3PB Employment barrister Andrew MacPhail acts in BMC Software Limited v Ms A Shaikh [2019] EWCA Civ 267 in the Court of Appeal

8th March 2019

3PB employment barrister Andrew MacPhailAndrew MacPhailCall: 2007 appeared in the Court of Appeal recently, representing Ms Shaikh at all stages including at the Court of Appeal, instructed by LB Law.  The Court of Appeal, as confirmed in its reserved judgment of today’s date, concluded in Ms Shaikh’s favour ([2019] EWCA Civ 267).

Ms Shaikh brought a number of claims in the ET, including an equal pay claim and claims based on constructive dismissal arising from the alleged breach of the equality clause.  The ET upheld those claims, including of particular significance the equal pay claim.  In that regard the ET concluded that BMC had failed to prove its material factor defences.  The ET rejected the claims for sex discrimination.

BMC appealed to the EAT on various grounds.  In respect of the equal pay claim, the EAT took the view that the ET had failed to give adequate reasons for its conclusions.  The EAT remitted the matter back to the same ET for further reasons.

BMC appealed to the Court of Appeal, arguing that the EAT’s approach to disposal was incorrect and that in any event the EAT should have remitted the matter to a fresh ET.

Ms Shaikh cross-appealed, arguing that the ET had given adequate reasons for upholding the equal pay claim, and that the EAT had been wrong to take the opposite view.

The Court of Appeal upheld the cross-appeal by Ms Shaikh, agreeing that the ET had given adequate reasons for upholding the equal pay claim, and that the EAT had erred in that regard.  The matter will therefore now return to the ET to progress to remedy.

The Court of Appeal’s view on adequacy of reasons rendered academic BMC’s appeal as regards the manner of disposal adopted by the EAT.  The Court of Appeal nevertheless took the opportunity to point out that an invitation to an ET to give further reasons is not an option available to the EAT at point of disposal; rather it is a tool which can be deployed only whilst the relevant appeal is ongoing.