W Hesketh v Glasgow Caledonian University

A claim described objectively as direct sex discrimination does not become an equal pay claim merely because the claimant identifies a man who succeeded her in teaching the same module on better terms. A successor employee cannot be an equal pay comparator.

Where a proposed equal pay claim based on a predecessor is first raised in a schedule, it is a new claim requiring amendment. Before refusing amendment as time barred, an Employment Tribunal must consider whether the Equality Act 2010 stable-work-case limitation rule may apply where the working history makes that a live possibility. Necessary factual matters may require agreement or evidence.

The appellant, a former university lecturer, brought employment claims after a series of engagements with the respondent. Her ET1 alleged sex discrimination and identified Dr Bowness, who later taught a module she had taught, as comparator.

In a later Scott Schedule, she referred both to Dr Bowness and to Dr Buckle, whose job she said she had covered. The Employment Tribunal held that no equal pay claim had been pleaded in the ET1, and refused amendment to introduce an equal pay claim involving Dr Buckle because it was out of time.

Two grounds proceeded before the Employment Appeal Tribunal: whether the original claim included equal pay, and whether the Tribunal had correctly approached limitation when applying the Selkent amendment principles.

1. Appeal allowed in part. Ground 3 failed. The Employment Judge correctly held that the ET1, including its October 2018 amendment, did not plead equal pay. Although the relevant box had been ticked, the substance of the pleaded case concerned Dr Bowness receiving more favourable terms after succeeding the appellant. That was capable of being direct sex discrimination, but not equal pay because a successor employee cannot be the comparator for an equal pay claim: Walton Centre for Neurology and Neurosurgery v Bewley [2008] ICR 1047.
2. The same conclusion applied to the reliance on Dr Bowness in the November 2018 Scott Schedule. By contrast, the Schedule's assertion that the appellant had not received the pay and conditions of Dr Buckle, the person whose job she was covering, objectively raised an equal pay claim based on a predecessor comparator.
3. That Dr Buckle claim was not contained in the ET1 and was therefore a new claim. Its inclusion in the Scott Schedule could nevertheless be treated as an implied application to amend.
4. Ground 5 succeeded to a limited extent. The Employment Judge had treated the claim as time barred using a standard-case analysis under section 130 of the Equality Act 2010. The Tribunal had not clearly considered whether section 129's stable-work-case limitation rule might apply. Given the parties' working history, that issue was potentially relevant and may have required agreed facts or evidence. It could affect the Selkent amendment exercise.
5. The refusal to permit the specific Dr Buckle equal pay amendment was set aside. Its reconsideration was remitted to the same Employment Judge, including consideration of the possible effect of section 129.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted the proposed Dr Buckle equal pay amendment for reconsideration.
• Employment Tribunal, Glasgow: Following a preliminary hearing on 20 November 2019, held that no equal pay claim had been pleaded and refused amendment to introduce the Dr Buckle claim.