Claimant v Falkirk Council

The Tribunal found that the claimant was not employed on work that was 'like' the work done by her male comparator Stephen Mosson under section 65(1)(a) of the Equality Act 2010. While both were Senior Officers supervising teams and performing broadly similar management tasks, there were differences in breadth of duties, budgetary responsibility, external training duties, and policy development work which meant the work was not 'broadly similar'. The Tribunal concluded the differences were of practical importance in the frequency with which they occurred.

The Tribunal found that ceasing to include the claimant in performance meetings from March 2022 was not a detriment for the purposes of section 27 of the Equality Act 2010. The claimant was on long-term sick leave or reduced hours during the relevant period and the meetings were described as updates rather than formal performance reviews. The Tribunal accepted the respondent's explanation that the meetings were not appropriate in the circumstances and there was no evidence linking this to the protected acts.

The Tribunal found the respondent victimised the claimant by instructing her line manager Audrey Allan not to speak to her around July and September 2022. The instruction was given by the Head of Service Kenny Gillespie. The Tribunal inferred that the instruction was connected to the claimant's equal pay grievances, as it was given specifically in relation to the claimant when her name was mentioned, and followed concerns about Audrey Allan's support for the claimant's grievance. The respondent did not prove a non-discriminatory reason for the instruction.

The Tribunal found the respondent victimised the claimant by removing her responsibility for dealing with homeless appeals on 11 May 2022. The removal was done by Laura Smith without proper consultation with the claimant's line manager Audrey Allan and without a proper basis in the claimant's Job Description. The Tribunal inferred the removal was connected to the claimant's equal pay grievances and rejected the respondent's explanations that it was to protect Audrey Allan's grade or reflected custom and practice. The respondent failed to prove a non-discriminatory reason.

The Tribunal found the respondent fundamentally breached the implied term of trust and confidence through: (1) delays in dealing with the claimant's equal pay complaint and job re-evaluation from August 2021 to September 2022, with periods of complete inaction and no reasonable or proper cause; (2) victimisation by removing appeal duties in May 2022; (3) imposing formal absence monitoring in breach of the respondent's own policy without informing the claimant of prior informal monitoring; and (4) failing to acknowledge or progress the claimant's August 2022 grievance appeal. The 'final straw' was Laura Smith's comment on 7 September 2022 asking 'what more could we do?' in circumstances where the grievances remained unresolved after over a year. The claimant resigned on 20 September 2022 in response to these breaches without affirming the contract. There was no potentially fair reason for the breach.