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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Murphy v Northern Ireland Assembly Comm [2009] NIIT 1504_07IT (11 March 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/1504_07IT.html
Cite as: [2009] NIIT 1504_7IT, [2009] NIIT 1504_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1504/07

CLAIMANT: Eleanor Murphy

RESPONDENT: Northern Ireland Assembly Commission

DECISION

The unanimous decision of the tribunal is that the claimant’s claims in respect of a breach of the Equal Pay Act (Northern Ireland) 1970 and unlawful sex discrimination be dismissed.

Constitution of Tribunal:

Chairman: Mr Buchanan

Members: Mr Archer

Ms Graham

Appearances:

The claimant was represented by Dr T McGleenan, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by Rosemary Connolly, Solicitors.

The claimant is a Research Officer employed by the Northern Ireland Assembly Commission (NIAC). That body employs the support staff at the Northern Ireland Assembly.

She alleges that an equality clause should be implied into her contract of employment in accordance with Section 1 of the Equal Pay Act (Northern Ireland) 1970. Her comparators are male employees of the Assembly Commission holding the same position as her, namely Dr Colhoun, Dr Doran, and Mr McVey.

2.

(i)

At a Case Management Discussion before another Chairman of the Tribunals on 23 November 2007 the following were agreed as the legal issues to be determined by the tribunal:-

Did the respondent discriminate against the claimant on grounds of sex (within the meaning of the Equal Pay Act (Northern Ireland) 1970) with regard to the application to her of its policy in respect of starting salary and/or the setting of her starting salary?

If the application of the respondent’s Starting Pay Policy to the claimant and/or the setting of her starting pay did discriminate against the claimant, has the respondent established the defence set out at Section 1(3) of the Equal Pay Act (Northern Ireland) 1970, by showing that any variation in the terms of the contract between the claimant and her comparators was genuinely due to a material factor which is not the difference of sex?

Did the respondent contravene the provisions of the Equal Pay Act (Northern Ireland) 1970?

The claimant alleges that she had been subjected to direct and indirect discrimination in relation to pay.

She advances three arguments in favour of her claim of indirect pay discrimination:-

by basing the pay structure on previous salary the respondent was perpetuating structural inequalities in pay because, put simply, the tribunal can take notice of the fact that female salaries are lower than male salaries;

by permitting male employees to negotiate their salaries on the basis of previous salary, rather than exceptionally relevant experience, in the 2000 exercise, inequalities in pay were maintained; and

by the respondent expressly stating to the female Research Officers in the 2002 exercise that there was no scope for negotiating on pay while at the same time permitted the successful male candidates to negotiate a higher salary based on previous experience.

	(ii)	At the Case Management Discussion of 23 November 2007, to which reference has been made above, certain other matters were agreed between the parties. The respondent accepted that the claimant and her comparators are employed on like work within the meaning of Section 1(2)(a) of the 1970 Act. The respondent also accepted that the claimant is paid less than her male comparators. Both parties agreed that this was not an equal value claim.

	(iii)	With regard to the genuine material factor defence, the respondent, in its response to the claim presented on 14 September 2007 stated that the difference in pay is genuinely due to material factors, being the consistent, fair and equal application of the Commission’s Starting Pay Policy and length of service.

3. In order to determine this matter, the tribunal heard evidence from Mr Evan Hobson, Head of Personnel with the Northern Ireland Assembly, and from the claimant, Ms Murphy. It also had regard to documentary evidence to which it was referred by the parties.

It finds the facts set out in the following paragraphs:-

4. The claimant started work with the respondent as a Research Officer on 16 September 2002. Her appointment to one of four posts followed a recruitment exercise earlier that year, in which she had been successful. There had been 32 applicants for the four posts, and 16 of these were deemed appointable. Prior to taking up her post she had worked with an agency, Research and Evaluation Services (‘RES’). It provided workers to the NIAC, and she had in fact worked as a Research Officer in the Assembly through RES from June 2000 onwards on a succession of three month contracts. When appointed to the staff of the NIAC, the claimant effectively continued to do the same job. When working for RES , the claimant had been paid a salary of £16,357 per annum by them. RES was paid a management fee of 13% of that salary by the Assembly.

5.

(i)

The Assembly’s Starting Pay Policy with effect from 2001 (which was the policy applicable when the claimant was recruited) was based on a successful candidate’s prior salary. The policy was as follows:-

“

Offer each successful candidate a starting salary, which equates to their current salary plus a % increase. The resultant starting salary should not be less than the minimum point or in excess of the maximum point on the relevant salary scale …

Should a successful candidate continue to insist on a starting salary in excess of the maximums (sic) referred to above, they are required to submit their case to the Assembly Personnel Office for consideration.”

		The percentage increase referred to corresponded to the percentage increase applied to the Northern Ireland Civil Service (NICS) internal promotions and increased in line with it.

	(ii)	According to the respondent, this Starting Pay Policy, based on a higher than current salary, was needed to attract highly qualified staff to work in the Assembly, and who would be highly productive within a relatively short period of time. It was needed to ensure that the Assembly was supported by experienced staff against a background of researchers not having been in great demand in Northern Ireland before the Assembly was set up. There was also ongoing uncertainty about the Assembly’s future, and in order to attract applicants to the positions, the salary needed to be attractive.

	(iii)	This evidence was given to the tribunal by Mr Hobson. He was not involved in the 2000 exercise. The official involved, a Mr Hoy, was unfortunately ill, and unable to give evidence. Some of the documentary evidence which would have been of assistance to the tribunal in assessing these matters was not provided, or else existed in unsatisfactory form. Nonetheless, we are satisfied that Mr Hobson, by virtue of his position in the Assembly, has knowledge of these matters and is able to deal with them.

6.	(i)	The salary offered to the claimant was her starting salary with RES plus 6.5% (the then applicable percentage increase, which became 7.5% in September 2002) added on by virtue of the Starting Pay Policy. It was then rounded up to the minimum on the scale in accordance with the policy at that time. The minimum on the scale was then £17,714, but the claimant in fact started on £18,440 because of a pay award which had taken effect. The three other successful research officer candidates who started in 2002 and to whom the January 2001 Starting Pay Policy applied were Dr Colhoun, the claimant’s comparator (he started on a salary of £23,313, adjusted upwards to £24,022), Roisin Kelly (£20,835), and June Campbell (£22,600). The highest paid appointee was therefore male.

	(ii)	The claimant accepted the starting salary offered to her, based on her previous salary. She accepted it without discussion or negotiation. Dr Colhoun was offered a salary of £23,313 (his current salary plus 6.5% rounded up to the scale point). He successfully requested a higher salary based on his previous overall salary which specified his income, plus a non-taxable amount of £400 per month for fuel, accommodation and expenses. This was not a novel situation. Mr Hobson had encountered it previously with new employees, such as Dr Colhoun who came from charitable bodies. He stated that such bodies, to maintain their charitable and tax-free status, split salaries into income and tax-free benefit to keep their wages budgets to the absolute minimum. Dr Colhoun’s ultimate starting salary of £24,022 took account of a salary increase which became payable.

	(iii)	It is the claimant’s case that Dr Colhoun, in raising these queries, was involved in a process of negotiation in relation to his salary. She claims that, in contrast, she was never at any time informed that she could negotiate her starting salary, and therefore had assumed that all research officers started at the bottom of the scale. It was only during a review of starting salaries in 2006 that there was talk among colleagues about salaries and discrepancies, including the ability to negotiate. She relies on a memorandum written to Ms Kelly (who was appointed at the same time) by Mr Hobson on 14 July 2006 in which he stated:-

“You state in your e-mail that the Personnel Office informed you at the time of your appointment that there was no room for salary negotiation. As indicated in my letter to you dated 20 June, this was indeed the case at that time.”

	(iv)	However, the tribunal finds that Dr Colhoun was not negotiating in the sense that he was asking for a salary calculated other than in accordance with the relevant Starting Pay Policy in force at that time. What he was doing was explaining, or clarifying, the basis of his previous salary (ie the split between ‘salary’ and ‘expenses’) so that his salary in his new employment would be arrived at properly. The fact that the respondent’s procedures for verifying his previous earnings appear to have been somewhat lax does not affect our conclusion in this respect. We have found similar evidence of lax administrative and verification procedures in relation to female candidates who were appointed.

	(v)	Ms Kelly also raised a query about her starting salary. This was because it was based on the 30 hour week she had been working in her previous employment. An adjustment was made to take account of her 37 hour week.

7.	(i)	The letter sent to Ms Murphy on 5 September 2002, offering her employment, was in precisely the same terms as was sent to the other successful candidates, irrespective of their gender. She was told that her starting salary would be within a specified range, and she was offered a salary within that range in accordance with the Starting Pay Policy in force at the time.

	(ii)	We are satisfied that the Starting Pay Policy was applied in the same way to the claimant and all the other successful applicants, including her comparator, Dr Colhoun, irrespective of gender. Roisin Kelly had been earning more than the claimant in her previous job, and the claimant accepted in cross-examination that the difference in their salaries in their current employment had been carried over.

	(iii)	In the 2002 competition the claimant was the least well paid of the successful candidates. The difference in pay between her and Dr Colhoun, like the differences between her and Ms Kelly and Dr Campbell, were because of the Starting Pay Policy which took account of previous salary. It had nothing to do with gender.

8.	(i)	The claimant’s other comparators, Dr Doran and Mr McVey, were appointed in the 2000 recruitment exercise. At this time the claimant was working as an agency research officer. Eight appointments were made in this exercise, of whom six were male and two were female. (There are no figures showing the number of applicants for these posts, or the number of applicants deemed appointable.)

	(ii)	Dr Doran was appointed on a starting salary of £19,012 (adjusted upwards to £19,412) and Mr McVey was appointed on a starting salary of £19,812 (adjusted upwards to £20,218). The highest paid appointment was that of Ms Kane. However, the respondent accepts that her salary, made in excess of the standard pay point cap, to which reference is made below, was outside the policy. The two lowest paid appointments appear to be of males, though the necessary documentation in this respect is somewhat inadequate. However, significantly here, it was a female candidate who benefited.

	(iii)	The claimant also contends that the respondent breached the Equal Pay Act in respect of the 2000 recruitment exercise. The Assembly’s Starting Pay Policy, with effect from January 2000, which applied to that competition was as follows:-

“

Offer each successful candidate the minimum point on the appropriate salary scale (the minimum point on the scale was the NICS Staff Officer grade).

Should the successful candidate request a higher starting salary on the grounds that he/she believes that they have exceptionally relevant experience, negotiate incrementally up to a 5% limit of the amount the candidate was currently earning. However, the final offer could not be in excess of the ‘standard pay point’ on the salary scale for that particular grade.

Should the successful candidate continue to insist on a starting salary beyond 5% of ‘standard pay’ they were required to submit their case in writing to the Assembly Personnel Office for consideration.”

	(iv)	The reference to the ‘standard pay point’ was another NICS related concept. The standard pay point was approximately halfway between the maximum and minimum point on the scale. It was ultimately removed, following its removal from the NICS pay system and because of approaches from researchers in the 2000 competition who claimed it was unfair. The 2000 Starting Pay Policy had led to significant variations in the starting pay for each of the successful candidates, all of whom were doing the same job.

9.	(i)	In the 2000 competition, the salary range for researchers was £16,665 - £22,613. The terms and conditions of appointment stated that it was:-

“Expected that the successful candidate will start at the beginning of the … salary [range].

However, consideration will be given to a higher starting salary if a successful candidate has exceptionally relevant experience.”

		In the 2000 competition, the starting salaries paid to Dr Doran and Mr McVey were determined in accordance with a policy which was applied equally to all candidates at that time. Their higher salaries can be attributed to their different starting salaries calculated in accordance with that policy, and to having longer service than the claimant.

	(ii)	As with the subsequent 2002 recruitment exercise, all successful candidates were informed that the starting salary would be within a stated range, and were offered salaries in accordance with the policy then in force. Everyone appointed had the opportunity to progress up the scale in the same manner.

	(iii)	In 2006 an exercise was carried out to see if the claimant and others had ‘exceptionally relevant experience’ at the time of appointment. Under this exercise a candidate with five years experience or more would attract two extra points on the salary scale. The claimant did not satisfy this requirement and therefore the two additional points were not awarded.

10.	(i)	The issue of starting pay was examined by a Pay Audit which reported in 2003. The terms of reference of the Audit were to consider the salaries of directly recruited staff, and to consider further whether the reasons for any differences in salary identified between male and female staff were due to a genuine material factor. When carrying out that Pay Audit regard was given to guidance from the Equality Commission for Northern Ireland, and its recommendation that further investigation should be carried out if either the initial comparison showed that 50% or more of the comparisons between male and female employees showed a salary gap of more than 10% within the same jobs.

	(ii)	The Pay Audit found that female researchers earned 94.4% of the earnings to male researchers, and female senior researchers earned 84% of the earnings of male senior researchers. However, it found no evidence to suggest that in respect of differences in pay of more than 10% between males and females, those factors were related to gender. The factors contributing to such differences were due mainly to circumstances such as length of previous service and previous salary. However, it was felt that the system of starting pay, whereby a percentage increase was added to previous earnings, risked perpetuating any direct or indirect discrimination or inequalities in pay which may have existed in the pay systems of previous employers. It was recommended that there should be a review of pay policy, with a view to introducing a policy which was more transparent and less likely to attract criticism or legal challenge.

11.	(i)	The relevant legislation with which we are concerned here is the Equal Pay Act (Northern Ireland) 1970. According to its long title, it is “[a]n Act to prevent discrimination, as regards terms and conditions of employment, between men and women.” It has to be borne in mind that while the Act, like Article 141 of the Treaty establishing what is now the European Union, does not on its face make reference to direct and indirect discrimination, both domestic courts and European law now emphasise that laws relating to equal pay and sex discrimination should be treated as a single code. (See : Shields v E Coomes (Holdings) Ltd [1978] ICR 1159.)

	(ii)	Section 1(1) of the 1970 Act provides that a contract of employment under which a woman is employed at an establishment in Northern Ireland shall be deemed to include an equality clause where one does not exist. Such an equality clause deals with terms of the contract, including pay, and applies where the woman is employed on like work with a man in the same employment. In this case the respondent concedes that the claimant, Ms Murphy, is doing like work with her chosen male comparators. The respondent also accepts that there is a pay differential between the claimant and those comparators.

	(iii)	The combination of these two factors raises a rebuttable presumption of breach of the Equal Pay Act and sex discrimination. However, Section 1(3) of the 1970 Act provides that this presumption is rebuttable by the employer, on the balance of probabilities. Section 1(3) states:-

“An equality clause falling within Sub-section 2(a) [which deals with terms, including pay, in cases of like work] 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 in sex and that factor:-

in the case of an equality clause falling within Sub-section 2(1) … must be a material difference between the woman’s case and the man’s, … .”

(iv)

Two points can be noted about these provisions. Firstly, a difference in pay does not necessarily constitute discrimination. The Equal Pay Act is not concerned with fairness – it is designed to do away with differences in pay based on discrimination. In United Kingdom domestic law, at least, it appears that all that must be shown under Section 1(3) is a difference or factor which actually explains the pay difference, provided that it is made out on some ground other than sex (ie not ‘tainted’ by sex).

Secondly, leading on from the first point, the question has to be addressed of whether, and in what circumstances, an employer is required to objectively justify a difference in pay.

12.

(i)

We now turn to the relevant case law dealing with these matters.

In Strathclyde Regional Council v Wallace [1998] ICR 205, the House of Lords held that a requirement to show objective justification for a variation in pay only arises where the factor upon which the employer is relying to explain the difference is itself directly or indirectly discriminatory. Lord Browne-Wilkinson stated, op-cit, at p213:-

“From what I have said, it is apparent that in considering Section 1(3) of the Equal Pay Act 1970, the only circumstances in which questions of ‘justification’ can arise are those in which the employer is relying on a factor which is sexually discriminatory. There is no question of the employer having to ‘justify’ … all disparities of pay. Provided that there is no element of sexual discrimination, the employer establishes a sub-section (3) defence by identifying the factors which he alleges have caused the disparity, proving that those factors are genuine and proving further that they were causally relevant to the disparity in pay complained of.”

In Glasgow City Council v Marshall [2000] ICR 196, there was further discussion of the genuine material factor defence. Lord Nicholls stated, pp 201 – 203:-

“The scheme of the [Equal Pay] Act is that a rebuttable presumption of sex discrimination arises once the gender based comparison shows that a woman, doing like work … to that of a man, is being paid or treated less favourably than a man. The variation between her contract and the man’s contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex. In order to discharge this burden the employer must satisfy the tribunal on several matters. First, that the proffered explanation, or reason, is genuine and not a sham or pretence. Second, that the less favourable treatment is due to this reason. The factor relied upon must be the cause of the disparity. In this regard and in this case, the factor must be a ‘material’ factor, that is a significant and relevant factor. Third, that the reason is not ‘the difference of sex’. This phrase is apt to embrace any form of sex discrimination, whether direct or indirect. Fourth, that the factor relied upon is … a ‘material’ difference, that is, a significant and relevant difference, between the woman’s case and the man’s case.

When Section 1 is thus analysed, it is apparent that an employer who satisfies the third of these requirements is under no obligation to prove a ‘good’ reason for the pay disparity.

In order to fulfil the third requirement, he must prove the absence of sex discrimination, direct or indirect. If there is any evidence of sex discrimination, such as evidence that the difference in pay has a disparately adverse impact on women, the employer will be called upon to satisfy the Tribunal that the difference in pay is objectively justifiable. But if the employer proves the absence of sex discrimination he is not obliged to justify the pay disparity.”

	(ii)	It seems clear from these decisions that domestic law did not require a respondent objectively to justify a difference in pay merely because the claimant was a woman and the comparator a man employed on work of equal value. However, the decision of the European Court of Justice in Brunnhofer v Bank der Osterriechischen Postsparkasse AG [Case C-381/99] [2001] ECR 1-4961 has been relied upon in support of the proposition that an employer must show objective justification for any pay disparity between men and women, and that such an obligation is placed on the employer regardless of whether or not it has adopted arrangements which have an adverse effect on women.

	(iii)	In Brunnhofer, the applicant had worked for the bank from 1993 – 1997. She claimed equal pay with her male comparator, who had been employed since 1994. From the time of his employment, he had received a supplementary payment which she had not received. It was not contended that there were any material differences which would have justified a difference in pay at the time he took up employment. Both the applicant and her comparator had been placed in the same skills category under a collective agreement which applied to them. The bank attempted to justify the difference in pay on the basis that the comparator’s performance was better than the applicant’s and that he carried out more important functions than her. These, of course, were circumstances which were only established after the comparator took up employment. The court held that a difference in pay awarded on appointment could not be justified by factors which only become known after the employees took their posts. The facts in Brunnhofer arguably do not appear to involve an allegation of indirect discrimination. However, notwithstanding this, there is no suggestion that the need for objective justification is restricted to cases of indirect discrimination.

	(iv)	In Sharp v Caledonia Group Services Ltd [2006] ICR 218, it was held by the Employment Appeal Tribunal that Brunnhofer had effected a change in the law. However, in Parliamentary Commissioner for Administration and the Health Service Commissioners v Fernandez [2004] IRLR 22 a different division of the Employment Appeal Tribunal stated, at pp 25 and 26:-

“We do not understand the court to be laying down in [Brunnhofer] any requirement that in a case where the factor relied on by the employer is not tainted by direct sex discrimination, and where no suggestion of prima facie indirect sex discrimination is raised, that it is nevertheless necessary for the employer to objectively justify any pay difference … .”

(v)

Fernandez was followed by the then President of the Employment Appeal Tribunal, Elias J in Villalba v Merrill Lynch & Co Inc [2007] ICR 469. Commenting on Brunnhofer, he stated, at pp 505 and 506:-

“What is striking about this whole jurisprudence is that, prior to any uncertainties that may have been created by Brunnhofer … no one has ever thought that the mere fact that a woman is paid less than a man for work of equal value is enough to trigger the obligation objectively to justify the difference in pay. If it were enough then the legislation would be concerned with fairness rather than sex discrimination … .”

He continued:-

“ … European law has not taken the view that even in the absence of any evidence, actual or assumed, of a causal link between the pay arrangement and the sex of the claimant, there is still an obligation objectively to justify the difference in pay.”

At pp 520, 521, the learned President stated:-

“ … [The claimant’s] argument … changes totally the concept of discrimination. The elimination of discrimination on ground of sex cannot in our view begin to require objective justification for differences in pay in circumstances where the employer has satisfactorily rebutted direct sex discrimination and there is no independent evidence of any kind to show that sex has had any influence on the difference in pay. It is only in the language of Lewis Carroll that such a pay differential not tainted in any way by sex could be rendered unlawful under provisions which outlaw sex discrimination. It could of course be rendered unlawful under a wider principle of fair wages which entitled the tribunals to become wage setting bodies, but that is not the law.”

		The Employment Appeal Tribunal concluded that Brunnhofer had to be seen in the context of the question addressed by the national court to the European Court of Justice, which raised the issue of objective justification, and that so read it did not change the principles of law which had been settled by the House of Lords and previous decisions of the European Court of Justice.

13.	(i)	The tribunal is therefore satisfied that the mere fact of a difference in pay between the claimant and her comparators is not something which the respondent is required objectively to justify. Under the approach in Villalba, an employer makes out the defence in Section 1(3) of the 1970 Act by showing a material factor explaining the difference and only has to prove objective justification if either there is some provision, criterion or practice which unduly impacts on the claimant, thus raising an inference of indirect sex discrimination, or if it is shown that the disadvantaged group is predominantly female and the advantaged group predominantly male (see : Enderby v Frenchay Health Authority [1994] ICR 112, and generally, on the issues canvassed above, Smith and Wood’s Employment Law 9^th Edition pp 305 – 310).

	(ii)	In Enderby, the European Court of Justice stated, at pp 161 – 162 that:-

“ … where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women, and the other predominantly by men, Article [141] of the Treaty requires the employer to show that the difference is based on objectively justified factors unrelated to any discrimination on grounds of sex.”

(iii)

It has been submitted on behalf of the claimant, relying on Armstrong v Newcastle-upon-Tyne NHS Hospital Trust [2006] IRLR 124, that statistical analysis and pools are not essential. Reference was also made to Secretary of State for Trade and Industry v Rutherford (No 2) [2005] ICR 119, 193, per Mummery LJ where it was stated:-

“It has been left to the national courts and tribunals, which hear and assess the evidence and find the facts, to work out from case to case a satisfactory method for assessing whether or not there is a disparate adverse impact in the particular case. It is a matter of applying considerations of logic, relevance and common sense to the raw material of the statistical evidence in order to determine the existence or otherwise of the objectionable state of affairs.”

	(iv)	It was further submitted on the claimant’s behalf that the European Court of Justice has adopted an even more liberal approach to the issue of when objective justification of pay disparity is required by an employer. In the Danfoss case (Case 109/88) [1991] ICR 74; [1989] ECR 3199, ECJ, the court held that the Equal Pay Directive must be interpreted as meaning that where an undertaking applies a system of pay which is wholly lacking in transparency, it is for the employer to prove that his practice in the matter of wages is not discriminatory, if a female worker establishes, in relation to a relatively large number of employees, that the average pay for women is less than that for men.

	(v)	However, we do not read these cases as meaning that the tribunal can entirely disregard statistical evidence. A difficulty for the claimant, it seems to us, is that on any definition we are dealing with an extremely small pool of people, which is statistically insignificant.

14.	(i)	There is no evidence that research officers were a male dominated group. Again, it was submitted to us that the claimant, who had previously worked as an agency worker, came from a group where females were likely to have been low paid, and that the Starting Pay Policy perpetuated this disadvantage. However, there is again no evidence in relation to the pay of agency workers, capable of supporting such a proposition.

	(ii)	Nor are we satisfied that it can be said that the respondent’s pay policy lacks transparency. It was a pay policy which caused discontent, and which the respondent ultimately reviewed. However, it was not an opaque policy, and while the 2000 Starting Pay Policy did not satisfactorily define the concept of exceptionally relevant experience, the employer looked at this aspect of it again in 2006. Overall, the basis on which the policy operated was clear, and it was applied in a consistent fashion to all successful candidates, irrespective of sex. Each candidate, when appointed, had the same opportunity to reach the maximum point on the salary scale.

15.	(i)	We are satisfied that the Starting Pay Policy, both in 2000 and 2002, was not tainted by sex. It follows that the respondent does not need objectively to justify it. Had it been necessary for the employer to prove objective justification, we are satisfied that they could have discharged that burden in this case. We accept the reasons put forward for the Starting Pay Policy (set out at Paragraph 5 above). An employer is entitled to take a broad and rational view of the situation, and we are satisfied that in the circumstances the respondent’s view was a tenable one. (See : Cobb v Secretary of State for Employment [1989] IRLR 464, at 468.)

	(ii)	We dismiss the claimant’s claims.

Chairman:

Date and place of hearing: 26 – 29 August 2008, Belfast

Date decision recorded in register and issued to parties:

12.

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