Industrial Tribunals Northern Ireland Decisions

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Cite as: [2011] NIIT 1936_10IT, [2011] NIIT 01936_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1936/10

1992/10

CLAIMANTS: Lorraine Lynn Ennis

Fionnuala O’Gorman

RESPONDENTS: 1. Northern Ireland Civil Service

2. Department of Finance and Personnel

3. Office of the First Minister and the Deputy First Minister

4. Department of Justice

DECISION

The decision of the tribunal (Chairman Sitting Alone) is that the claimants’ terms and conditions of employment were not varied in breach of Regulation 4 of the Transfer of Undertakings (Protection of Employment) 2006 Regulations and the claimants did not suffer unauthorised deductions from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:

Chairman (Sitting Alone) : Ms J Knight

Appearances:

The claimants were represented by Mr Joe Kennedy, Barrister-at-Law, instructed by O’Reilly Stewart Solicitors

The respondents were represented by Mr Aidan Sands, Barrister-at-Law, instructed by the Departmental Solicitors Office.

Issues to be determined by the Tribunal:-

1. (a) Whether the respondent unlawfully varied the terms and conditions of the claimants’ employment contracts in breach of Regulation 4 of the Transfer of Undertakings (Protection of Employment) 2006 Regulations in removing the Information Officers’ Allowance and associated benefits and allowances.

(b) Whether there was an unlawful deduction from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.

Evidence

2. The tribunal heard the oral evidence of the claimants, Ms Lorraine Ennis and Ms Fionnuala O’Gorman, and witnesses for the respondent Mr Dennis Godfrey, Director of Communications NIO, Mr Colm Shannon, Deputy Director, Executive Information Service and Mrs Blaithnaid Smyth, Deputy Principal, Pay and Grade Unit, Corporate Human Resources. The Chairman also considered those documents to which she was referred during the course of the hearing. There was an agreed Schedule of Loss in respect of each claimant, subject to liability.

Reasons for Decision

3. The claimants are both grade B2 Information Officers (IOs) employed by the Office of the First Minister and Deputy First Minister (OFMDFM) in the Executive Information Services (EIS). Prior to the 12 April 2010, the claimants were both employees of the Department of Finance and Personnel (DFP) and were seconded to the Northern Ireland Office (NIO) to work in the Northern Ireland Information Service (NIIS).

4. The claimants took part in an out of hours rota with other IOs and Grade 1 Senior Information Officers (SIOs) in the NIIS. This involved working late shifts (from 11.00 am until 7.00 pm in the office and being on call on a pager until 9.00 am the next morning) and early shifts 8.00 am until 4.00 pm once or twice a week; working weekends (Saturday or Sunday 9 to 12 and being on call until 9.00 am the following morning) and the preparation of the Early Morning Digest (“EMD”) once or twice a month. Participants in the rota also worked two bank holidays per annum. The claimants received an out of hours allowance calculated at 17.5% of their gross salary (known variously as the “Press Officers Allowance”/”Information Officers Allowance”) together with a premium for weekend work. A breakfast allowance of £3.00 was payable on those occasions when preparing the EMD. Mrs Ennis also received a monthly allowance of £20 as a contribution towards the cost of her internet broadband which was installed when she became an IO for both work and personal use.

5. Historically only SIOs, a non overtime grade, were permitted to work on the rota and received the Information Officers’ allowance. IOs could claim an overtime payment for hours worked outside their “conditioned” or contractual hours. However in 2002, the three IOs then employed in the NIIS were included in the rota as insufficient numbers of SIOs remained in the NIO to operate the NIIS rota. It was agreed that they would be paid the 17.5% information officers’ allowance and would no longer be able to claim any other overtime or on call allowances.

6. Around this time the EIS set up its own separate rota to provide information services to the new devolved departments in the Northern Ireland Executive. In the EIS only SIO grades and above were permitted to work on the rota. They received the Information Officers’ allowance. There is a waiting list of SIOs waiting to get on the rota. The EIS and NIIS cooperated together to produce the EMD. The EIS had administrative responsibility for drawing up the EMD rota which included SIOs and IOs from NIIS and SIOs from the EIS.

7. On 12 April 2010, powers relating to policing and justice were transferred from the Northern Ireland Office to the Northern Ireland Executive at second stage devolution. In the run up to devolution all affected employees were informed that employees who transferred to a devolved department would not suffer detriment in their terms and conditions of employment. This was a protected transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE 2006”). Representations were made to the respondent by and on behalf of SIOs and IOs that they should be permitted to retain the Information Officers’ allowance after the transfer of their employment.

8. The employment of the claimants and other IOs and SIOs in the NIIS transferred from DFP to the Office of the First Minister and the Deputy First Minister (the “OFMDFM”) into the Executive Information Service (the “EIS”) from 12 April 2010. The claimants and other IOs were not included on the EIS rota. This was in line with EIS policy that only SIOs are permitted to work on its rota. The Information Officers’ allowance ceased to be paid to the claimants as of 1 May 2010. This has caused a significant reduction to the claimants’ income from their employment.

9. The claimants raised grievances that they had not been permitted after the transfer of their employment to remain on the out of hours rota, about the removal of the Information Officers’ allowance and associated allowances and that there had been a failure properly to consult with them individually about the impact of the transfer on their employment. The respondent rejected the claimants’ grievances at the initial stage and on appeal. The claimant’s lodged their originating complaints with the industrial tribunal alleging unlawful deduction from wages and breach of TUPE 2006. The claimants received information and documentation from the named respondents in response to requests made under the Freedom of Information Act.

10. The parties prepared a statement in advance of the Hearing showing those facts agreed and in dispute between the parties. The agreed facts between the parties are shown as follows in italics and copies of the documents referred to were contained in the Hearing bundle:

“Establishment of the Information Officer’s Allowance

1. On 3 July 1989 Dermott Thompson, Personnel Services Division in the NIO wrote to Mr A Heasley, Assistant Secretary of the trade union NI Public Service Alliance (NIPSA) formally confirming that an increased gratuity of 17.5% was to be paid to Deputy Principal Information Officers (Senior Information Officers) in the NIO with effect from 1 January 1989. The letter advised, “These payments are in recognition of those elements of these officers’ duties performed outside normal conditioned hours. That includes the rotas to cover early morning digest, on-call duties, work carried out at home or on return to the office outside normal hours. These are defined in more detail in the attached Appendix”. [ the Appendix referred to in this letter was not included in the Hearing Bundle].

2. Several redacted e-mails refer to the genesis of the allowance one, dated the 7 August 2001, states that the allowance started in the early seventies because of the long hours and heavy workload faced by staff at the time. A further e-mail, dated the 31 August 2001, relates the payment of the allowance to the early/late hours associated with working in the press office.

3. On 6 December 2001, Dennis Godfrey, Deputy Director of Communications wrote to Dermot Thompson, Personnel Services Division, advising that as of 2 January 2002 the Executive Information Service (EIS) will be operating its own separate out of hours rota for the devolved NI departments. The Northern Ireland Information Service would continue to provide a separate service for the Secretary of State and Northern Ireland Office. Both the NIO and EIS would cooperate into the provision of the Early Morning Digest (EMD) element of the rota which was compiled by EIS.

4. NIIS IOs, including the claimants, were a part of the separate EIS out of hours service for EMD from 2January 2002 until 12 April 2010. [In fact at the Hearing the respondents disputed that the claimants were part of the EIS rota.] The claimants were both rota’d to provide the early morning digest (EMD) along with other staff including NIIS and EIS staff during the period stated. A separate rota for early, late, weekend and bank holiday cover was compiled by the NIO.

5. The letter of 6 December 2001 advises, “As a result the Northern Ireland Information Service will be required to provide 365 day cover with our existing staff, that is five Senior Information Officers (SIOs) and three Information Officers (IOs). At present all five SIOs are part of the current rota and receive 17.5% it is not feasible to operate a rota with five staff. I am, therefore, including the IOs to ensure cover is provided and would ask that with effect from 2 January 2002 the following staff [Information Officer grades] should receive an additional 17.5% of salary.” Prior to this, only Senior Information Officers were eligible to be on the rota, however, it was agreed to extend this to Information Officers as a temporary arrangement to meet this business need.

6. An email from Dennis Godfrey to Alan Maitland dated 11^th December 2001 requests “It is essential that [two IO’s, names redacted] go on the rota on the same basis as everyone else…As duty press officers they will be doing te rota, emds etc on the same basis as everyone else and while I would expect them to refer more calls to senior colleagues, they will be expected to function as the others [SIO’s] do. As I indicated in my earlier note, the rota is absolutely essential to meeting the demands of the press office.”

7. On 28 December 2001, Richard Lemon (NIIS) wrote to the NIO Duty Press Officers advising of the Rota Arrangements from 2 January 2002. This advised that the NIO will operate its own out of hours rota, independent from that operated by the Executive Information Service. It set out that remuneration would be paid at the rate of 17.5 % of salary. It also advised that if a person is off work for more than four weeks, unless in exceptional circumstances, payment will be suspended and not restored until they return to work and resume rota duties. These rota arrangements were to include the Information Officers as well as the Senior Information Officers. Since 2 January 2002 the EIS has operated its own rota based on the terms of Mr Thompson’s note of 3 July 1989.

8. In a note from Lois Murphy, which is undated it is stated that the conditions for payment of the allowance are listed as follows:-

“Conditions for payment are as follows:

Should you become absent due to sick leave, payment would cease after 30 calender days.

If your entitlement to full pay ended and half pay commenced, this allowance (if payment continued to be appropriate) would also be halved.

The main condition for payment is that you are required to cover a regular commitment to the duty press officer rota, and to work during your time off and after normal hours whenever required.

No other pay addition e.g. overtime or on-call allowance will be payable and includes travel at weekends if on rota duty.”

9. On 8 July 2002 Michael Cowan (PSD) wrote to Ryan Dobson (DFP) about the Information Officers allowance for Senior Information Officers. It also outlined the criteria of the payment for the Senior Information Officers and noted, “In the NIO, we have recently extended the allowance to Grade B2s (Staff Officers) as well as Grade B1s (Deputy Principals) for a temporary period”. (see Discovery papers no 5). The letter also states, “If staff move to a different area of work the allowance is held on a mark-time basis.”

10. There is further correspondence which clarifies the circumstances under which the allowance is payable. For example, Michael Cowan’s (PSD) note to Tim Logan (NIIS) of 6 September 2007 clarifies the letter of 8 July 2002. It states, “At the time, any staff who had moved out had done so on promotion and we cannot pay less on promotion than staff are already in receipt of – therefore staff had retained the allowance on mark time. However, no Grade B1 staff had completed a lateral transfer to an admin post so these circumstances were not covered in my letter. The fact is that should staff at Grade B2/B1 who are in receipt of the 17.5% allowance move out on lateral transfer in the future, the allowance will be removed”.

11. This note goes on to explain that, “While there are examples of allowances which can be held mark-time, the Information Officer is a payment in lieu of on-call and overtime/discretionary payments. General Service staff who transfer from a post which attracts on-call or overtime do not receive such payments on a mark time basis, as they are no longer required to be available outside normal conditioned hours – same holds for Press Office staff. In addition, if we were to allow the Press Officers to retain the 17.5% and then they moved on lateral transfer to a post which required on-call and/or overtime, we would effectively be paying them twice”.

12. By memorandum to the establishment Officers from Karen Dawson (DFP Pay and Grading Unit), dated the 8^th April 2003, it was confirmed that the information officer allowance “is paid to recognise the requirement to work outside conditioned hours at any time.” The allowance was paid to any SIOs and IOs in the NIO who were on maternity leave from this time forward.

13. By letter dated the 20^th May 2004 from Lois Murphy (PSD) to Mark Larmour (EIS) the background to the payment of the allowance is addressed and include a section on payments to grade B2 (Information Officers) as follows which reads: “Staff at Grade B2 were exceptionally granted 17.5% from January 2002. They were specifically informed that overtime or on call should not be claimed in addition to this allowance. They were also informed that the allowance was payable for working on the rota at home.”

14. An email from Wendy Cunning to Paula Larkin dated 4^th August 2005 advises that the allowance is payable to B2’s and B1’s.

15. Information staff who worked part time or reduced hours were still able to participate on the rota.

16. A draft letter from Personnel Services Division to Robert Hannigan dated 30 January 2002, which is marked as not having been sent, states that payment of the allowance should cease after 28 consecutive days of absence. The draft letter confirms that staff continued to receive the allowance whilst on maternity leave. It also states the conditions for payment: “the allowance is payable when the member of staff is able to effectively carry out the range of duties over and above their normal daily duties.”

17. A letter on devolution from Jonathan Phillips to all staff dated 9^th November 2006 advises: “Staff who transfer would do so on their existing terms. This is designed to ensure that staff transferring to the new devolved department or remaining with the future NIO will not suffer detriment in their terms and conditions. Staff transferring into the NICS will not be treated any less favourably with regard to pay, superannuation, leave and promotion. There will be proper consultation and negotiation with the Trade Union side where that is required, particularly on issues around terms and conditions….Individuals will be treated in an equitable way.”

18. The devolution newsletter from Jonathan Phillips dated 9 November 2006 says staff who transfer to the new devolved department or who remain with the future NIO, will be given the choice of “either taking the importing departments terms and conditions or retaining their existing terms and conditions on a ‘frozen’ basis”.

19. By e-mail dated the 6 September 2007, Michael Cowan (PSD) accepts that the allowance could be paid on a mark time basis as long as someone remained a press officer and worked out of hours.

20. An email from Dennis Godfrey to Patricia Kerr and Tim Logan advises “The allowance issue is very tricky but there is a precedent for the procedure not being followed…we need to proceed with care.”

21. NICS HR Policy at 8.12 regarding Mark-time states that mark-time “will often apply in situations where, for example, your existing pay plus allowances (or pay lead) exceeds your new salary on promotion or transfer to a new grade or post which does not attract the allowance or pay lead.” Examples are provided illustrating how this works. At 8.30 of the same policy it states, “if the transfer is at the request of the department, mark time arrangements should be applied.” Chapter 8.30 of the policy refers to “Starting Pay on Transfer to a New Substantive Grade.

22. On 24 June 2008, Dennis Godfrey, Director of Communications (NIIS) wrote to Gary Archibald and Chris Flatt in NIO Personnel Services Division advising that the Executive Information Service rota does not include Information Officer grades and staff were asking what would happen to the allowance and he advised that he would be meeting Stephen Grimason (EIS). Mr Godfrey asks if those who aren’t required for the rota will retain their allowance on a mark time basis after devolution.

23. A devolution update letter from Jonathan Phillips to all staff on 20 January 2009 confirms the transfer process will be protected by TUPE and that the NIO and NICS were fully committed to ensuring full consultation to ensure agreed arrangements with Trade Union side on the terms and conditions of the transfer. In an interview carried out by HR Connect in relation to Fionnuala O’Gorman’s grievance, Lesley Foster states that the issue of the IO allowance was not raised by until around the time of devolution by TUS.

24. On the 10^th of July 2009, Karen Pearson (Director of Personnel Services Division), e-mailed Dennis Godfrey (Deputy Director of Communications) and Jane Holmes (PSD) regarding the removal of the allowance. In the e-mail she states, “As I understand it, the IO allowances will go at devolution because they will no longer be on the rota (EIS does not pay the allowance to IOs). The exam question is how it is removed if TUPE applies. The answer should be that the TUPE protection applies to the terms and conditions, which state that the allowance is payable only if on the rota.”

25. In an interview with Karen Pearson on 24 January 2011, conducted by Anthony Harbinson who was investigating Lorraine’s grievance appeal, Karen Pearson stated “that PSD had been involved in the gestational period with Dennis Godfrey and Colm Shannon from EIS, and the decision had been taken on her watch to take forward OFMDFM’s wishes regarding removal of the allowance”. On 12 April 2010 the Department of Justice was created as a devolved department of the NI Executive with responsibility for policing and criminal justice matters. The Information Officers of all grades became employees of the Office of First Minister and Deputy First Minister in its Executive Information Service. The business need for a rota for the executive remains under devolution and former NIO SIO’s have remained on this rota.

26. An NIO Newsletter concerning devolution and transfers was issued to the claimants (amongst others) dated the 15^th of February 2010. The newsletter states (para 4 page 3) that “Staff in the NIO and NICts will retain their T&Cs following devolution where they are more beneficial.”

27. On 16 Feb 2010 the Senior Information Officers and Information Officers in the NIO wrote to Jane Holmes (PSD) about the Information Officers allowance. It stated, “We understand that Information Officers will no longer be required to participate on a duty rota and whether all Senior Information Officers will be required to participate is uncertain. It then goes on to ask what will happen to the allowance for those not on the rota.

28. On 2 March 2010 there was a meeting with EIS and the staff of the NIIS. The minutes state:

“IOs not on rota as it has been policy in EIS since 1989 that SIOs would participate in rota duties. At the minute there is a significant reserve list of SIOs waiting to go on. Any pay queries regarding the loss of allowances are best dealt with through Personnel Services”

29. On 4 March 2010, Jane Holmes, Personnel Services Division, wrote to the Senior Information Officers and Information Officers in the NIO advising that the allowance will not be payable to staff who are not on the out of hours rota.

30. On 2 April 2010 NIPSA representative Paddy Mackel wrote to Pay Section requesting that the allowance should not be removed from Information Officers until consultation had taken place.

31. On 12 April 2010 the Department of Justice was created as a devolved department of the NI Executive with responsibility for policing and criminal justice matters. The Information Officers of all grades became employees of the Office of First Minister and Deputy First Minister in its Executive Information Service.. The business need for a rota for the executive remains under devolution and former NIO SIO’s have remained on this rota.

32. From 12 April the Information Officers working hours were changed from working rostered shifts to conditioned hours.

33. On 21 April Bill Smyth (Personnel Services Division) wrote to Chris McNabb (Principal Information Officer, NIIS) asking him to confirm that all Information Officers no longer have an entitlement to the payment of Information Officers Allowance wef 12 April 2010 and Chris McNabb responded that day to confirm it. Chris McNabb sent a further e-mail asking for the payment to be paid for the period until the end of April. Mark Wilson (Personnel Services Division) responded on the 21 April asking why the staff should get the allowance for the full month as “As far as I am aware these staff were well aware that their entitlement to this allowance would cease on devolution i.e. 12 April as they are no longer required to participate on the rota”. It was subsequently agreed that they would get paid the allowance for the full month of April 2010.

34. Pay Section instructed HR Connect on 18 May 2010 to remove the allowance from 1^st May 2010.

35. The claimants were informed by email on 21 of May 2010 that the allowance ceased with effect from 1 May 2010 and this would be implemented in the May 2010 salary.

36. NIPSA wrote to Karen Pearson, Director of Personnel Services Division, on 2 April 2010 arguing that the Information Officers affected should continue to receive the allowance. Margaret Mc Gurk, Corporate Human Resources in DFP responded on 20 May 2010 advising that “the view of Management Side remains that this allowance is only payable to those staff meeting the condition of fulfilling the duties”.

37. Following on from a query regarding travel expenses raised by Fionnuala O’Gorman, Sheila Ward (DOJ – Pay and Performance) confirmed, by letter dated the 14 of December 2010, that the “there is no section in the NICS handbook on information officer allowance but the arrangement in place was that the 17.5% allowance was in lieu of any other payment for working outside normal conditioned hours e.g. on-call allowance, overtime.”

38. A letter from Derek Baker to all staff in the DoJ on 28 May 2010 again advises that terms and conditions were protected.

39. All SIOs and IOs that were promoted were entitled to retain the allowance on a mark time basis as staff cannot get less pay on promotion. However, all IOs who were promoted to SIOs and were on the rota were entitled to the allowance on a non mark time basis.

40. FOI 11/28 dated 14 April 2011 states “There is no record of staff who have moved on permanent, temporary, or management transfer between January 2002 and April 2010 who did not retain their allowance.”

41. Michael Cowan in an interview with Anthony Harbinson on 24 January 2011 said: “Brendan retained the allowance because he continued to perform the same duties for the new organisation.”

42. COSOP Principles state: “The Government is committed to ensuring staff involved in all such transfers are treated fairly and consistently and their rights respected.”

43. A letter from Alan Maitland to Mr Thompson dated 6 July 1999 states: “Against the risk of allowing our stand against the allowance to slip, my fear is that if we end it now the cost of overtime, shift allowances and on call payments will exceed what we are paying now. Detailed research work by [redacted] bears this out.”

44. The removal of the allowances was never agreed with either claimant nor with their union.

Specific Details of Fionnuala O’Gorman

45. Recruitment Service wrote to F O’Gorman on 15 June 2004 advising that she had been successful in a competition for the post of Information Officer and offering a post within the Northern Ireland Office (NIO)The job specification stated that the salary would be in the range £19,435 - £28,166 (Under Review) and that a taxable Revised Environmental Allowance of £287 per annum is payable.

46. The Job Description also states, under Main Duties and Responsibilities, that “successful candidates will be expected to take part on an out of hours rota and often work outside normal working hours.”

47. On 23 June 2004 Winifred Hanna, Personnel Services Division wrote to F O’Gorman advising that she would join the NIO as a Grade B2 (Information Officer) with effect from 1 July 2004. The letter advised that “The Northern Ireland Office is a United Kingdom Department. In order to preserve your status as a Northern Ireland Civil Servant you will be appointed to the Department of Finance and Personnel (DFP) and seconded from that Department to the Northern Ireland Office. This is a technical arrangement to safeguard your position, and your connection with the Department of Finance and Personnel will be a purely nominal one”.

48. The letter advised that the starting salary will be £27,000 per annum. The letter also stated that Fionnuala O’Gorman would receive the Duty Press Allowance with effect from 1 August 2004. This is confirmed in an e-mail from Winifred Hanna dated the 21 June 2004. The NICS Recruitment Policy and Procedures manual states the letter of offer “becomes the legal contract with that candidate.” Prior to being appointed an IO, Fionnuala O’Gorman had been employed in the NI Assembly which attracted an Assembly allowance of £1,000.00 p.a. The Assembly allowance was not payable to Fionnuala O’Gorman in her role as an IO in the NIO but the Information Officer allowance meant that her overall salary was increased.

49. F O’Gorman went onto the Information Officer Rota on 1 September 2004 and started receiving the Information Officer’s Allowance.

50. On 12 April 2010, Anne Birch, Personnel Services in the Office of the First Minister and Deputy First Minister (OFMDFM) wrote to Fionnuala to advise that her secondment to the NIO from DFP will end at midnight on 11 April 2010. It advised that she will be an employee of OFMDFM in its Executive Information Services. She would remain in the NIO on secondment from OFMDFM.

51. Information Officer grades are not eligible for the out of hours rota in EIS. She ceased to be on the rota from 12 April 2010 and ceased to receive the allowance from 30 April 2010.

52. F O’Gorman registered a grievance with HR Connect on 19 July 2010. An investigation was carried out by HR Connect and recommendations were made to the Office of the First Minister and deputy First Minister (OFMDFM). HR Connect recommended upholding some elements of the grievance. An appeal was submitted on 22 March 2011 and this appeal was rejected on 12 May 2011. A further and final appeal was submitted and Ms O’Gorman was notified on 15 July that the appeal was not upheld. However, the officer hearing this appeal concluded “that there were shortcomings in the consultation and communication with you regarding the fact that, post devolution, you would no longer be required to work on the rota. In my view you should receive some form of compensation for this. I would recommend that this equate to 6 months payment of the 17.5% duty rota allowance.

53. F O’Gorman claimed a case of unlawful deduction of wages, variation of contract and a breach of the TUPE Regulations against the respondents on 20 August 2010. This is to include the removal of the allowance and the weekend premium paid whilst she was in NIIS.

54. The respondents refute these claims.

Specific Details of Lorraine Ennis

55. Lorraine Ennis joined the Northern Ireland Civil Service on 7 April 1986. On 19 April 2004, Liz Campbell in Personnel Services Division advised that she would transfer to the Northern Ireland Office on 26th April 2004. The letter advised that “the Northern Ireland Office is a United Kingdom Department. In order to preserve your status as a Northern Ireland Civil Servant you will be appointed to the Department of Finance and Personnel and seconded from that Department to the Northern Ireland Office. This is a technical arrangement to safeguard you position, and your connection with the Department of Finance and Personnel will be a purely nominal one.

56. On 27 January 2006 she was advised by Recruitment Service that she had been successful in an external competition for promotion to Grade B2 Information Officer. The Candidate Information Booklet for this post (Reference SB48/05) states: “Successful candidates will be expected to take part in an out of hours rota on evening and weekends and often work outside normal working hours.” On 31 January 2006 she was advised by Martin Coleman, Personnel Services Division that the promotion would take effect from 1 February 2006. The salary range for the competition was £19,824 to £28,307. As an existing civil servant in the NIO Lorraine was entitled to an extra 10% or her salary, or the minimum scale on the higher grade, whichever was the greater. Lorraine Ennis went on the out of hours duty rota on the 1 May 2006 and started receiving the Information Officers Allowance.

57. As from the 21 of September 2007 Lorraine Ennis temporarily began to work reduced hours with a commensurate reduction in pay. The Claimant was paid the full 17.5% allowance (i.e. 17.5% of her full-time pay).

58. On 8 April 2010, Anne Birch in Personnel Services Division in the Office of the First Minister and Deputy First Minister (OFMDFM) wrote to Lorraine to advise that her secondment to the NIO from DFP will end at midnight on 11 April 2010 and she will be an employee of OFMDFM in its Executive Information Services (EIS). She was advised that she would go on loan to the Department of Justice with effect from 12 April 2010. Lorraine Ennis has never been provided with a secondment or ‘loan’ agreement and has never signed or agreed to any such terms. Anne Birch OFMDFM wrote to Lorraine on 8^th April 2010 outlining loan arrangements.

59. Information Officer Grades are not eligible for the out of hours rota in EIS. She ceased to be on the rota from 12 April 2010 and ceased to receive the allowance from 30 April 2010.

60. A memo from the Director of Operations to all Directorates in the NI Prison Service dated 4 August 2010 states that “authorisation to grant overtime should only be taken to cover an acute operational situation and when all other means of covering the task have been exhausted.”

61. Overtime is paid for work that is of a voluntary nature.

62. Lorraine Ennis registered a grievance with HR Connect on 11June. NICS Grievance policy states: “An investigation will be carried out by HR Connect.” The grievance was investigated by the Department of Justice and not HR Connect and the grievance was not upheld.. An appeal was submitted on the 8 October 2010 and this appeal was rejected on 21^st February 2011 citing that only the "points of agreement were considered." A further and final appeal was submitted on 2^nd March 2011.

63. Nick Perry notified Lorraine Ennis of the outcome on 1 June: “I do not accept that you have demonstrated a contractual right to remain on the rota or to remain in receipt of the allowance. Nor is there a set period of notice to which a civil servant is entitled when an allowance is removed – an allowance ceases to be paid when the conditions for its payment are no longer met. However, in the particular circumstances of this case I have decided to make a discretionary award. To be absolutely clear, I do not accept that you had a contractual entitlement to receive the allowance for this or any notice period.

64. The award I make is the equivalent to six months gross payment of the allowance of which you were in receipt until the end of April 2010. I make this award in the knowledge that you are proceeding to Tribunal and I consider this award to be a separate matter, concluding the internal grievance process”.

65. Lorraine Ennis claimed a case of unlawful deduction of wages, variation of contract, and a breach of the TUPE Regulations against the respondents on 12 August 2010. This is to include the removal of the allowance, the broadband, early breakfast allowances, weekend premiums and also the variation to her working hours.

66. The respondents refute these claims.”

Contentions of the Parties and Findings of Relevant Fact by the Tribunal

11. The following paragraphs contain the tribunal’s findings of relevant fact on the matters in dispute between the parties. The claimants’ case is that they, [and indeed all SIOs and IOs recruited to the NIIS from 2002 until 2008], were specifically recruited to and that there was a requirement on them to work on the NIIS rota, therefore the respondent was contractually obliged to include them on the out of hours rota and to pay them the Information Officers’ allowance. They asserted further that they should be entitled to retain the allowance because previously SIOs transferring to posts outside the NIIS were permitted to retain the allowance on a mark time basis. Therefore the claimants’ contended that there had been a variation to their terms and conditions upon the TUPE transfer of their employment. The claimants further contend that even though they were not included on the rota they continued in their current roles to work extensively out of hours and thus should be entitled to receive the allowance. The respondents’ contention is that the inclusion of IOs on the NIIS rota was a temporary arrangement subject to a business need and the allowance was payable so long as IOs were working on the NIIS rota. With second stage devolution there was no longer a business need for IOs to work on the rota. Further the allowance could not be retained on a lateral transfer. The respondent denied that the IOs in the NIIS were obliged to work on the rota or that there had been any variation of the claimants’ terms and conditions of employment.

12. The claimants relied on a number of matters including that their respective job descriptions stated that the “successful candidates will be expected to take part in an out of hours duty rota on evenings and weekends and often work outside normal working hours”. The respondent denied that this implied a requirement on the claimants to participate in the rota and pointed out that it was also specifically stated that “this information pack does not form part of conditions of employment”.

13. The claimants were included on the NIIS rota after an initial training period and instructions were given to the pay section that the payment of the allowance should commence as soon as they went on the rota. The basis of their inclusion on the NIIS rota was never discussed with the claimants. This was not raised by Mr Larmour when Mrs O’Gorman sought information from him about the operation of the rota before she decided to accept the offer of the IO post. One of her main concerns was about the amount of the Information Officers’ allowance and associated allowances and Mr Larmour assured her that the 17.5% would make up for the loss of the £1000 Northern Ireland Assembly allowance from her previous job. Mrs Ennis did not raise this as an issue because her experience before promotion, was that both SIOs and IOs were included on the rota. Mr Godfrey’s own experience, having initially been recruited to the NIIS as an SIO, was that the rota was not something that was discussed between staff in the NIIS as it was accepted that this was the way that out of hours work was done and in return staff were paid the 17.5% allowance which was regarded as being an attractive allowance. Both claimants accepted that they were never advised in terms that it was compulsory for them to participate in the rota. It appears to the tribunal that when considering the claimants’ grievances at the various stages, consideration was given to the job description of an SIO in EIS which does not contain any reference to an expectation that there will be participation on the out of hours rota. The respondent pointed to Colin Cluny as an example of an SIO who had requested that he be removed from the NIIS rota. However Mr Godfrey was not clear whether this request was made before or after Mr Cluny, had transferred to the EIS in September 2000.

14. Mrs Ennis told the tribunal that a condition of her being granted reduced working hours for a temporary period in September 2007 was that she should continue to participate fully on the rota. She continued to receive the Information Officers’ allowance based on her full time pay instead of being reduced pro rata with her part time hours. She contended that this supports her case that she was obliged to work on the rota. The respondent’s position was that the claimant was willing to participate fully in the rota and that she was content with this arrangement at the time. She received the full allowance because she continued to participate fully on the rota. Similarly, Gail Kingsberry who was also part time in 2002 continued to receive the full allowance. A memo which referred to Ms Kingsberry’s case stated that part time IOs would receive the allowance either in full or reduced pro rata depending on their individual work pattern and whether or not they participated fully in the rota.

15. Mrs Ennis further contended that she was permitted to retain the Information Officers’ allowance during a period of sickness absence which exceeded 30 days. In fact payment of the allowance was initially stopped after 30 days. However she raised a grievance and after initial refusal she was notified by Karen Pearson on 27 August 2009 that her grievance appeal was upheld due to the exceptional circumstances of her case and that she would be paid the allowance outside of the policy. Previously Neil Mulholland, an SIO in the NIIS, had continued to be paid the allowance during a period of extended sick leave, also due to “exceptional circumstances”.

16. A vacancy for a Grade B2 Information Officer was advertised with a closing date of the 21 March 2008. John Hynds was appointed to the position and initially was not included on the NIIS rota and did not receive the Information Officers’ allowance. He initially claimed payment of overtime when he was required to assist with the rota outside his core hours. After a few months he was officially included on the rota and started to receive the 17.5% allowance. The job description in the candidate information pack did not mention that the successful candidate would be expected to work on the rota. This occurred against a background of uncertainty about the date of second stage devolution and it was expected that this would occur in May 2008. In the event, devolution was delayed.

17. The tribunal did not accept that the claimants (or indeed that other IOs or SIOs in the NIIS) were included on the EIS rota prior to second stage devolution. The tribunal accepted Mr Colm Shannon’s evidence that it would have been unacceptable for NIO employees to be involved in providing information services and briefing Ministers/Officials in the devolved departments and that the claimants did not ever carry out such briefings. The claimants did participate in the shared responsibility of the EMD but this was in their capacity as NIIS IOs. The EIS simply drew up the rota. This could equally have been an administrative task undertaken by the NIO.

18. It is clear from the background documentation that for many years at senior management level in the NIO and PSD there was a recurring discussion about both whether the 17.5% allowance was the best way to remunerate SIOs for out of hours duties and the appropriate level of the allowance. A policy decision was taken in 1999 to continue to pay the 17.5% allowance to compensate SIOs for out of hours work and rota work rather than pay overtime or on call allowances. In 2002 Mr Godfrey strongly made a business case for the inclusion of IOs on the rota: “I have five fewer people to do, what for the foreseeable future, will be the same amount of work as heretofore. That must include the IOs and I do not want them to be treated differently.” His rationale was that this arrangement would be left in place until the completion of devolution upon which the business need to have IOs on the rota would cease. The memo from Lois Murphy, which the claimants accept was sent to all three IOs referred to above, as well as setting out the conditions of the allowance, further stated “we will review the payment of the allowance during the year and would therefore be grateful if you would keep records of all additional hours worked. This is a requirement for the payment of the allowance. It will help us make sure this remains the best method of payment for the duties associated with your post”. From mid June 2008 queries were being made by SIOs and IOs in the NIIS about whether the allowance would be retained after devolution. Mr Godfrey frankly admitted to the tribunal that he had failed as a senior manager, partly due to the uncertainty surrounding the political process of devolution, to communicate clearly with his own staff, including the claimants, about the implications for the rota and whether staff could retain the allowance after devolution. It is also clear however from the correspondence in February 2010 that there was an understanding on the part of staff, including the claimants, that the requirement for IOs to participate on the rota would come to an end with devolution.

19. The claimants also made the case that they were contractually entitled to retain the Information Officers’ allowance even though they were no longer on the rota. It was contended by the claimants that a number of SIOs, who had transferred from NIIS to another post, were permitted to retain the allowance even though they did not remain on the rota.

20. Neither claimant was provided with a statutory statement of their main terms and conditions of employment. However as members of the Northern Ireland Civil Service, the claimants’ terms and conditions of employment are governed by the Civil Service Handbook. The Handbook contains details of wide ranging central allowances. An allowance is an enhancement of salary for set criteria. The Handbook does not set out the entitlement criteria of the Information Officers’ allowance because this is a Departmental allowance. Mrs Smyth confirmed that it would have been best practice for the criteria for the allowance to have been written down and made available to staff members concerned. Generally staff members are entitled to receive an allowance on top of their basic salary provided they satisfy the criteria.

21. The mark time rules, contained in the Northern Ireland Civil Service handbook, provide that in certain circumstances where there is a reduction in pay when moving to a different post, the employee may retain the pay in issue on the day before this change occurs and hold this higher rate of pay on a mark time basis. The mark time element is the difference between the higher rate of pay and substantive rate of pay. The mark time element is eroded until such time as substantive pay catches up. Paragraph 1.4 provides that “Mark time will often apply where, for example, your existing pay plus allowances (or pay lead) exceeds your new salary on promotion or transfer to a new grade which does not attract the allowance or pay lead.” Annex 1 to the policy gives examples of how the mark time policy works. Example 1 shows that an allowance which is reckonable for promotion, can be retained on a mark time basis where the new promotion post is not eligible for allowance. Example 3 shows what happens where an EOII in receipt of an allowance not reckonable for promotion is promoted to an EO1 post where the allowance is not payable. In those circumstances the allowance is not payable or reckonable at the higher grade. Example 2 provides an illustration of what may happens in a lateral transfer of an EOII in receipt of allowance of £3,000.00 moving to a EOII post which does not attract the allowance. This example states “However under the terms of the allowance (my emphasis) it can be retained on a mark time basis when you leave a qualifying post to move to an un-qualifying post”. Whether an allowance is payable on a mark time basis on a lateral transfer therefore depends upon the criteria of the allowance itself.

22. A number of NIIS Senior Information Officers were transferred on promotion and were permitted to keep the 17.5% allowance on a mark time basis, namely Mark Larmour who was promoted to Grade A on the 30 January 2000, Tim Logan and Fiona McCoy who were promoted to Grade A on the 25 October 2004 and Lynne Hutchinson who was promoted during a temporary transfer to the Assets Recovery Agency. Lynn Hutchinson was allowed to retain the allowance when she subsequently transferred to the Public Prosecution Service in December 2008. The respondent’s case is that this was because she did extensive out of hours media work for both the Assets Recovery Agency and the Public Prosecution Service. She was not on the rota after December 2008. Similarly Brendan Giffen transferred in September 2007 on loan to the Secretariat of the Consultative Group on the Past. The post required him to be on call out of hours. He did not remain on the rota but was permitted to retain the 17.5% Press Officers Allowance. Neil Mulholland the Senior Information Officer joined the NIIS in 1997. He was a witness in a high profile criminal trial and was absent on leave from 1995 on special paid leave for almost three years. On his return to the NIO he was transferred to a post outside the NIIS. He was allowed to retain the allowance until he was medically retired on 2004 on the basis that this was a management transfer and that there were exceptional circumstances in his case.

23. It would therefore appear that where an SIO or Information Officer is transferring to a promotion post that the 17.5% allowance of salary is reckonable for promotion and is therefore payable on a mark time basis where the new post does not attract the allowance. The claimants contended that the allowance could be retained on a mark time basis on a lateral transfer. Michael Cowan initially expressed the view in 8 July 2002 that where staff moved to a different area of work the allowance was held on a mark time basis. He refers to the allowance being recently extended to B2s and states that he has been “keen to review the entitlement to the allowance for some time”. In his subsequent clarification on 6 September 2007, which relates to Brendan Giffen’s transfer on loan, he states that any staff who had moved out had done so on promotion and therefore had retained the allowance on mark time. He stated that should any staff move out on a lateral transfer “the allowance will be removed” because “If we were to allow the Press Officers to retain the 17.5% and then they moved on a lateral transfer to a post which required on call or overtime, we would be effectively paying them twice”. He further stated where someone is required by a department on loan as otherwise there will be no suitable candidate, they could be paid mark time “on the basis that they remain a Press Officer and are required to work out of hours”.

24. In the event it is clear from a letter sent to Brendan Giffen dated the 21September 2007 from Dan Mulholland, Head of Personnel Operations that he was permitted to retain the Information Officers’ allowance in recognition that the on loan post required him to be on call out of hours even though he was not on the rota. He did not therefore retain the allowance on a mark time basis but because he continued to be on call out of hours. In addition Mr Mulholland stated “At the end of this posting should you choose to complete a lateral transfer from SIO Grade B1 to Deputy Principal the 17.5% allowance would be removed entirely”. I am satisfied that this supports the respondent’s contention that the allowance cannot be held on a mark time basis on a lateral transfer.

25. After second stage devolution, it was Mr Shannon’s assessment that the transfer of policing powers and justice to the EIS created a business need for two further SIOs on the EIS out of hours rota. He decided to include two of the SIOs who transferred from NIIS ahead of those SIOs already on the EIS waiting list to meet that need because of their experience on working on the NIIS out of hours rota. The third SIO, Mr Ken Mack, was immediately seconded to the NIO to work in the NIIS. The volume of work in the NIIS has greatly reduced since devolution. There are currently only four people employed in the NIO press office, namely Mr Godfrey, Mr Mack and Mrs O’Gorman and an administrative person. The requirement for night cover and on call function is covered by Mr Godfrey and Mr Mack provide out of hours cover, who both carry a pager. I did not accept the claimants‘ evidence that after 12 April 2010 they were expected to work extensively out of hours when required and often at short notice. Mrs O’Gorman made it clear to her line manager that she was not prepared to work outside of her contractual hours once the 17.5% allowance had been removed and neither claimant has been included on the rota or asked to work at weekends.

26. It was accepted that there was failure on the part of the respondents properly to consult individually as required by TUPE 2006 with each of the claimants, this failure was acknowledged and addressed by the payments made to the claimants by the respondent following their respective grievances.

Law

27. Article 45 of the Employment Rights (Northern Ireland) Order 1996 sets out the right of a worker not to suffer unlawful deduction from wages.

Article 45 (3) provides “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion”.

The tribunal must therefore establish what wages are properly payable to a worker before it can decide whether there has been an unlawful deduction.

28. Regulation 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 provides “subject to regulation 9, in respect of a contract of employment that is, or will be, transferred by paragraph (1), any purported variation of the contract shall be void if the sole or principal reason for the variation is -

(a) the transfer itself; or

(b) a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.”

In addition the tribunal was referred to extracts from Harvey Division A II concerning the construction of a contract of employment and the various headings under which terms may be implied into the contract of employment; and to the following cases:

Albion Automotive Ltd v Walker and others [2002] EWCA CIV946; Beverage (Appellant) v KLM UK Limited (Respondents) [2000] IRLR 765; Camden Primary Care Trust v Atchoe [2007] EWCA CIV714; Carmichael & Another (Applicant/Respondent) v National Power Plc (Respondent/Appellant) [2000] IRLR 43; Harlow (Claimant) v Artimus International Corporation Limited (Defendant) [2008] EWHC 1126 (QB); Hussman Manufacturing Limited (Appellant) v Weir (Respondent) [1998] IRLR 288; International Packing Corporation (UK) Limited (Appellant) v Balfour and Others (Respondent) [2003] IRLR 11; Rutherford (Claimant) v Seymour Pierce Limited (Defendant) [2010] EWHC 375 (QB).

Conclusions

29. In order to decide whether there has been an unlawful deduction from wages or an unlawful variation of the claimants’ terms and conditions of employment in removing the Information Officers’ allowance, it is necessary first to establish the claimants’ contractual position prior to the transfer and what was “properly payable” to them under their respective contracts of employment. The out of hours rota was a working arrangement for SIOs which was extended to IOs in 2002 due to a business need to maintain the NIIS rota. The business need for the inclusion of IOs on the rota was closely linked to the political process of devolution and it was anticipated that this business need would end on completion of devolution. In that sense the arrangement was temporary.

30. I do not consider that the background correspondence and the conduct of the respondent is consistent with the participation on the rota, either being from the outset, or becoming, a permanent feature or a contractual term of the claimants’ employment. It was made clear to the IOs in 2002 that this arrangement was subject to review. The 2008 Grade B2 Information Officer recruitment exercise made no mention of the NIIS rota and initially the person appointed was not included on the rota. It is accepted that this was not communicated in terms to the claimants but I am satisfied that the evidence shows that there was an awareness on the part of SIOs and IOs, including the claimants, that second stage devolution would have implications for their continuing participation on the NIIS rota.

31. I conclude that there was an expectation, both on the part of NIIS managers and the claimants, that the latter would participate in the rota while there was a business need for them to do so. The question of whether they were actually compelled to participate was never discussed, primarily because the claimants were content to participate in the rota. I conclude that the Information Officers’ allowance was an alternative way of paying for work done outside normal working hours which would otherwise have had to be met by overtime payments and the on call allowance. Prior to that IOs were able to claim overtime for out of hours work and/or on call allowances. The IOs in 2002 agreed to this change in their out of hours working arrangements and in return became eligible for the Information Officers’ allowance.

32. In the present case I am satisfied that there was an implied obligation on the claimants to participate on the rota as long as there was a business need for them to do so. It is clear that the claimants were contractually entitled to receive the Information Officers’ allowance so long as they participated in the NIIS out of hours rota. I conclude that on a proper construction of the claimants’ contractual position prior to the TUPE transfer there was no obligation on the employer to keep the claimants on the NIIS rota unless there was a business need for them to be on the rota. The business need ceased on second stage devolution. The comments of Sir Peter Gibson at paragraph 35 of his judgment in the case of Camden Primary Care Trust v Atchoe, cited above, are of relevance on this point. In that case the employee’s contract of employment expressly imposed an obligation to contribute to the on call system but was silent as to any obligation on Camden to maintain the employee on the call roster. The learned judge stated: “In my opinion there is some similarity with the position in law as regards overtime which the employee is required by his employer to work and in the absence of any obligation on the employer to provide work for overtime I am not persuaded that in Mr Atchoe’s contract there is any obligation on Camden to maintain a technician on the on call roster notwithstanding the obligation on the technician to contribute to the on call system. If that is wrong, and there is an obligation, that obligation can be overridden by the implied term which as the ET found, authorised and required Camden to remove Mr Atchoe from the on call roster, pending clarification of (his) qualifications.” Therefore my view is that there has not been a variation of the claimants’ terms and conditions of employment in not including them on the EIS rota, which is a separate rota from the NIIS rota and therefore there is no breach of Regulation 4 of TUPE 2006 on this basis.

33. I then turn to the claimants contentions that they are entitled to retain the allowance even though they no longer work on an out of hours rota. As there are no written criteria for the Information Officers’ allowance, I carefully considered the background documentation and the circumstances in which other employees had been permitted to retain the out of hours allowance on transfer to a different post. It is clear that SIOs who either remained on an out of hours rota or carried out significant out of hours/on call work were permitted to retain the Information Officers allowance. As neither claimant now works on an out of hours rota or carries out significant out of hours/on call work they are not eligible to receive the out of hours allowance on this basis.

34. I am further satisfied that they cannot retain the allowance in accordance with the mark time policy. The claimants have not transferred to a promotion post and I am satisfied from the correspondence and conduct of the respondent that the terms of the allowance are such that it is not payable mark time on a lateral transfer. In the case of Mr Mulholland this was not followed but I accept that there were exceptional circumstances in his case. Furthermore the fact that the NIO exercised a discretion to pay the allowance outside of the criteria of the scheme does not confer a contractual entitlement on the claimants to retain the Information Officers’ allowance on a lateral transfer.

35. I am satisfied that there was no variation of the claimants’ contractual entitlement contrary to TUPE 2006 terms when their employment transferred to the respondent and that the Information Officers’ allowance and associated allowances and benefits are not properly payable to the claimants. Therefore their respective complaints of unlawful deductions from wages are not well founded and are dismissed in their entirety.

Chairman:

Date and place of hearing: 27-30 September and 6 October 2011, Belfast.

Date decision recorded in register and issued to parties: