Employment judge orders NHS employee alleging sex discrimination to pay deposit to continue case

Claimant Mrs M Hutton argued that she was carrying out work equal to a male comparator for less pay and thus was directly discriminated against based on her sex. The respondent sought to have the case struck out on the basis that it had no reasonable prospect of success, or alternatively the making of a Deposit Order on the grounds that the claim enjoyed little reasonable prospect of success.

The case was heard by Employment Judge Joseph d’Inverno. The claimant was represented by a friend while the respondent was represented by I Halliday, advocate.

Bound to fail

It was asserted by the claimant, who held the role of Clinical Support Worker, that she carried out work equal to a specific male comparator in her department, Mr Stuart Mitchell, but for less pay. The respondent accepted that the claimant was paid less and thus treated less favourably than Mr Mitchell, however in its written submissions, the respondent explained the difference in pay was justified. It was explained that Mr Mitchell was paid more due to his participation in a job evaluation process named ‘Agenda for Change’, the validity of which was not challenged by the applicant.

The purpose of the AfC scheme was to implement a gender-neutral pay structure and ensure equal pay across the NHS and it could not be said to be directly discriminatory. The respondent submitted that Mr Mitchell possessed an SVQ3 level qualification, whereas the claimant only possessed an SVQ2 qualification, thus they were assigned Level 2 and Level 1 respectively in the clinical support department between 2008 and 2009. However, the claimant submitted that at the point of assimilation he had only held an SVQ2 qualification like herself, and she had taken the SVQ3 qualification at the same time.

It was further argued for the respondent that it was now for the claimant to show that as a result of the application of the AfC scheme women as a group doing work equal to hers were disadvantaged compared to men doing equal work. As she was unable to do this, the time and resources of the Employment Tribunal ought not to be taken up on a case that was bound to fail.

Counsel for the respondent further submitted that the ET had considered this NHS role previously in Beattie v Lothian Health Board (2015), with the findings of the Tribunal in that case being inconsistent with the claimant’s suggestion that the AfC process was discriminatory. An additional submission was made that it was no longer possible to have a fair hearing due to inexplicable delay in the case brought on by the claimant.

Likely to fall short

In his decision, Judge d’Inverno said of whether to strike out the claim: “If, as the claimant asserted, she took the SVQ3 qualification at the same time as her comparator and, as was again put in issue, her comparator was 5 assimilated prior to his obtaining the SVQ3 qualification, the claimant’s assertion would be neither inconsistent nor inexplicable.”

Noting that these were issues to be dealt with by the hearing of oral evidence, he concluded on this point: “It follows that I am not satisfied the claimant’s case is conclusively disproved by undisputed contemporaneous documents Accordingly, I decline to Strike Out the claim on the first ground contended for [of] no reasonable prospect of success.”

On whether it was still possible to have a fair hearing, he said: “I am told that the comparator himself is still in the employment of the respondent and has not beenprecognosed by the respondent on the matter. Although the response of Ms Gibb for the claimant appeared to indicate that on a first inquiry the comparator had been unable to explain precisely why, I am not able to consider, on a bald ex parte basis, either that the absence of that precise detail renders it impossible to have a fair trial or indeed that the answer to that or similar questions might not emerge in the course of examination and cross examination of witnesses.”

However, considering whether to make a deposit order, the judge said: “While the claimant’s assertion that she took the SVQ3 qualification at the same time as her comparator and that both she and the comparator took the qualification after assimilation and thus, that the possession of the qualification per se could not have been the determining reason for differential treatment that of itself, taken at its highest and let it be assumed that the claimant were to prove that state of affairs is likely to fall short of what would be required to show that the difference in treatment was due to gender.”

He concluded: “While the Beattie case is of course not binding upon this Tribunal and it is possible that a differently constituted Tribunal might reach a different conclusion on substantially the same evidence that, together with the matters enumerated above combine to result in the Tribunal considering that the claimant’s case in the instant case, as currently pled and on the information presented, enjoys little reasonable prospect of success and, in these circumstances the Tribunal’s discretion to make a Deposit Order is a condition precedent of continuing to advance the claim is awakened.”

Having been satisfied that it was appropriate to do so, the Tribunal therefore ordered the claimant to pay a deposit of £1000 as a condition precedent of her pursuing her claim.