P Mallik v Arriva Kent and Surrey Limited

An Employment Tribunal deciding whether to strike out an equal-value claim by reference to a job evaluation study must identify the statutory or procedural basis of its decision. If it proceeds under paragraph 3(1)(a) of Schedule 3 to the Employment Tribunals (Constitution Rules and Procedure) Regulations 2013, it must give the claimant proper notice of the matters to be considered and a fair opportunity to address whether the study was sex-discriminatory or otherwise unreliable under section 131(6) of the Equality Act 2010.

Reasons must address material challenges to the study. A study made after proceedings began may still be relevant if it concerns the circumstances existing when proceedings began. An issue emerging from the pleadings must be determined if pressed, but a case-management omission is not an error of law where the party did not press the issue or use the opportunity to identify the omission.

The claimant appealed a case-management order made in joined Employment Tribunal proceedings. The order treated her equal-value equal-pay claim as disposed of after accepting a job evaluation report which rated her role lower than the identified male comparator roles.

She contended that the Tribunal had not identified whether it had struck out the claim under rule 37 or under paragraph 3 of Schedule 3 to the Employment Tribunals (Constitution Rules and Procedure) Regulations 2013, had not given adequate notice or reasons, and had not addressed her challenge to the report’s reliability and possible sex discrimination. She also contended that a reasonable-adjustments claim concerning toilet facilities had wrongly been omitted from the list of issues.

The central questions were whether the equal-value claim had been struck out fairly and lawfully, and whether the omission of the toilet issue at that case-management stage was an error of law.

1. Appeal allowed in part. The equal-value claim was remitted to a fresh Employment Tribunal. The appeal concerning the omitted toilet-facilities issue was dismissed.

2. The Tribunal’s reasons were unclear as to the legal route adopted. Although the order referred to rule 37, its acceptance of the job evaluation report and its conclusion that the work was not of equal value objectively indicated a determination under section 131(6) of the Equality Act 2010, through paragraph 3(1)(a) of Schedule 3 to the Employment Tribunals (Constitution Rules and Procedure) Regulations 2013.

3. That route required proper notice of the matters to be considered. The claimant had an opportunity to make submissions generally, but she was not told that she needed to address either the no-reasonable-prospects test or the statutory questions whether the study was based on a sex-discriminatory system or was otherwise unreliable. The notice failure materially deprived her of a fair opportunity to resist strike-out.

4. The reasons were also inadequate. The claimant had advanced substantive challenges to the report’s reliability and potentially to sex discrimination within its system. The Tribunal did not explain why those arguments did not provide reasonable grounds for suspicion under section 131(6). If the Tribunal had instead acted under rule 37, it likewise failed to assess her case at its highest before finding no reasonable prospect of success.

5. A job evaluation study is not invalid merely because it was made after proceedings began, provided it is analytical, valid, relevant and relates to circumstances existing when proceedings began. Whether this report properly addressed the earlier period was left for the remitted Tribunal.

6. The reasonable-adjustments claim concerning toilet facilities appeared on the face of the claim form. However, the claimant had not shown that she pressed that specific issue before the judge made the challenged order, or before the list of issues was sent out with an express opportunity to identify omissions. Any later failure to address it was not an error in the decision under appeal.

• Employment Appeal Tribunal: Allowed the appeal against the strike-out of the equal-value claim and remitted it to a fresh Tribunal; dismissed the appeal concerning the list of issues: [2025] EAT 139.
• Employment Tribunal: In a case-management order following a preliminary hearing on 27 March 2024, treated the equal-value claim as disposed of by accepting a job evaluation report and issued a list of issues which did not include the toilet-facilities reasonable-adjustments issue.