Moss v Reliance Mutual Insurance Society Ltd

An Employment Tribunal may assess allegations of direct sex discrimination holistically. It need not resolve every factual conflict or recite every item of evidence, provided that its reasons adequately explain its findings.

An appellant will not ordinarily be permitted to advance a new indirect-discrimination argument on appeal where it was not put below and would require further fact-finding. A genuine material factor defence may succeed where pay differences are explained by factors untainted by sex, including recent relevant experience and market demand for a comparator’s skills.

A constructive dismissal claim founded on alleged discrimination fails where the underlying complaints fail and the employer has not committed a repudiatory breach of the implied term of mutual trust and confidence.

The claimant, a qualified actuary, was employed by the respondent life insurance and pension provider as a reporting actuary. She was paid less than a male comparator recruited later to a different actuarial role. Following her resignation, she brought equal pay, direct sex discrimination and constructive unfair dismissal claims.

The Employment Tribunal dismissed all claims. Assuming that the claimant and comparator performed like work, it upheld the respondent’s genuine material factor defence. It found that the claimant’s lack of recent actuarial employment and the comparator’s marketability explained the pay difference without reference to sex. It also rejected the discrimination allegations on their facts and as out of time, and found no repudiatory breach of contract.

The claimant appealed. The central issues were whether the Tribunal had erred in its treatment of the discrimination evidence, the material factor defence, and constructive dismissal.

1. Appeal dismissed. The Employment Tribunal was entitled to reject the direct sex discrimination allegations. Its reasons had to be read as a whole. The Tribunal permissibly found that the treatment complained of resulted from the claimant’s perceived over-sensitivity to workplace matters, rather than her sex.

   There was no requirement for the Tribunal to determine every factual conflict or refer to every item of evidence. Its treatment of the particular alleged remark and the social-event complaints was open to it. Its conclusion that the complaints were also out of time, and that no just and equitable extension should be granted, was unassailable.

2. The Tribunal was entitled to assume, without deciding, that the claimant and comparator were engaged in like work and then determine the genuine material factor defence. The claimant’s absence from actuarial employment for nearly two years and the comparator’s ability to command a higher market salary were genuine, non-sex-related explanations for the differential.

   The claimant could not raise for the first time on appeal an argument that reliance on her career break was indirectly discriminatory. That argument had not been advanced below and required further factual findings about its alleged disparate impact and her particular circumstances. The Tribunal was entitled to find that the pay difference was not tainted by gender.

3. The constructive unfair dismissal claim necessarily failed. The discrimination challenges had failed, and the Tribunal was entitled to find no breach of the implied term of mutual trust and confidence. The alleged final incident concerning a room booking was, on the facts found, wholly innocuous and could not constitute a repudiatory breach.

4. The respondent’s conditional cross-appeal was moot and no order was made on it. The claimant was directed to state within 14 days whether she wished to maintain her stayed Rule 3(10) application in the separate appeal concerning strike-out and costs.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal’s reserved judgment of 15 August 2013. The respondent’s conditional cross-appeal was moot.
• Employment Tribunal: dismissed the equal pay, direct sex discrimination and constructive unfair dismissal claims on 15 August 2013.
• Employment Appeal Tribunal: a separate appeal concerning the later strike-out of an alternative equal-value claim and a costs order was rejected under Rule 3(7); the claimant’s Rule 3(10) application was stayed pending this appeal.