Ms Shiu relied on paragraph 41 where Lady Smith pointed out that all sorts of factors might " be destructive of the genuineness of the employer's explanation " but that such a finding had to be made and without it unreasonable conduct, which in Skills Development was a delay in addressing pay disparity, of itself could quotes about sex discrimination act in Salisbury lead to a failure of the material factor defence.
That being so, normally not even as much of an explanation as is set out above would be necessary on an appeal but in this appeal the Appellant submits these findings are highly relevant to the argument that the ET has erred in its analysis and I need to look at them in even more detail later in this Judgment.
To summarise what might be an overlong introduction, grounds 1 and 2 had formed the subject matter of the submissions on 4 January Ms Shiu submitted that it was impossible to read section 70 as doing anything other than precluding a discrimination claim and an equal pay claim arising from the same facts, except in the circumstances defined by section 71 2namely where direct discrimination could be proved.
Likewise, I think all but one of the criticisms of misdirection in the ground 1 whilst arguable cannot be sustained.
Reference was then made to what had been said by Mr Harwood at the grievance appeal hearing that the system of pay increase " will always blow hot and cold depending on who your manager is ". The ET found it extraordinary that the Appellant could not show when " Mr B " had commenced employment see paragraph 74 of the Reasons at page 26 of the Appeal Bundle.
Again, part of the quotes about sex discrimination act in Salisbury is omitted, although that is in no sense surprising because it is a long paragraph and devoted to the specific facts of that appeal. There he set out a structural analysis of what was then the " genuine material factor " defence provided by section 1 3 of the Equal Pay Act "EPA"which I can summarise as:.
Whilst considering the matter overnight I became concerned as to whether by paragraph 3 of the Judgment upholding what was said to be a " claim of discrimination by constructive dismissal under the Equality Act ", the ET had reached a conclusion and made a consequential order it might have had no power to make because of the effect of the provisions of section 70 of the EqA.
On the other hand increases were not governed by a written procedure or criteria, there was no appeal system and no system of centrally recording such increases see paragraph The first is that there has been a misdirection.
In this context also the ET referred back to paragraph Above all, it was important to recognise that there was no claim of indirect discrimination. Mr MacPhail did not accept that the ET had got its figures wrong at paragraphs 38 and 39 of the Reasons. Ground 1 contains a number of different criticisms of the Reasons.
The Respondent raised a formal grievance on 13 June by email, part of which related to her very recent discovery that " Mr A " had a higher basic pay than she did see paragraph
If, on the other hand, the ET had made some specific finding in that respect, then it was bound to articulate it either in the relevant paragraphs or, at least, in some other part of the Reasons, to which those paragraphs could be obviously connected.
One of these at paragraph She appealed, and attended a grievance appeal hearing before Mr Harwood. It is factually dense and the argument on the merits took two days. On the day after she was told that her grievance appeal had failed, the claimant resigned with immediate effect …"