Mrs A Devanny v Represented by: ` Mr D Fairley QC The Scottish Ministers — 2019

This was a preliminary hearing in which Mrs A Devanny, President and later Chamber President of the Housing and Property jurisdiction, compared her work with that of Dr Morrow, President of the Mental Health Tribunal for Scotland, for the purposes of section 65 of the Equality Act 2010. The tribunal set out the two-stage test for like work: first, whether the work was the same or broadly similar; and second, whether any differences were of practical importance in relation to the terms of employment.

The tribunal held that, in general terms, the claimant’s work and Dr Morrow’s work were broadly similar. It found that both were tribunal presidents responsible for the efficient running of their tribunals, issuing directions, managing members, providing training and guidance, handling capability issues, preparing annual reports, and chairing and determining cases. The tribunal also rejected the respondents’ reliance on the SSRB report as determinative, noting that it was not a job evaluation exercise and did not decide where the two posts should sit within the five pay points within salary group V.

However, at the second stage the tribunal found material differences of practical importance. It accepted that the MHTS dealt with very different subject matter, including compulsory measures, restricted patient and CORO cases, and that all MHTS cases involved vulnerable people and the balance between private and public interests. It found that Dr Morrow spent a significant amount of time on restricted patient work and complex hearings, whereas the claimant did not as a matter of course hear complex or lengthy cases within the Housing and Property jurisdiction and had no cases she was required to hear because of her appointment. The tribunal also considered the greater responsibility attached to the MHTS role before December 2017.

For those reasons, the tribunal concluded that the claimant was not undertaking and had not undertaken like work as Dr Morrow within section 65(1)(a) of the Equality Act 2010. The claim therefore failed at the liability stage and no monetary award was made.