Industrial Tribunals Northern Ireland Decisions

 


Collins v Department of Education & Anor (Jurisdiction ) [2002] NIIT 00775_99 (26 February 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 00775/99SD

APPLICANT: Kathy Collins

RESPONDENTS: 1. Department of Education

2. Belfast Education & Library Board

DECISION

The unanimous decision of the Tribunal is that it does not have jurisdiction to hear the applicant's claim and the claim is therefore dismissed.

Appearances:

The applicant was represented by Mr McKee of the NASUWT.

The first respondent was represented by Miss Haskin, Barrister-at-Law, instructed by Mr J Sullivan of the Departmental Solicitor's Office.

The second respondent was represented by Mr Comer, Barrister-at-Law, instructed by Miss N Agnew of the Education & Library Boards Legal Service.

FACTS

The facts in this case are not disputed. The applicant qualified as a teacher in 1988 and had 9 years continuous employment with the Belfast Education and Library Board ("BELB") until she applied to take a career break in the 1997-1998 school year and subsequently applied to have this break extended for the 1998-1999 school year. Her school agreed to this request. Mrs Collins was aware of the conditions attaching to the career break, in particular, that she would not be paid and her career break would not count for superannuation purposes. During the second year of the career break, Mrs Collins applied for Occupational maternity pay and was turned down by the Department of Education on the basis that she was on a career break and was not eligible for occupational maternity pay. She was also refused Statutory Maternity Pay on the grounds that she failed to meet the lower earnings requirement for SMP.

REASONS

1. Mr McKee for the applicant contended that although she had been employed for 9 years and her contract of employment was still in existence, the applicant had been refused a gender–specific benefit, namely occupational maternity pay. He argued that because the Departmental Circular relating to career breaks (Circular No 1993/11) was silent as to payment of maternity pay during career breaks, this meant the maternity pay should be paid rather than disallowed. He did not allege she had been treated in this way due to her pregnancy, nor did he indicate how she had been discriminated against on grounds of her sex, contrary to the Sex Discrimination (NI) Order 1976.
2. The tribunal heard detailed submissions from the representative for the first named respondent and then from the representative for the second named respondent, who contended (1) that the applicant had not actually raised any allegations of discrimination on grounds of sex, so as to bring her claim within the tribunal's jurisdiction under the Sex Discrimination (NI) Order 1976 or European Law and (2) that the applicant's complaint was in effect a challenge against regulations imposed by the Department of Education and as such, should be challenged not in an Industrial Tribunal, but by way of proceeding for judicial review in the High Court. The tribunal, with the agreement of the parties, decided to deal with the issue of jurisdiction at the outset.
3. On the first point, the Tribunal pressed Mr McKee as to why he believed the applicant had been discriminated against on grounds of her sex. His response was that she had been refused a gender-specific benefit, but he did not specifically make the case that the applicant had been treated less favourably than a man would have been treated in similar circumstances, contrary to the Sex Discrimination (NI) Order 1976. He did not, either, argue that she had been discriminated against on grounds of her pregnancy nor did he suggest there had been indirect discrimination on grounds of sex. The tribunal therefore believes that, there being no claim of sex discrimination before it, it has no jurisdiction to hear the applicant's claim.
4. On the second point, the Tribunal notes that it was the Department of Education, not BELB the applicant's employer, which refused payment of the occupational maternity pay. As the essence of the dispute appears to be the application of rules imposed by the Department, the Tribunal believes that the correct forum for resolution of this dispute would be by way of application for judicial review in the High Court. The tribunal can only deal with disputes between employer and employee as prescribed by legislation and this matter is outwith its jurisdiction. The case is therefore dismissed.

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Date and place of hearing: 15 January 2002, Belfast

Date decision recorded in register and issued to parties: 26 February 2002