Mrs E Beattie v Lothian Health Board — 2022

The claimant brought a claim for compensation for breach of the sex equality clause under section 66 of the Equality Act 2010, alleging that she carried out work equal to her male comparator, Mr Stuart Mitchell, and was paid less because of sex. The respondent accepted that the claimant was paid less than the comparator, but argued that any difference resulted from the Agenda for Change job evaluation process and sought strike out under Rules 37(1)(a) and 37(1)(e), or alternatively a deposit order.

The Tribunal refused strike out on the basis of no reasonable prospect of success. It held that disputed factual issues remained, including when the comparator obtained the SVQ3 qualification and whether the claimant obtained it at the same time, and that those issues should not be decided without oral evidence. The Tribunal also refused strike out on the basis that a fair hearing was no longer possible, finding that although there had been inordinate and substantially unexplained delay, it was not satisfied that the delay made a fair hearing impossible.

The Tribunal made a deposit order because it was satisfied that, as currently pled and on the information presented, the claim had little reasonable prospect of success. It reasoned that even if the claimant proved that she and the comparator obtained the SVQ3 qualification after assimilation, that would be likely to fall short of showing that the pay difference was due to gender, particularly as the claimant did not challenge the Agenda for Change scheme itself as discriminatory. The claimant's representative confirmed that the claimant could comfortably pay any deposit, and the Tribunal ordered a £1,000 deposit as a condition of continuing the claim.