Mrs Susanna Boyd v Oakham School — 2022

At the open preliminary hearing on 6 January 2022, Employment Judge P Britton considered the claim on submissions and documents only. Mrs Susanna Boyd had worked for Oakham School from 1 September 2015 until 31 August 2021. The school had decided to cease participation in the Teachers’ Pension Scheme and move teaching staff to APTIS, a defined contribution scheme, after consultation and for financial reasons. The claimant did not sign up to the contractual variation and was dismissed. The tribunal recorded that she was represented in the consultation process by NASUWT.

The indirect sex discrimination claim was dismissed for want of jurisdiction. The tribunal held that the pleaded complaint was, in substance, about pension entitlement and pay, and that such a claim had to be brought under the occupational pension scheme / equality of terms provisions rather than as indirect sex discrimination. It relied on the statutory scheme in Chapter 3 of the Equality Act 2010, including section 67 and the exclusion in section 70, and concluded the claim could not be pursued on the pleaded basis.

The indirect age discrimination claim was dismissed as having no reasonable prospect of success. The tribunal accepted that the claimant sought to rely on the school’s departure from TPS and on the effects of the change on younger teachers, but held that the pleaded case was focused on the departure from TPS rather than the introduction of APTIS as the relevant provision, criterion or practice. It considered ABN Amro Management Services Ltd v Hogben, Edie and others v HCL Insurance BPO Services Ltd, and Lord Chancellor v McCloud, but concluded those authorities did not assist the claimant on the case as pleaded. The tribunal noted that no application to amend had been made.

The unfair dismissal claim was not struck out at this stage, but the tribunal found it had only little reasonable prospect of success and made a deposit order under Rule 39(1) of the Employment Tribunals Rules 2013. It noted the school’s consultation and appeal documentation, the stated business case for leaving TPS, and the increase in employer pension contributions from 16.48% to 23.68%, with costs rising from £1.442 million to £2.054 million. It also rejected the claimant’s assertion that the appeal was a sham on the papers before it.