Employment Tribunal Decision: Constructive Dismissal and Direct Sex Discrimination Allowed

OUTCOME: Allowed in Part

Case No: 2411380/2023 & 2400164/2024

1

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

Manchester

On: 30 August 2024

Before:

Employment Judge Slater

Representation Claimant:

[redacted] Respondent:

[redacted]

JUDGMENT having been sent to the parties on 17 September 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

1. These are reasons requested by the claimant for the judgment refusing the respondent’s application to strike out the complaints of direct sex discrimination and harassment. The claimant has also requested written reasons for my refusal to make a deposit order. The refusal of a deposit order is a case management order which was contained in my orders sent to the parties on 17 September 2024, rather than in the judgment refusing the strike out application sent to the parties on the same day. However, to avoid a proliferation of documents, and because the reasons for refusing the strike out and refusing to make a deposit order are closely linked, I include the reasons for refusing to make a deposit order in this document.

2. I can strike out a complaint if I consider there is no reasonable prospect of success under rule 37 of the Employment Tribunals Rules of Procedure 2013. I can make a deposit order as a condition of continuing with any specific allegation or argument if it has little reasonable prospect of success under rule 39.

3. [NAME_7] is correct that there is an initial burden on the claimant to prove facts from which the Tribunal could conclude that there is unlawful sex discrimination

Case No: 2411380/2023 & 2400164/2024

2

and that the initial burden extends to every element required to succeed in a complaint, so that includes, in a direct discrimination complaint, that the less favourable treatment is because of sex or, in a complaint of harassment, that the treatment is related to sex and that the treatment had the requisite effect and it was reasonable for it to have that effect.

4. When a Tribunal at a final hearing decides whether the initial burden of proof passes, it is, except in very rare circumstances, after hearing evidence from the claimant and the respondent. It is on the basis of being able to consider documentary evidence produced during disclosure. Most of the relevant documentary evidence tends to be in the hands of the respondent and not available to the claimant when presenting their claim. The claimant is not expected, and could not reasonably be expected, to set out in their claim form the evidence they may be able to rely on to satisfy the initial burden of proof. It is implicit in the identification of complaints by the claimant as direct sex discrimination that she is saying that the less favourable treatment was because of her sex and, in relation to harassment, that the treatment was related to sex.

5. Discrimination complaints are very fact sensitive. It is only in the clearest cases of lack of merit that a complaint of discrimination can be struck out as having no reasonable prospect of success at this early stage of proceedings. This is not such a case.

6. There are some matters of fact which are in dispute and require evidence to be heard, which are relevant to the merits of the claims e.g. whether [NAME_8] was promoted or his existing job just given another name; and the circumstances surrounding a male employee coming to present an area of work at a board meeting for which the claimant was responsible.

7. Evidence relating to the reason for any less favourable treatment or whether acts which could be harassment are related to sex, are likely to be largely in the hands of the respondent. I cannot assume that nothing which emerges in disclosure of documents or the respondent’s evidence will assist the claimant in persuading the Tribunal that the burden of proof has shifted.

8. The claimant has referred to pay gap data and [NAME_7] has not challenged that this shows a disparity in pay between men and women to the women’s disadvantage. This might be something on which a Tribunal could rely, together with other matters, in deciding whether the burden of proof has shifted.

9. I disagree with [NAME_7]’s argument that the alleged acts of harassment could not reasonably have the requisite effect on the claimant. It will be for the claimant at the final hearing to give her evidence in relation to the effect on her, but, to take an example, it is not difficult to see how being sidelined in relation to an area of work for which she had responsibility could have this effect.

10. I cannot, on the material available to me, conclude that the complaints have no reasonable prospect of success or little reasonable prospect of success. I, therefore, refuse the application to strike out the complaints or to make deposit orders.

Case No: 2411380/2023 & 2400164/2024

3

Employment Judge Slater

Date: 16 October 2024

REASONS SENT TO THE PARTIES ON

22 October 2024

FOR THE TRIBUNAL OFFICE

Case No. 2411380/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent:

[redacted]

Manchester On: 13-17 October 2025 and (in chambers) on 24 November 2025 and 30 December 2025.

Before: Employment Judge Leach M Flynn B Tirohl

REPRESENTATION:

Claimant: [redacted]

Respondent: [redacted]

JUDGMENT

The unanimous decision of the Tribunal is as follows: -

1. The claimant was constructively and unfairly dismissed.

2.The claimant had a contractual entitlement to 3 months’ notice

3.The respondent directly discriminated against the claimant (protected characteristic, sex) in not giving the claimant an opportunity to apply for a group compliance role.

4. the claimant’s other complaints of direct discrimination fail and are dismissed.

5. The claimant’s complaints of harassment (protected characteristic, sex) fail and are dismissed.

6. The claimant’s breach of contact complaints in respect of training expenses, fuel and car tax, are dismissed on withdrawal by the claimant.

Case No. 2411380/2023

2

REASONS Introduction 1. The claimant was employed by the respondent as its Head of Compliance. She held this role from 2017 until her employment terminated on 8 September 2023.

2. In 2022 the respondent was acquired by the [COMPANY_11]. The claimant remained an employee of the respondent, although this acquisition required the claimant to sometimes work with employees from other companies within the wider [COMPANY_11].

3. A key part of the claimant’s role (and the role of the team she managed) was financial compliance. The respondent and its subsidiarises operated finance and finance broker agreements. These activities were regulated by the Financial Conduct Authority (FCA).

4. The FCA introduced key regulatory changes in 2023. The claimant’s role required her to take steps in ensuring the respondent introduced these changes.

5. In mid-2023, the clamant was offered assistance from [NAME_12], head of compliance with another [COMPANY_11]. Unknown to the claimant, [NAME_12] was, at the same time, being positioned into a group compliance role.

6. The claimant was not provided with an opportunity to apply for the role. Indeed, the respondent says that there was no new role. The new job title and salary increase was merely an extension of [NAME_8]’s existing role. There was therefore nothing for the claimant to apply for.

7. The claimant resigned, soon after being told of the new role/job title, claiming that she had been constrictively dismissed and discriminated against. The Issues 8. A list of issues had been set out by the Tribunal following a preliminary hearing on 30 August 2024. We discussed this on day one and made a few changes. The updated list is set out in the Annex. It excludes equal pay complaints (and complaints that the parties now agree are to be dealt with as equal pay complaints) that are to be considered under a separate process.

9. This hearing was listed as a liability only hearing. We informed the parties at the outset of the hearing that we would include findings relevant to paragraphs 3.3.4 - 3.3.6 in the List of Issues (the ACAS issue). The Hearing

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3 10. The parties provided an agreed bundle comprising 2610 pages. Reference to [NAME_14] numbers below are references to this bundle.

11. The claimant gave evidence over days one and 2. [NAME_15] ([NAME_18]) gave evidence on the morning of day 3. [NAME_18] was employed by the respondent as a compliance manager, working in the compliance team that was headed up by the claimant. She left the respondent’s employment in February 2023. 12. [NAME_19] ([NAME_22]) gave evidence on day 3. [NAME_22] is the legal director of the [COMPANY_11]. From about March 2023, he became (and remains) the respondent’s Company Secretary. 13. [NAME_12] ([NAME_23]) gave evidence on the morning of day 4. [NAME_23] was the head of compliance for [NAME_24] (another company within the [COMPANY_11]) and later became Group Head of Compliance.

14. Finally, we heard from [NAME_25] ([NAME_28]) who was at all relevant times the respondent’s Chief Operating Officer. [NAME_28] left the respondent’s employment soon after the claimant and now works for a competitor business. Findings of Fact The claimant.

15. The claimant has worked in senior compliance roles in the motor trade sector for about 20 years. In 2017 she joined the respondent as its group head of compliance.

16. The compliance work that the claimant was responsible for included (1) FCA compliance issues; (2) data protection compliance; (3) consumer law; (4) litigation, particularly arising out of compliance issues including claims made by customers relating to vehicle and finance agreements. The claimant qualified as a barrister in 2013 although has not practised, remaining instead in senior compliance roles in the motor industry.

17. We have been provided with reviews during the claimant’s time with the respondent that indicate she was well respected within the respondent including at Board level. For example: - •Acts as a role model for others in the business for us to 'raise the bar' on compliance and challenge the status quo [NAME_29] demonstrates the company values and moreover, influences other to raise company standards beyond current ambitions. She has high standards for herself personally which positively influences other around her. She has done a fantastic job in building relationships within the company, and this has been widely recognised. We need to keep building on [NAME_29]'s growing status as a trusted adviser to the company – I don't think she always appreciates how much influence she has, particularly at Board level.

18. These extracts are from review documents that are largely undated. We find that they dated back to 2019/2020 – a few years after the claimant started work for the respondent and a few years before the respondent became part of the

Case No. 2411380/2023

[COMPANY_150]. They are reviews carried out by the claimant’s line manager at the time - [NAME_30], the respondent’s group counsel and company secretary.

19. The claimant was known as a hard-working executive (evidence of [NAME_25]) who strived to ensure and improve regulatory compliance by the respondent and its subsidiaries. The respondent.

20. The respondent has dealerships and franchises throughout the UK selling motor cars across many major motor brands. Prior to its acquisition by the [COMPANY_11] in mid-2022, it was a publicly listed company. As a result of the acquisition the respondent became a private limited company and sat within the [COMPANY_11]. We refer to this acquisition and the respondent being brought into the [COMPANY_11] as the “Purchase.” 21. The [COMPANY_11] (“Group”) was (and is) also a significant business in the motor trade sector and had a range of subsidiaries including [NAME_32] and [NAME_24]. Of the businesses within the [COMPANY_11], [NAME_24] was engaged in the types of financial transactions that fell within the area regulated by the Financial Conduct Authority (FCA). Other businesses within the Group were not regulated by the FCA. [NAME_24] had a head of compliance called [NAME_12] ([NAME_23]) who had worked at [NAME_24] from November 2020. [NAME_23] remains employed in the Group as the Group’s head of compliance.

22. The claimant’s complaint of direct sex discrimination particularly, focusses on the actions of [NAME_23] as well as [COMPANY_11]’s head of legal ([NAME_19] ( [NAME_22])). Neither was employed by the respondent at the relevant times. They were employed by other companies in the Group. The respondent accepted, at case management stage in these proceedings, that it was vicariously liable for the acts of [NAME_22] and [NAME_23]. Other relevant background.

23. Witness statements include evidence about events that predate the complaints and issues in this case. In addition to the relevant background findings noted above, below are findings we consider relevant background information: - 23.1 The [NAME_4] compliance team was a settled team between 2018 and 2022. That is to say that, following the claimant’s appointment in 2017, the claimant assembled (through recruitment) a compliance department for the respondent. The recruited team worked well together.

23.2 That settled status came to an end in early 2023 when 2 members of the team (a team of 5 plus the claimant) left for jobs elsewhere and the respondent had difficulty finding replacement employees. The employees who left were: • [NAME_15], the respondent’s Group Compliance Manager • [NAME_33], senior compliance officer. 23.3 During the first half of 2023, the team was understaffed.

Case No. 2411380/2023

5 23.4 By the second half of 2022 the FCA had made known that the regulatory requirements for financial product providers and brokers would be changing. A new initiative or standard called [NAME_35] (about which we say more below) was being introduced from 1 August 2023.

23.5 Following her recruitment and for most of her employment, the claimant reported into the respondent’s Company Secretary and Legal counsel, [NAME_30]. The comments on the appraisals noted above are his. Mr [NAME_31] left the respondent at the end of February 2023 at which stage the claimant started to report to [NAME_28] (the respondent’s chief operating officer). From that time [NAME_10]’s Legal Director, [NAME_19] ([NAME_22]) became more involved in the respondent. [NAME_22] was appointed as the respondent’s company secretary in March 2023.

23.6 2023 was a difficult time for the claimant and her team due to departures of key members of the team and difficulties with a [NAME_36] surrounding [NAME_35] (see below). The claimant did not have the benefit of performance reviews in 2022 or 2023. She had met and exceeded set objectives before then. Data Protection 24. Following the claimant’s recruitment into the respondent and up to the Purchase, the respondent’s compliance department (“Department”) handled data protection issues. By the end of 2022, the data protection work had been transferred away from the claimant’s department into a central [NAME_10] function. The claimant’s evidence (that we accept) is that she did not dispute the decision to transfer the work as she knew by then that she was about to lose one of her team members – [NAME_18]. In fact, in early 2023, she lost 2 members of her team. What was initially support from [NAME_10] ended up being a transfer of one of the areas of work and responsibility to another [COMPANY_11] company. We recognise that (1) this is a business decision and (2) corporate groups will often have central functions. The relevance of the decision to this case is the absence of discussion with or involvement of the claimant in this decision, notwithstanding her seniority and experience. From the evidence we have, the decision was made by [NAME_22] and [NAME_37], [NAME_10]’s head of data protection. Litigation 25. The Department carried out litigation work. This increased considerably in mid- 2022 after the respondent’s Head of Legal reduced his working hours and the compliance team was asked to take on vehicle related and other customer disputes.

26. This was announced internally on 1 July 2022 by the [NAME_30] (the claimant’s line manager) ([NAME_14] 973). His announcement included the following: Our Compliance team has extensive experience (over 20 years) in dealing with these types of consumer complaints and disputes, so you are in safe hands. They will aim to provide a first-class service to help you resolve issues that arise, just as [NAME_39] have done for many years.

Case No. 2411380/2023

6 27. This change followed discussion and agreement between the claimant and [NAME_30]. It resulted in more work for the Department (particularly the claimant) than anticipated at the time that decision was made.

28. At the end of 2022 the litigation work being handled by the Department increased significantly with the launch of financial mis selling group claims against the respondent and other businesses in the motor industry.

29. As we note below, the claimant was told by [NAME_10]’s group head of legal in mid-2023, that the civil litigation cases were being outsourced. Again, there was no prior discussion with the claimant about removing these cases from her. The claimant was informed once that decision had been made. 30. [NAME_35]

31. By mid-2022 the FCA made clear that they were updating their consumer protection regime. There was then in place a process called Treating Customers Fairly, which set out duties that FCA regulated businesses owed to their customers. This was to be replaced by a new process called [NAME_35]. Sometimes the claimant and witnesses referred to [NAME_35] as an update to Treating Customers Fairly. Whilst we do not need to know the detail, what we do find is that the change or update was significant. Regulated businesses had a lot to do in the run up to its introduction. We heard evidence from [NAME_28] that competitor dealerships were struggling with the deadline. Indeed, there was an expectation from some in the industry (including [NAME_28]) that the FCA would move the deadline.

32. The FCA required regulated businesses to set out in writing their “[NAME_35] [NAME_41]” by 31 October 2022. The [NAME_42] completed and agreed the respondent’s [NAME_41] on 31 October 2022 as required.

33. Businesses were required to identify a [NAME_35] champion. In the respondent’s case, this was [NAME_28].

34. Responsibility for ensuring the implementation of [NAME_35] was given to a [NAME_43] called [NAME_44] ([NAME_45]) and responsibility divided between the various members of [NAME_45]. The role of the claimant and the Department was to advise and work with [NAME_28] and members of the [NAME_45] towards compliance, to work at putting in place, all relevant measures, policies and processes. We accept the claimant’s evidence that at the same time, a decision had been made (communicated to the claimant by [NAME_28]) that there would be no additional resource recruited to lead a [NAME_36] implementing [NAME_35]. The necessary activities would be handled by members of the [NAME_45] with support from the Department.

35. We refer to the implementation of [NAME_35] as the [NAME_36].

36. There is no dispute that insufficient progress was being made by the [NAME_45] on the [NAME_36]. The [NAME_45] was meeting less often following the purchase by [NAME_10].

37. By the end of March 2023, the respondent acknowledged that it was necessary to recruit a dedicated individual with expertise in financial regulation, to [NAME_36] manage the [NAME_36] to full implementation.

Case No. 2411380/2023

7 38. Unfortunately, that recruitment process did not go well. An individual who had accepted an offer gave backword a couple of days or so before she started. A replacement was quickly identified but did not last more than a few weeks – stating that he was overwhelmed with the expectations of the post. It was not until June 2023 that a replacement was able to start and soon became a valuable resource.

39. That replacement was [NAME_46] ([NAME_49]). [NAME_49] started work at the respondent on 20 June 2023. He was engaged for a fixed term of 6 months and was dedicated to the [NAME_36]. 40. [NAME_10] is a large group of companies, the respondent was the only business within that group that needed to implement [NAME_35] across its various subsidiary companies. [NAME_24] was the other retail business within [COMPANY_11] whose activities were subject to FCA regulation. [NAME_24] had taken a different approach to regulatory compliance. They engaged a third-party business called [NAME_50]. Through this contractual arrangement [NAME_50] became the regulated business for FCA purposes. It was [NAME_50], not [NAME_24] that was required to implement the new Treating Customers Fairly regime. [NAME_24] had effectively outsourced this responsibility. [NAME_51]’s involvement 41. Earlier in 2022, the respondent (or [NAME_10] as recent purchaser of the respondent) instructed a legal expert in FCA regulation called [NAME_53] ([NAME_55]) to review the respondent’s FCA compliance regime.

42. There was a dispute between [NAME_22]’s evidence and the claimant’s evidence as to who proposed the commissioning of a report into the respondent’s FCA compliance activities. We find it was the claimant who had contacted [NAME_22] at the time of the Purchase (late May 2022) to recommend an independent review, particularly around certain changes that were proposed following the departure of the respondent’s chief executive at the time ([NAME_56]) ensuring that the right people were given responsible roles for internal monitoring of the respondent’s sales processes as well as other proposed changes. It was an executive within [NAME_10] who identified [NAME_55] as an ideal person to carry out that review and to note that the review would ideally cover additional areas. (email exchanges at pages 895-903)

43. We have not seen the report – or any part of it. [NAME_22] told us that it did not go beyond a draft stage and remained subject to solicitor and client legal privilege. The report (or the last draft) was provided by [NAME_55] on 9 November 2022. In her statement the claimant notes that she considered it was helpful. In his statement, [NAME_22] makes one comment about the report, that it identified that the [NAME_36] had not been progressed by the claimant to where it should have been and that there was a risk that the [NAME_36] would not be concluded by the required deadline. [NAME_22]’s comments are intended as a criticism of the claimant. The claimant’s evidence is that the report did not say that. On balance, having regard to the evidence provided, we prefer the claimant’s evidence. We note that the report was dated and delivered just 9 days after the respondent had met the deadline of publishing its [NAME_35] implementation [NAME_41]; that the obligation to ensure compliance with [NAME_35] was an organisation wide one and that the responsibility for its introduction had been given to the respondent’s [NAME_44] ([NAME_45]). Further: -

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8 43.1 There is nothing from [NAME_22] or [NAME_28] or any other senior executive to the claimant highlighting such criticism.

43.2 As we note above, the respondent did not until the end of March 2023, give approval for the claimant to recruit an FCA compliance expert to assist with implementation of the [NAME_36]. 44 The absence of any response from the [NAME_42] or senior executives within the group, to alleged criticism of the claimant’s lack of [NAME_36] with the [NAME_36], is another reason why we prefer the claimant’s evidence over [NAME_22]’s on this point. Heightening concerns about the progress of the [NAME_36] 45 What is clear however is that, in the months that followed the publication of the implementation [NAME_41], progress on the [NAME_36] was not as advanced as it should have been. We have already noted the 2 key departures from the compliance team and the recruitment difficulties that the respondent faced when trying to recruit a [NAME_36] manager with the relevant experience. We have also noted that it was only in March 2023 that the claimant was given permission to recruit an additional resource for the Department to focus on the [NAME_36]. 46 [NAME_28]’s evidence was that the motor retail sector as a whole was struggling to meet the FCA deadline. The respondent was not an outlier. Indeed, his evidence is that he (and others) within the sector were expecting the FCA to move its implementation date. 47 As noted above, members of the [NAME_45] had responsibility for implementing different aspects of the [NAME_36]. A report dated 31 July 2023 explains as follows ([NAME_14] 2083): -

“[NAME_59] signed off by the Board in October 2022 was a high-level [NAME_41] that captured the main areas in the business that potentially needed focus and attention to implement [NAME_35]: Product and Services, Compliance Framework, [NAME_60], [NAME_61] (HR and Recruitment) and [NAME_62]. In November 2022, at a [NAME_44] meeting, these broad areas under [NAME_59] were allocated to various individuals (Responsible Persons) within the business - Products and Services to [NAME_63], Compliance Framework to [NAME_66], [NAME_60] to [NAME_63], [NAME_61] to [NAME_67] and [NAME_62] to EXCO. 48 On 5 July 2023 the claimant was told by [NAME_28] that he had been introduced to someone who might be able to provide some assistance with the [NAME_36]. By then [NAME_28] had been introduced to [NAME_12] ([NAME_23]). [NAME_28] was told that [NAME_23] had some time on his hands and was available to help. In turn, [NAME_28] provided that same message to the claimant. 49 On 5 July 2023 [NAME_23] and the claimant exchanged emails. [NAME_23] wrote “Happy to support where I can. [NAME_29] I’ll set up a quick intro teams call, be nice to talk to another Compliance person!”

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9 50 Later on 5 July 2023 [NAME_23] emailed [NAME_22] and [NAME_28]. He did not copy in the claimant. “I’ve had an initial chat to [NAME_69] which was very insightful. We are talking again next week at which point I have suggested we bring some thoughts together on quick wins to alleviate some of the pressure points she is experiencing. From first impressions I think I can help to steady the ship but will likely be asking for some budget to do so in the short term.” 51 The claimant had been told that [NAME_23] was a resource that could be useful in carrying out some activities to further the [NAME_36]. She understood that she could use [NAME_23] in this way. However, the claimant’s view quickly became that there was nothing that [NAME_23] could usefully help with and it was better for [NAME_46] (who had by the started his employment with the respondent) and herself to continue focussing on the [NAME_36]. Having reviewed correspondence from and with [NAME_23] at around this time, we accept the claimant’s evidence (at least as far as July is concerned) that [NAME_23] did not make any significant contribution to the [NAME_36]. As we explain below that did change in August 2023. 52 [NAME_23] had a very different view to the claimant. Unknown to the claimant, [NAME_23] was positioning himself – with the approval of senior executives within the [COMPANY_11] - as providing leadership to the Department. [NAME_23]’s positioning started in mid- June 2023. The claimant was oblivious to this. She was providing leadership to the Department. She had been doing so for the previous 5 years. The issue she faced in 2023 was a resourcing issue (members of her team having resigned and not being replaced). Outsourcing of litigation. 53 [NAME_23] did not make any significant contribution to implementing the [NAME_36], he did take steps to reduce the workload of the Department by outsourcing litigation cases to an external firm of solicitors. 54 [NAME_24] was facing similar litigation claims and [NAME_23] and [NAME_22] were arranging to outsource the [NAME_24] claims. The claimant had no ability to contribute to this decision even though the cases fell within her remit. She was simply told it was happening. Process leading to [NAME_8]’s new job title. 55 We accept [NAME_23]’s evidence that he was first asked by [NAME_70] ([NAME_24]) to provide help to the Department. Senior executives in [COMPANY_11] by then recognised that [NAME_4] needed to complete a lot of work to ensure it was ready for the implementation of [NAME_35]. This was something that the claimant had been saying for some time. 56 [NAME_8]’s evidence is this “I was therefore asked if I was willing/able to provide both general support to ease the stretched capacity levels of [NAME_72] and the [NAME_4] and specific support and assistance on the [NAME_36].” 57 Whilst the initial concern was the [NAME_36] and a capacity issue, there was not at this stage in June 2023 or at any stage thereafter an indication within discussions between [NAME_73] that this was a short-term arrangement. [NAME_23], [NAME_22] and other involved executives within [NAME_10], expected [NAME_23]’s involvement with

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10 the Department would be permanent/long term. The claimant was unaware of these plans. 58 [NAME_28] introduced the claimant to [NAME_23] on 5 July 2023 – see above. The claimant was told he was a short-term resource who might be helpful. 59 In parallel with the introductions to (and discussions with) the claimant, communications were taking place about changes to [NAME_23]’s role. In fact, these communications were well underway by the date that the claimant was introduced to [NAME_23] (5 July). We summarise these as follows: - 59.1 16 June 2023 – [NAME_23] contacted [NAME_22] to ask for a discussion to understand what he knew about [NAME_4]’s compliance function. On the same date, [NAME_23] was introduced to [NAME_28].

59.2 20 June 2023 – even at this early stage, [NAME_23] put forward a proposal to [NAME_22] under which he would be given a new, more senior role. The proposal was a promotion to a new role of Group ([NAME_10]) Retail Compliance Director. The organisation chart [NAME_23] provided with the proposal showed this as a role, sitting above 2 head of compliance positions (1 for [NAME_24] and 1 for [NAME_4]). (pages 1454-1456)

59.3 21 June 2023. [NAME_22] was receptive to [NAME_23]’s proposal. Some changes were made to the proposal (but nothing fundamental – [NAME_14] 1463) which was then put to [NAME_70].

59.4 30 June 2023. [NAME_22] reported to [NAME_23] that he had had a discussion with [NAME_70] who was happy to take discussions further. [NAME_23] also told [NAME_22] that a proposed remuneration package was being sent to [NAME_70] (1510 - 1513).

59.5 26 July 2023, [NAME_23] emailed [NAME_22] ([NAME_14] 1883) seemingly about investigations into the [NAME_74]’ compliance function. It was headed “9 August paper” and attached 2 PowerPoint slides with a heading of “[NAME_4] compliance arrangements” These slides contained recommendations about the compliance team. None of these had been discussed with the claimant. She had no idea that this was happening and was effectively invisible in the review of her own team. [NAME_23] said in this email “I think we can confirm me in role first and then progress things a little before we make the other role changes in my proposed structure.” [NAME_23] also indicated that he would mention to the claimant “that I’m having to do the rounds at various management meetings to garner support in my group role capacity. This should set the scene nicely. I’ll bcc you in, so you know what I do.” No such discussion took place between [NAME_23] and the claimant, who remained unaware of the proposals being discussed in these internal emails. In this email [NAME_23] anticipated that he would attend a meeting of directors on 9 August 2023 (a meeting we refer to below). We say this because the email

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11 included the following “we can share the determination on that element on the 9th” (we assume “that element” is a reference to [NAME_23]’s recommendations). 59.6 Discussions continued through August. [NAME_70] had delegated responsibility for negotiations with [NAME_23] to [NAME_22] (although ultimately remained the decision maker).

59.7 [NAME_10] agreed terms with [NAME_23] in early September 2023. See below. 60 The claimant became suspicious that “something was off” (para 72 of her statement) at a meeting on 1 August when [NAME_22] became insistent that the claimant should meet with [NAME_23] and share information with him about [NAME_74] and the work that the compliance team was doing. That insistence to meet and share information about [NAME_74] was not consistent with a limited, short-term arrangement with [NAME_23] because he had some time on his hands. The claimant’s evidence is that the position had quickly moved from [NAME_8] as the “compliance helper” that the claimant could find some work for, to being ordered by [NAME_22] to meet face to face and provide him with information and documents. As of 1 August, [NAME_22] had given his approval to a proposal that [NAME_23] be appointed to a group head of compliance role. His instructions to the claimant were consistent with that position. However, the claimant was still kept in the dark about [NAME_23]’s intended new group role. 61 The claimant’s evidence (that we accept) is that she decided not to arrange a face-to-face meeting with [NAME_23] until her return from holiday in early September by which stage she expected to have been able to catch up with [NAME_28] – her line manager. She wanted to ask him what was going on. 62 The claimant and [NAME_23] did however meet remotely, by Teams on 4 August. That meeting was at 11am. [NAME_23] had asked for a copy of the report and the claimant replied at 08.50 that morning. The claimant’s evidence about this 4 August meeting is that she cannot remember whether a meeting did take place. We find that there was a meeting. 63 [NAME_23]’s evidence about this meeting is at para 38 of his statement: “On 4 [NAME_72] sent me her draft of the report. We then spoke later that morning and I provided [NAME_72] with my thoughts and feedback on the report and suggested some builds for her too.” Our findings are as follows: - 63.1 The claimant did not send [NAME_23] a copy of the report. She did send a copy of a different but related document called Compliance Matters. ([NAME_14] 2019)

63.2 [NAME_23] did not provide any “thoughts” or “feedback” or “suggested builds.” In reaching this conclusion we have taken account of the following: - 63.1.1 The claimant’s evidence. 63.1.2 That [NAME_23] did not provide any written follow up.

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12 63.1.3 The inaccuracy of [NAME_23]’s evidence about what was sent him and the vague descriptions in his evidence of what he did or said that might have been helpful. 64 The claimant did however email a copy of the [NAME_35] on 8 August 2023 ([NAME_14] 2065). She sent this to [NAME_28], [NAME_22] and 2 other directors. The claimant did not copy [NAME_23] into this email. However, a few minutes after receiving it, [NAME_22] copied [NAME_23] in – but not telling the claimant that it was being sent to [NAME_23]. ([NAME_14] 2019). 65 By 14 August 2023, [NAME_23] started to use a signature that referred to him as “[COMPANY_11] of Consumer Compliance” ([NAME_14] 2171). But the claimant did not see that signature until her return from holiday on 4 September 2023. 66 Up to that stage, there is no evidence of any involvement by any HR Function in considering the creation of – and [NAME_23]’s appointment to - this new role. 67 There is no indication that anyone other than [NAME_23] was going to be considered or appointed to the new Group role. 68 Written confirmation of [NAME_23]’s new role was sent by [NAME_24] (the company within the [COMPANY_11] that employed [NAME_23]) to [NAME_23] on 8 September 2023. ([NAME_14] 2437). The letter is headed “Notification of Change to Terms and Conditions.” It included the following: - “Your role has changed to Group Head of Retail Consumer Compliance.” It also notified [NAME_23] of his new salary which amounted to an annual increase of £10,000. It provided 2 lines of reporting, one for [NAME_75] and one for [COMPANY_151]. Attendance at meetings – without the claimant’s knowledge. 69 As noted above, the claimant sent the [NAME_35] report to board members on 8 August, in advance of an intended meeting on 9 August 2023. 70 Later, on 8 August (1pm) [NAME_28] emailed the claimant and [NAME_23], noted he would not be able to review the report until later and asked for a high-level summary to be drafted that afternoon. The claimant replied to say that she would try but had other FCA drafting obligations that afternoon ([NAME_14] 2135). [NAME_28] then asked [NAME_23] whose reply was “Thanks. I’m afraid I’m not close enough to it to help with that level of detail” (a reply that supports our earlier findings about the extent of [NAME_23]’s contribution to the [NAME_36]). The claimant then told [NAME_28] that [NAME_46] would be able to assist. 71 The claimant was not invited to the meeting on 9 August. It is not clear whether [NAME_23] attended although as noted earlier, he anticipated attending. If he did attend, the claimant had no idea that he was attending what was effectively a meeting of the [NAME_76] discussing the [NAME_35] report that the claimant had put together. 72 There was a dispute about whether this (and a later meeting) was a board meeting. [NAME_22] uses the term “Board meeting” to describe the meeting on 9 August (in

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13 his email to [NAME_76] dated 18 August 2023 - [NAME_14] 2220). We also note that a PowerPoint presentation was prepared for this meeting and circulated after the meeting. The email circulating this PowerPoint presentation (and other documents) is at [NAME_14] 2211. The sender of that email ([NAME_77]) writes “All please find attached the Board pack from yesterday’s meeting.” 73 We have decided that it is not important to the issues in this case to find whether it was a duly constituted meeting board meeting or a meeting attended by the respondent’s company secretary and some/most of its directors. 74 In this same email of 18 August 2023, [NAME_22] circulated a note that [NAME_23] had prepared with “his initial comments.” A second document was provided that external auditors ([NAME_80]) had produced referencing an audit of the respondent’s 64 sales sites. 75 [NAME_22] also informed recipients of this email, that [NAME_23] “will be able to give guidance and practical support to the [NAME_4] leadership team and [NAME_29] but the work needed will need active engagement and prioritisation by this group and your relevant reports….” 76 [NAME_23] had just become absent on annual leave when [NAME_22] sent this email. The claimant was also by then on annual leave but was in work when the documents were sent by [NAME_23] to [NAME_22] (14 August) and, consistent with the ongoing behaviour of the respondent, was not copied in or involved. The claimant’s resignation 77 The claimant was on annual leave for 2 weeks from 16 August. Her first day back at work was Monday 4 September 2023. 78 Before returning to work, the claimant received an email from [NAME_23] dated 1 September 2023 in the following terms: - “Hello, hope you are ok. Have you got some time next week for a catch up? I’m moving into a group role as previously mentioned which I think will give you some support on [NAME_35]. I’ve a few ideas I want to share. Let me know a clear hours slot.” 79 The claimant replied on Saturday 2 September: “Hi [NAME_13] either Wednesday or Thursday afternoon are best meeting slots for me. Excited to know what this group role is that you are referring to?” There is no dispute that the statement “as previously mentioned” is inaccurate. The claimant had not been told before receipt of this email that [NAME_23] was being moved into a group role. 80 [NAME_23] replied by email to the claimant on Monday 4 September 2023, telling her that the “role is pretty loose but essentially a Group Compliance oversight one. I’ve already started cracking on to help you. Can we meet sooner? I’ve had a call with your board this morning on [NAME_35] and got them aligned to help.” (our emphasis). [NAME_23] went on to set out what he expected to happen next. 81 [NAME_23]’s attendance in the call with the [NAME_42] on 4 September 2023 is referred to by the claimant as one of the reasons for her constructive dismissal. She

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14 refers to it as a board meeting. Again, there is a dispute about this. We note that it was a meeting (by telephone or Teams) of members of the [NAME_81]. As for whether it was a properly constituted board meeting is irrelevant. As [NAME_23] accepted in his email of 4 September 2023 he attended a call with members of the [NAME_81]. This was the first the claimant knew that [NAME_23] had been in meetings/discussions with members of the [NAME_42] about the claimant’s areas of responsibility. Understandably, the claimant was upset to learn of this. 82 In response to [NAME_23]’s request for a meeting sooner than the claimant had proposed, the claimant arranged a discussion with [NAME_23] later that same day (4 September). The claimant took a file note of this discussion. In these proceedings, the respondent has attempted to put forward a position that the claimant’s file note is not accurate. In his witness statement [NAME_23] states clearly that it is not accurate and provides a summary of what he called a brief discussion. His summary indicates that he informed the claimant about his new role but that there were no questions from the claimant. He gives no indication that he and the claimant discussed the issue; simply that he provided the claimant with some brief information. 83 We find the claimant’s file note to be accurate. Indeed, following some adept cross examination by the claimant, [NAME_23] accepted that it is mainly accurate, even though his statement (paragraph 55) states it is not. 84 The file note is at pages 2323-2325. It was prepared by the claimant from some notes that she took during the discussion and then, later that day, the file note was typed up by the claimant. 85 We do not set out all the claimant’s file note. We summarise below, relevant points made: 85.1 The claimant told [NAME_23] that she was very upset to hear about his new group role as well as his attendance at the meeting of the [NAME_42]. She asked [NAME_23] how he would feel if that had happened to him and she had attended a [NAME_82] meeting to discuss his work, instead of him. [NAME_23] accepted that he too would have been upset.

85.2 [NAME_23] told the claimant that he was expecting her not to be happy about what had happened. The claimant told [NAME_23] she was not blaming him personally as he was only acting on orders.

85.3 [NAME_23] told the claimant that [NAME_24] was really quiet and his job was not taking up all his time. As the claimant did not have enough resource in her team, he was asked to get involved.

85.4 The claimant told [NAME_23] that not having been invited to the board meeting to discuss [NAME_35] felt “very cloak and dagger.” [NAME_23] denied that and noted that he does not know the [NAME_4] business and is not in a position to do “any of the doing” He suggested they attend future meetings together.

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15 85.5 [NAME_23] told the claimant that [NAME_22] had asked [NAME_23] to set up the board meeting, that members of the board didn’t know what the situation was with [NAME_35] and they needed to have information “shoved down their throats.”

85.6 The claimant told [NAME_23] most work streams under [NAME_35] had started and were in progress but the outstanding actions that had not made progress had all been delegated to various board members and were awaiting completion by them.

85.7 The claimant told [NAME_23] that [NAME_35] was a board led initiative – that is what FCA required – and why the implementation [NAME_41] was signed off by the board and was led by a board member. It was not a [NAME_36] to be delegated to the Compliance department.

85.8 The claimant asked why, if further updates or information was needed by [NAME_10], they had not asked the claimant directly?

85.9 The claimant told [NAME_23] that his appointment to the group role and the board meeting had been handled insensitively and improperly. If [NAME_23] was to be of any use to the respondent, then he would have to get to know the business. [NAME_23] told the claimant that he could be an extra pair of eyes, but he is not coming in to carry out the tasks needed to complete the implementation [NAME_41] as that is for others to do.

85.10 [NAME_23] told the claimant that [NAME_35] was “behind the curve” and the claimant responded that was a resourcing issue and that it was important to understand why. She provided detail about the [NAME_36], areas of responsibility and implementation. 86 Having learned about [NAME_23]’s promotion and about his attendance in the call with the [NAME_42], the claimant decided to raise her concerns with [NAME_28]. 87 The Claimant and [NAME_28] spoke on 7 September 2023. Again, the claimant took a note of the call (2438). In his witness statement (paragraph 52), [NAME_28] disputed the accuracy of the note. On being questioned at the hearing, he did not. His oral evidence was at odds with his statement. We find the claimant’s note to be an accurate summary of the call on 7 September 2023. Relevant points are: 87.1 The claimant told [NAME_28] that [NAME_23] had been promoted to a group role, had been invited to a [NAME_83] meeting to discuss [NAME_35] and that she was upset.

87.2 When [NAME_28] replied that he did not understand why the claimant was upset, the claimant told him that she should have been given an opportunity to apply for the group role and she should have been invited to attend the meeting; that she felt “totally disrespected.”

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16 87.3 [NAME_28] then apologised and told the claimant it was not his decision. He told the claimant that JCs promotion does not affect the claimant’s position, that indirectly the claimant would now need to report to [NAME_23] but, day to day she would retain a reporting line to [NAME_28]. 87.4 [NAME_28] told the claimant that [NAME_10] were not very good at communications and “this is how they do things.”

87.5 The claimant expressed concerns about being pushed out. She told [NAME_28] of a call she had recently with [NAME_22] when she “sensed something was not quite right.”

87.6 [NAME_28] said he would speak with [NAME_22] and [NAME_23] and either get back to the claimant later the same day or the following day. 88 On 8 September 2023, the claimant had a telephone meeting with [NAME_63], (the respondent’s head of insurance and one of the executives that was working on the implementation of [NAME_35]/the [NAME_36]). The claimant made a file note of this meeting ([NAME_14] 2438). We accept it as an accurate summary of the meeting. 89 During this meeting the claimant learned that [NAME_23] had contacted [NAME_84]. On discussing progress of the [NAME_36] with [NAME_84], the claimant learned that [NAME_23] may have been working on (and reporting to members of the [NAME_42] with) an out-of-date [NAME_36] report/tracker. [NAME_84] and the claimant discussed [NAME_23]’s involvement. [NAME_84] noted that whilst he appreciates that the businesses were all part of one group, he did not understand what was going on, that [NAME_23] had just “popped up” a few days earlier in a group compliance role. [NAME_84] also sympathised with the claimant when she told him that she had no idea that [NAME_23] was being promoted into a group compliance role; had a Group head of finance and insurance role been created, he would have expected to be given a chance to apply for the role. 90 Also, on 8 September (timed at 09.52) [NAME_23] emailed the claimant. [NAME_23]’s signature on the email referred to his new job title “Group Head of Consumer Compliance” with a [NAME_10] (i.e. group) logo rather than [NAME_24]. This was the first time the claimant had received an email from [NAME_23] with that signature. In the email [NAME_23] told the claimant that he had “spent some time” with [NAME_63]. The email then set out [NAME_23]’s thoughts and questions about aspects of the respondent’s business. [NAME_23] started the email with “Happy Friday! I’m very much looking forward to 5pm today.” The claimant’s evidence is that [NAME_23] was “giddy” about his new role. 91 The claimant gave notice of resignation by email dated Friday 8 September. ([NAME_14] 2443). She noted 2 issues: - 91.1 The new group compliance role should have been brought to the claimant’s attention. 91.2 That [NAME_23] attended a [NAME_85] meeting on 4 September, addressed and discussed [NAME_35] progress and agreed a way forward. The claimant had not been invited to the meeting and was not notified of it.

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17 92 In this resignation email that claimant stated that these actions had made her feel excluded and disrespected, that her competence was being questioned, that there was irreparable damage to her reputation and the relationship of trust and confidence was broken. 93 We accept that the terms of the email accurately record the reasons for the claimant’s resignation. We also accept the claimant’s evidence that she considered that the actions taken by [NAME_73], particularly [NAME_22] over the previous months, had excluded her as she considered that a “[NAME_86]” had operated. We accept that in reaching this view the claimant took in to account recent decisions affecting her and the team she managed, together with the removal of the Data protection work. Post resignation 94 [NAME_28] called the claimant on 8 September 2023, following receipt of the claimant’s resignation (note at 2439) in which he asked the claimant not to act in haste. The claimant told [NAME_28] that it was unlikely she would change her mind. [NAME_28] asked the claimant to contact him on Monday 11 September. He also messaged the claimant on 11 September to ask her to call him. That email was sent to the claimant’s work email account. The claimant did not see it. She had resigned by then and therefore had not logged on to her work email account. 95 The claimant did not contact [NAME_28] on 11 September. On 13 September 2023, [NAME_28] wrote to the claimant ([NAME_14] 2454) to note the lack of contact, that the respondent would need to process the claimant’s resignation and to offer the claimant a right to raise a grievance. 96 The claimant did not raise a grievance. In her evidence the claimant was critical of the respondent for not providing her with a copy of its grievance policy. She also noted that the person she blamed for the actions that led to her resignation was [NAME_19] and as he was a [NAME_10] executive, the respondent’s own grievance policy (and the respondent’s HR team) would have no jurisdiction over him; also, that she considered the decision had been made and could not be reversed. Terms of the Claimant’s contract 97 The bundle includes the following documents relating to the terms of the claimant’s employment with the respondent. 97.1 A contract schedule ([NAME_14] 524) 97.2 A document headed contract of employment between claimant and respondent 98 Both documents are signed on behalf of the respondent on 5 May 2017 and by the claimant on 15 May 2017 (524-536). 99 Various clauses in the document headed contract of employment are expressly subject to the contract schedule. For example: “3. Job Title

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18 Your job title is [refer to contract schedule]. In addition to your normal duties of employment you may be required to undertake other duties from time to time of comparable responsibility.” 100 The same format applies to clauses concerning date of commencement of employment; place of work; hours of work; pay; company vehicles. 101 There is a conflict between some terms of the contract schedule (Schedule), and the document headed contract of employment (“contract document”). We note here particularly 101.1 Holiday entitlement. During the first year of employment, the contract document provides for 22 days; yet the Schedule provides for 25 days.

101.2 Notice (entitlement on dismissal). The contract document provides for a weeks’ notice during probationary period; one month’s notice after then and up to 4 years’ employment, thereafter statutory minimum notice rising to 12 weeks’ notice after 12 or more years’ service. The Schedule proves a month’s notice in the first year or employment and 3 months after then.

101.3 The Schedule provides for private healthcare cover; the contract document makes no referenced to it. 102 We find that the contract document is a generic document that was (and was intended by both parties to be) read together with (and subject to) the Schedule. The Schedule sets out terms specific to the individual employee (in this case the claimant). 103 In accordance with the terms of the Schedule, the claimant was entitled to receive 3 months’ notice of dismissal. The respondent’s policies and their application 104 Part way through the hearing the respondent provided the Tribunal with a copy of an “Equality and Diversity Policy and Statement.” The document is dated December 2018, but it has been presented as operational at the relevant time. The following is relevant: - 104.1 The following extract: The Company (that is a reference to [NAME_4] – the respondent) provides equal opportunities covering all aspects of employment, from vacancy advertisement, selection for recruitment and training to conditions of service and reasons for termination of employment. This is to ensure that: - The company has access to the widest labour market and secures the best team members for its business. No applicant or colleague receives less favourable treatment and that wherever possible all team members are given help to attain their full potential

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19 [NAME_61] are recruited on the basis of ability to carry out the job and on merit [the respondent] operate a fair and objective system for recruitment and selection which places emphasis on individual skills, abilities and experience. Selection criteria are utilised to assess an individual’s suitability for a role and various selection tools are utilised to ensure that the recruitment process does not unfairly discriminate directly or indirectly. All managers involved with recruitment and selection receive Equality and Diversity training commensurate with their duties. Steps will be taken to ensure that knowledge of vacancies reach a wide range of applicants internally and externally using various means of advertising. [NAME_61] are supported to achieve their full potential have probation reviews regular one to ones under annual appraisal to assess review and support any needs they may have there are a wide range of colleague benefits available to all [NAME_61] on these are reviewed regularly to ensure accessibility and that any awards are based upon fair criteria 104.2 Under the heading of “responsibilities” the policy requires managers to work in accordance with the policy, Company Values and Code of Ethics (we were not provided with these)

104.3 Under the heading “Benefits of Diversity” equality is noted as a key business priority as it creates a positive company reputation, furthering the respondent’s aim of becoming an “employment destination and enable us to attract and retain a talented workforce.” Statistical information – gender 105 We have been referred to gender pay gap reports. We note the following from the 2023/4 reporting year (1089-1094) – percentages of women compared to men in posts in different pay bands. The report is for the respondent and not the wider [COMPANY_11]. 105.1 Women/men in the upper hourly pay quarter – 13.9%/86.1% 105.2 Women/men in the upper middle hourly pay quarter – 20%/80% 105.3 Women/men in the lower middle hourly pay quarter – 43.3%/56/7% 105.4 Women/men in the lower hourly pay quarter – 48.9%/51.1% 106 We find that the claimant’s role falls within the upper middle hourly pay quarter or upper hourly pay quarter.

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20 107 [NAME_22] gave evidence that a good proportion of [NAME_10]’s legal team working under him are women and that a good proportion of the non-executive directors of [COMPANY_87] are women. Conscious that it is a Group role that is central to this dispute, we considered whether there was any indication that the gender split within the respondent might not be representative of the [COMPANY_11] as a whole. We found that the evidence provided by [NAME_88] was not evidence of that. We were provided with no evidence to indicate that the gender split at [NAME_4] was in some way not representative of the Group as a whole. In giving evidence [NAME_28] accepted that the workforce majority in the motor trade was male. We also observe that all the executives (within the wider [COMPANY_11]) making decisions about the claimant, her work and her team were male. Why had the [NAME_36] not been fully implemented by 31 August 2023? 108 In this hearing the respondent put forward a position that the delays in [NAME_36] completion were the claimant’s failures. At Paragraph 93 of their submissions document, the position is put as follows: “the respondent took the actions it did to support the claimant in reply to her complaints of under capacity, her request for additional resource and to assist with the completion of a [NAME_36] that the claimant and her Team had failed to deliver.” (Our emphasis). 109 We accept the evidence provided by [NAME_28] that there were no issues with the claimant’s technical competence. To the extent that there were any outstanding tasks specifically for the compliance team to do (rather than ensuring the completion of tasks by others) the issue was a resourcing one. That is not surprising given: - 109.1 The departure of team members as already noted 109.2 The late appointment of the dedicated [NAME_35] [NAME_36] manager. 110 The [NAME_42] members needed to action the parts of [NAME_35] that they had responsibility for. [NAME_28] was the [NAME_36] lead. The respondent knew the claimant was a dedicated and competent compliance lead; knew that members of the compliance team had left in early 2023; had not agreed to the claimant’s request to recruit a dedicated [NAME_35] [NAME_36] manager until 31 March 2023; knew that various tasks that board members had to undertake were outstanding. 111 We also note (1) that there is no indication in the contemporaneous documents that the claimant was responsible for aspects of the [NAME_36] that had not been completed by 31 July (2) that there is no task that the respondent identified in this hearing that the claimant had failed to complete. The criticism is that the claimant failed (in some unspecified way) to deliver the [NAME_36] on time; a [NAME_36] for which she was not the lead, and which was a board led one. Facts relevant to the respondent’s breach of contract claim – case number 2400164/24 112 The respondent’s position that the claimant was in breach of contract by terminating her employment without notice and it caused losses to the respondent. The respondent provides evidence of intra group charges that it says the respondent incurred because of the claimant’s resignation. The bundle includes the following invoices from [NAME_24] to the respondent

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21 112.1 An invoice dated 16 November 2023 for an unspecified month for services described as “[NAME_75] personnel” - £11,660 plus VAT ([NAME_14] 2540). 112.2 An invoice dated 13 December 2023 for [NAME_24] personnel recharge for the month of November 2023 - £11660 plus VAT. (2552) 112.3 An invoice dated 14 December 2023 for [NAME_75] personnel recharge for December 2023 - £11660 plus VAT. (2554) 113 [NAME_22]’s statement provides the following evidence. “As a result of [NAME_72]’s resignation with immediate effect [NAME_4] was required to “outsource” [NAME_72]’s workload. This included [NAME_4] being required to engage and pay for additional resources from the wider Group. Specifically additional time had to be spent by [NAME_8] in [NAME_4] and [NAME_4] were charged by [NAME_24] for this time/his employment costs between November 2023 and January 2024. In addition, both myself and a member of my Group legal team were also outsourced to [NAME_4] to deal with the consumer claims and other issues [NAME_72] would have otherwise dealt with. The employment costs for this were then cross charged to [NAME_4].” 114 The evidence to support [NAME_22] and his legal team group work is an incomplete invoice or recharge calculation at [NAME_14] 2599 which sets out total charges of £62,633; costs that are (according to the incomplete document at 2599) divided between 3 employees identified as [NAME_22], [NAME_89] and [NAME_23]. There is no indication whether this amount is net of VAT. The document provided appears not to be an invoice, at least not for VAT purposes. 115 We are unimpressed with the evidence in support of the respondent’s breach of contract claim. These are our reasons: - 115.1 There is no breakdown of time incurred.

115.2 The amounts stated in the invoices for the compliance function (£11,660 per month plus VAT) was according to [NAME_22]’s evidence, for [NAME_90] time. The amounts indicate that [NAME_8] was assigned for the whole of his time (or substantially all his time) during the months of October, November and December 2023. This is at odds with the evidence that [NAME_8] provided, who told us how the respondent’s compliance staff covered most of the work following the claimant’s departure.

115.3 The respondent’s position is that the work that needed to be covered by employees in the wider group (excluding external costs) was almost £100,000. If that extent of cover was required, then it is an indication of weight and extent of the claimant’s responsibilities and commitment. Whilst we do not doubt the

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22 respondent’s responsibilities and commitment, we consider these costs to be exaggerated. According to the employer breach of contract claim in the respondent’s ET3 (at [NAME_14] 38) the amount being claimed by the claimant is far less than this (£8987.50). But the evidence of [NAME_22] is that the claimant’s departure caused the internal group charges we have referred to above. As for the amount of £8987.50; we do not understand how that amount has been calculated although are mindful that this weas a liability hearing only. Facts relevant to the comparator issue 116 The claimant has named [NAME_8] ([NAME_23]) as her comparator for the purposes of the 2 direct discrimination complaints that we need to determine. We find as follows: 116.1 The claimant and [NAME_8] were both employed in head of compliance roles.

116.2 They were both employed by limited companies that sat within the [COMPANY_11].

116.3 Both had qualifications and experience that were relevant to their roles.

116.4 Both headed up compliance teams of comparable size. The team headed up by the claimant was a little bigger.

116.5 Both had been in their roles for several years; the claimant’s employment with the respondent was a couple of years longer than [NAME_8]’s period of employment with [NAME_24]. Submissions 117 We have taken account of the submissions made by [NAME_7] and by the claimant in making our findings of fact, in considering the relevant law and reaching our conclusions. Relevant Law Time limits 118 Section 123 Equality Act 2010 (EQA) provides that complaints may not be brought after the end of 3 months “starting with the date of the act to which the complaint relates” (s123(1)(a) EQA). This is modified by section 140B – providing for early conciliation.

119 Section 123(1)(b) provides that claims may be considered out of time, provided that the claim is presented within “such other period as the employment tribunal thinks just and equitable.”

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23 120 Section 123(3)(a) provides that “conduct extending over a period is to be treated as done at the end of that period.” (We refer to this below as a continuing act). 121 As for the exercise of the power under section 123(1)(b) we note the following passage from paragraph 25 of the judgment of Leggat LJ in Abertawe Bro Morgannwg University Local Health Board v. Morgan [2018] EWCA Civ 640

the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard.

Harassment – section 26 Equality Act 2010 (“EQA”) 122 Section 26 (1) states: “A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of (i) Violating B’s dignity, or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B 123 The EAT decision in Richmond Pharmacology Limited v. Dhaliwal [2009] IRLR 336 emphasised the need for Employment Tribunals when deciding allegations of harassment to look at three steps, namely: - a. Whether the respondent had engaged in unwanted conduct b. Whether the conduct had the purpose or effect of violating the claimant’s dignity or creating an adverse environment c. Whether the conduct was on the grounds of the applicable protected characteristic? 124 Unwanted means unwanted by the claimant, a term that should be largely assessed subjectively (Sanderson Blinds Ltd v. English EAT 0316/10) 125 To satisfy the definition of harassment, the alleged conduct must be “related to” the claimant’s sex. This is wider than the wording “because of” that appeared in equalities legislation predating the Equality Act 2010. We considered the judgment in

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24 the recent EAT decision in [NAME_92] v. University of Hertfordshire [2024] EAT 169, particularly paragraphs 13-17. 126 As to whether the conduct in question has the effect set out in section 26(1)(b), regard must be had to section 26(4)

“In deciding whether conduct has the effect referred to in subsection 1b, each of the following must be taken into account. (a) the perception of B. (b) the other circumstances of the case. (c) whether it is reasonable for the conduct to have that effect? Direct Discrimination – section 13 Equality Act 2010 (“EQA”) 127 Section 13 states: “A person (A) discriminates against another if, because of a protected characteristic, A treats B less favourably7 than A treats or would treat others.”

128 An important question for us is whether the claimant’s sex was an effective cause of the respondent’s treatment of the claimant. As was made clear in the case of O’Neill v. St Thomas More Roman Catholic School [1996] IRLR 372 the relevant protected characteristic need not be the only cause of the treatment in question. 129 We also note the following: - a. the [NAME_93] in Nagarajan v London Regional Transport [1999] ICR 877, HL, held “discrimination may be on racial grounds even if it is not the sole ground for the decision……..If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.” (judgment of Lord Nicholls)

b. Paragraph 3.11 of the EHRC Employment Code which states that ‘the characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause’ 130 Section 13 provides that direct discrimination occurs where an individual is treated “less favourably” than another. It is generally necessary therefore to identify a comparator who does not share the claimant’s protected characteristic, although claimants can rely on a hypothetical comparator (the term “or would treat others” within the wording of section 13 makes this clear).

131 Section 23(1) EQA requires that there is “no material difference” between the claimant’s position and his/her [NAME_94] position. Case law makes clear that the comparator’s circumstances do not have to be the same in all respects; rather they have to be the same (or nearly the same) in those circumstances which are relevant to the claimant’s claim. (see for example the decisions of the [NAME_93] in [NAME_95] v. [NAME_96] of the Royal Ulster Constabulary 2003 ICR 337 and [NAME_97] v. [NAME_98]; [NAME_99] v. [COMPANY_100] 2003 ICR 937). Burden of Proof

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25 132 We are required to apply the burden of proof provisions under section 136 EQA when considering complaints raised under the EQA. Section 136 states: This section applies to any proceedings relating to a contravention of this Act. (2) If there are any facts from which a court could decide in the absence of any other explanation, that a person (A) has contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection 2 does not apply if A shows that A did not contravene the provision.” 133 We have considered the guidance contained in the Court of Appeal’s decision in Wong v. Igen Limited [2005] EWCA 142. This case concerned the test as set out in discrimination legislation that pre-dated the EQA, but the guidance provided in there remains relevant. It is the annex to the judgment particularly that provides guidance. (the amended Barton guidance). We note the following particularly from the guidance (recognising that the guidance is now relevant to the application of s136 EQA)

a. That it is guidance only and not a substitute for the statutory language b. It is for the claimant to prove on the balance of probabilities, facts from which the tribunal could conclude, in the absence of adequate explanation, that the respondent has committed an unlawful act of discrimination. If the claimant does not prove such facts, then the claim will fail. c. It is unusual to find direct evidence of discrimination. d. It is important to note the use of the word “could” at s136(2) – that, at this stage of analysis, a definitive determination does not have to be made. e. The Tribunal needs to decide what inferences of secondary facts can be made from the primary facts at this stage, on the assumption there is no adequate explanation for those facts? f. Where the claimant has proven facts from which the Tribunal could conclude that the respondent has treated claimant less favourably on the grounds of (in this case) the claimant’s race then the respondent must prove that it did not do so. It must prove that the treatment of the claimant was in no sense whatsoever on the grounds of the claimant’s race. g. The tribunal will need to assess (1) whether the respondent has provided an explanation for the relevant facts and (2) that the explanation is adequate to discharge the burden of proof on a balance of probabilities. h. The facts necessary to discharge the burden of proof would normally be in the possession of the respondent and a tribunal would therefore normally expect cogent evidence to discharge that burden of proof.

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26 134 We have considered the EAT’s helpful guidance at paragraph 15 of the judgment in [NAME_101] v [COMPANY_103], [COMPANY_105], [COMPANY_144]/0283/16: - 15. ……. Proving and finding discrimination is always difficult because it involves making a finding about a person’s state of mind and why he has acted in a certain way towards another, in circumstances where he may not even be conscious of the underlying reason and will in any event be determined to explain his motives or reasons for what he has done in a way which does not involve discrimination. It seems to me that the principles to be derived from the authorities are these:

(1) It is very unusual to find direct evidence of discrimination.

(2) Normally the Tribunal’s decision will depend on what inference it is proper to draw from all the relevant surrounding circumstances, which will often include conduct by the alleged discriminator before and after the unfavourable treatment in question.

(3) It is essential that the Tribunal makes findings about any “primary facts” which are in issue so that it can take them into account as part of the relevant circumstances.

(4) The Tribunal’s assessment of the parties and their witnesses when they give evidence forms an important part of the process of inference.

(5) Assessing the evidence of the alleged discriminator when giving an explanation for any treatment involves an assessment not only of credibility but also reliability, and involves testing the evidence by reference to objective facts and documents, possible motives and the overall probabilities; and, where there are a number of allegations of discrimination involving one personality, conclusions about that personality are obviously going to be relevant in relation to all the allegations;

(6) The Tribunal must have regard to the totality of the relevant circumstances and give proper consideration to factors which point towards discrimination in deciding what inference to draw in relation to any particular unfavourable treatment.

(7) If it is necessary to resort to the burden of proof in this context, section 136 of the Equality Act 2010 provides in effect that where it would be proper to draw an inference of discrimination in the absence of “any other explanation” the burden lies on the alleged discriminator to prove there was no discrimination. 135 This is a case in which, when considering the complaints of direct discrimination particularly, we have considered what inferences can be drawn. In so doing we have been mindful of the instruction of the Court of Appeal in the judgment in [NAME_106] v. [NAME_107] 1994 IRLR 124 (para 43) (and referred to in the EAT’s judgment in [NAME_108] v. [COMPANY_110] 2001 ICR 863): -

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27 It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion 136 We note particularly the need for inferences properly drawn to be supported and justified by clear findings of fact. 137 Finally, on the issue of burden of proof, we are also mindful of guidance from case law indicating that something more than less favourable treatment may be required to establish a prima facie case of discrimination; see for example Madarassey v. Nomura International [2007] ICR 867 ([NAME_111]), where the following was noted in the judgment: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

Constructive Dismissal 138 The claimant claims (1) that her resignation amounted to a constructive dismissal and (2) that this dismissal was unfair under s98 of the Employment Rights Act 1996. 139 Dismissal for the purposes of s98 includes the circumstances stated at s95(1) (c). “….an employee is dismissed by his employer if………. the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.” 140 In considering the issue of constructive dismissal, an Employment Tribunal is required to consider the terms of the contractual relationship, whether any contractual term has been breached and, if so, whether the breach amounts to a fundamental breach of the contract (Western Excavating (ECC) Limited v. Sharp [1978] QC 761). 141 It is an implied term of every employment contract that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. We refer to this term as “the Implied Term.” It was approved by the [NAME_93] in [NAME_112] v. [COMPANY_114] (in compulsory Liquidation) [1998] AC 20 ([NAME_112]). 142 In considering the Implied Term, Browne-Wilkinson J in the earlier case of Woods v WM Car Services (Peterborough) Limited [1981] ICR 666 ([NAME_115]) ( referred to in and approved by [NAME_112]) said that the tribunal must “look at the employer’s conduct as a whole and determine whether it is such that its effect, judged

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28 reasonably and sensibly, is such that the employee cannot be expected to put up with it.” 143 [NAME_115] also made clear that a breach of the Implied Term is, by definition a fundamental breach of the contract of employment. 144 A course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a “last straw” incident, even though the “last straw” is not, by itself, a breach of contract: Lewis v Motorworld Garages Limited [1986] ICR 157 CA. 145 In the judgment of the Court of Appeal in Omilaju v Waltham Forest London Borough Council [2005] 1 All ER 75 ([NAME_116]). Dyson LJ stated as follows in relation to the last straw. “A final straw, not in itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase “an act in a series” in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach although what it adds may be relatively insignificant.” 146 We also note [NAME_7]’s reference to [NAME_116], to make the point that there is no breach of contract simply because a claimant may subjectively feel that a breach has occurred. 147 To show a breach of an Implied Term, it is for the employee to prove that the employer acted without reasonable and proper cause and for the Tribunal to consider that question objectively. (RDF Media Group v. Clements [2008] IRLR 207 at para 103). 148 Once a repudiatory breach of contract has been established, it is necessary to consider the part it played in the claimant’s decision to resign. 149 If an Employment Tribunal decides that the termination of a claimant’s employment falls within s95(1) the employer must show the reason for dismissal and that the reason for dismissal was a potentially fair one under s98(1) and (2) ERA. We note here that the respondent does not try to deny that any constructive dismissal was fair. 150 There is no issue in this case about a long delay between the alleged repudiatory act/last straw and the claimant’s resignation indicating that the claimant affirmed the contract. ACAS Code of Practice 151 Section 207A (3) Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA) provides as follows: -

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29 “If in the case of proceedings to which this section applies it appears to the employment tribunal that: (a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies (b) the employee has failed to comply with that Code in relation to that matter (c) that failure was unreasonable the employment tribunal may if it considers it just and equitable in all the circumstances to reduce any away employee by more than 25% 152 This provision gives an employment tribunal a broad discretion to reduce (or – under the equivalent provisions at section 207A (2) – increase) awards, based on what it considers to be just and equitable. 153 A relevant Code of Practice is the ACAS Code of Practice on Disciplinary and Grievance Procedures. We set out below the extract we consider relevant to the issues in this case: - “Let the employer know the nature of the grievance 32. If it is not possible to resolve a grievance informally employees should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out the nature of the grievance. Hold a meeting with the employee to discuss the grievance.

33. Employers should arrange for a formal meeting to be held without unreasonable delay after a grievance is received 34. Employers employees and their companions should make every effort to attend the meeting. Employees should be allowed to explain their grievance and how they think it should be resolved. Consideration should be given to adjourning the meeting for any investigation that may be necessary.” 154 At paragraph 77 of the decisions in Sir Benjamin Slade Baronet, v. [NAME_143] (EA-2019-000687) the EAT (The Honourable Mr Justice Griffiths) provided guidance to employment tribunals when exercising the discretion to provide (in that case) an uplift. It recommended employment tribunals apply a 4-stage test: 154.1 Is the case such as to make it just and equitable to award any ACAS uplift? 154.2 If so, what does the Employment Tribunal consider a just and equitable percentage, not exceeding although possibly equalling 25%? (any uplift reflecting all the circumstances including seriousness and/or motivation for the breach) 154.3 Does the uplift overlap or potentially overlap with other general awards such as injury to feelings; and if so, what in the Employment

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30 Tribunal’s judgment is the appropriate adjustment, if any, to the percentage of those awards to avoid double counting? 154.4 Applying a final sense check, is the sum of money represented by the application of the percentage uplift arrived at by the Employment Tribunal disproportionate in absolute terms and if so, what further adjustment needs to be made? Conclusions Time Limits 155 Based on the findings made, no time limit issues arise. Constructive Unfair Dismissal 156 The claimant says there were 6 things that happened that, when considered individually and collectively, amounted to a breach of the Implied Term.

1. The respondents not giving the claimant the opportunity to apply for the alleged group compliance role to which [NAME_8] was appointed in September 2023. 157 It is not disputed that the respondent did not give the claimant that opportunity. the respondent says that there was no opportunity to provide; that the group compliance role was merely an extension of [NAME_23]’s role. 158 We conclude that the role that [NAME_23] was given was a promotion. It was a group role that did not previously exist. A new job title and new (increased) salary was applied to the role. Under a new structure, the claimant was to have a reporting line in to the new group role. 159 [NAME_23] was well aware that the claimant would have wanted the opportunity to apply for a group role. He told the claimant that he knew she would be disappointed to learn of his appointment (Para 85)

2. Not promoting the claimant to the alleged group compliance role to which [NAME_8] was appointed in September 2023. 160 It is not disputed that the claimant was not appointed to the new group compliance role. [NAME_23] was.

3. Not inviting the claimant to a board meeting of the first respondent on 4 September 2023: [NAME_119]. 161 The claimant was not invited to the meeting on 4 September. There was not at any stage any intention to invite the claimant. There was an intention to invite [NAME_23], who then attended the meeting. 162 As for the format of the meeting and whether it was an official meeting of the [NAME_81], we have decided this is irrelevant. See paragraphs 72, 73 and 81.

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31 4.[NAME_8] incorrectly and unfairly portraying the claimant in an unjustified bad light by using an out-of-date progress report at that board meeting. 163 The claimant reached an understanding from what she learned in discussion with [NAME_84] (see para 89) that [NAME_23] might have made a presentation to the [NAME_42] by using an out-of-date report. However, the evidence on this point was far from clear. 164 We have not heard evidence that [NAME_23] incorrectly and unjustifiably portrayed the claimant in a bad light at the meeting on 4 September 2023. 165 Further, these were not reasons for the claimant’s resignation (see paras 91- 93). It is not necessary therefore for us to reach a conclusion on this allegation.

5. [NAME_88] and [NAME_120] leaving [NAME_8] to inform the claimant of his alleged promotion. 166 [NAME_23] was the person who informed the claimant of his promotion.

6.[NAME_8] having a meeting with [NAME_63] to discuss [NAME_35] progress without notifying or inviting the claimant. 167 This meeting occurred without the claimant’s knowledge. See our findings at para 89.

Did that breach the implied term of trust and confidence? Taking account of the actions or omissions alleged in the previous paragraph, individually and cumulatively, the Tribunal will need to decide:

whether the respondent had reasonable and proper cause for those actions or omissions, and if not

whether the respondent behaved in a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent. 168 The respondent did not have reasonable and proper cause to promote [NAME_23] into the group compliance role, without any consideration for the claimant. It unfairly (and without reasonable and proper cause) denied the claimant the opportunity to advance her career. 169 The claimant had not in any adequate way been involved in discussions to address resourcing of her team and specifically the [NAME_36]. There was no reason to exclude the claimant from any decision-making process as the respondent did. 170 As far as the claimant was concerned up to 4 September 2023, [NAME_23] had been identified as a temporary resource; a resource that was not considered by the claimant as helpful but was nevertheless temporary. 171 [NAME_23]’s involvement been limited then, whilst the claimant may not have agreed with the decision to appoint [NAME_23] as a temporary resource to assist in completing [NAME_35] (and may not have regarded his input as adding any value) the need

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32 to cover a resourcing issue whilst [NAME_35] [NAME_36] concluded might have been a reasonable and proper cause for [NAME_23]’s temporary involvement. 172 However, a temporary resourcing issue, was not a reasonable or proper cause for [NAME_23]’s permanent promotion to a group role, without any competitive process (and therefore without giving the claimant the opportunity to apply for the position). 173 The reasonable and proper cause that the respondents identified is at paragraph 53 of [NAME_88]’s statement: “In order to avoid any further capacity issues at [NAME_4] it was decided to make [NAME_8]’s position permanent.” 174 We put the respondent’s argument another way - an executive with capacity (because they are not busy enough in their current role) (executive A) can be promoted over an executive who does not have capacity (executive B) because junior members of their team have left the business and there has been a difficulty in filling vacancies. We do not accept that is a reasonable and proper cause for promoting executive A without considering executive B for the promotion. 175 We find that the respondent’s action of ignoring the claimant, by not providing her the opportunity to apply for the permanent group compliance role, by itself was a fundamental breach of the Implied Term. There is no evidence that the respondent’s actions were calculated to destroy trust and confidence There was not a conscious and calculated thought process on the part of [NAME_22] and [NAME_23] to do this. The evidence is that the claimant was irrelevant, ignored, forgotten by the respondent when it (and the wider [COMPANY_11]) processed [NAME_23]’s promotion. Viewed objectively, it was an act that was likely to destroy or seriously damage the trust and confidence that the claimant had in her employer, and it did have that effect. The claimant reasonably regarded it as undermining her position, and as an act of discrimination against her. Had the respondent had any reasonable consideration for the claimant’s position, it would have recognised that the action of promoting [NAME_23] above the claimant and of not giving the claimant the same opportunity as [NAME_23] to apply for the group position, was likely to have that effect. 176 The other reasons for the claimant’s resignation are secondary to this reason. We conclude as follows: - 176.1 We are not critical of the decision not to automatically promote the claimant into the group role. It is clear from the evidence in this case that the claimant considers herself to be more experienced and qualified than [NAME_8]. That may be the case, but qualities other than qualifications and experience may have been legitimately considered in a recruitment exercise (we do not know because one did not occur). This allegation adds nothing to the claimant’s constructive dismissal complaint.

176.2 The decision to invite [NAME_23] to the board meeting and not the claimant is consistent with the decision to promote [NAME_23]. We accept (as did [NAME_23] in his call with the claimant – para 85) that the claimant was upset by it. It was one of the reasons why the claimant resigned although the decision to promote [NAME_23] and not give the claimant an opportunity to apply for the promoted position was the main reason why the claimant resigned. Based on our findings of fact, we conclude that the claimant considered (reasonably) that this undermined her position with

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33 the [NAME_76] with whom she had worked. Again, the claimant was ignored. We have made a finding that a failure to provide the claimant with an opportunity to apply for the group role was in itself a fundamental breach of the Implied Term. But if we are wrong on this then we find that the act of inviting [NAME_23] to the [NAME_42] meeting and not the claimant was a further act which, when considered with the decision not to give the claimant an opportunity to apply for promotion, amounted to a breach of the Implied Term. The respondent should have recognised that its decision to keep the claimant in the dark about the meeting of 4 September and instead to invite [NAME_23] to give the board an update on the [NAME_36], was likely to damage the claimant’s trust and confidence in the respondent. It undermined the claimant’s position with the respondent board and was also reasonably regarded by the claimant as humiliating.

176.3 Using an out-of-date report and portraying the claimant in a bad light. We have not made any findings that [NAME_23] portrayed the claimant in a bad light. See conclusions above (para 162-164).

176.4 [NAME_23] informing the claimant of his promotion. Our conclusion is that the claimant would have been upset about the decision whoever informed her of it. It was the decision rather than way that it was communicated, that caused the fundamental breach.

176.5 [NAME_23] meeting with [NAME_63]. Again, this is secondary to (and consistent with) the decision to promote [NAME_23] into a new group role. Our reasoning and conclusions are the same as those relating to the decision to invite [NAME_23] to the meeting on 4 September 2023. It was an act that was likely to damage the claimant’s trust and confidence in the respondent, and it did so.

Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end. 177 Yes. A breach of the Implied Term is, by definition, a fundamental breach of contract ([NAME_115]).

Was the fundamental breach of contract a reason for the claimant’s resignation. 178 Yes. See the terms of the claimant’s resignation letter and our findings at para 93.

Did the claimant affirm the contract before resigning, by her conduct? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach. 179 This point is not argued (and not arguable). The claimant discovered [NAME_23]’s appointment on 4 September 2023 and had resigned within the week. Her conduct in the interim period made clear that she had not affirmed the contract.

Fairness

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34 180 The respondent accepts that if the claimant was constructively dismissed, that dismissal was unfair.

Wrongful Dismissal 181 Having made a finding that the claimant was constructively dismissed, the remaining issue under this heading is the length of the claimant’s notice period. 182 The claimant was contractually entitled to 3 months’ notice of termination of her employment, not one month as the respondent has asserted. See our findings at paras 97- 103. Harassment related to sex.

Did the respondent do the following alleged things:

1. Not inviting the claimant to a board meeting of the first respondent on 4 September 2023: [NAME_119].

2. [NAME_8] incorrectly and unfairly portraying the claimant in an unjustified bad light by using an out-of-date progress report at that board meeting.

3. [NAME_88] and [NAME_120] leaving [NAME_8] to inform the claimant of his promotion.

4. [NAME_8] having a meeting with [NAME_63] to discuss [NAME_35] progress without notifying or inviting the claimant.

If so, was that unwanted conduct?

Was it related to sex?

Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 183 The alleged things 1,3 and 4 above happened. None of these things was wanted by the claimant. However, the conduct complained of was not related to the claimant’s sex. It was related to (and followed) the decision to promote [NAME_23] to a group compliance role. Those things would have happened whether or not there had been discrimination in the process of promoting [NAME_23] to the group compliance role (see below). 184 For this reason, the harassment complaints fail. 185 We also note that the things complained of were consequences of the discriminatory act as found below and may be relevant when considering remedy, whether and (if so) to what extent the claimant’s feelings were injured.

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35 Direct Sex Discrimination

What are the facts in relation to the following allegations:

1. The respondent not giving the claimant the opportunity to apply for the group compliance role to which [NAME_8] was appointed in September 2023.

2. Not promoting the claimant to the group compliance role to which [NAME_8] was appointed in September 2023. 186 See our conclusions above under the heading constructive dismissal. Through their acts, [NAME_23], [NAME_22] and, to some extent, [NAME_70] (who had the final say on [NAME_23]’s new employment terms) denied the claimant the opportunity to apply for the group compliance role.

Did the claimant reasonably see the treatment as a detriment? 187 To the extent that the claimant considered it detrimental not to have been automatically slotted into the group role without a competitive process, that was unreasonable on the part of the claimant. She was not a “shoe in.” 188 It was however reasonable for the claimant to have seen the treatment of not affording her a chance though a competitive process of being appointed into a group compliance role, as a detriment.

If so, has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than a man in the same material circumstances was or would have been treated? The claimant says she was treated worse than [NAME_8]. The claimant relies, in the alternative, on a hypothetical comparison. 189 We accept the claimant’s position that [NAME_23] is an appropriate comparator in relation to the complaint that the respondent did not give the claimant the opportunity to apply for the group compliance role. [NAME_23] was given that opportunity and appointed. Having regard to the requirements of section 23 Equality Act 2010, we conclude that, other than the difference of sex, there is no material difference between the claimant’s circumstances and [NAME_23]’s 190 The claimant was treated less favourably than [NAME_8]. [NAME_8] was provided with the opportunity of being appointed to the group role. The claimant was not.

If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of sex? 191 We are mindful of the judgment in [NAME_111], that a difference in sex is not in itself sufficient material from which a Tribunal could conclude there had been discrimination. 192 There is no direct evidence that [NAME_8] was given the opportunity to be appointed into the group role because he was a man. There is no direct evidence that

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36 the claimant was not given the opportunity to apply for the role because she was a woman. 193 We have therefore considered carefully whether we should draw inferences from the facts as found by us, having regard to the authorities and guidance noted above. The following are relevant findings of fact: - 193.1 That the group compliance role was a new position into which [NAME_23] was appointed.

193.2 The new group compliance role was a permanent promotion.

193.3 [NAME_23] was no more qualified or experienced in compliance matters than the claimant. Indeed, from the evidence provided, it is the claimant with more relevant qualifications and experience.

193.4 That only 13.9% of roles in the respondent’s upper pay quarter are held by women and only 20% of the upper middle roles are held by women. These statistics indicate fewer opportunities for women to progress to senior positions than men, particularly taking in to account the fairly even gender split in more junior roles.

193.5 That the respondent did not until day 3 of this hearing, provide an Equality and Diversity policy. Having regard to this (and our finding that [NAME_23] was appointed to a promoted position) the respondent failed to comply with its policy. It did not provide equal opportunities covering recruitment into the new group compliance role. Contrary to the terms of the policy (para 104 above) it did not recruit [NAME_23] on the basis of ability to carry out the job and merit; it did not operate a fair and objective system for selection with emphasis on individual skills, abilities and experience; it did not take steps to ensure that knowledge of vacancies reached a wide range of applicants internally.

193.6 That the evidence of respondent witnesses was lacking in a number of material respects. We were particularly unimpressed by: -

193.6.1 The conflict between the statements and the oral evidence in relation to the telephone meetings of 4 and 7 September 2025 ([NAME_23] and [NAME_28]). 193.6.2 [NAME_22]’s evidence to support the employer’s contract claim. 193.6.3 The evidence about the meetings noted above not being board meetings (primarily [NAME_22]’s evidence). 193.7 The failure to involve the claimant in decisions affecting her role and her team. In addition to the appointment of [NAME_23] to the group role, we note our findings about the litigation work and the data protection work. We contrast this with the extensive discussions and consultation with [NAME_23] about the changes.

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37 194 None of these facts, by itself would have been sufficient for us to draw inferences from which we could conclude that the less favourable treatment was because of the claimant’s sex. However, when considering these facts in total, together with the difference in treatment between claimant and comparator, we conclude that discrimination could have occurred and that that we must look to the respondent for its explanation.

If so, has the respondent shown that there was no less favourable treatment because of sex? 195 The respondent’s explanation is that [NAME_23] was given a new job title and a higher salary but there was no new vacant position created and therefore no open recruitment process. [NAME_23]’s existing role was expanded. He was not appointed to a new vacant position. 196 We have made a finding of fact that the group role to which [NAME_23] was appointed was a new position and based on that finding, we reject the respondent’s explanation. But we have given this further thought and add the following to our conclusion: 196.1 [NAME_23]’s group role been a temporary elevation, for example pending completion of the [NAME_36], that would have given more credibility to the respondent’s explanation. But it was not. It was a permanent appointment to a new group role.

196.2 The fact that (initially at least) [NAME_23] continued as head of the [NAME_75] team did not mean that he and only he could be appointed to the new role. If that were so, then a tactic (of expanding a male employee’s existing role, with new job title and salary and ignoring a comparable female employee) could amount to an easy and divisive way to avoid equality of opportunity in internal recruitment.

196.3 Had the claimant been given an opportunity to apply for the new permanent group role and been successful she could have continued to head up the [NAME_4] compliance team. 197 As we have rejected the respondent’s explanation, we make a finding of direct discrimination. 198 We recognise that we concluded, in our judgment on the constructive dismissal complaint, that there was no conscious calculation on the part of [NAME_22] and [NAME_23] to destroy the relationship between claimant and respondent. In so far as we need to consider further the direct discrimination complaint beyond our decision to reject the respondent’s explanation, we accept the claimant’s submission that there was unconscious bias at work. This conclusion is supported by the facts from which we have drawn inferences.

Employer Contract claim 199 The claimant was constructively dismissed. She did not breach the contract of employment by resigning without giving notice.

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38 ACAS CODE 200 Our conclusion is that the claimant did not comply with the ACAS Code of Practice. 201 The claimant told the respondent what her grievance was (verbally in telephone calls on 4 and 7 September 2023 and in the terms of her resignation letter of 8 September 2023). Having regard to the terms of the Code, we conclude that when the claimant aired her complaints/grievances in the telephone calls she did so informally. The respondent then provided the claimant with the opportunity to raise her grievance formally through its grievance policy. The claimant ignored that invitation. 202 The respondent (and the wider group) is a large organisation. [COMPANY_152] is a public limited company with non-executive directors. Whilst we did not receive detail of the respondent’s (and [NAME_121]) wider structure we are also sure that there were plenty of executive directors within the group who had not been involved in the relevant processes and decisions relevant to the claimant’s grievance who could have been appointed to consider and reach decisions on the claimant’s grievance. 203 We do not accept the claimant’s explanations for not pursing the grievance: - 203.1 There was nothing to stop the claimant raising a grievance just before or at the same time as her resignation. That would still have provided an opportunity to resolve the dispute internally.

203.2 As for the explanation that the respondent had not provided the claimant with a copy of the grievance policy, we note that the claimant was a senior executive with the respondent and manager of people. Had the claimant any doubt about what the policy and procedure required her to do, she could (and should) have asked for a copy.

203.3 The claimant’s criticism about not being provided with a copy of the grievance policy is not consistent with her criticism about the respondent’s policy having no jurisdiction over [NAME_73]. If she needed to be informed about the terms of the policy, then she cannot have known whether the terms covered group structure. As it was the date of the grievance policy predated the purchase by [NAME_10].

203.4 It is not uncommon for an employer to modify its grievance procedure to take account of individual circumstances such as the seniority of the aggrieved employee and the involvement of employees within a wider group structure.

203.5 There is no evidence to indicate that the respondent would not have provided a fair grievance process. 204 We have decided that it is just and equitable to apply a percentage reduction in accordance with section 207(A) TULRA. As for the percentage to be applied, we

Case No. 2411380/2023

39 have decided that should be an issue for consideration at the remedy hearing. In reaching this decision we have had regard to the 4-stage test set out in [NAME_118]. It seems to us that application of that test requires a decision on percentage deduction to be made at the same time as making decisions about the types and amounts of awards.

Approved by Employment Judge Leach

15 January 2026

JUDGMENT SENT TO THE PARTIES ON

15 January 2026

FOR THE TRIBUNAL OFFICE

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Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

Recording and Transcription

Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:

https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/

Case No. 2411380/2023

40

Annex

List of complaints and Issues

1. Time limits

1.1 Given the date the claim form was presented and the effect of early conciliation, any complaint about something that happened before 19 June 2023 may not have been brought in time. In relation to the complaints of direct and indirect sex discrimination added by amendment on 30 August 2024, subject to time limit issues, the relevant date of presentation is 19 April 2024.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:

1.2.1 Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide:

1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

2. Constructive Unfair dismissal

Dismissal

2.1 Can the claimant prove that there was a dismissal?

2.1.1 Did the respondent do the following things:

2.1.1.1 The respondents not giving the claimant the opportunity to apply for the alleged group compliance role to which [NAME_8] was appointed in September 2023.

2.1.1.2 Not promoting the claimant to the alleged group compliance role to which [NAME_8] was appointed in September 2023.

Case No. 2411380/2023

41 2.1.1.3 Not inviting the claimant to a board meeting of the first respondent on 4 September 2023: [NAME_119].

2.1.1.4 [NAME_8] incorrectly and unfairly portraying the claimant in an unjustified bad light by using an out-of-date progress report at that board meeting.

2.1.1.5 [NAME_88] and [NAME_120] leaving [NAME_8] to inform the claimant of his alleged promotion.

2.1.1.6 [NAME_8] having a meeting with [NAME_63] to discuss [NAME_35] progress without notifying or inviting the claimant.

2.1.2 Did that breach the implied term of trust and confidence? Taking account of the actions or omissions alleged in the previous paragraph, individually and cumulatively, the Tribunal will need to decide:

2.1.2.1 whether the respondent had reasonable and proper cause for those actions or omissions, and if not

2.1.2.2 whether the respondent behaved in a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.

2.1.3 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

2.1.4 Was the fundamental breach of contract a reason for the claimant’s resignation.

2.1.5 Did the claimant affirm the contract before resigning, by her conduct? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

Reason

2.2 Has the first respondent shown the reason or principal reason for dismissal i.e. the reason or principal reason for the fundamental breach of contract?

2.3 Was it a potentially fair reason under section 98 Employment Rights Act 1996? The first respondent relies on capability and/or some other substantial reason.

The respondent accepts that, if a finding is made that the claimant was constructively dismissed, that dismissal was unfair.

Fairness

Case No. 2411380/2023

42 2.4 If so, applying the test of fairness in section 98(4), did the respondent act reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant?

3. Remedy for unfair dismissal

3.1 What basic award is payable to the claimant, if any?

3.2 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

3.3 If there is a compensatory award, how much should it be? The Tribunal will decide:

3.3.1 What financial losses has the dismissal caused the claimant?

3.3.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

3.3.3 If not, for what period of loss should the claimant be compensated?

3.3.4 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

3.3.5 Did the respondent or the claimant unreasonably fail to comply with it?

3.3.6 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

3.3.7 Does the statutory cap of fifty-two weeks’ pay or £93,878 apply?

4. Wrongful dismissal / Notice pay

4.1 Was the claimant constructively dismissed (see issues above)? If so, the first respondent was in breach of contract by dismissing her without notice.

4.2 What was the claimant’s notice period? The claimant says it was 3 months. The respondent says it was one month.

4.3 It is agreed that the claimant was not paid for her notice period.

4.4 What damages should be awarded for the breach of contract?

5. Harassment related to sex (Equality Act 2010 section 26)

5.1 Did the respondent do the following alleged things:

Case No. 2411380/2023

43 5.1.1 Not inviting the claimant to a board meeting of the first respondent on 4 September 2023: [NAME_119].

5.1.2 [NAME_8] incorrectly and unfairly portraying the claimant in an unjustified bad light by using an out-of-date progress report at that board meeting.

5.1.3 [NAME_88] and [NAME_120] leaving [NAME_8] to inform the claimant of his promotion.

5.1.4 [NAME_8] having a meeting with [NAME_63] to discuss [NAME_35] progress without notifying or inviting the claimant.

5.2 If so, was that unwanted conduct?

5.3 Was it related to sex?

5.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

5.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

6. Direct sex discrimination (Equality Act 2010 section 13)

6.1 What are the facts in relation to the following allegations:

6.1.1 The respondent not giving the claimant the opportunity to apply for the group compliance role to which [NAME_8] was appointed in September 2023.

6.1.2 Not promoting the claimant to the group compliance role to which [NAME_8] was appointed in September 2023.

6.1.3 The bonus scheme the claimant was given (added by way of amendment, subject to time limit point, relevant date 19.4.24).

6.1.4 The amount of the bonus paid July 2023 for work done in 2022 and bonuses paid in preceding years (added by way of amendment, subject to time limit point, relevant date 19.4.24).

(deleted paragraphs for separate determination as an Equal Pay claim) 6.2 Did the claimant reasonably see the treatment as a detriment?

6.3 If so, has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than a man in the

Case No. 2411380/2023

44 same material circumstances was or would have been treated? The claimant says she was treated worse than [NAME_8] in relation to 6.1.1 and 6.1.2 and [NAME_84], [NAME_122] and [NAME_124] in relation to 6.1.3 and 6.1.4. The claimant relies, in the alternative, on a hypothetical comparison.

6.4 If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of sex?

6.5 If so, has the respondent shown that there was no less favourable treatment because of sex?

7. Indirect discrimination (Equality Act 2010 section 19) (For separate determination as an Equal Pay claim)

7.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: having a bonus scheme where bonus is a percentage of basic salary. (Added by way of amendment, subject to time limit point, relevant date 19.4.24)

7.2 Did the respondent apply this PCP to the claimant?

7.3 Did the respondent apply any such PCP to men or would it have done so?

7.4 [NAME_126] put women at a particular disadvantage when compared with men in that women employed by the respondent in general had lower basic salaried than men and would, therefore, receive a lower bonus.

7.5 [NAME_126] put the claimant at that disadvantage?

7.6 Was [NAME_126] a proportionate means of achieving a legitimate aim? The respondent says that its aims were:

7.6.1 [to be identified by the respondent in the amended response]

7.7 The Tribunal will decide in particular:

7.7.1 was [NAME_126] an appropriate and reasonably necessary way to achieve those aims;

7.7.2 could something less discriminatory have been done instead;

7.7.3 how should the needs of the claimant and the respondent be balanced?

8. Remedy for discrimination

8.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

8.2 What financial losses has the discrimination caused the claimant?

Case No. 2411380/2023

45 8.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

8.4 If not, for what period of loss should the claimant be compensated?

8.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

8.6 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

8.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

8.8 Did the respondent or the claimant unreasonably fail to comply with it?

8.9 If so, is it just and equitable to increase or decrease any award payable to the claimant?

8.10 By what proportion, up to 25%?

8.11 Should interest be awarded? How much?

9. Breach of Contract (withdrawn where deleted)

9.1 Was the respondent in breach of contract by:

9.1.1 Deducting £108.55 from the claimant’s final pay for training expenses?

9.1.2 Not reimbursing the claimant for £277.20 fuel expenses.

9.1.3 Causing the claimant to incur £464 of car tax.

9.2 If so, how much should the claimant be awarded as damages?

10. NOT RELEVANT TO THIS HEARING – SEPARATE EQUAL PAY ISSUES

11. Respondent’s employer’s contract claim

11.1 Was the claimant in breach of contract by resigning without notice? If the claimant is found to have been constructively dismissed, she was not in breach of contract by resigning without notice.

11.2 If the claimant was in breach of contract, how much should the respondent be awarded as damages?

Case No. 2411380/2023

46

Case No. 2411380/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents:

[redacted] 2. [COMPANY_127] AT:

Manchester ON: 30 August 2024 BEFORE: Employment Judge Slater

REPRESENTATION:

Claimant: [redacted]

In person [NAME_5], solicitor

JUDGMENT

I refuse the application to strike out the complaints of direct sex discrimination and harassment.

Employment Judge Slater

Date: 11 September 2024

JUDGMENT SENT TO THE PARTIES ON

17 September 2024

FOR THE TRIBUNAL OFFICE

Case No. 2411380/2023

2 Notes

Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

Public access to employment tribunal decisions

Recording and Transcription

Case Number: 2411380/2023 & 2400164/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] 2.[COMPANY_127]

JUDGMENT

1.The claimant’s complaint of Equal Pay (like work) is dismissed following a withdrawal by the claimant.

2.The claimant’s complaints of Equal Pay (Equal Value), constructive unfair dismissal, wrongful dismissal (notice pay), direct and indirect sex discrimination and harassment related to sex and breach of contract are not affected and will proceed to hearing.

_____________________________

Approved by Employment Judge KM Ross 23 May 2025

JUDGMENT SENT TO THE PARTIES ON

30 June 2025

FOR THE TRIBUNAL OFFICE

Case Number 2411380/2023 and 2400164/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent:

[redacted]

Manchester (by CVP) On: 7 April 2026.

Before: Employment Judge Leach

REPRESENTATION:

Claimant: [redacted]

Respondent: [redacted]

JUDGMENT - PRELIMINARY HEARING

The entitlement to awards under a Long-Term Incentive Share Pan operated by the respondent’s former holding company (“[NAME_59]”) is not a term of work for the purposes of section 66 Equality Act 2010. Put another way, the entitlement to awards under [NAME_59] is not pay for the purposes of an Equal Pay claim under section 66.

REASONS

Introduction

1. This hearing was listed to decide whether the claimant’s claim for equal pay with named [NAME_94] should take in to account benefits that her [NAME_94] received under a scheme called the [COMPANY_133] [NAME_41] (“[NAME_59]”).

2. This issue was listed to be determined in advance of a stage one equal value hearing. Case management directions had been made providing for the exchange of

Case Number 2411380/2023 and 2400164/2024

evidence. Unfortunately, written confirmation of those directions did not reach the parties until about 7 working days before the hearing. As it was, the parties corresponded with each other and arrange for a quick exchange of documentary evidence. Both parties were willing to proceed with this hearing.

This Hearing

3. Neither party provided a witness statement. The consensus between the parties was that witness evidence would not assist a determination of the issue. Document disclosure had taken place that resulted in a bundle comprising some 447 pages. Reference below to [NAME_14] numbers are to this bundle.

4. I heard submissions from [NAME_131] on behalf of the respondent and then from the claimant. Both parties also provided written documents in advance of the hearing, summarising their positions on the issue, in terms of the facts on the face of the documents disclosed and the law. Relevant Law

5. The relevant provision in the Equality Act is section 66. Sub sections relevant to the issue for determination are as follows:- “(1) If the terms of A’s work do not (by whatever means) include a sex equality clause they are to be treated as including one.

(2) A sex equality clause is a provision that has the following effect:- (a) if a term of A’s is less favourable to A than a corresponding term of B’s is to B, A’s term is modified so as not to be less favourable: (b) if A does not have a term which corresponds to a term of B’s that benefits B, A’s terms are modified so as to include such a term.

6. [NAME_131] referred to the Court of Appeal’s judgment in Hosso v. European Credit Management Ltd [2011] EWCA Civ 1589 ([NAME_134]) The claimant in [NAME_134], brought a complaint relating to participation in an LTIP, under Equal Pay legislation. The claimant in [NAME_134] (like [NAME_72]) was unable to bring a direct discrimination complaint in relation to alleged discrimination in the granting of awards under the LTIP, because her claim was not presented within the time limits applicable to direct discrimination complaints (now, section 123 Equality Act 2010).

7. Both parties referred me to paragraph 29 of the judgment, which I set out below “I can now venture to address the effect of section 6(6) of the SDA. I do not think that a benefit that is conferred by an exercise by the employer of a discretion under s contract of employment is “regulated” by the provisions of that contract. In such a case the contract does not regulate the benefit. If however, the contract determines the amount of benefit to which the employee is entitled, the provision of that benefit is regulated by it. If its provisions confer on the woman employee a right to a lesser benefit than her male equivalent the equality clause will modify her contract to confer an equal benefit on her

Case Number 2411380/2023 and 2400164/2024

and the employer’s failure to honour her contract so modified will be a contravention of a term of her contract so modified within the scope of section 2(1) EPA. If her contract contains no provision entitling her to a relevant benefit and her male equivalent contract includes such a provision, the equality clause will deem that provision to be included in her contract and again any failure of the employer to honour the term included by the equality clause will give rise to a claim under section 2(1) of the EPA rather than the SDA, her benefit under the included clause is regulated by her contract of employment as varied by the equality clause.

8. [NAME_72] referred to various authorities supporting a very wide definition of pay. [NAME_131] told me that the respondent does not argue that pay can be widely interpreted. The issue before us however is the statutory provision that enables the claimant to make a claim in relation to her not been granted any awards under [NAME_59]. I have not therefore identified the various authorities cited by the claimant although I noted what she says about them in her written document. Respondent’s submissions

9. A summary of the respondent’s position is as follows:

9.1 that all entitlements under [NAME_59] were subject to the discretion of a [NAME_43] of the Board of directors of the then [COMPANY_146] called [COMPANY_135] (“PLC”). The [NAME_43] was the [NAME_43] of PLC ([NAME_136]).

9.2 That discretion includes a discretion about who to award benefits to as well as the size of awards, terms of awards and timings of awards (for example when granted and when exercisable)

9.3 [NAME_59] is not part of and not subject to the terms of the contracts of employment of any of the [NAME_94]. Only one of the named [NAME_94] has any reference to [NAME_59] in his employment contract.

9.4 It is clear from the written terms that any involvement is subject to the discretion of the [NAME_136] and is not a right under the terms of the employment contract of any of the [NAME_94].

9.5 The various documents relating to [NAME_59] make clear that [NAME_59] as well as the various discretions exercised under [NAME_59] are separate to the contract of employment.

9.6 [NAME_59] is separate to the contract of employment; any benefits provided under the terms of [NAME_59] are dependant on and subject to a body (other than the claimant’s employer) exercising discretions. Given these crucial points, the value or potential value of benefits under [NAME_59] cannot be included in a claim under section 66 Equality Act 2010.

Case Number 2411380/2023 and 2400164/2024

10 [NAME_131]’s position is that this Tribunal is bound to follow the judgment in [NAME_134] and if it does (as it must) then the issue for determination today must fail.

11 In his submissions, [NAME_131] took me through various documents. I refer to some of these in a separate section, below. Claimant’s submissions

12 I summarise the claimant’s position as follows:-

12.1 Her circumstances are distinguishable from those of [NAME_137]. In [NAME_134], the claimant and her comparator were both granted benefits under the relevant LTIP, but the comparator was granted more than [NAME_137]. The claimant however was not entitled to participate in [NAME_59]

12.2 To illustrate this the claimant referred to the final sentence in paragraph 29 of [NAME_134]:- If her contract contains no provision entitling her to a relevant benefit and her male equivalent contract includes such a provision, the equality clause will deem that provision to be included in her contract and again any failure of the employer to honour the term included by the equality clause will give rise to a claim under section 2(1) of the EPA rather than the SDA, her benefit under the included clause is regulated by her contract of employment as varied by the equality clause.

12.3 The claimant also notes that in her case, at least in relation to one of her [NAME_94] ([NAME_122]) there is express reference in his employment details, to [NAME_59]. Notably, [NAME_122] was the only comparator who was recruited after the commencement of [NAME_59]; the claimant opines that may well be why the employment contracts of other participants did not refer expressly to [NAME_59].

12.4 The claimant disagreed with [NAME_131]’s proposition that the exercise of all relevant discretion was for [NAME_136]. It would not have been [NAME_136] who decided who participated in [NAME_59]. That will have been the CEO of the Group company (in the claimant’s case therefore the CEO of the respondent). It was the respondent therefore who decided who did and did not have a right to participate and therefore a right to a chance of a benefit, dependant on the exercise of discretions by [NAME_136].

12.5 The claimant did not have a clause (express or implied) entitling her to participate in [NAME_59]. Her [NAME_94] did. The exercise of the equality clause under section 66 Equality Act 2010 entitled her to the same participation rights as her [NAME_94]. Relevant documents.

13 Both parties referred me to documents in the bundle. I note as follows: The Terms of [NAME_59] 2411380/2023 and 2400164/2024

14 Awards under [NAME_59] are in relation to shares in PLC (see definitions of Conditional Award and Option at 189, 190). [NAME_59] is the PLC’s [NAME_41], not the claimant’s employer.

15 Clause 2 – eligibility “ An individual is eligible to be granted an Award only if he is an employee of a [COMPANY_138].” There is no dispute that respondent is a [COMPANY_138] and no dispute that the claimant was an employee of the respondent.

16 Clause 3 relates to terms of grants of awards. This clause and other clauses give [NAME_136] discretion on a range of decisions. I note the opening sentence of 3.1:-

“Subject to Rule 3.6(timing of Grant), Rule 3.7 (Approvals and consents) and Rule 4 (Limits) the [NAME_43] may resolve to grant an Award to any person who is eligible to be granted an Award under Rule 2 (Eligibility) on: -

(a) The terms set out in [NAME_59]; and

(b) such additional terms (whether a Performance Condition and/or any other terms) as the [NAME_43] may specify, which may include restrictions on the disposal of some or all of the Shares acquired pursuant to an Award for such period as the Board may determine, and that any Shares so restricted may be forfeited if the Participant ceases to hold office or employment with a Group Member during such period on account of their summary dismissal. The Board may make the Release of an Award or exercise of an Option conditional on the Participant taking any action (including entering into any agreement) reasonably required by the Board in relation to such additional terms.

17 Clause 15. 1, headed “Employment” provides as follows

“ The rights and obligations of any individual under the terms of his office or employment with any Group Member shall not be affected by his participation in [NAME_59] or any right which he may have to participate in it. An individual who participates in [NAME_59] waives any and all rights to compensation or damages in consequence of the termination of his office or employment for any reason whatsoever insofar as those rights arise or may arise from him ceasing to have rights under an Award as a result of such termination. Participation in [NAME_59] shall not confer a right to continued employment upon any individual who participates in it. The grant of any Award does not imply that any further Award will

Case Number 2411380/2023 and 2400164/2024

be granted nor that a Participant has any right to receive any further Award.

Comparator ([NAME_139])

18 Like other employees of the respondent (including the claimant), [NAME_139] has a contract schedule setting out some terms that are specific to his employment as well as the respondent’s standard form contract of employment. The Schedule ([NAME_14] 23) which is dated 13 December 2015, refers to bonus/commission as follows: 10% of salary. Details to be provided in due course.

19 Clause 9 of the contract of employment ([NAME_14] 26), states: “The bonus/commission schemes applicable to your role are detailed in the Contract Schedule. These do not form part of your contract of employment. The Company reserves the right to vary or withdraw any such scheme at any time.”

20 There is no reference to [NAME_59] in the documents disclosed. Comparator ([NAME_84])

21 The Schedule applicable to [NAME_84] provides as follows, next to the heading of “Bonus/Commission Scheme details:” “Bonus /commission scheme is available in line with scheme rules and section 9 of your employment contract. The details of the scheme will be communicated to you by your line manager.”

22 Section/clause 9 of [NAME_84] employment contract is the same as for [NAME_139] (above)

23 There is no reference to [NAME_59] in the documents disclosed. Claimant’s contract

24 The Schedule says: “Up to 10% of Salary based on personal objectives and overall company performance.” Section/clause 9 is the same as for [NAME_139] – above.

25 There is, of course, no reference to [NAME_59] in the claimant’s documents. Comparator ([NAME_122])

26 The Schedule for [NAME_122] is dated July 2020. Next to the heading of “Bonus/Commission Scheme Details” it says this: Annual Bonus of up to £20,000 based on personal objectives and overall company performance. [COMPANY_140]’s [NAME_41] (subject to the discretion of the [NAME_43]) with 2020 Performance Share Awards to be granted with a value at the date of grant of £25,000. ([NAME_14] 132).

27 Clause/section 12 of the employment contract for [NAME_122], is the same as clause/section 9 of [NAME_139], [NAME_84] and the claimant’s contract. Minutes of [NAME_136] meetings and deeds of Grant.

Case Number 2411380/2023 and 2400164/2024

28 I was taken to various documents which together indicate that it was the [NAME_136] exercising its discretion that decided who to make an award to, the terms and amounts of those awards. I note for example clauses 4.3 and 4.4 of the [NAME_136] meeting minutes of April 2018, at pages 91 and 92

Awards made

29 I have seen various schedules setting out awards to anonymised executives and the named [NAME_94] (for example at [NAME_14] 147. There are themes to the amounts awarded that are generally ( but not always) followed.

29.1 The CEO and CFO receive awards much larger than everyone else and may have contractual entitlements to awards representing percentage of salary.

29.2 Executives with job titles that indicate they may be main board directors (but not the CEO or CFO) mainly receive the same value as each other.

29.3 Executives called “Franchise Directors” receive the same value as each other.

29.4 Executives with “Head of” in their job title mostly receiving the same value as each other (although with greater variety in this group).

Conclusions and Decision

30 My conclusion is that I am bound by the judgment in [NAME_134]. [ADDRESS] of Appeal’s direction and instruction in [NAME_134] are applicable to the claimant’s circumstances.

31 These are my reasons:-

31.1 [NAME_59] was not the respondent’s [NAME_41].

31.2 The extent to which employees benefitted under the terms of [NAME_59] depends on the exercise of discretion by [NAME_136], not the respondent.

31.3 The respondent (or any other employing subsidiary) might have been influential in [NAME_136]’s decision (particularly about which executives participate in [NAME_59] and to what extent they benefit. I have considered the claimant’s submissions on this point. However (1) there was no evidence to support the claimant’s submission ( the claimant did not for example provide a witness statement and had she, I am not sure she would have been able to give factual evidence on the point) and (2) the

Case Number 2411380/2023 and 2400164/2024

[NAME_136] 2018 minutes make clear that It is [NAME_136] that is deciding to make the awards to the employees listed in a schedule. See for example clause 4.3 of the 2018 minutes at pages 91/2. It is irrelevant therefore that a list of employees may have been provided – for example by the Chef Executive or other executives of the respondent, to be recommended or proposed. [NAME_136]’s discretion still needed to be exercised.

31.4 I have considered whether the terms of [NAME_141]’s contract mean that his circumstances are different. They do not. The wording of the schedule at [NAME_14] 132 (para 26 above) make clear that the participation is subject to [NAME_136] discretion.

31.5 I have considered the terms of the final sentence of paragraph 29 of the judgment in [NAME_134] to which the claimant referred. It must be read together with the 2 sentences that immediately precede it. When read together with those 2 preceding sentences, it is clear that the final sentence refers to provisions that are regulated by the equal pay legislation (now section 66 Equality Act 2010 ) as opposed to the direct discrimination legislation (now section 13 Equality Act 2010)

31.6 [NAME_59] provided the potential for benefits to be given to employees of the respondent. The identity of the employees and the terms and value of any benefits awarded were subject to the exercise of a discretion by a [NAME_43] of the board of directors of [COMPANY_152] of the claimant’s employer ([NAME_136]). As such and in line with the judgment in [NAME_134], the claimant is unable to include in her equal pay claim, a complaint that she was not provided with benefits under [NAME_59].

Approved by Employment Judge Leach

Date: 7 April 2026

JUDGMENT SENT TO THE PARTIES ON

Date: 13 May 2026

FOR THE TRIBUNAL OFFICE

Case Number 2411380/2023 and 2400164/2024

Public access to employment tribunal decisions

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

Recording and Transcription

https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/