Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 589/03

CLAIMANT: Audrey Pauline Lindsay

RESPONDENT: Ulster Unionist Assembly Group

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant was not employed in the same employment as her nominated comparators for the purposes of Section 1 of the Equal Pay Act (Northern Ireland) 1970 and therefore the nominated comparators are not appropriate comparators for the purposes of an equal pay claim. The claim is dismissed.

Constitution of Tribunal:

Chairman: Mr N Kelly (Chairman sitting alone)

Appearances:

The claimant was represented by Ms M Lewis, Barrister-at-Law, instructed by Savage & Co., Solicitors.

The respondent was represented by Mr Grainger, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

1. This is a decision of a Chairman sitting alone in a Pre-Hearing Review under Rule 18 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 to determine the following preliminary issue:-

"Whether the claimant was employed in the same employment as her comparators for the purposes of Section 1 of the Equal Pay Act (Northern Ireland) 1970 as amended (i.e., whether the nominated comparators are appropriate comparators for the purposes of an equal pay claim)".

FINDINGS OF FACT RELEVANT TO THE PRELIMINARY ISSUE

2. (i) The relevant period for the purposes of this claim is from 1 April 1998 when

the claimant commenced working for the respondent to 19 February 2003 when the claimant lodged her claim with the tribunal.

(ii) Throughout that period the claimant was employed by the Ulster Unionist Assembly Group ("the Group"). The claimant in replies to cross-examination stated that she was in fact employed by either the Ulster Unionist Party or the Ulster Unionist Council both of which she asserted were in reality the same body. I do not accept that she was employed by either the Party or the Council for the following reasons:-

(a) The proceedings were lodged and maintained by the claimant against the Group. I do not understand why the claimant would have done this if she were not employed throughout the relevant period by the Group. No application has been made to amend the claim.

(b) The claimant's Counsel stated in her opening argument that the claimant was employed by the Group. That was not contradicted by the claimant in her evidence in chief.

(c) The document, which contained the terms and conditions of employment for the claimant, specified the Group as the employer. This document was not signed by the claimant but she did accept that it was an accurate document except for provisions related to pay and pension.

(d) On 2 November 2000 Mr McAdam of MSF, acting on behalf of the claimant, agreed the terms of a job description, and put forward points for consideration by the Group.

(iii) The claimant performed secretarial and administrative duties for the Group i.e., the Chief Whip and all the UUP MLAs. There were originally 27 UUP MLAs but that number fell to 24 with defections to another Party. Mr James Wilson, MLA, was the Chief Whip from 1998 until approximately February 2002.

The job description referred to in paragraph (ii)(d) above described the post

as " Secretary to the Ulster Unionist Party Assembly Group and the Party

Leader". However the claimant had to be prompted during her evidence in

chief to recall the part of the post relating to the Party leader and her

evidence relating to her job content referred almost exclusively to her

duties in relation to the Group. I therefore conclude that any duties in

respect of the Party leader were de minimis.

(iv) The claimant was based in Parliament Buildings. The nominated comparators were based in Parliament Buildings for "sitting days" usually the Monday and Tuesday of each week and in constituency offices or elsewhere during the rest of the week.

(v) The claimant nominated four comparators; Paul Carson, Ivor Whitten, David Taylor and Stephen Reid. Their duties were similar to those undertaken by the claimant but they were not employed by the Group. They were each employed by individual MLAs; respectively, by James Wilson MLA, Joan Carson MLA, Danny Kennedy MLA and Alan McFarland MLA.

Paul Carson who was employed by James Wilson MLA, the Chief Whip, undertook some Party political duties which were distinct from his Assembly related duties. The other three comparators performed only duties relating to the Assembly. A contribution of perhaps 40% of Mr Carson's salary was made out of the Party Office Costs Allowance(see below). However, Mr Wilson stated that he was Mr Carson's sole employer in that he had sole control over his appointment, his terms and conditions, his pay and the day-to-day direction of his activities.

The Northern Ireland Court of Appeal in McDonnell v Henry [2005] NICA 17

said at paragraph 30 " No single universally applicable test has been devised to resolve the often vexed question of whether a worker is to be deemed an employee—The decision can only be taken on the basis of the particular facts of each specific case taking into account the nature of the relationship between the parties, the type of work to be carried on, the level of control exercised by the party engaging the worker and all other relevant factors, of which there may be many." Given the uncontradicted evidence of Mr Wilson, I accept that he was Mr Carson's only employer.

(vi) If the claimant had a grievance she would have taken that grievance to Jack Allen the UUP Treasurer. The four comparators would have taken any grievance which they might have had to their individual employer.

(vii) There were three separate strands of funding operated by the Assembly Secretariat relevant to MLAs or their political Parties;

(a) The Assembly decided annually, on the basis of the Senior Salaries Review Body report, what to pay MLAs in respect of their own salaries. These salaries were then processed through the Finance Department of the Secretariat to the Assembly ("the Finance Department").

(b) An amount of money, known as the Party Office Costs Allowance, was allocated annually to each political Party comprising a fixed lump sum and a further sum in respect of each MLA who was a member of that Party. This was provided to allow Parties to cover their own operating expenses. This money was also held and processed by the Finance Department and was drawn down by each Party as required. In the case of the UUP it was drawn down by the Group and inter alia used to pay the claimant and other staff. Within the constraints of that budget, the Group determined how many staff it would employ and what it would pay those staff.

(c) The third strand was called an "office cost allowance" which was made available to each MLA in respect of their office and staff costs. Again the Finance Department held this money and processed payments on behalf of the MLAs. The four comparators were each paid out of this allowance by their four individual employers.

(viii) The Finance Department operated a PAYE and payroll system on behalf of the Group and on behalf of the individual MLAs. The P60s issued in respect of all staff, including the claimant and the nominated comparators, would have shown the NI Assembly as the employer. However I attach no significance to this for the following reasons;

(a) The documentary evidence relating to the comparator's contracts is clear and the claimant accepted that the four comparators were separately employed by the four individual MLAs.

(b) I have concluded on the grounds set out in paragraph 2(ii) above that the claimant was employed by the Group.

(c) The Finance Department acted in the operation of the payroll and PAYE systems on the instructions of the Group or on the instructions of individual MLAs. It did not in any sense adopt the role of an employer.

(ix) The four individual MLAs separately fixed the salaries and terms and conditions of service of their respective employees. The pay and terms and conditions of service of Group employees were fixed by the Group i.e., by all the MLAs acting jointly in the form of the Group.

(x) The claimant entered into a series of meetings in 2000 with a Staffing Committee which was set up by Mr Wilson MLA, the Chief Whip, to deal with her complaints about pay. No other member of Group staff used this Committee and I accept the evidence of Mr McFarland MLA that an employee of an MLA (such as any of the four comparators) would not have had recourse to the Staffing Committee to resolve complaints or grievances.

(xi) The office costs allowance used to employ the four comparators was personal to the individual MLAs. If an MLA left a political Party, the office cost allowance went with him and was in no way intermingled with the Party Office Costs Allowance or other Party funds.

RELEVANT LAW

3. Section 1 of the Equal Pay Act (Northern Ireland) 1970 provides as follows:-

Requirement of equal treatment for men and women in same employment.

1. —

[ ^F001(1) ^F002   If the terms of a contract under which a woman is employed at an establishment in Northern Ireland do not include (directly or by reference to a

collective agreement or otherwise) an equality clause they shall be deemed to include one.

(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the "woman's contract "), and has the effect that—

(a) where the woman is employed on like work with a man in the same

employment—

(i) if (apart from the equality clause) any term of the woman's

contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and

(ii) if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term;

(b)   where the woman is employed on work rated as equivalent with that of a man in the same employment—

(i)   if (apart from the equality clause) any term of the woman's contract determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and

(ii)   if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed and determined by the rating of the work, the woman's contract shall be treated as including such a term.

[^F008(c) where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment—

(i) if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and

(ii)  if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term.]

[^F008(3)  An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor—

(a) in the case of an equality clause falling within subsection (2)(a) or, (b) must be a material difference between the woman's case and the man's; and

(b)  in the case of an equality clause falling within subsection (2)(c), may be such a material difference.]

(4)   …

(5)   A woman is to be regarded as employed on like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences.

(6)   A woman is to be regarded as employed on work rated as equivalent with that of any men if, but only if, her job and their job have been given an equal value, in terms of the demand made on a worker under various headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value but for the evaluation being made on a system setting different values for men and women on the same demand under any heading.

(7)   Subject to [ ^F003the following subsections], for the purposes of this section—

(a)   "employed " means employed under a contract of service or of

apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly;

Para.(b) rep. by 1976 NI 15

(c)   two employers are to be treated as associated if one is a company of

which the other (directly or indirectly) has control or if both are companies of which a third person (directly or indirectly) has control;

[^F004 and men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Northern Ireland which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes.]

Article 1 of the Treaty of Rome provides as follows:

"Each member state shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

For the purposes of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.

Equal pay without discrimination based on sex means:

(a) That pay for the same work at piece rate shall be calculated on the basis of the same unit of measurement;

(b) That pay for work at time rates shall be the same for the same job".

4. DECISION

This Pre-Hearing Review was solely concerned with whether or not the claimant was, during the relevant period, in the same employment as the four named comparators (or any of them). Section 1(7) sets out the circumstances in which the claimant could be regarded as being in the same employment as those four named comparators. The claimant, to succeed at this stage, would have to prove that she and her comparators were either employed by the same employer, or by an associated employer, at the same establishment in Northern Ireland or at different establishments in Northern Ireland with common terms and conditions of employment.

At the start of the hearing, the claimant narrowed the issue by accepting that the comparators were each employed by an individual MLA and therefore she was not arguing that she, and each of the comparators, were employed by one employer. The claimant argued that she and the four comparators were employed by "associated employers" as defined in Section 1(7)(c). The claimant argued that they were "all under the same umbrella" - "the MLAs wouldn't have been elected if they had not stood for election as UUP MLAs" - "she was employed by the Party ". The respondent contended that the claimant was employed by the Group and the four comparators were employed by individual MLAs and that each were entirely separate employers.

As set out above, I have found that each of the four comparators were separately employed by an individual MLA. I have also found the claimant was employed by the Group, the respondent. The Group comprised of all the Ulster Unionist MLAs at any one time and they acted as an unincorporated association.

5. The concept of an "associated employer" for the purposes of Section 1(7) was considered by the Northern Ireland Court of Appeal in Hasley –v- F E A [1989] IRLR 106. Ms Hasley was employed by the Fair Employment Agency and named a comparator employed by the Equal Opportunities Commission. Each employer was a statutory corporation. The Court of Appeal concluded that they were not

associated employers for the purposes of the legislation because statutory corporations were not to be regarded as "companies". The Court also held the first

limb of Section 1(7)(c) applied only where one employer is a company of which the other employer (not necessarily a company) has control. Turning to the facts of the present case, the second limb of Section 1(7)(c) can have no application; the four comparators were employed by four separate individuals who were Ulster Unionist Party MLAs. The claimant was employed by the Group which in my view acted as an unincorporated association (see paragraphs 11 and 12 of Hasley) but the second limb can only operate if both employers are companies whether incorporated or unincorporated.

For the purposes of the first limb of Section 1(7)(c) the claimant can in my view establish that one employer is a company i.e., the Group as an unincorporated association. However, in my view, she has failed to establish that the other employers i.e., the four individual MLAs had control over the Group. Each of those employers has to be considered individually. I have heard no evidence that any of the four individual MLAs as a single member out of 24 (or 27) had control in the sense envisaged by Section 1(7)(c). The Chief Whip, Mr Wilson, arguably would have had more control than each individual MLA but again I have heard no evidence that he controlled the activities of each individual MLA in their role as employers. Indeed the uncontradicted evidence of Mr Robert McFarland MLA was that they each set the terms and conditions for their own staff and that they jealously guarded that independence.

I therefore conclude that the four individual MLAs, who separately employed the nominated comparators, and the Group, who employed the claimant, were not associated employers within the meaning of Section 1(7)(c).

6. ARTICLE 141

There remains the issue of Article 141 (formerly 119 of the Treaty of Rome). Lowry LCJ in Hasley stated at paragraph 28 "but I am of the opinion that if Article 119 is to be called in aid, there must be some evidence of discrimination against the applicant on grounds of sex. I cannot see such evidence or even infer its existence".

In the present case I have heard no evidence which could ground an allegation of sex discrimination.

In any event, in the case of Scullard -v- Knowles and Southern Regional Council for Education and Training [1996] IRLR 344, the Employment Appeal Tribunal concluded that the wider class of comparators as permitted under Article 119 should prevail and that Section 1(6) (in the GB Act) was displaced. It "yielded to the paramount force of Article 119, which has direct effect as between individuals". The EAT held that the crucial question for the purposes of Article 119 was whether the claimant and the comparators were employed "in the same establishment or service". I do not believe that this decision assists the claimant for the reasons set out below.

7. In Lawrence and Others -v- Regent Office Care Limited [2002] IRLR 822, the European Court of Justice considered again the circumstances in which a comparison would be permitted between persons working for different employers. The claimants were originally employed by the local Council but were transferred to private companies as a result of compulsory competitive tendering. The question was whether a valid comparison could be made with comparators who were still employed by the local Council. The Court confirmed that the scope of comparison under Article 141 is not limited to situations where the claimant and comparator work for the same employer. It introduced a "single source" principle stating, "a situation - in which the differences in pay and conditions of workers of different sex, performing equal work or work of equal value, cannot be attributed to a single source does not come within Article 141".
8. In Allonby -v- Accrington and Rossendale College [2004] IRLR 224, the European Court of Justice held that " Although Article 141 is not limited to situations in which men and women work for the same employer and may be invoked in cases of discrimination arising directly from legislative provisions or collective agreements, as well as in cases in which work is carried out in the same establishment or service, where the differences identified in the pay conditions of workers performing equal work or work of equal value cannot be attributed to a single source, there is no body which is responsible for the equality and which could restore equal treatment. Such a situation does not come within the scope of Article 141."
9. In Robertson -v- Defra [2005] IRLR 363, the Court of Appeal followed this principle in rejecting comparisons between civil servants employed in two different departments each of which fixed the pay rates for their own staff. That principle was further applied by the Court of Appeal in the case of Armstrong -v- Newcastle-upon-Tyne NHS Trust [2005] EWCA [civ] 1608 where female ancillary staff sought to compare their conditions with those of porters who worked for different health trusts following the break-up of a district health authority. The Court concluded that there was no "single source" responsible for equalising terms and conditions and Article 141 did not apply.
10. Turning to the facts of the present case, there is no single source which settled the terms and conditions of service and pay for the individual employees named as comparators and those like the claimant who were employed by the Group. The Group settled its own terms and conditions of service and pay and each individual MLA separately settled the terms and conditions of service and pay for their own employees.
11. I therefore conclude that (1) the claimant was not employed in the same employment as her nominated comparators for the purposes of Section 1 of the Equal Pay Act ( Northern Ireland) 1970 and (2) Article 141 of the Treaty does not enable the claimant to compare her pay with that of her nominated comparators. The claim is therefore dismissed pursuant to Rule 18 (5) of Schedule 1 to the Industrial Tribunals ( Constitution and Rules of Procedure ) Regulations ( NI) 2005.

Chairman:

Date and place of hearing: 18 May 2006, Belfast.

Date decision recorded in register and issued to parties: