Ms L Edgar v Scottish Water: 4103706/2022

EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4103706/2022 5 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 10 Employment Judge Ian McPherson Tribunal Member E Farrell Tribunal Member S Singh Ms Lynne Edgar Claimant Represented by Mr Ronald Clarke Solicitor Scottish Water Respondent Represented by: Ms Samantha Mackie Solicitor 15 20 25 JUDGMENT OF THE EMPLOYMENT TRIBUNAL The unanimous, reserved Judgment of the Employment Tribunal is that: (1) 30 Having considered the respondent’s representative’s case management application dated 24 November 2022 seeking a privacy or anonymity 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 35 respondent’s application in its entirety for the reasons given at 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. 5 (2) The respondent’s stated material factor defences, pled in terms of 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. 10 (3) Accordingly, the claim and response shall be listed for a Final Hearing 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 15 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. 20 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. 25 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 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 4. Page 3 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 5. She complained of unlawful sex discrimination by the respondents, including 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. 10 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 15 before an 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. 20 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. 25 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 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.” 4103706/2022 11. Page 4 At paragraphs 18 and 20, it was submitted that, esto the Tribunal were to find like work / work of equal value, the respondent contends that 5 identified material factors account for the difference in pay between the claimant and her chosen comparator, Mr Bingham. These material factors were listed at paragraphs 18.1.1 to 18.1.5 for the like work claim, and repeated (as 5 paragraphs 20.1.1 to 20.1.5) for the equal value claim. 12. It was further denied that the claimant is entitled to compensation or interest as claimed, or at all, and that it is unnecessary for the Tribunal to make a declaration as sought by the claimant. 10 13. That ET3 response was accepted by the Tribunal on 5 August 2022, and a copy sent to the claimant’s solicitor and ACAS. 14. Following Initial Consideration by Employment Judge Shona Maclean, on 8 August 2022, she instructed the claim and response proceed to the listed Case Management Preliminary Hearing on 31 August 2022. 15 15. On that date, the case called before Employment Judge Frances Eccles. The claimant was represented by her solicitor, Mr Clarke, and the respondent was represented by a Ms G Watson, solicitor with Shoosmiths LLP. 16. Ms Mackie, the respondent’s solicitor on record, who had lodged their ET3 response, on 26 August 2022, returned the claimant’s PH Agenda combined with her own additional comments, rather than lodging the usual respondent’s 20 PH Agenda, which had been due by 24 August 2022, as per the Tribunal’s directions of 6 July 2022. 17. Having heard parties’ legal representatives in Case Management Preliminary Hearing, on 31 August 2022, Employment Judge Eccles noted that it was 25 agreed that the claim should be listed for a Preliminary Hearing to consider the respondent’s “material factor defence” as detailed in paragraphs 18 and 20 of the paper apart (grounds of resistance) to the ET3 response, as follows: 1. Market factors relating to difficulty in recruitment and / or retention; 4103706/2022 Page 5 2. Skills-related or other relevant supplements; 3. Experience; 4. Responsibility and potential; and 5. Where applicable, in conjunction with one or more of the factors above, cost. 5 18. In her written PH Note dated 9 September 2022, and issued to both parties under cover of a letter from the Tribunal dated 12 September 2022, Judge Eccles listed the issues to be determined by the Tribunal at this Preliminary Hearing, as follows: (1) 10 Whether the difference in pay is because of one or more of the material factors which did not involve treating the claimant less favourably because of her sex? (2) If the factors are found to be tainted by indirect sex discrimination, they are a proportionate means of achieving a legitimate aim? 15 19. Further, Judge Eccles allowed the claimant until 23 September 2022 to respond in writing to the material factors relied upon by the respondent; and fixed this 4-day Preliminary Hearing for 14 to 17 November 2022, before a full Tribunal, with the respondent to lead and provide a Joint Bundle of Productions no less than one week before the start of this Hearing; and for 20 parties to exchange any documents they intended to rely upon no less than 4 weeks before this Hearing. 20. At that Hearing before Judge Eccles, the claimant agreed to provide a Schedule of Loss by 16 September 2022. A 3-page Schedule of Loss was 25 thereafter provided to the respondent on 12 September 2022, seeking total arrears of pay (to 14 November 2022) in the total amount of £7,353.39, plus interest. 4103706/2022 21. Page 6 Further, on 21 September 2022, Mr Clarke, the claimant’s solicitor, provided the Tribunal with the claimant’s 3-page reply to the respondent’s material factor defence. That reply put the respondent to strict proof in relation to each of the 5 material factor defences pled in terms of Section 69 of the Equality Act 2010. 5 Preliminary Hearing before this Tribunal 22. At this Preliminary Hearing, the claimant appeared as a witness, and to instruct her solicitor, Mr Clarke, who appeared as her legal representative. The respondent was legally represented by Ms Mackie, accompanied by a trainee solicitor to take notes on a laptop. The respondent led two witnesses 10 on their behalf, Ms Georgie Reid, and Mr Scott Fraser, both Corporate Affairs Managers, for West and South-East regions respectively. 23. In terms of the case management orders previously made by Judge Eccles on 31 August 2022, and further directions given by Employment Judge McPherson, on 9 November 2022, by letter issued to both parties’ solicitors 15 from the Tribunal clerk, in light of Judge McPherson’s pre-Hearing reading into the casefile, when he learned he would be chairing the full Tribunal the following week, the Tribunal received a Joint Bundle, with index, running to 39 documents, extending to some 145 pages for 35 documents, and we further note and record that documents 36 to 39 were not paper documents, 20 but video clips, 2 of which were shown to the Tribunal (with descriptors provided in the index) on the large video display screen in the public hearing room on day 1, Monday, 14 November 2022. 24....