accepted by the Tribunal administration, and served on the
respondent by Notice of Claim issued on 6 July 2022, for an ET3 response to
be lodged by the respondent by 3 August 2022. Further, both parties were
advised that 31 August 2022 was assigned for a one-hour telephone
conference call Case Management Preliminary Hearing before an
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Employment Judge sitting alone.
8. Although not required by the Tribunal until 10 August 2022, the claimant’s
solicitor, Mr Clarke, had lodged the claimant’s completed Preliminary Hearing
Agenda with the Tribunal on 13 July 2022, and thus without sight of any ET3
response from the respondent.
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9. An ET3 response was timeously lodged on behalf of the respondent on 3
August 2022, by Ms Samantha Mackie, solicitor with Shoosmiths LLP,
Edinburgh, defending the claim, and enclosing detailed grounds of resistance.
10. At paragraphs 17 and 19 of the ET3 paper apart, it was denied that the
claimant and her comparator do like work, and / or work of equal value, and
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stated that: “Although they have the same job title, the Claimant and her
alleged male comparator are differentiated by a range of skills,
experience, duties, responsibilities and potential to progress as
narrated above.”
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