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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Steele v Police Service of Northern Ireland [2007] NIIT 81_05 (1 May 2007)
URL: http://www.bailii.org/nie/cases/NIIT/2007/81_05.html
Cite as: [2007] NIIT 81_05, [2007] NIIT 81_5
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THE INDUSTRIAL TRIBUNALS
CASE REF: 81/05
CLAIMANT: Michael Terence Steele
RESPONDENT: Chief Constable of the Police Service of Northern Ireland
DECISION
The unanimous decision of the tribunal is that:-
The claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 was presented out of time. The tribunal finds that it is just and equitable to extend the time for presentation of the claim, accordingly the tribunal has considered the claim on its merits.
The claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 is dismissed.
The claim for unauthorised deduction of wages is dismissed.
Constitution of Tribunal:
Chairman: Mr Travers
Panel Members: Mr MacLaughlin
Mr Hanna
Appearances:
The claimant was represented by Jonathan L Dunlop, Barrister-at-Law, instructed by Edwards & Co, Solicitors.
The respondent was represented by Peter Coll, Barrister-at-Law, instructed by the Crown Solicitor’s Office.
REASONS
ISSUES
The case was listed for final hearing to deal with two claims:
Whether or not the claimant, as a part-time worker, has suffered less favourable treatment by the respondent than a comparable full-time worker.
Whether or not, on the same facts, the claimant has been subjected to unauthorised deductions of wages by the respondent.
In the event that either claim is successful, the tribunal must determine the claimant’s remedy.
The parties jointly invited the tribunal to consider the following factual issues when determining the claims which were set out in a document prepared by the claimant’s representatives:
Was the claimant required/detailed to work hours in excess of 32 hours per week between 1st December 2000 and 30th September 2004?
Did the claimant receive pension contributions in respect of hours worked between 32 and 40 hours per week during the period 1st December 2000 and 30th September 2004?
Did the claimant receive annual leave, housing allowance and/or Northern Ireland allowance in respect of hours worked between 32 and 40 hours per week during the period 1st December 2000 to 30th September 2004?
Did comparable full-time officers receive pension contributions, annual leave, housing allowance, Northern Ireland allowance for hours worked between 32 and 40 per week?
Is the claimant entitled to pension contributions, annual leave, housing allowance and/or Northern Ireland allowance based upon hours worked between 32-40 hours per week during that period.
The references to pension contributions, are intended to refer to a credit in respect of the claimant’s entitlement under the Police Service’s final salary pension scheme.
On the first morning of the hearing, the respondent, through his counsel, indicated that he wished to argue that the substantive merits of the claim should not be considered because the claim form had been received by the tribunal outside the statutory time limits for submission of the claim. Accordingly, the tribunal has considered whether or not the claim was made in time and, if it was not, whether the tribunal should exercise it’s discretion to extend time on the grounds that in all the circumstances of the case it is just and equitable to do so.
FACTS
At the outset of the hearing both parties invited the tribunal to determine the case on the basis of an agreed statement of facts. These are set out at paragraphs 5 to 12 below.
Statement of agreed facts
The claimant was a full time constable in the PSNI since 1982.
On 28th March 2000 the claimant’s wife died suddenly.
On or about 28th September 2000 the claimant applied to go part time.
The claimant went onto part time duties on 1st December 2000 pursuant to a “Service Level Agreement” dated 6th November 2000.
As from 1st December 2000, the claimant is contracted to work 32 hours per week on a 4 day pattern, but is regularly required to work additional hours, on many occasions of 8 hours per week or more.
Regular full time officers are contracted to work 40 hours per week.
Regular officers receive flat rate pay and pension contributions and allowances for those 40 hours per week. Over 40 hours per week they are paid overtime at 1/3 flat rate.
The claimant only receives pension contributions and allowances based on 32 hours per week even when he works similar or equivalent hours to that of a full time officer by way of additional hours.
Additional Facts
Upon his wife’s unexpected death, the claimant became the primary carer for his children, who at that time were aged 7 and 12 years old. The claimant’s priorities were then focussed on dealing with the emotional and day to day practical issues arising for his children and himself as a result of the bereavement.
The nature of the particular post held by the claimant within the police service meant that the length of his working day was unpredictable and depended on the requirements of third parties which could change at short notice.
On his application form for part-time working the claimant acknowledged this. In response to the question, “What work pattern do you wish to work?”, the claimant wrote, “Monday – Thursday inclusive, 8 hours per day. However, I am prepared to work on as required these days”. He also pointed out, however, that in view of his family commitments “Late evening or regular overtime on rest days/days off would cause difficulty”.
A police officer’s entitlement to housing allowance, Northern Ireland allowance, annual leave, and the rate of accrual of the officer’s pension entitlement, are all calculated on the basis of his basic contractual hours of employment. Over-time is irrelevant to the calculation of these benefits, regardless of how much is worked.
Throughout the period the claimant was working part-time, his entitlement to a pension was accruing on the basis of a basic 32 hour week, rather than the basic 40 hour week he had formerly worked.
The police pension scheme is a contributory final salary scheme. In early 2002 the claimant contacted pensions branch and asked whether or not he could make an additional payment to the police pension fund in order to make up the shortfall between accrual of pension entitlement on the basis of a 32 hour week and accrual on the basis of a 40 hour week. Pensions branch told the claimant that this was not possible under the rules of the scheme.
In February 2002 the claimant raised the matter with the police federation. He was told that the federation would raise the matter at the next meeting of what was described in evidence as an umbrella body for police federations.
Having raised the matter with the police federation, the claimant left it with them and did not take any further significant step until 2004 when he contacted a solicitor.
The claimant returned to full-time working in October 2004.
The claim was initially presented to the tribunal in December 2004.
LAW
Time limit for presentation of a claim
Article 55 of the Employment Rights Order 1996 provides that a claim in respect of a series of alleged unauthorised deductions from wages must be brought within 3 months of the last in the series of deductions.
Regulations 8(2) and 8(4)(b) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 [“PTWR”], are to the effect that, where a worker’s contract is varied to require him to work for a number of weekly hours that is lower than the number he was required to work immediately before the variation, the 3 month period for making a claim under the PTWR shall run from the first day on which the claimant worked under the newly varied contract.
Under Article 8(3) of the PTWR, a tribunal may consider a claim which is presented out of time, “if, in all the circumstances of the case, it considers that it is just and equitable to do so”.
Just and equitable extension of time
In the case of British Coal Corporation v Keeble [1997] IRLR 336, the Employment Appeal Tribunal considered the circumstances in which a tribunal might extend the time for presentation of the claim on the just and equitable ground. At paragraph 8, Smith J. referred with approval to the criteria applied by the courts when making decisions under the Limitation Act 1980:
“It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to –
(a) the length of and reasons for the delay;
(b) the extent to which the cogency of the evidence is likely to be affected by the delay;
(c) the extent to which the party sued had cooperated with any requests for information;
(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;
(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”
The Limitation Act criteria set out above are a useful reminder of potentially relevant matters which a tribunal might consider, but they do not represent an exhaustive check-list of all the factors which a tribunal must consider in determining an application to extend time on the just and equitable ground. On such an application, the tribunal has a wide discretion.
Less favourable treatment of part-time workers
Regulation 5 of the PTWR provides as follows:
“(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker –
as regards the terms of his contract; or
by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2) The right conferred by paragraph (1) applies only if –
the treatment is on the ground that the worker is a part-time worker, and
the treatment is not justified on objective grounds.
(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.
(4) A part-time worker paid at a lower rate for overtime worked by him in a period than a comparable full-time worker is or would be paid for overtime worked by him in the same period shall not, for that reason, be regarded as treated less favourably than the comparable full-time worker where, or to the extent that, the total number of hours worked by the part-time worker in the period, including overtime, does not exceed the number of hours the comparable full-time worker is required to work in the period, disregarding absences from work and overtime.”
Regulation 1(2) of the PTWR states that the “pro rata principle” which is referred to in regulation 5(3) above means:
“that where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is to receive or be entitled to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time worker.”
Importantly, in the context of this case, regulation 1(3) amplifies the definition of the pro rata principle:
“In the definition of the pro rata principle and in regulations 3 and 4 “weekly hours” means the number of hours a worker is required to work under his contract of employment in a week in which he has no absences from work and does not work any overtime or, where the number of such hours varies according to a cycle, the average number of such hours.”
CONCLUSION
Extension of time
On the claimant’s case, there was a series of unauthorised deductions from his wages. The series of deductions ceased when he returned to full-time work. The claim was presented to the tribunal within 3 months of that date, therefore the claim for unauthorised deduction of wages is in time and must be determined on its merits by the tribunal.
At the date that the claimant requested part-time working, he was employed by the respondent under a full-time contract which required him to work a basic 40 hour week. The reduction of his basic working hours to 32 hours per week represented a variation of the terms of his contract. Under regulation 8, the time limit in respect of presentation of the claim under the PTWR expired 3 months from the date when the claimant first worked under the newly varied contract. He commenced part-time working on 1st December 2000 but his claim was not presented until December 2004. It is substantially out of time.
Under regulation 8(3), time for presentation of the PTWR claim may be extended if, in all the circumstances of the case, it is just and equitable to do so.
The tribunal is satisfied that, for a considerable time following the loss of his wife, the claimant was completely focused on how best to provide for the physical care and emotional nurturing of his young children. The tribunal has this in mind in considering the claimant’s failure to contact the police federation about the matter until February 2002.
In considering the reasons for the delay in presenting the claim, the tribunal has been troubled by the apparent lack of progress in pushing matters forward after February 2002. It seems that the claimant passed the matter on to the federation and left the matter there. On what the tribunal has been told by the claimant, the tribunal was surprised to learn that, other than suggesting that the issue be raised at a national level, the federation did nothing to assist the claimant in progressing the matter in a timely fashion.
It was perfectly proper for the claimant to ask the federation to deal with the matter and to rely on their advice and experience. Passing the matter to the federation did not absolve him of ongoing responsibility for pressing the federation for advice and action. It is unfortunate, however, that when the claimant initially contacted the federation he was apparently neither advised to present a claim immediately, nor referred to a suitably qualified and experienced person who could give him that advice.
It is conceded by the respondent’s counsel that the delay in presentation of the claim has not prejudiced the respondent in any aspect of preparation or evidence gathering for the case.
The decision as to whether or not to extend time is not made on factor alone. In all the circumstances of the case, the tribunal has narrowly concluded that it would be just and equitable to extend time for presentation of the PTWR claim.
The fact that the time issue was taken by the respondent on the morning of the hearing has not been taken into account by the tribunal in reaching the conclusion that time should be extended. As a matter going to the tribunal’s jurisdiction, the issue is properly raised. It is unfortunate however, that it was not highlighted as an issue in proceedings at the case management discussion [“CMD”] in this case. If CMDs are to be effective in promoting the efficient management of proceedings, it is vital that parties assist the chairman by working out in advance of the CMD what they believe the issues in the case to be. In this case, it is agreed that the chairman conducting the CMD specifically asked whether or not there would be an argument about time. She was told that it was not an issue.
Unauthorised deduction of wages
Counsel for the claimant states that the claim for unauthorised deduction of wages does not cover any sums in addition to those which might be recovered if the claimant is successful on his PTWR claim. It is said that the unauthorised deduction of wages claim stands or falls with the PTWR claim.
The tribunal does not understand how a claim for unauthorised deductions of wages arises on the facts as presented in this case. A claim for unauthorised deduction of wages is founded on a failure to pay the contractually determined level of wages. In this case, it is not said that the respondent has failed to pay the contractual level of wages. On the contrary, the respondent has paid the claimant the level of wages provided by the contract after variation of its terms to permit part-time working.
What is said, is that the level of wages paid to the claimant as a part-time worker represented less favourable treatment when set against the level of wages paid to a comparable full-time worker. Potentially, that attracts a remedy under the PTWR. It does not however alter the fact that for the duration of his part-time working the claimant did receive his then existing contractual entitlement to wages.
In the circumstances, the claim for unauthorised deduction of wages fails and is dismissed.
Claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000
The claim under the PTWR fails for the reasons set out below.
Regulation 5(3) requires the tribunal, unless it is inappropriate, to apply the “pro rata principle” in determining whether a part-time worker has been treated less favourably than a comparable full-time worker. The tribunal finds that there are no grounds for not applying the “pro rata principle” in this case.
The “pro rata principle” is given a particular meaning by regulation 1:
“Where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is to receive or be entitled to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time worker.”
The difficulty for the claimant is that regulation 1(3) restricts the application of the pro rata principle to the, “number of hours a worker is required to work under his contract of employment in a week in which he has no absences from work and does not work any overtime”. In other words, the comparison between a full-time and part-time worker must be carried out on the basis of their basic contractual hours of employment.
All the benefits and pension entitlements which attach to each hour of a full-time officer’s basic 40 hour week, attached in full to each hour of the claimant’s part-time basic 32 hour week. The claimant was therefore not subjected to less favourable treatment within the terms of regulation 5 of the PTWR.
In the circumstances, the claim under the PTWR is dismissed.
Chairman:
Date and place of hearing: 15th and 16th February 2007 at Belfast.
Date decision recorded in register and issued to parties: