Trinity Employment and Discrimination barrister, Sarah Ismail recently defended a national college group against claims brought by a former lecturer of sex/race discrimination and breach of contract in London South Employment Tribunal.
Background
In 2019, following consultation with trade unions, the Respondent communicated to staff its intention to implement a new generic lecturer grade, pay scale and incremental pay progression across three colleges. The changes applied to 137 members of staff, including the Claimant. As a result, the Claimant moved from pay point 35 in the old scale to point 11 in the new grading scale. She did not raise any objection to this at the time and her contract allowed for such changes.
On 30 January 2024, the Claimant brought claims in the Employment Tribunal, alleging that she did not consent to the change in her employment contract and that two white male colleagues (who were on pay point 37) had remained on the old pay scales. She claimed this amounted to a breach of contract and direct race/sex discrimination, because she was never given an opportunity to remain on the old scale. The Respondent argued that, as the pay of the staff on bands 37 and 39 was higher than the top of the new pay scale, the salary of those staff (including the Claimant’s comparators) was to be “red-circled” until the salary for the top of the new pay scale (pay point 11) caught up.
Thereafter, the Respondent applied to strike out the claims. In response, the Claimant sought to expand upon her claims by stating that she was paid less than her named comparators for the same work. She did not apply to amend her claims.
At the hearing
At the public preliminary hearing, Ms Ismail argued that:
- The named white men were not appropriate comparators because they were not on the same pay point as the Claimant.
- Approximately 137 men and women from different ethnic backgrounds and racial groups were moved to the new scale, alongside the Claimant. Therefore, the Claimant was not singled out.
- There were 12 people who remained on the old pay scale (alongside the two named comparators) and six of those people were women. Therefore, sex had nothing to do with it.
- The Claimant’s employment contract allowed for changes to her terms and conditions following consultation with any recognised trade unions. The Claimant was invited to take part in the consultation process but declined.
Ms Ismail also argued that the Claimant (who was legally represented) was seeking to introduce an equal pay claim that was never articulated in any of her pleadings.
The judge agreed with the Respondent and said that this was a rare and exceptional case where strike out was warranted. The claims were struck out in their entirety.
Sarah Ismail was instructed by Katie Adams at Ward Hadaway.
Sarah has been recognised by Legal 500 as a Rising Star in Employment Law:
"Sarah is exceptionally well-prepared, brilliant with clients and very good on her feet. She makes her points very well and has meticulously planned cross-examination. She has a swift grasp of the issues, and is very personable to deal with. She is also reactive and keeps instructing solicitors well-informed."
Legal 500 2026