Hesketh v Glasgow Caledonian University [2022] EAT 33

Appeal against refusal to allow, at a preliminary hearing, the claimant to introduce equal pay claims.

The claimant had been employed by the respondent as a lecturer. Though the term of continuous employment was a matter for debate, her employment was terminated in February 2018, following which she issued these proceedings. The claimant’s amendment of her claims to include alleged failure to make reasonable adjustments, indirect discrimination, and victimisation was unopposed. A Scott schedule of claims then appeared to advance an equal pay claim and so a preliminary hearing was called to settle that point at which the judge allowed clarification of existing claims but not the introduction of the equal pay claim.

The claimant’s appeal here was on two grounds: that the judge had erred in concluding that the ET1 did not include a claim for equal pay and had erred in applying the Selkent principles when concluding that any equal pay claim was out of time. Lord Fairley rejected the first ground as the only comparator mentioned was her successor and as he notes

“whilst that may be recognisable as a claim of direct sex discrimination, it is not recognisable as a claim in respect of equal pay, not least because it is not competent to use as a successor employee as a comparator for the purposes of an equal pay”.

However he allowed a limited appeal on the other ground as it was not clear if the possibility of the time bar being that of a “stable work case” (s129 of the Equality Act) had been considered. The disputed history of the underlying relationship was potentially relevant so the matter was remitted for reconsideration.


Published: 01/03/2022 17:51

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