Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 542/05

CLAIMANT: Tracie Marie McCrory

RESPONDENT: Northern Ireland Prison Service

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal on a pre-hearing review is that the difference in pay between the claimant and her named comparator was genuinely due to a material factor which was not the difference in sex.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr Kinnear

Mrs Kelly

Appearances:

The claimant was represented by Mr T Warnock, Barrister-at-Law, instructed by D R Brewster, Solicitors.

The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by The Crown Solicitor's Office.

1. The claimant, a serving prison officer in the Northern Ireland Prison Service, has brought claims in respect of indirect sex discrimination and equal pay against her employer. In respect of the latter, it is agreed that it is a 'like work' claim, and it was listed for a pre-hearing review on the following issue:-

"Whether the difference in pay between the claimant and her named comparator was genuinely due to a material factor which was not the difference in sex?

Her named comparator is Mr James Young, a fellow prison officer. She has been paid, and continues to be paid, less than him. At the time of the hearing it was indicated that whereas Mr Young was paid £32,820 pa, the claimant's pay was £24,454 pa.

2. In order to determine the above issue, the tribunal heard evidence from the claimant, and on the respondent's behalf from Mr Mark McGuckin, Deputy Director, Finance and Personnel, in the Northern Ireland Prison Service, Mr James Murphy (at the relevant time a Principal Officer with direct supervisory responsibility for the claimant in the Visits Group at HMP Maze, to which she had been assigned), and Mr Terence Hunter, a Principal Officer at HMP Magilligan.

The tribunal also had regard to extensive documentary evidence to which it was referred by the parties in the course of the hearing. We now proceed to set out something of the background to this claim, and the facts as found by the tribunal.

3. The claimant was employed as an auxiliary prison officer from March 1997 to December 2002.
4. During the time the claimant worked as an Auxiliary Prison Officer other employees of the respondent worked as, and were graded as, prison officers (from 1995 onwards there had been no recruitment of prison officers, except in limited circumstances, eg transfers from other jurisdictions and for specialist posts). The claimant contends that since the last prison officers were recruited in 1995, thereafter she and other auxiliaries (in her case from her recruitment in 1997) performed substantially the same duties and had the same responsibility as prison officers, and that there is no material factor that justifies her disparity in pay with Mr Young.

The respondent advances length of service at prison officer grade as the reason she is paid less than Mr Young and other prison officers who were not auxiliaries prior to re-grading.

5.	(i)	The claimant was re-graded as a prison officer in 2002, along with all former auxiliaries bar one, who did not choose to be re-graded.
	(ii)	Those employees of the respondent, who before 2002 were graded as prison officers, have continued to be known as prison officers after 2002. The claimant's comparator, Mr Young, falls into this category of the respondent's employees. He joined the Prison Service in 1995. During his time in the Prison Service, Mr Young has always worked in 'residential' areas of prisons to which he was assigned.
6.	(i)	When the claimant was re-graded in 2002, she was placed at point 55 on the prison officer scale. The five years she spent as an auxiliary were equated to, and credited with, four years on the pay scale applicable in England and Wales to main grade prison officers.
	(ii)	The claimant accepts that there is nothing inherently discriminatory about the current pay scale which applies to her. New recruits, regardless of gender will be paid less than her, and there are female officers paid on the same basis as Mr Young.

5. It is accepted by the respondent that since the re-grading of auxiliaries in 2002 the claimant and Mr Young are doing like work. However, although the respondent accepts that the claimant and Mr Young currently perform like work as main grade officers, its contention is that there was a considerable material difference to their respective duties before Ms McCrory was re-graded as a prison officer in 2002.

The claimant's case is that, prior to 2002, although she had been recruited as an auxiliary prison officer, the role she performed had been expanded beyond that of an auxiliary, so that any distinction between her job and that of a main grade officer had become blurred through custom and practice.

8.	(i) (ii) (iii)	When the claimant started work with the respondent in or around March 1997, she was based at HMP Maze, and attached to the Visits Group in that prison. She remained in the Maze Prison until it was closed. She was subsequently transferred to HMP Magilligan on 31 July 2000. The claimant was one of seven auxiliaries out of 100 staff within the Visits Group in the Maze. She states that she performed exactly the same duties as her main grade officer colleagues and had the same responsibilities as them within visits group. However, we accept the evidence of Mr Murphy, the Principal Officer with direct supervisory responsibility for the claimant when she was assigned to visits group in the Maze, that the claimant's shift pattern was such that she worked for considerable periods of time when visits were not taking place. On such occasions Visits Group staff were cross-deployed. Main grade prison officers were deployed to duties which included residential duties, whereas auxiliary officers such as the claimant were deployed to such tasks as manning static posts eg observation towers. The auxiliary officers were the first choice for these latter tasks. Her Terms And Conditions Of Employment stated that the main purpose of the job was "[t]o provide effective support in the supervision and control of operations areas, maintaining security at all times, and providing a level of service which is of a high standard". Under the heading 'ORGANISATIONAL POSITION' it was stated "A prison auxiliary will support prison officers in performing their duties as part of a group of staff". Ten key areas of responsibility were listed as requirements of the job.
	(iv)	On 22 January 1998 the claimant received a letter from her employers entitled 'ENHANCED ROLE OF PRISON AUXILIARIES'. It stated that the main purpose of the job was "[t]o be responsible under appropriate directions and control for all aspects of inmate supervision, the day-to-day management of inmates and the maintenance of security within prison establishments". The role of a prison auxiliary was to "support prison officers in performing their duties". Prison auxiliaries could be deployed to carry out any of the duties of a prison officer except the following:-

"(a) they may not be in sole charge of prisoners outside an establishment, other than those who are on parole or temporary release licence;

(b) they may not be deployed as patrols in areas of residential accommodation during periods when prisoners are unlocked;

(c) they may not deal with prisoners' requests or complaints;

(d) they may not prepare reports on prisoners for applications for home leave or temporary release, for parole or for Life Sentence Review Board;

(e) they may not be involved in the preparation of sentence plans;

(f) they may not carry out reception or other interviews with prisoners; and

(g) they may not be involved in prison treatment programmes."

The claimant accepts that she did not carry out any of these duties. This was because most of these exceptions would not have applied to Visits Group, whether for prison officers or auxiliaries.

9.	(i)	By way of contrast, the job role for a main grade prison officer which applied in 1998 similarly stated that the main purpose of the job was "[to] be responsible, under appropriate direction and control, for all aspects of inmate supervision, the day-to-day management of inmates and the maintenance of security within prison establishments". An officer was to perform these duties "as part of a team of staff headed by a senior officer – these teams are structured in groups, case-managed by a Principal Officer …".
	(ii)	The job description also set out the following key areas of responsibility of a main grade officer. These included:-

"2. Supervision of prisoners in their living quarters, work and recreation, etc.

3. Receive new prisoners.

4. Escort prisoners outside the establishment.

5. Daily security and cell checks.

6. Prepare sentence planning, parole, enquiry, incident or other reports as required.

7. Maintain relevant records and checks within area of operation.

8. Identify prisoners showing signs of distress or under the influence of illicit substances and take appropriate action in the situation.

...

11. Advise and encourage auxiliary staff in their duties within … team or group.

… ."

10.	(i)	The evidence of Mr McGuckin, for the respondent, is that a difference in roles and responsibilities of auxiliaries and prison officers is apparent from the respective job descriptions set out above.
	(ii)	The exceptions to the duties of a prison officer which an auxiliary could not carry out demonstrate the reduced contact with prisoners on the part of the latter. Furthermore, an auxiliary would not have been asked to carry out any of the duties or tasks set out under the key responsibilities of prison officers at Paragraph 9(ii) above.
	(iii)	The claimant accepted that her comparator, Mr Young, performed residential work as a full-time prison officer. The claimant had no direct supervision of prisoners, whereas Mr Young would have done; she did not receive new prisoners; although she escorted prisoners on home leave, Mr Young would have been eligible to escort prisoners of any category outside the establishment. She did not perform daily security and cell checks, nor did she prepare the various sentence/parole, etc reports on prisoners. Whereas a main grade prison officer was in a hierarchical status, and had the role of encouraging and advising auxiliary staff within the group, the claimant held no rank above other auxiliary officers.
	(iv)	One of the key areas of an auxiliary officer was "to assist in the observation and supervision of inmate movements and activities (including monitoring activities on CCTV)". While the claimant did monitor prisoners and as such did have contact with them, there was no element of control or direction over them. She did not have any interaction with them that impacted upon their behaviour. Monitoring by the claimant would have led to the intervention by someone with supervisory responsibilities, had a difficulty or problem arisen.
	(v)	Generally, the list of exceptions to an auxiliary's work and the key responsibilities of a prison officer's work, constitute a range of duties that require a substantially higher level of responsibility. It also demonstrates a reduced level of contact with prisoners compared to a main grade prison officer.

6. In the succeeding paragraphs we deal with some of the specific duties performed by the claimant.

12.	(i)	The 'Front Office' at HMP Maze/'Pods' within visits/Visits Reception. The 'Front Office' at HMP Maze dealt with visitors. Staffing at any given time usually consisted of four officers – one auxiliary and three prison officers. Staff performed four main duties – visitors in; visitors out; recording names in the visits book; and responsibility for 'T' cards (ie identification cards for prisoners). The 'Pod' was the area where identification papers were checked to ensure that a prisoner did not leave the visits area using a visitor's papers. The usual staffing arrangements were two main grade officers and one auxiliary. The roles performed were that of a 'Bookman' who recorded visitors names, and two patrol officers with observation duties and the responsibility of handing out slips to visitors to inform them that the relevant visit had come to an end. Visits reception dealt with prisoners. This is to be contrasted with the Front Office which dealt with visitors. Staff in Visits Reception was usually made up of two auxiliary officers to four main grade officers. The main duties in Visits Reception included manning the telephone, and maintaining the visits book and 'T' cards (ie the prisoner identification cards). In relation to the tasks associated with these areas of work, it is the claimant's evidence that she performed these roles alongside her prison officer colleagues.
	(ii) (iii)	As far as the Front Office is concerned, the claimant accepts that she had no direct contact with, or supervision of prisoners, when working there, but she does not accept that her only role was to assist. According to her evidence, there was no difference in the duties of main grade officers and auxiliaries, except that auxiliary officers would not have gone to security to pick up the photographic ID of prisoners. According to her, she did, however, perform this role – which she characterised as a minor one – on occasions at the discretion of senior officers. In relation to 'Pods' within visits, and visits reception, it is her case that when performing these duties alongside her main grade prison officer colleagues, the work that she did was substantially the same as theirs. The claimant does not identify the occasions when she was sent to pick up the photographic ID of prisoners, or the officers who directed her to do so. It has to be said that generally, in her evidence to the tribunal, the claimant has never identified those senior or principal officers who let her, or asked her to, perform duties which were beyond the scope of her stated contractual duties. This is not to say the claimant never performed such duties. However, where she did so it seems to us likely that such occasions were isolated, and in circumstances where special circumstances or extraordinary operational demands were being put on management and staff. We are satisfied that the role of the claimant and other auxiliaries was to assist main grade prison officers. The latter had the supervisory responsibility, whereas auxiliaries had no responsibility for prisoners at any time or in any circumstances.

7. Staff searches

The claimant performed a staff search role alongside prison officers. However, this role was confined to searching civilian and prison grade staff and visitors. As HMP Maze was a male prison, one would not expect that she would have searched prisoners. However, male auxiliaries did not search prisoners.

8. Prison officers working within visits

(i) There were 60 – 100 main grade prison officers working in Visits Group in the Maze. This contrasted with a relatively low number of auxiliaries. It is not, therefore, disputed by the respondent that this meant there would be some similarity in the nature of duties carried out by auxiliaries and main grade officers.

(ii) There were additional duties carried out by main grade officers. This included residential work, the search box, and the standby team ('riot squad'). The latter duties related to security, and were thus of crucial importance in a prison context. The other significant aspects of these tasks were the elements of supervision, contact, and engagement with prisoners which an auxiliary did not have.

(iii) The claimant, in describing her work within visits, made reference to the visit circle and the visits tunnel pod. She described these as follows:-

"The visits circle was carried out by one officer who controlled the movement of visitors and staff across the circle area. There was a grille in every pod and at the bottom of stairs which he had to open and close. Visits tunnel pod was an observation post used to observe prisoners going to and coming from the main visits area back to visits reception. There were two hydraulic grilles and his job was to keep UDA/UVF [prisoners] separate from IRA/INLA prisoners."

This role was generally carried out by designated prison officers, and should not have been carried out by auxiliaries. However, the claimant's evidence is that on occasions, with the knowledge of her superiors, she covered these duties for a prison officer she names while he was on a break.

(iv) Mr Murphy's evidence was that, during the time he supervised the claimant, he went to great lengths to ensure that an experienced prison officer with the ability to identify prisoners was allocated this duty, for it was of the utmost importance to ensure that prisoners from one faction were clear of the area before prisoners from another faction were allowed to enter.

Mr Murphy was surprised to learn that this duty was carried out by the claimant. He had never allocated such a duty to her (or any other auxiliary) in his time as her supervisor.

Furthermore, he considered that it had been incorrect to allocate that duty to her.

He further indicated that had there been a security breach when the claimant was fulfilling this role then the senior main grade officer would have been disciplined, not just for the breach of security which had taken place, but also for permitting an auxiliary officer to carry out the role.

Again, in this instance the claimant has not identified the senior officer who permitted her to carry out this role. From her evidence it would appear she performed this duty only on a small number of instances, and from the evidence of Mr Murphy it is clear she should not have been doing so.

9. 'Running'

This duty related to accompanying prisoners from visits area back to the residential area. The claimant did not perform this duty, during which each 'runner' was allowed to take two prisoners back at any one time. Her evidence is that many main grade officers working within Visits did not perform this duty. However, be this as it may, main grade officers were at all times liable to be called upon to perform this duty.

16.	(i)	The claimant was transferred to HMP Magilligan, as an auxiliary officer, in July 2000. She continued to work there in that capacity until April 2002 when the re-grading exercise took place.
	(ii)	HMP Magilligan held a lower category of prisoners, and prisoners could move around unescorted. Nevertheless we are satisfied that in Magilligan, auxiliaries did not interact with prisoners in the same way as main grade officers. They did not do residential work – it was conceded by the claimant that they did not patrol the wings in residential areas – whereas main grade officers in non-residential work could be cross-deployed to residential areas, unlike auxiliaries.
	(iii)	The claimant, in respect of her time at HMP Magilligan, places reliance on her work in the Emergency Control Room. In October 2000, the then Governor decided that auxiliaries could work in the Emergency Control Room. The claimant received training in order to perform these duties. Again her evidence is that there was no distinction between the duties carried out by auxiliaries and those carried out by main grade officers. However, it is also important to have regard to the reason why it was decided to use auxiliaries in the control room, which was to free up main grade officers for other work. This policy was dictated by the fact that working in the Emergency Control Room required no contact with prisoners. In any event, two main grade officers remained as advisers, as the nature of events which might occur could not be completely anticipated. We do not therefore consider that we can attach weight to the time that the claimant spent in the Emergency Control Room, as it had effectively become a designated auxiliary post.
17.	(i)	In 2002, a major re-grading exercise took place which abolished the role of auxiliary officer and placed those former auxiliary officers on a new prison officer scale. The respondent accepts that, since re-grading, the claimant has carried out like work to those prison officers who were not auxiliaries prior to the re-grading exercise.
	(ii)	As a result of the re-grading exercise those who had formerly been auxiliaries were placed on salary points 44 and 55 of the new scale, whereas the majority of other prison officers were placed on salary points 101 and above. The claimant, who was on the top three points of her pay scale as an auxiliary, was re-graded at the higher point 55. Auxiliaries who re-graded as prison officers were offered points on the pay scale for prison officers in England and Wales which were above the minimum.
	(iii)	Mr McGuckin, on behalf of the respondent, accepted that so far as the work done by auxiliaries and main grade officers was concerned, there was blurring at the edges. However, we are satisfied from his evidence that the differences in work remained up to the point of amalgamation and re-grading.
	(iv)	It is also significant that in a letter from the Director of Finance and Personnel of the Prison Service to the Northern Ireland Chairman of the Prison Officers' Association of 21 March 2002 it was stated at paragraph 10:-

"Auxiliaries who choose not to re-grade will be employed on duties appropriate to those grades."

While all former auxiliaries, bar one, did choose to be re-graded, this paragraph is indicative of the distinct role of auxiliaries and the different nature of their work.

	(v)	Another paragraph of this letter which we regard as significant is paragraph 8, which provided that following amalgamation, appropriate training would be given to auxiliaries who re-graded to enable them to carry out the full range of officer duties. The claimant and other auxiliaries, on amalgamation, were required to undergo 'Auxiliary Upgrade Training', which lasted for a period of two week. Indeed, a significant part of the correspondence between the Prison Service and the POA related to the fact that the auxiliaries required training. The claimant characterised this training as 'refresher' training, stating that many of the subjects had already been covered in initial training. According to her evidence the only significant difference was in relation to Residential Duty Training, which amounted to one full day of the two weeks on the training course.
	(vi)	However, we accept the evidence of the respondent's witnesses that the upgrade training amounted to significantly more than refresher training. It was more detailed and in-depth than the original auxiliary training. In the 1980s and 1990s the initial training for prison officers was 11 weeks long, and for auxiliary officers it was three weeks long. We also accept that at that time prison officers' training would have included training for duties which by 2002 had become redundant because of the improved security situation. This would have led to a diminution in the training needs for auxiliaries who were to be upgraded. Also, it must be borne in mind that when the auxiliaries were being re-trained, they had their experience as auxiliaries behind them which they could draw on.
	(vii)	We are satisfied that the purpose underlying the auxiliary upgrade training was to raise the auxiliaries to the level required to take account of their engagement and interaction with prisoners.
18.	(i)	At the beginning of 2003, the claimant started to do residential work, which she has continued to carry out at Magilligan right up to the time of the hearing. She describes her current duties as follows:-

"My … responsibilities include wing work, circle work, control room, transport, fire officer, visits and gate work.

Wing work is residential work meaning personal officer reports on prisoners on a weekly basis depending on their regime, whether basic, standard or enhanced. These reports determine the status of prisoners. I also prepare home leave backing sheets, such as reviewing residential resettlement plans, making sure prisoners are complying with plans, and giving a general review of their behaviour on the wing. I also carry out general duties ie collecting meal sheets, phone credits and answering general requests.

Circle work is again controlled movement in the residential areas. Down each wing there is a grille, and as one enters the block there is a grille. I have to let prisoners, visitors and staff through grilles as requested.

Control room in the block is about observation and controlling movement and keeping a record of when prisoners leave and return."

(ii)

This description of the claimant's duties as a prisoner officer seems to us to demonstrate the difference between her former role as an auxiliary, and her work, following re-grading, in residential parts of the prison. The significant difference between the work is clearly the claimant's vastly increased contact with and interaction with, and responsibility for, prisoners. We do not accept that these were features of her former role as an auxiliary officer.

10. In 2004 a Pay Review was carried out in the Prison Service. It set out the background and history relating to prison officers' pay in the province. There had not been just a re-grading exercise, but also an attempt to settle and negotiate salaries for the future. The fact that the claimant, on re-grading, was given four years credit on the pay scale for officers in England and Wales has got to be seen in this overall context. We do not accept that it was, as she contends, giving her credit for doing work that main grade officers did.

20.	(i)	This is a 'like work' case. The claimant did not adduce evidence of indirect sex discrimination.
	(ii)	The relevant law is contained in the Equal Pay Act (Northern Ireland) 1970, as amended. The application of this legislation is subject to overriding interpretation by the European Court of Justice, applying Article 141 of the Treaty and the Equal Pay Directive.
	(iii)	The Equal Pay Act operates by way of an equality clause, which is deemed to be inserted in a woman's contract of employment, and which will operate when a woman is employed on like work (that is to say work which is the same or broadly similar) to that performed by a man in the same employment.
	(iv)	If this condition is met, then any term in the woman's contract which is less favourable than in a man's shall be modified so as to be not less favourable, and any benefit to the man's contract shall be included in the woman's contract. The decision in Capper Pass Ltd v Lawton [1977] ICR 83 makes it clear that in deciding whether a woman is employed on like work, the tribunal should bring a broad judgment to the solution of the question. The work does not have to be the same. It is sufficient if it is broadly similar, and the differences are not of practical importance. Insubstantial and trivial differences should be disregarded. The tribunal must also look at what happens in practice (see : Electrolux Ltd v Hutchinson [1977] ICR 252). As well as there being a contractual obligation to perform different duties, those duties must be actually performed to an extent which is sufficiently significant to justify the difference in pay.
	(v)	If a woman can show that (as is the applicable situation in this case) she was employed on like work, her employer may be able to defeat her claim if the variation in her pay "is genuinely due to a material factor which is not the difference in sex". In other words, a respondent bears the burden of proving that the difference in pay was due to a factor unrelated to sex. (See : National Vulcan Engineering Insurance Group Ltd v Wade [1978] ICR 800.) That case also makes it clear that it is not the job of the tribunal to examine the employer's pay system to see whether it is operating efficiently or fairly. The enquiry is to establish whether it is genuine, and designed to differentiate between employees on some basis other than the basis of sex, or was a sham, concealing a discriminatory pay policy being operated on the ground of sex.
21.	(i)	In this case, the claimant has named Mr Young as her chosen comparator. It is accepted by the respondent that since the 2002 re-grading exercise, she has done the same work as this comparator.
	(ii)	In the course of her evidence, in relation to the period prior to 2002, she has also made comparisons with a large number of other prison officers who, she has not identified. This is surprising, as it was in relation to the period from her appointment as an auxiliary in 1997 to her re-grading in 2002 where issues of contention arose and which, the respondent alleges, caused the subsequent disparity in pay.
	(iii)	Mr Young did residential work before 2002. The claimant did not, and could not, have done such work.
22.	(i)	It is clear that Mr Young did do different work. Other main grade officers were also doing tasks that the claimant did not, and could not, do. In particular, it is clear from the evidence that main grade officers had a degree of responsibility for prisoners, and contact and interaction with them in a supervisory role, which the claimant did not have. This contact with them extended to their living quarters, work, recreation, and movement about the gaol. The claimant did not have this degree of supervisory contact which we consider to be one of the basic functions of a prison officer operating and interacting with inmates within a penal regime. Her role of observing, and facilitating the movement and management of prisoners was clearly distinct from that of a main grade officer.
	(ii)	Overall we are satisfied that the current disparity between the claimant's pay and that of her comparator, Mr Young, is the result of historical factors, namely the different posts to which they were recruited, the nature of the duties which they carried out in their respective posts in the past, the length of time for which each performed their respective duties, and the circumstances in which those duties were performed. The claimant has, since re-grading in 2002, progressed from spine point 55 to spine point 91 on the pay scale, and it is open to her to progress along it in the same manner as her chosen comparator. The difference in pay is one which is due to factors unrelated to sex. The claim is dismissed.

Chairman:

Date and place of hearing: 29 – 30 May 2007; 1 `June 2007, Belfast

Date decision recorded in register and issued to parties: