FAIR EMPLOYMENT TRIBUNAL

CASE REFS:     74/15FET
                      2484/15IT

CLAIMANT:	Kristopher Banks

RESPONDENT:	Armagh City, Banbridge and Craigavon Borough Council

DECISION

The unanimous decision of the Tribunal is that:

1.	The claimant suffered an unlawful deduction of wages, contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.  The respondent is ordered to pay to the claimant the sum of £2,489.60;

2.	The claimant is not out of time in relation to his claim for unlawful deduction of wages as per Article 55(2) of the Employment Rights (Northern Ireland) Order 1996;

3.	The claimant did not suffer a detriment on the grounds of his religious belief contrary to Article 2 of the Fair Employment and Treatment (Northern Ireland) Order 1998;

4.	The claimant is not out of time in relation to his discrimination claim on the grounds of his religious belief as per Article 46 (a) of the Fair Employment and Treatment (Northern Ireland) Order 1998.

Constitution of Tribunal:

Employment Judge:	Employment Judge Browne

Panel members: 		Mr J McKeown 
                           		Mr H Stevenson

Appearances:

The claimant was represented by Ms Suzanne Bradley, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.

The respondent was represented by Mr Tim Warnock, Barrister-at-Law, instructed by Worthingtons Solicitors.

EVIDENCE AND FINDINGS OF FACT

1.	The claimant has been employed by the respondent since 2 December 2010 to date as an amenity site attendant. From the outset of his employment, he has worked at New Line amenity site in Craigavon.

2. 	The claimant received a written offer of appointment in a letter of 25 November 2010, and started work on 2 December 2010. The written Main Terms and Conditions of his employment were supplied to him and signed by him at an induction meeting on 19 January 2011. Neither of those documents included reference to a 10% shift allowance or to a six-day pattern of working Monday to Saturday each week, although both lasted uninterrupted from the very start of his employment until 5 March 2015. The sixth day (always a Saturday) was always paid at an overtime rate of time-and-a-half.

3.  	The claimant was informed by the respondent on 10th October 2013 that he in future would be working only five days per week, namely, Monday to Friday, which meant the loss of the additional day’s pay (at overtime rate), which he had been receiving since December 2010. 

4. 	The claimant was informed by the respondent that the sixth day on overtime would be removed from everyone, after negotiation with and agreement of the unions, in compliance with the national policy of single status working. He was further informed that any shift allowance paid to him would cease, because it had always been paid to him in error; and that the only persons entitled to receive that shift allowance from then on were those contractually entitled to do so, as evidenced by prior confirmation to them in writing to that effect. The claimant had never received such written confirmation, and, as such, the respondent excluded him from entitlement to receive that allowance.

5. 	The claimant from the outset challenged the validity of both proposals, initially only on the grounds of the financial loss. He soon, through his own enquiries, realised that Mr Brendan Smyth, a Roman Catholic, who worked on the same site as the claimant, doing exactly the same work, was one of those deemed by the respondent to be contractually entitled to continue to receive the shift allowance, although Mr Smyth also lost the sixth day overtime work, at the same time as the claimant.

6. 	Mr Smyth had started work at the same site as the claimant, around a year after the claimant, performing exactly the same duties and shifts. The claimant contended that he should also be entitled to continue to receive the shift allowance, as well as the sixth day, even though the latter had also been removed from Mr Smyth.

7. 	It came to the claimant’s attention that the only employees at amenity sites who were to retain the shift allowance were all from a Roman Catholic community background; those who lost it were all from a Protestant community background.

8. 	The respondent’s approach throughout was that only those who previously had received written confirmation of their entitlement to the shift allowance were entitled to receive it. Those who had received such confirmation, who still worked for the respondent in the same job at the time of the implementation of the changes, were all from a Roman Catholic community background; those still working for the respondent in the same capacity who had never received such written confirmation were all from a Protestant community background.

9. 	Of those who had had received such earlier written confirmation, two (Iain White and Gareth Rooney), both were from a Protestant community background, but both had individually and subsequently signed contracts with the respondent for other posts, which did not include such terms and conditions. Mr White and Mr Rooney had both been appointed at the same time as Mr Smyth.

10. 	The original Main Terms and Conditions signed by the claimant on 
19 January 2011 were identical to those signed by Mr White and Mr Rooney; and by Mr Smyth on 28 October 2011, upon his appointment as a permanent employee. Prior to this, Mr Smyth had worked since April 2011 as a casual employee in the same role as that to which he was appointed in October 2011.  The distinction, relied upon by the respondent, was that Mr Smyth received an additional letter dated 11 December 2011, which included specific reference to his entitlement to the shift allowance.  Mr White and Mr Rooney were sent identical letters at the same time as Mr Smyth.

11.	There was evidence from Mr John Farrell, NIPSA union representative, to the effect that he had made representations to the respondent on Mr Smyth’s behalf at the time of his appointment in October 2011, to the effect that Mr Smyth should be contractually entitled to a 10% shift allowance.

12. 	Mr Farrell explained that he negotiated only for Mr Smyth, as no other employees in that role were at that time members of NIPSA. There was no information as to who took the decision to offer this additional term to Mr Smyth, or on what basis, other than under the umbrella term in the letter of 11 December 2011 of “a review of casual employees”. It therefore remains unclear as to whether this was only because Mr Farrell asked for it, although the Tribunal considered that this seems unlikely. 

13.	The preferred view of the Tribunal is that it was more likely to be a confirmation by the respondent of entitlement to the 10% shift allowance, on the basis that it was at that time being paid to everyone else in that role, including the claimant. Two other employees, Mr Iain White and Mr Gareth Rooney, were also appointed in the same recruitment exercise to the same job as Mr Smyth; all three were appointed to the same job as the claimant had been doing since December 2010. Despite the fact that no representations had been made by Mr Farrell on behalf of Mr White or Mr Rooney, because they were not in NIPSA, and despite the fact that neither appears to have made representations to the respondent on their own behalf, they also received identical letters to that of Mr Smyth, also dated 11 December 2011. This action by the respondent tends in the view of the Tribunal to confirm that their position was reviewed and clarified to conform with the uniform payment of the shift allowance to existing amenity site employees.

14. 	The Tribunal is satisfied from the evidence that, at the outset of the review process conducted by the respondent, it was intended to remove the shift allowance from all employees, in pursuit of the potentially legitimate aims of reducing operational costs and in particular of reducing any margins of difference in pay rates between genders. Achievement of that intention was made more complex for the respondent by having to determine whether or not those with letters identical to that sent to Mr Smyth would have to continue to be paid the shift allowance after the implementation of the single status regime. 

15. 	In order to address this obstacle, the respondent sought professional legal advice on the specific point of the legal status of the additional letter sent to Mr Smyth, Mr White and Mr Rooney on 11 December 2011. The advice they received was that the letter constituted a written term of his contract of employment.  The respondent therefore had to decide whether or not to ignore that advice, by stopping payment of the 10% shift allowance to those with such written confirmation, or to distinguish those with such a written term from those without. The respondent chose the latter course. 

16. 	The claimant was emphatic that at the very outset of his employment he had been informed by his line manager, Mr Michael Campbell, that he was required to work every Saturday and that he was entitled to the 10% shift allowance. The claimant and Mr Martin Medlow gave evidence at the Tribunal hearing that the claimant had raised the issue of Saturday working at their induction meeting on 19 January 2011. It was the evidence of both of them that Ms Valerie Leatham had conducted the meeting in her capacity as a Human Resources Clerical Officer. 

17.	Implementation by the respondent of that approach forms the basis of the claimant’s case to the Tribunal regarding the removal from him of the shift allowance, due to a numerical contrast in the outcome between those from a Roman Catholic community background and those from a Protestant community background. 

18.	It was conceded in evidence by Mr Gareth Glynn, employed by the respondent as Operations Manager for Environmental Services since June 2012, that, in contrast to the removal of the sixth day on overtime and the issue regarding contractual entitlement, no equality impact study had been carried out before implementation of the shift allowance change; nor was the respondent’s equality officer consulted, even after the claimant raised the issue of an apparent disparity in outcome between the two community backgrounds.

19.	Mr Glynn also conceded that, in contrast to the action taken regarding the shift allowance, no professional legal advice was sought by the respondent when it became aware from the allegation by the claimant of a potentially discriminatory practice regarding its reliance upon the criterion of written confirmation of entitlement to the shift allowance.

20. 	The claimant was emphatic that he had been informed at the outset of his employment by his line manager, Mr Michael Campbell, that he would be required to work every Saturday, albeit at the overtime rate of time-and-a half; and that he was entitled to a 10% shift allowance. 

21. 	The claimant raised the disparity in pay on a number of occasions at meetings held to discuss the proposed changes. He was vociferously opposed to the proposals, initially because of the loss of income, but also raising the issue of potential discrimination. 

22. 	The claimant’s case to this Tribunal is that because of drawing a distinction between those employees with a written confirmation of entitlement to the shift allowance and those who did not have such written confirmation, the respondent thereby applied a criterion within the ambit of the Fair Employment and Treatment (Northern Ireland) Order 1998 which placed the claimant at a disadvantage on the grounds of his religion. His basis for that conclusion is that all of those who then were entitled to retain the shift allowance were all from a Roman Catholic community background; all of those who were not were from a Protestant community background.

(1)	The Claim of Religious Discrimination

(a)	THE RELEVANT LAW

23.		The relevant legislation in relation to the claimant’s claim of religious discrimination is to be found in Articles 3 and following of the Fair Employment and Treatment (Northern Ireland) Order 1998 and Article 46 of the same Order (“the 1998 Order”).  These provide as follows:-

		“3(1)	In this Order “discrimination” means  -

(a)	discrimination on the grounds of religious belief or political opinion; or

(b)	discrimination by the way of victimisation; and “discriminate” shall be construed accordingly.

 (2)	A person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of a provision of this order, other than a provision to which paragraph 2A applies, if  -

	(a)	on either of those grounds he treats that other less favourably than he treats or would treat other persons; or

(b)	he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but  -

(i)	which is such that the proportion of persons who are of the same religious belief or the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it; and

	(ii)	which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied; and

	(iii)	which is to the detriment of that other because he cannot comply with it…

(4)	A person (“A”) discriminates by way of victimisation against another person (“B”) in any circumstances relevant for the purposes of this Order if  -

(a)	he treats B less favourably than he treats or would treat other persons in those circumstances; and

	(b)	he does so for a reason mentioned in paragraph (5).

		(5)	The reasons are that  -

(a)	B has  -

	(i)	brought proceedings against A or any other person under this Order; or

(ii)	given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or

	(iii)	alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or

	(iv)	otherwise done anything under or by reference to this Order in relation to A or any other person; or

(b)	A knows that B intends to do any of those things or suspects that B has done, or intends to do any of those things.

(6)	paragraph (4) does not apply to treatment of a person by reason of any allegation made by him in the allegation was false and not made in good faith”.

“46(1)	Subject to paragraph (5) and to any regulations under Article 22 of the Employment (Northern Ireland) Order 2003, the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of  -

(a)	the end of the period of 3 months beginning with the day on which the claimant first had knowledge, or might reasonably be expected first to have knowledge of the act complained of; or

	(b)	the end of the period of 6 months beginning with the day on which the act was done…

(5)	A Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

		(6)	For the purposes of this Article  -

	(a)	when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act should be treated as extending throughout the duration of the contract; and

(b)	any act extending over a period shall be treated as done at the end of that period; and a deliberate omission shall be treated as done when the person in question does an act consistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done.”

(b)	BURDEN OF PROOF

	The burden of proof in Fair Employment cases is set out in Article 38A of the 1998 Order.  It is the claimant’s responsibility to prove facts from which the Tribunal could conclude, in the absence of an adequate alternative explanation, that the respondent’s treatment of the claimant was on grounds of religious belief.  Once facts have been established from which discrimination could be inferred, the burden shifts to the respondent to show that there is another explanation for the treatment.  It is clear that a difference in status is not enough to establish the inference of discrimination (Madarassy  v  Nomura International Plc [2007] IRLR 246).  Where the claimant relies on actual comparators to show less favourable treatment, it is necessary to compare like with like.  In addition, the claimant may rely on the evidential significance of non-exact comparators in support of an inference of direct discrimination.  Especially since the ruling of the House of Lords in Shamoon  v  Chief Constable of the RUC [2003] IRLR 285 HL, there has been a movement towards treating the question of whether less favourable treatment was on the proscribed ground  -  the “reason why” issue  -  as the crucial question for tribunals to address (Aylott  v  Stockton on Tees Borough Council [2010] IRWR 994 CA; JP Morgan Europe Ltd  v  Chweidan [2011] EWCA Civ 648) rather than focusing on the characteristics of actual or hypothetical comparators.  As put by Mummery LJ in Aylott, “Did the claimant, on the proscribed ground, receive less favourable treatment than others?”.

The Tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington  v  Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41.  These paragraphs are set out in full to give the full context of this part of his judgement.  

		“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist Tribunals in determining whether direct discrimination has occurred.  The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

	(1)	In every case the Tribunal has to determine the reason why the claimant was treated as he was.  As Lord Nicholls put it in Nagarajan  v  London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’.  He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

(2)	If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination.  It need not be the only or even the main reason.  It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen  v  Wong [2005] IRLR 258, paragraph 37.

	(3)	As the courts have regularly recognised, direct evidence of discrimination is rare and Tribunals frequently have to infer discrimination from all the material facts.  The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC).  These are set out in Igen  v  Wong.  That case sets out guidelines in considerable detail, touching on numerous peripheral issues.  Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is.  The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature.  The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

		‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

	If the claimant proves such facts then the second stage is engaged.  At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground.  If he fails to establish that, the Tribunal must find that there is discrimination.  The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a Tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King  v  The Great Britain-China Centre [1991] IRLR 513.

(4)	The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably.  That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.  So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one.  As Lord Browne-Wilkinson pointed out in Zafar  v  Glasgow City Council [1997] IRLR 229:-
	
		‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

		Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl  v  Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn.  As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it.  But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

(5)	It is not necessary in every case for a Tribunal to go through the two-stage procedure.  In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test:  see the decision of the Court of Appeal in Brown  v  Croydon LBC [2007] IRLR 259 paragraphs 28-39.  The employee is not prejudiced by that approach because in effect the Tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

(6)	It is incumbent on a Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya  v  University of Oxford [2001] IRLR 377 esp paragraph 10.”

	The Tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson  v  Newry and Mourne District Council [2009] NICA 24.  Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

	“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.

(c)	CONCLUSIONS

24.	The Tribunal, having carefully considered the evidence together with the submissions and having applied the principles of law to the findings of fact, concludes as follows:-

The Tribunal’s approach has to be informed by the need to stand back and focus on the issue of discrimination.  It is not necessary in every case for a tribunal to go through the two stage burden of proof procedure.  In some cases, such as this one, it may be appropriate for the Tribunal simply to focus on the reason given by the respondent, and, if satisfied that this discloses no discrimination, then the Tribunal need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under Stage 1 of the Igen test.  The claimant is not prejudiced by this approach because in effect the Tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment. 

25.	The Tribunal is unanimously of the view that the difference in outcome for the claimant of the removal of the shift allowance by the respondent as between him and Mr Smyth and as between the Protestant and the Roman Catholic amenity site employees cannot properly be viewed without having simultaneous regard to the explanations put forward by the respondent.  The Tribunal is of the clear view that the implementation of the removal of that allowance was to comply with a national Single Status Agreement, and had nothing to do with religion.  The initial intention of the respondent was to remove the shift allowance from all amenity site workers, which included all of those from a Roman Catholic community background.  It was prevented from doing so only by the legal advice it received, which advised that those who had the term included in writing were to be regarded as being entitled as a matter of law to continue to receive it. The respondent followed that advice, as it was entitled to do.

26.	The fact that it later was shown that all who remained in that group were from a Roman Catholic community background does not in the view of the Tribunal provide any support for a claim of discrimination. The application by the respondent of that distinction was in the view of the Tribunal lawfully and reasonably done as an effective and proportionate means of achieving lawful objectives.

27.	There is no evidence that there was any historical distinction made on the grounds of religion or political opinion between those who received written confirmation of entitlement and those who did not. In that context, it is worthy of note that, at the same time as confirming Mr Smyth’s contractual entitlement to the allowance, the respondent of its own accord extended inclusion in the written confirmation of entitlement to the allowance to Mr White and Mr Rooney. Both were from a Protestant community background, and neither of them had made representations to the respondent. Had they not of their own accord subsequently entered separate new contracts with the respondent which did not include working shift rotas, Mr White and Mr Rooney would have been treated by the respondent in the same way as Mr Smyth. Such action contradicts any assertion of discrimination. 

28.	The Tribunal was also mindful of the fact that the claimant was paid this allowance from the very first day of his employment, without ever having to ask for it. Again, this is viewed by the Tribunal as clearly indicative of an absence of any conduct on behalf of the respondent which supports a claim of less favourable treatment based upon religion. 

29.	Due to the absence of sufficient evidence from which the Tribunal properly could conclude that there had been discrimination, that aspect of the claimant's case must fail, and it is dismissed.

30.	The Tribunal is of the clear view that much ill-feeling and distress experienced by the claimant could easily have been avoided by the respondent if it had been less dismissive of his complaints. It is concerning to note that there clearly is a perception amongst the claimant’s colleagues that he has been discriminated against by the respondent on the ground of his religion; a number of them gave clear evidence of that situation to the Tribunal.  The Tribunal is of the view that such a position arose from the respondent not knowing how to address the claimant’s concerns without compromising its driving aim of avoiding equal pay claims.

(2)	The claim of unlawful deduction of wages

(a)		THE RELEVANT LAW

		The legislation governing this aspect of the claimant’s case is set out in Article 45 of the Employment Rights (Northern Ireland) Order 1996:

	“Right not to suffer unauthorised deductions

45.—(1)	An employer shall not make a deduction from wages of a worker employed by him unless—

(a)	the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b)	the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) 	In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised—

(a)	in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b)	in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) 	Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

(4) 	Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) 	For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) 	For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) 	This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer”.

31.	The claimant’s case in this regard is that the overtime and shift allowance payments to him over five years should be interpreted by the Tribunal as having the status of an implied term in his contract due to custom and practice. The respondent asserts that the shift allowance payments were made in error to the claimant, and that, because there is no written confirmation of any such entitlement, the Tribunal cannot properly view it as an implied term. The claimant further asserts that the overtime payments were negotiated away by the respondent, in consultation with the unions. 

32.	The Tribunal is unanimously of the view that, whilst the claimant was required to work every Saturday, the fact that it was always an extra day, and remuneration was always referred to as “overtime” undermine any assertion by the claimant that it was understood by either party to be a contractual entitlement. It also is of note that all amenity site workers lost the Saturday at overtime rate, including his comparators for the purpose of his discrimination claim. 

33.	The Tribunal is unanimously of the view that any overtime arrangements were just that, and did not form any part of his or anyone else’s contract. The overtime  arrangement was legitimately negotiated away. That element of his claim is therefore dismissed.

34.	The Tribunal is unanimously satisfied from the evidence that the wages payable to the claimant should include the 10% shift allowance as a term of his contract. 

35.	It was plainly stated to the claimant by Mr Michael Campbell at the outset of his employment with the respondent that he was entitled to such payment. Mr Campbell confirmed this in his witness statement, and Mr Martin Medlow also confirmed that it had been said to him and to the claimant.

36.	Whilst an entitlement to the shift allowance was not Mr Campbell’s to give, the Tribunal is satisfied that the available evidence leads to a compelling inference that it constitutes a term of the claimant’s contract. Mr Campbell was, in the view of the Tribunal, stating the truth of the situation, in that everyone else working at the amenity site received it, in return for working a shift rota. Without a shift rota, the respondent’s business need to provide a daily service would not have been able to function properly. That rota system required the participation of all its amenity site employees. The Tribunal was not directed to any evidence, and could not find any, to contradict that the payment was made to all such employees, before and after the claimant started work, reasonably viewed as a trade-off for working shifts. Such an arrangement would in the view of the Tribunal be substantially consistent with that type of working requirement, as confirmed by its inclusion in a number of amenity site employees’ contracts before and after the claimant was employed.

37.	The Tribunal is satisfied that Ms Leathem at the induction meeting on 
19 January 2011 probably did not inform the claimant in the terms he and Mr Medlow recall, namely, that he was expected to work every Saturday and that he was entitled to the shift allowance. Ms Leathem was consistent and credible in stating that, in the event of being asked any such question, her practice was to refer the person asking to their line manager.

38.	The claimant and Mr Medlow were equally consistent and credible in their evidence that such a conversation had in fact taken place, and that Ms Leathem had made those assertions.

39.	It should be borne in mind that, by the time of the induction meeting in January, the claimant and Mr Medlow were already working this pattern of overtime and shift allowance, having been told in good faith by Mr Campbell that they had to work on Saturdays and that they were entitled to shift allowance.  The Tribunal considers that the most likely scenario is that the claimant raised the issues with Ms Leathem, quoting his line manager. In line with her usual practice of deferral and referral to the line manager’s knowledge, it therefore seems likely that Ms Leathem would have responded by saying that, if that was what Mr Campbell had said, then that was how things were.

40.	In any event, in common with Mr Campbell, it was not within Ms Leathem’s gift to set the terms of the claimant’s employment. It is however supportive of entitlement of the claimant to rely on and to act upon the information received from his line manager, since it was the respondent’s HR representative’s invariable practice to redirect to that source all employees raising such queries. It is worthy of note that Ms Leathem, in this instance, and in all others where such questions were raised, made no offer or effort to go to her own superiors in HR and find out from them, in order to give the claimant a definitive answer. That is not a criticism of Ms Leathem; rather, it is viewed by the Tribunal as being strongly indicative of the labyrinthine separate arrangements within the respondent’s organisational structure. 

41.	It appears from the evidence that,  in an attempt to make sense of and to streamline the structure of payments, a full review had to be undertaken by the respondent. This was prompted by the need to ensure compliance with the single status agreement and to avoid equal pay claims. It appears to the Tribunal that payment of the shift allowance to exclusively male amenity site workers was then identified by the respondent as potentially actionable under equal pay legislation, because no female employees at the same grade were in posts which attracted such extra payment. 

42.	Historically, there was no evidence that payment of the shift allowance had ever been scrutinised. Mr Glynn’s evidence gave a strong impression that the shift allowance situation had only really come to be viewed as undesirable by the respondent as a result of the review by HR. That is not the same thing as being unknown to the respondent.

43.	There was no material brought to the attention of the Tribunal as to how such a system of shift allowance payments had evolved. The Tribunal is satisfied however as a matter of common sense that it could not have occurred in a vacuum; the only possible source is that it emanated at the instigation of the respondent. Someone, at some time, must have devised and authorised its inception and authorised its inclusion on the payroll. There was no evidence that any audit of payments to the amenity site workers had ever queried why they were being paid more than their counterparts in other posts on the same grade. 

44.	The respondent removed the shift allowance from the claimant, citing the ground that it had been paid to him “in error” because he did not have written confirmation of entitlement. In common with the inception of the shift allowance, there is no evidence of anyone taking a decision or revising eligibility criteria at or before the time the claimant was first employed such as to exclude him from its payment.  The Tribunal has concluded that such an omission from the claimant's written main terms and conditions cannot properly be relied upon in itself as being persuasive evidence that he was deliberately excluded from entitlement to such an allowance. It should be borne in mind that Mr Smyth, Mr Rooney and Mr White were excluded from eligibility until they received the additional letter of 11 December 2011. Whilst different reasons were given for such a letter, the Tribunal notes Ms Michelle Boyd’s evidence that “the shift allowance was honoured…..because the single status agreement had not been communicated and other employees in the same job and location were being paid this allowance.” Ms Boyd does not suggest, and there is no evidence, that those other employees did not include the claimant. This begs the question as to how the respondent could credibly argue that such  “honouring” could be  given the status of a contractual term for the three new recruits, to ensure parity with the other employees, including the claimant, but later assert that it ought not also extend to the claimant, whether in writing or not. 

45.	The question of entitlement to rely upon what Mr Campbell told the claimant would not give rise to an enforceable contractual right if such information had simply been wrong. It also is not the case that the respondent could be deemed contractually bound by a practice which was being operated without its knowledge or consent. The Tribunal therefore had to determine the level of knowledge and consent of the respondent, if any.

46.	The Tribunal has had regard to the guidance in Harvey, section A11D and to the relevant case law, including  Albion Automotive Ltd v Walker [2002] EWCA Civ 946, [2002] All ER (D) 170 (Jun). The Court of Appeal usefully listed relevant factors as follows:
		 
(a)     whether the policy was drawn to the attention of the employees;
		 
(b)     whether it was followed without exception for a substantial period;
		 
(c)     the number of occasions on which it was followed;
		 
(d)     whether payments were made automatically;
		 
(e)    whether the nature of communication of the policy supported the inference that the employers intended to be contractually bound;
		 
(f)     whether the policy was adopted by agreement;
		 
(g)    whether employees had a reasonable expectation that the enhanced payment would be made;
		 
(h)     whether terms were incorporated in a written agreement;
		 
(i)     whether the terms were consistently applied.

47.	Whilst there are factual differences between the Albion case and this, the guidance contained in Albion provides a sound basis for reaching a decision in this case. For example, without interruption, the claimant was paid the allowance for a period of five years;  the payments were automatically paid to him and to all of the other amenity site workers, both before and after the claimant started work. In the cases of Mr Smyth, Mr White and Mr Rooney, those payments were backdated to the start of their permanent contracts after NIPSA made representations on Mr Smyth’s behalf, to bring him in to line with those employed before him. 

48.	There is nothing to indicate that that group was at that time viewed by the respondent as not including the claimant. If otherwise, the respondent might readily be expected to (i) have a record of at least consideration of raising with NIPSA the claimant’s ineligibility to the allowance, in order to refuse it to those three; or (ii) immediately to have stopped payments to the claimant because, during its consideration of Mr Smyth’s representations, discovering that the claimant was being paid “in error”.

49.	It is also worthy of note that the payment was known as a “shift allowance”, and not paid as, for example, a bonus or ex gratia payment. The implication from its title, whilst not conclusive, gives the clear impression of a payment comfortably and capable of reasonably being viewed as integral to the terms and conditions of those employees who worked a shift rota as part of the day-to-day business needs of the respondent. It again is worthy of note that such a flexible system might reasonably be regarded as a distinct advantage to the respondent, making it possible to provide an evening service to the public.

50.	Mr Glynn conceded that no one had been taken to task over making or authorising such “erroneous” payments, which presumably amounted to many thousands of pounds over a long period of time. Indeed, there was no evidence of any attempt by the respondent to identify how such a situation had ever come about. The Tribunal is of the view that the respondent probably viewed such an enquiry to be unnecessary, since it beggars belief that the respondent did not know that this shift allowance was paid to amenity site workers as an integral part of their working pattern, written or not. Whilst the claimant did not receive confirmation in writing to that effect, it appears to the Tribunal that that in itself might properly be viewed as something of an anomaly when viewed alongside the other amenity site workers. The claimant was however told by Mr Campbell of such entitlement, and the Tribunal is satisfied from the surrounding evidence that Mr Campbell’s assertion in that regard was true and accurate.

51.	The Tribunal is also mindful of the clear impression that, but for the legal advice provided to the respondent, the respondent’s intention was to remove the shift allowance from all amenity site workers, to avoid any equal pay claims. Such intention was prevented only by the legal advice. It is not for the Tribunal to query the respondent’s right to rely upon that advice.  It is however the Tribunal’s view that the legal advice was incorrect if it precluded the claimant’s contract of employment as capable of being regarded as including the shift allowance as an implied term.

52.	The Tribunal therefore concludes that the long-term existence of such a shift allowance for all amenity site workers, including the claimant, was well known to the respondent and to its employees.

53.	The tribunal therefore also concludes that the payment of a shift allowance to the claimant can properly be regarded as an implied term of the claimant’s contract. To view it otherwise would in the view of the Tribunal be contrary to its findings on the evidence, and to ignore its comfortable fit with the type of scenario first set out by the Court of Appeal in the Albion case.

54.	The Tribunal therefore finds that the shift allowance is an implied term of the claimant’s contract, and, as such, payment of it properly should be regarded as wages for the purposes of Article 45 of the Employment Rights (Northern Ireland) Order 1996. Any deduction falling within the scope of Article 45 is therefore unauthorised.

(b)	TIME LIMITS ISSUE

55.	The respondent from the outset of these proceedings has made the case that the Tribunal does not have jurisdiction to deal with them because the claimant did not lodge them in time.

56.	As regards the unlawful deduction of wages claim, the relevant provisions are contained in Article 55 (3) and (4) of the Employment Rights (Northern Ireland) Order 1996:

“Complaints to industrial tribunals

55.—(1)	A worker may present a complaint to an industrial tribunal—

	(a)	that his employer has made a deduction from his wages in contravention of Article 45 (including a deduction made in contravention of that Article as it applies by virtue of Article 50(2)),

	(b)	that his employer has received from him a payment in contravention of Article 47 (including a payment received in contravention of that Article as it applies by virtue of Article 52(1)),

	(c)	that his employer has recovered from his wages by means of one or more deductions falling within Article 50(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or

	(d)	that his employer has received from him in pursuance of one or more demands for payment made (in accordance with Article 52) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under Article 53(1).

(2) 	Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with—

(a)	in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b)	in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

(3)	Where a complaint is brought under this Article in respect of — 

	(a)	a series of deductions or payments, or

(b)	a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53(1) but received by the employer on different dates, the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

(4)	Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.  [F1(5) No complaint shall be presented under this Article in respect of any deduction made in contravention of Article 60 of the Trade Union and Labour Relations Order (wrongful deduction of political fund contribution).]”
		
	As regards the religious discrimination claim, the relevant provisions are contained in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998:

	 “Period within which proceedings must be brought

46.—(1) Subject to paragraph (5) [F1 to Article 46A,][F2 and to any regulations under Article 22 of the Employment (Northern Ireland) Order 2003], the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of—

(a)	the end of the period of 3 months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or

(b)	the end of the period of 6 months beginning with the day on which the act was done.

(2) 	Subject to paragraph (5) [F3 and to Article 46A], a county court shall not consider a claim under Article 40 unless proceedings in respect of the claim are instituted before the end of the period of 6 months beginning with the day on which the act complained of was done.

(3) 	Subject to paragraph (5) [F3 and to Article 46A], the Tribunal or county court shall not consider an application under Article 42(2)(a) unless it is made before the end of the period of 6 months beginning with the day on which the act to which it relates was done; and a county court shall not consider an application under Article 42(4) unless it is made before the end of the period of 5 years so beginning.

(4) 	Subject to paragraph (5) [F3 and to Article 46A], a county court shall not consider an application under Article 43(4) in relation to an undertaking under that Article unless it is made before the end of the period specified in the undertaking by virtue of paragraph (3)(d) of that Article.

(5) 	A court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(6) 	For the purposes of this Article—

(a)	when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and

(b)	any act extending over a period shall be treated as done at the end of that period; and

(c)	a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done”.

(c)	CONCLUSIONS

57.	The Tribunal has considered the written materials, including the written submissions provided by the parties at the end of the case.

58.	The Tribunal has concluded that the claimant is within time regarding his claim for unlawful deduction of wages, based upon the wording of Article 55 (3), namely “…the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received”.  Since the claimant still works for the respondent, and the shift allowance continues to be withheld from him, the Tribunal considers that his claim was brought within time. 

59.	As regards the discrimination claim, the Tribunal has concluded that the discrimination  claim was lodged out of time, but by virtue of its powers under Article 46 (5) of the 1998 Order, the Tribunal considers that it can properly exercise that power in the claimant’s favour on the ground that it is just and equitable to do so. The evidence shows that, whilst the claimant was alive to potential discrimination well in advance of 5 March 2015,  he tried to have the issue resolved in his favour by availing of the internal grievance and appeal procedure. That process did not conclude until August 2015, which in itself was dealt with by the respondent well outside its own guidelines. That this allegation was a recent live issue, and therefore well known to the respondent, significantly erodes any potential surprise claim long after the event, which could compromise its ability to defend itself. The lack of prejudice to the respondent therefore is an additional factor weighing in the claimant’s favour as regards consideration of the propriety of extending the time limit to the date of the lodgment of the claim form.

(d)	REMEDY

60.	The respondent is ordered to pay to the claimant £2,489.60, being £31.12 x 80 weeks from the first deduction of shift allowance to the date of hearing.  The Tribunal has not included any sum for future loss, because the claimant is still working for the respondent, and his shift allowance is to be restored as a result of the Tribunal decision in this case.

61.	This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992 and the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.  

Employment Judge:       

Date and place of hearing: 13-16 September 2016, Belfast.	

Date decision recorded in register and issued to parties: