FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   309/04 FET
2007/04

CLAIMANT:	Brian Joseph Grant			

RESPONDENT:	1.	Department of Finance and Personnel
	2.  Northern Ireland Office
	3.	Department of Public Prosecutions for NI			

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that the claimant cannot properly compare himself with female Senior Legal Assistants in the Department of Finance and Personnel, and therefore his claim for Equal Pay is dismissed.

Constitution of Tribunal:

Chairman (sitting alone):		S A Crothers

Appearances:

The claimant was represented by Mr Grainger, Barrister-at-Law, instructed by Gerald P Henvey, Solicitors.

The respondent were represented by Mr A Devlin, Barrister-at-Law, instructed by The Crown Solicitors Office and the Departmental Solicitors Office.

1.	The claimant, a solicitor based at the Northern Ireland Office (‘NIO’) was seeking to compare himself with female Senior Legal Assistants in the Department of Finance and Personnel (‘DFP’) under the provisions of the Equal Pay Act (Northern Ireland) 1970.

2.	The issues as agreed between the parties at a Case Management Discussion on the 21 June 2006 were as follows:-

1.	Is there a single source responsible for the pay and conditions of the claimant and his comparators?

2.	Are the claimant and his comparators employed at the same establishment?

3.	Are the claimant and his comparators employed at establishments in Northern Ireland at which common terms and conditions of employment are observed generally or for employees of the relevant classes?

4.	Can the claimant properly seek to compare himself with senior legal assistants in the Department of Finance and Personnel?

At the hearing the claimant did not pursue the issue identified at 2 above.  The Tribunal also took into account that the first issue before it raised a question relevant to European law.

3.	The Tribunal was presented with a statement of agreed facts (save for the sentence identified in paragraph 40 thereof).  The statement of agreed facts is appended to this decision along with lists of factual contentions submitted by both parties.  The Tribunal will only refer to or rehearse any of the agreed facts in its decision in so far as same are relevant to any additional findings of fact or reasons leading to its conclusions.  The Tribunal heard evidence from the claimant and from the Head of Pay and Policy at the NIO, Mrs Carol Graham. The Tribunal was also assisted by skeleton arguments incorporating submissions furnished by both parties which set out the relevant legislation and case law in relation to the issues before the Tribunal.  The skeleton arguments are also appended to this decision.

4.	Having carefully analysed the evidence before it in relation to the issues set out above, the Tribunal makes the following findings of fact:-

(i)	The claimant was appointed as a legal assistant by correspondence from the Northern Ireland Civil Service dated 9 August 1985.  That correspondence makes clear that he would be attached to the NIO and goes on the state that “in order therefore to establish and preserve your status as a Northern Ireland civil servant you will be appointed initially to the Department of Finance and Personnel and seconded from that Department to the Northern Ireland Office.  This is a technical arrangement to safeguard your position and your connection with the Department of Finance and Personnel will be purely a nominal one”. The claimant was therefore an employee of the DFP, albeit on a nominal basis when the Tribunal Application was presented to the Tribunal on 30 June 2004. The Tribunal also finds that ultimately the DFP disciplinary policy was applicable to the claimant in the event of any disciplinary action arising.

(ii)	The Tribunal carefully examined the sequence of correspondence between the NIO and the DFP spanning the periods covered by the two delegations by the DFP to the NIO in 1996 and 1997. The first delegation is described in correspondence from Mr John Semple of the DFP to Sir John Chilcot of the NIO dated 30 November 1995 in the following terms; “I am writing to provide to you the delegation with effect from 1 April 1996, of the responsibility previously exercised by DFP for pay bargaining and for grading arrangements for all non industrial Northern Ireland Civil Service in the Northern Ireland Office.  This will cover all NICS staff employed in NIO…the formal instrument of delegation is attached”. Paragraph 4 (i) of the instrument states that “No changes to the pay and grading of the Northern Ireland civil servants to whom this delegation applies shall be made without the consent in writing of the Department”. There then follows an exchange of correspondence between the DFP and NIO which the Tribunal has carefully considered. Correspondence from Mr John Semple to Sir John Chilcot in the NIO dated 31 January 1996 states, inter alia, that “Prior DFP approval of the negotiating remit therefore currently remains a condition of all delegations....What we expect from NIO is that your officials submit a detailed negotiating remit to DFP for consideration in advance of negotiations with TUS.  We will, subject to any required clarification and amendment, formally agree the remit and advise you in writing to that effect. The negotiations will then be undertaken on a settlement within the agreed remit without prior reference to or approval by DFP’. The memorandum circulated to all staff within the NIO dated 4 September 1996 by Sir John Chilcot refers to the delegation and states that “Our proposals will need DFP approval under the terms of the delegation for NICS staff, …The Board concluded that the present grading system is not meeting the needs of staff or management in the office, and we are convinced that a new grading structure is needed”. 

(iii)	A further delegation extending beyond pay and grading matters took place in July 1997.  The delegation framework is attached to the correspondence from the Central Personnel Group of DFP to Sir John Chilcot of the NIO dated 24 July 1997. Paragraph 6 of Annex A thereof points out that “Proposed changes by Departments or Agencies to pay related conditions of service, including the number of hours staff are required to work in order to receive the salary attached to their post, payment for public and privilege holidays and overall amounts or limits of annual leave, sick leave, maternity leave and special leave must be included in the Department’s or Agency’s annual pay negotiating remit which is subject to the approval of the DFP”.  The Tribunal also considered subsequent correspondence between the DFP and NIO in relation to pay remit requirements for the years up to 2004-2005 which includes substantial reference to percentage increases in pay settlements and in the overall earnings growth figures. Mrs Graham, in her evidence, which the Tribunal accepts, pointed out that after the second delegation in 1997 the responsibility for negotiations had moved from the Central Personnel Group within the DFP to the Personnel Services Division of the NIO. However, the NIO still had to write to the DFP setting out its proposed remit regarding pay increases before submitting same to HM Treasury for formal approval. The Tribunal finds that the correspondence placed before it and the oral evidence strongly indicates that, in practice, it was extremely unlikely for the DFP to interfere with the proposed remit, or to revoke its delegation. The NIO effectively conducted its own negotiations and entered into settlements within the delegated areas without the approval or consent of DFP being sought or required. As was pointed out as early as 31 January 1996 in correspondence under the first delegation from Mr Semple of DFP to Sir John Chilcot of the NIO, the DFP was concerned not only about the need to ensure compliance with public pay policy and affordability at Departmental/Agency level but also had to consider any implications for the Northern Ireland Civil Service and the Northern Ireland Block. The same correspondence envisaged a review of the DFP’s approach to remits after the 1996 negotiations had been completed, which in fact took place. The Tribunal further accepts the respondent’s evidence that the Northern Ireland Civil Service Terms and Conditions Handbook (‘The Handbook’) does not apply to areas covered by the delegation instruments and that in these circumstances any changes within the parameters of delegation are covered by NIO notices issued to staff.

(iv)	The claimant in his evidence stated that it was his “impression” that the terms and conditions of the female comparators within DFP were identical to his own except for pay grading and subsistence allowances.  However it was the respondent’s evidence, which the Tribunal accepts, that there were some 10 differences between the claimants conditions and the conditions of DFP staff introduced after the further delegation in 1997, although it was accepted by Mrs Graham that the amount of matters delegated represented a quite small amount in terms of the areas covered by the Handbook. These 
differences related to the areas of deputising and acting up allowances, environmental allowances, special duty payments, provisions regarding career breaks, availability and payment of paternity leave, performance management, promotion board’s terms, special bonus schemes, the level of starting pay regarding temporary workers on promotion and the provision of child care vouchers.  The Tribunal also accepts that after delegation occurred, a grading review had been carried out by the Northern Ireland Office and a new pay system introduced in 1997.  Part of this new system had been the introduction of equity shares based on performance.  Different pay bands were also introduced.  The Tribunal also accepts that the DFP had no involvement in the evolution of the pay and grading structure within the NIO.

(v)	The Tribunal was also referred to a review of the pay and grading of legal staff in the NIO entitled “Review of the Pay and Grading of Legal Staff in the Northern Ireland Office - A joint report by the Northern Ireland Office and the Department of Finance and Personnel March 2006”.   This was known as the “Small Report.” The first page of the report under the heading of “Background” traces the new grading structure introduced by the NIO. The Tribunal accepts the respondents evidence that although the NIO withdrew from a joint review of legal services in 2003, it was involved in 2006 owing to the fact that one of the Small Reports recommendations was that the NIO should be part of the legal service envisaged in that report.

5.	The law in relation to the issues before the Tribunal is set out in some detail in the skeleton arguments appended to this decision.  The Tribunal took into account the legislative provisions outlined therein together with the case law and particularly the case of Department for Environment Food and Rural Affairs v Robertson and Others 2005 EWCA Civ 138. (‘Defra’).

6.	The Tribunal heard oral submissions from both parties’ Counsel and considered these together with the skeleton arguments, the agreed facts, and the disputed facts referred to above.

7.	The Tribunal having carefully analysed the evidence together with the submissions (both written and oral) and having applied the principles of law to the agreed facts and any additional findings of fact  concludes as follows:-

(i)	The claimant and his chosen comparators are in the common employment of the DFP.  The Defra decision which is very relevant to the facts in this case, including the first issue with reference to Article 141 of the E C Treaty, establishes that the bare fact that the claimant and his comparators are in common employment is neither a necessary nor a decisive basis for comparison. It is necessary to consider whether the terms and conditions of the claimant and his comparators are traceable to a single source which had responsibility for the claimed inequality and had the capacity to restore equal treatment. Mummery LJ, at para. 29 of his judgment states; ‘On my reading of Lawrence (2003) ICR 1092 the approach of EC law is to locate the single source with the body responsible for setting the relevant terms. This is not determined by only addressing the formal legal question of the identity of the employer’. In the Defra case the Crown as employer was via the contract of service, in control of terms and conditions, including pay, on which the relevant civil servants were employed. However the Crown was not involved in negotiating pay and its approval of settlements reached by the various departments was not required. These departments fixed the terms and conditions of civil servants in their departments and they were responsible for and could restore equal treatment. Furthermore, the retention by the Crown of a legal power, which had not in fact been exercised, over civil servants pay, or the possible revocation of the delegation to the departments, did not make the Crown responsible for the pay differences of which complaint was made. Accordingly, it was held in the Defra case that there was no single source responsible for the pay and conditions of the applicants and their comparators. Furthermore the Court of Appeal decision in Armstrong v Newcastle-upon-Tyne NHS Hospital Trust (2006 IRLR 124) reiterates the Defra decision in stating that it is not enough for the claimant to show that he has the same employer as the comparators.  The court further held that a claimant must show that the employer was also the body responsible for setting the terms of both groups of employees and whether this was the case depended on the evaluation of the evidence.  The Tribunal concludes, on the evidence, that there was no single source responsible for the pay and conditions of employment of the claimant and his comparators. The source of the claimants pay and conditions was the NIO whereas the source of the comparators pay and conditions was the DFP. In the delegated areas, the DFP was not involved in negotiating pay and its approval of settlements arrived at by the NIO was not subject to approval.  Instead, as the evidence from the respondents witness indicated, the only element which required the consent of the DFP related to the percentage uplift in the annual pay remit. The Tribunal further concludes that the question posed at issue 3 must be answered in the negative and that the sets of terms as between the claimant and the comparator are neither broadly similar nor substantially comparable, when considered in light of the House of Lords case of Leverton v Clydd County Council 1989 IRLR 28.

ii.	The Tribunal therefore further concludes that the claimant cannot properly seek to compare himself with Senior Legal Assistants in the DFP, and dismisses the claimant’s Equal Pay claim accordingly.

Chairman:

Date and place of hearing:	26 October 2006, Belfast

Date decision recorded in register and issued to parties: