Industrial Tribunals Northern Ireland Decisions

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Cite as: [2004] NIIT 2619_00, [2004] NIIT 2619_

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THE INDUSTRIAL TRIBUNALS

CASE REF: 02619/00

APPLICANT: Victor J A Quigley

RESPONDENTS: 1. Foyle Health & Social Services Trust

2. Western Health & Social Services Board

3. Department of Health & Social Service & Public Safety

DECISION

The unanimous decision of the tribunal is as follows:-

That the applicant's application was not presented within the specified time limit laid down by the Sex Discrimination (Northern Ireland) Order 1976 and that the tribunal is unanimously of the view that it is not just and equitable in all the circumstances of the case for the tribunal to consider this complaint despite the fact that it is out of time. Accordingly, the applicant's claims for equal pay and for sex discrimination set out in his application to the tribunal are dismissed.

Appearances:

The applicant was represented by Mr McAdam of the Trade Union Amacus MSF.

The respondents was represented by Mr Francis O'Reilly, Barrister at Law, instructed by The Central Services Agency.

The Facts

The applicant was employed from 22 September 1975 as a Speech Therapist with the predecessors of what is now Foyle Health & Social Services Trust ("the Trust"). The Trust was formed in 1990 and the applicant's contract of employment transferred to the Trust.

In 1987 when working for the predecessor of the Trust the applicant was graded Chief 3 which was the same grade as a Mrs Skeffington. At that time the applicant had responsibilities for the Derry area which meant that he was on that particular grade.

In 1991 after the formation of the Trust the applicant was awarded a C++ Grade because at that point although he no longer had the Group area to cover, he got a higher clinical value than other colleagues.

At that time Mrs Skeffington also had a C++ Grade. However, in 1992 the grades of these two employees changed. The applicant was graded 2 on the scale 32-34 with his salary point being 32. Mrs Skeffington was graded 3 on a scale of 34-36 and her particular salary point was 35. Mrs Skeffington became the applicant's Line Manager.

The applicant was aware of this grading because in April of 1996 he acted up for his Line Manager, Mrs Skeffington, when she was absent due to illness. During this acting up period he was upgraded from 2(34) to 3(36).

The applicant, who has as already been mentioned had been appointed to a Chief 3 post in 1987, enjoyed what was called protected pay for the period of 5 years from 1990 to 1995. This was because on the setting up of the Trust the applicant's post contained elements of specialist work with special needs. The respondent did not re-grade the applicant but paid him the protected pay to reflect his additional skills.

In 1986 a Doctor Pam Enderby lodged an equal pay claim as a woman Speech Therapist claiming equality of pay with male Pharmacists. This case Enderby v Frenchay Health Authority [1994] ICR 112 ultimately reached the European Court of Justice and the applicant, Mr Quigley, told the Tribunal that he had heard about the result of this case from a circular in the Health Service dated July 2000. It was when reading the circular that the applicant felt that his post should have been treated in the same way as Doctor Enderby's post and linked to a higher rate of pay equivalent to that enjoyed by male Pharmacists.

After the Enderby case was completed the unions reached agreement with the Health Service employers in connection with Speech Therapists of certain grades, namely 3, 4 and 5. These upper grades were considered to be doing work of equal value to Clinical Pharmacists and as such had obtained increased pay awards. However, as has been mentioned above, the applicant's grade was Grade 2 whilst Mrs Skeffington's was Grade 3. He was therefore not included in the union agreement.

The only period when it might be argued that the applicant was of the same grade as Mrs Skeffington was the period between 1987 and 1990 when the applicant commenced his protected pay.

The Decision

In deciding to dismiss the applications set out in the applicant's application to the tribunal, the tribunal took into account the following matters:-

10.1 That the applicant knew from the time he acted up for Mrs Skeffington in the Spring of 1996 that he was on a different pay level to her. He knew at that time that his grade was Grade 2 and her's was Grade 3.

10.2 That the trade union agreement with the Health Authority only covered Grades 3, 4 and 5 and the applicant could not therefore benefit from that agreement.

10.3 That the applicant was on protected pay between 1990 to 1995. The only period for which the applicant could arguably claim that he was on the same grade as Mrs Skeffington and therefore possibly entitled to benefit from the Enderby case and the union agreement was between January 1987 and January 1990. This latter date being the date on which the applicant's protected pay came into play.

10.4 The applicant's application to the tribunal was dated September 2000 and the tribunal, following the decision of the English Employment Appeals Tribunal in Leviz v T H Jennings Ltd [2000] ICR 58, are of the view that it would be unreasonable to retrospectively open the applicant's pay situation between January 1987 and January 1990, more than 10 years later.

10.5 For these reasons the applicant's applications to the tribunal are dismissed.

Chairman:

Date and place of hearing: 24 September 2004, Belfast

Date decision recorded in register and issued to parties: