In the case of Samantha Walker v The Co-operative Group and Mr Richard Pennycook, Manchester Employment Tribunal has ruled that Mrs Walker - former Chief HR officer of the Co-operative Group - was discriminated against. They did, however, reject claims she had been dismissed for raising concerns about being paid less than male board members.
After an annual review that ranked her performance as only ‘partially achieved’ her employment was terminated. Judge Sherratt, the employment judge, wrote in his judgment:
“Where they seem to have had performance issues, the comparators - or male employees - were arguably not treated as harshly in their assessments as was the claimant.”
In 2014, after Mrs Walker was appointed group HR Director of strategic projects and joined a newly set up executive team, she raised concerns about her pay to the then CEO Richard Pennycook. At this time, the business was facing considerable financial instability.
Initially, Mrs Walker was given the title of Chief HR Officer with a proposed base salary of £500,000. However, the group remuneration and appointments committee decided to reduce her base salary to £425,000 as they took the view that she was “newly promoted to the executive and unproven at that level, unlike everyone else on the team at that time.”
In 2014, the Co-op Group instigated a new grading system and Mrs Walker told Mr Pennycook that it was “not looking good from an equal pay perspective”, despite an independent assessment finding that her role was equal or above some of the male executives. She added that she wanted to be recognised as being – at least – of equal value to the board and Mrs Walker’s counsel at the tribunal claimed that this statement clearly implied that Mrs Walker was the victim of unequal pay.
In December 2015, Mrs Walker was told by Mr Pennycook that “he did not think that they would authorise any more pay for her and suggested that she consider other roles such as the MD of Co-operative Funeralcare or “‘something’ with the Legal Services business.”
Mrs Walker stated that her heart was firmly in HR and that her desire was not solely about her wish for a pay rise, but also to be recognised as equal alongside her male colleagues and she said that Mr Pennycook clearly understood that.
Two dates for Mrs Walker’s end of year review were cancelled with no explanation and – in his judgment – the judge stated:
“Thereafter, their conversations were essentially about possible other roles rather than dealing with concerns over her existing role.”
Despite Mr Pennycook’s evidence that he had concerns about Mrs Walker’s ability to fulfill the role of Chief HR Officer, the tribunal ruled that her work was equal to her comparators and that she had been directly discriminated against on the grounds of sex in relation to her performance rating.
Mrs Walker made a statement that the company had been found wanting and that she hoped it had changed as a result. She said:
“Going through this process has also revealed to me that the law is fundamentally flawed and must change.”
A partner at CMS – Anthony Fincham – said:
“The case serves as a reminder of the consequence of any study which amounts to a job evaluation, and the difficulty of resisting its conclusions by relying on the material factor defence. Equal pay law accords a proper job evaluation study, an almost infallible status and employers commissioning one should be fully alert to the fact that they are likely to be bound to implement the results. The case also serves as a reminder that certain claims run not only against the employer but also against the individual employee who may have been responsible for the matters in question. I do not imagine that the CEO had any inkling he was exposing himself to possible legal liability as he handled what must have been a challenging situation”.
