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Cloisters’ Sally Robertson win for equal pay and open justice in the EAT

Equal pay and Open Justice

Home Secretary v MP  UKEAT/0046/20/BA

Sally Robertson won an important appeal on 6 March. She represents the Claimant in his equal pay, sex and race discrimination claims in the ET against the Home Secretary. The Home Secretary had wanted part of the hearing to be heard in private, with the core contention in the claim kept secret from the public. Sally was successful in having that privacy order revoked in the ET. The Home Secretary appealed to the EAT. The EAT has now rejected the Home Secretary’s appeal, so the ET hearing will be in public.

The Home Secretary wanted to keep secret the Claimant’s case about why he was paid £44,000 less than his Comparator for doing exactly the same job. The Home Secretary sought to have the ET held partly in private rather than, as is usual, in public on the basis that the Comparator was entitled keep private and confidential the pre-appointment negotiations  that had led to her appointment. The Claimant opposed this. At the First ET hearing the Judge decided that information relating to the Comparator’s pay negotiations would remain private and confidential pursuant to Rule 50 of the 2013 Tribunal Rules.

At the start of the full hearing in January 2020 the Claimant’s Counsel was successful in applying to the three-person ET to revisit and revoke the decision reached at the earlier hearing on the basis of open justice. The Home Secretary appealed.

Following an expedited EAT hearing before Mr Justice Griffiths on 26 February he found in a judgment dated 6 March that the January 2020 ET was right to decide there was nothing which deserved rule 50 protection at all.

The First ET had accepted submissions based to some extent on mere speculation, assertion and apprehension. In contrast the January 2020 ET was able to make the privacy determination with the aid of the final hearing bundles containing all the documents and all the witness statements.

An issue arose about the duties of Counsel when appearing against a LIP. The EAT said it was undoubtedly the case that at the First ET hearing little or no authority adverse to the Home Secretary’s application had been cited to the Judge. The evidence supporting the Home Secretary’s application was “heavy on assertion, but very light on specifics”.  Notably Counsel cited no authorities on the principles of open justice or the right to freedom of expression in circumstances when the Claimant was acting as a LIP.

The EAT was concerned about this approach as since

“ … the First ET had not looked at and did not refer to any authorities at all on the importance of open justice, or to any authorities explaining that the protection of genuinely confidential information will not always justify a breach of the open justice principle, the First ET was at a disadvantage which compromised its ability to decide the point correctly and in accordance with well-established principle.”

In contrast the Second ET was in a better position than the First ET, because it had been shown (or cited from its own knowledge) a long and powerful line of relevant authorities (and notably by that stage both parties were represented).

Turning to the substance, the EAT said the Second ET was right to find there was simply no basis for the confidentiality concerns that had been expressed. There was no reasons why pay negotiations would impact on the Comparator’s role or affect her credibility. She was initially offered a lesser sum, she pointed out that it was not fair or equal and subsequently her pay was increased. The Claimant says the increase was because it looked discriminatory; that determination will have to be made by a future ET.

The EAT’s approval of the January ET’s finding on keeping negotiations confidential is significant for equal pay disclosure going forward: that ET found “Regarding the respondent’s own interest in keeping salary negotiations confidential, we find this a particularly weak argument. The salaries themselves are often public in any event. But apart from that, we do not see why the Home Office’s position is different from that of any private sector employer.”

Case comment by Rachel Crasnow QC, Cloisters