Mrs P Carnell v Butterworths Ltd — 2020

Mrs Carnell had worked for MLex for many years, moved from contractor to UK employee on 1 October 2020, and was paid £62,400 on a four-day week before her salary increased to an FTE of £67,500 from 1 June 2021. The case concerned her complaint that she should have received a pay rise earlier, her allegation that she was asked to justify a pay rise, the 9 December 2021 conversation with Mr Wilkin about childcare and working hours, the January 2022 appraisal rating of "requires improvement", and her victimisation allegations arising from her 2021 pay and gender-related enquiries and her December 2021 grievance-related complaints.

On direct sex discrimination, the tribunal held that the complaints about not including a pay rise in the 1 October 2020 offer and about requiring documentation to secure a pay rise were out of time. It refused to extend time and said there was no jurisdiction to determine those complaints. In any event, it found no basis for treating the pay discussions as sex-based, concluding that the Respondent was benchmarking the role and aligning pay, not treating the claimant less favourably because she was a woman.

For the 9 December 2021 conversation, the tribunal found that Mr Wilkin was concerned with the claimant's availability during working hours and with her performance, not with her sex. It found that some of the words attributed to him had not been said in the pleaded form, and that the comments about childcare, a nanny and whether her current situation was sustainable were better understood as comments about work availability rather than sex discrimination. The January 2022 "requires improvement" rating was also rejected as discriminatory: the tribunal found that Mr Wilkin genuinely believed there were shortcomings in productivity and leadership and that the rating was not caused by the claimant's sex.

The harassment claim failed because the 9 December comments were not unwanted conduct related to sex and did not create a hostile environment. The victimisation claim also failed: the tribunal held that the March and April 2021 communications did not amount to protected acts under sections 27 and 77, accepted that the 16 December 2021 email and related complaints could amount to protected acts, but found no retaliatory detriment in the 16 December meeting and no causal link between any protected act and the January 2022 appraisal rating. On equal pay, the tribunal found that the claimant's trade role was not like the work of Martin Coyle, Nicholas Hirst or Ezra Zekaria, and held that the sex equality clause had no effect. It relied on differences in the specialist beats, team responsibilities, court-reporting duties, location, recruitment circumstances and salary history, and said that any pay differences would in any event have been explained by material factors untainted by sex.