Ms R Henry v Represented by:10 Mr M Allison - Solicitor The Scottish Ministers — 2023

Ms R Henry brought an amended claim under section 67 of the Equality Act 2010 concerning survivor benefits under an occupational pension scheme after the death of Mr Allen, a deceased scheme member. This was a preliminary hearing only, listed to determine jurisdiction and time bar. The tribunal recorded that it made no findings in fact because it resolved the issues on legal submissions.

Employment Judge M Robison held that the Employment Tribunal had no jurisdiction to hear a section 67 claim brought by a dependant of a deceased member. The tribunal construed section 67 as a provision available to members or prospective members of the scheme, not a third party dependant. It also held that section 113(6) meant chapter 3 provisions such as section 120 did not apply to proceedings relating to an equality clause or rule, so the relevant enforcement route was section 127 in chapter 4. The judge added that, even if the claimant could bring the claim, the comparator analysis under sections 64 and 67 would still be problematic because the claim required a comparator employed on equal work.

On time limits, the tribunal rejected the argument that this was a concealment case under sections 129 and 130 of the Equality Act 2010. It held that the case was a standard case, that Mr Allen's employment ended around 2001, and that the claim was therefore well outside the six-month qualifying period, with no just and equitable extension available. The tribunal also rejected the argument that the claimant had been deprived of an effective remedy, holding that any challenge could have been pursued in the civil courts or by judicial review. The claim was dismissed.