Industrial Tribunals Northern Ireland Decisions

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Cite as: [2012] NIIT 00086_08IT, [2012] NIIT 86_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 2025/07

86/08

CLAIMANTS: Tommy McNamara

Edward Flynn

RESPONDENT: Department of Social Development

DECISION

The unanimous decision of the tribunal is that the claimants, and each of them, were not indirectly discriminated against on the grounds of age pursuant to the Employment Equality (Age) Regulations (Northern Ireland) 2006. The claims of the claimants are therefore dismissed.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr Devlin

Mr Copeland

Appearances:

The claimants appeared in person and were not represented.

The respondent was represented by Ms N McGrenera, Queen’s Counsel, and Mr P Coll, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

Reasons

1.1 The first claimant presented a claim to the tribunal on 23 November 2007, in which he made a claim of indirect age discrimination, pursuant to the Employment Equality (Age) Regulations (Northern Ireland) 2006 (‘2006 Regulations’). By a response, presented to the tribunal on 7 January 2008, the respondent denied liability for the said claim. The second claimant presented a claim to the tribunal on 21 December 2007, in which he also made a similar claim of indirect age discrimination under the 2006 Regulations. By a response presented to the tribunal on 18 February 2008, the respondent denied liability for the said claim. By an order, dated 7 April 2008, the said claims were ordered to be considered and heard together.

1.2 At a Case Management Discussion held on 2 July 2008, as set out in the Record of Proceedings dated 22 July 2008, the following issues were identified to be determined by the tribunal in relation to each claim:-

“(1) Has the claimant been subjected to indirect age discrimination by the respondent, contrary to Article 3(1)(b) of the Employment Equality (Age) Regulations (Northern Ireland) 2006, in that the respondent has applied to the claimant a provision, criterion or practice which is applied equally to persons not of the same age group as the claimant, but which puts the claimant at a particular disadvantage when compared with those other persons, in relation to the respondent’s Staff Officer pay scales.?

(2) Do the provisions of Article 34 (especially Parts 1 – 3), of the above Regulations apply to this case, and if so, what effect do they have on the claimant’s age discrimination complaint? In particular:-

- What is the relevant length of service period, in light of Article 34(3)?

- Does the respondent satisfy the ‘business need’ test set out in Article 34(2)?

- Does the benefit, as described at Article 34(1), include salary?

(3) If it is held that the respondent did in fact indirectly discriminate the claimant on grounds of his age, is the provision, criterion or practice justifiable as a proportionate means of achieving a legitimate aim, as set out at Article 3 of the above Regulations?

(4) What is the claimant’s age group, and against comparators from which age group does he seek to compare himself?

(5) What are the appropriate pools for comparison – claimant’s work, unit, departmental level, NICS level?

(6) If the claimant is ultimately successful, what detriment has be suffered and what remedy is appropriate?

(7) Did the Department comply with Statutory (Dispute Resolution) Procedures in relation to grievances?

1.3 At no time prior to the commencement of the substantive hearing of this matter was any issue raised by the respondent in relation to the jurisdiction of the tribunal to consider and determine the claim of the claimants or either of them. However, during the course of the substantive hearing and, in particular, some five days into the hearing, during the course of cross-examination of the second claimant, the respondent’s representative, Mr Coll, made an application that the second claimant’s claim be dismissed on the grounds the tribunal did not have jurisdiction to determine the said claim, having regard to the provisions of the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolutions) Regulations (Northern Ireland) 2004 and the statutory grievance procedures contained therein.

The tribunal initially refused to consider the said application, until the conclusion of the second claimant’s case to the tribunal. At that stage, the tribunal heard submissions by the second claimant and the representatives of the respondent. However, having regard to the terms of the overriding objective and the stage at which the application had been made, the tribunal decided it would not be appropriate to determine the said application of the respondent, in relation to its jurisdiction to hear the second claimant’s claim, until after the conclusion of the hearing of the claims of both claimants; and that it would give its decision and reasons, in relation to the respondent’s said application, as part of the decision of the tribunal in relation to the determination of the claims of both claimants. In so deciding, the tribunal not only had regard to the terms of the overriding objective but also was very conscious of the time when the application had been made, during the course of the proceedings, by the respondent. The tribunal considered, in such circumstances, it was more appropriate to hear all the evidence, in relation to the claims of both claimants, before determining the application. The tribunal, whilst noting that this issue had not been previously raised by the respondent in either ‘the pleadings’ or by way of correspondence or at any case-management, including the Case Management Discussion on 2 July 2008, when the issues were identified (see Paragraph 1.2 above), also took into account that no application had been previously made for a pre-hearing review to determine any such jurisdictional issue. However, the tribunal was very aware that, even if such a pre-hearing review had been sought at an earlier stage, it might not have been granted, in view of the guidance of the Court of Appeal in the case of Ryder v Northern Ireland Policing Board [2007] NICA 43, and the House of Lords in SCA Packaging Ltd v Boyle & Another [2009] IRLR 54.

The tribunal considered that the said guidance was of relevance and assistance in its decision to determine the said application at the conclusion of the substantive hearing; with the tribunal having particular regard to the warnings expressed by Girvan LJ in Paragraph 7 of his judgment in the Ryder case, approved in Boyle, in relation to the dangers posed by inappropriate preliminary issues.

1.4 The issuing of this decision has been delayed, with the agreement of the parties, having regard to the terms of the overriding objective, in circumstances where there were a series of decisions made by the Employment Appeal Tribunal and/or the Court of Appeal in England and Wales, following the giving of the evidence by the parties, which are referred to in more detail in Paragraph 4 of this decision, which the parties and the tribunal recognised were relevant and also of considerable persuasive authority, in the absence of any decision in relation to the 2006 Regulations by the Northern Ireland Court of Appeal.

2.1 The issue raised by the respondent in its application, in relation to the jurisdiction of the tribunal to hear the claim of the second claimant, concerned, in particular, the provisions of Article 19 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) and the Industrial Tribunals Rules of Procedure, which were then in force and relevant to these proceedings.

Article 19 of the 2003 Order, insofar as relevant and material provides:-

“(3) An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if –

(a) it concerns a matter in relation to which the requirement in Paragraph 6 or 9 of Schedule 1 has been complied with; and

(b) less than 28 days have passed since the day in which the requirement was complied with;

…

(6) An industrial tribunal shall be prevented from considering a complaint presented in breach of Paragraph (2) to (4), but only if –

(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings; or

(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with Regulations under Article 9 of the Industrial Tribunals Order (Industrial Tribunals Procedure Regulations).”

There was no dispute that the claimants’ claim of age discrimination under the 2006 Regulations was a jurisdiction to which Article 19 applied.

2.2 Before considering the above provisions in more detail, it was necessary to consider the facts, relevant to the said application, which were found by the tribunal, as set out below, and which were not in fact in dispute between the parties:-

(a) The claim of the second claimant was presented to the tribunal on 21 December 2007. The claim was accepted by the Secretary of the Tribunals, pursuant to the acceptance of claim procedure contained in the Industrial Tribunals Rules of Procedure, as set out in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’), as set out in the Secretary’s letter to the second claimant and respondent dated 21 January 2008.

(b) In his claim form, the second claimant had stated in Paragraph 6.3(c) in answer to the question – “if you raised all or part of the subject-matter of your complaint in writing with the respondent, please give the date when you did this? – “23 November 2007”. There was no dispute that the second claimant had sent a grievance to the respondent, in writing, on that date, relating to his claim for indirect age discrimination, and which grievance, the respondent accepted, satisfied the relevant provisions of the 2003 Order.

2.3 The first issue to be determined by the tribunal was whether, in light of the facts found as set out in the previous sub-paragraph, the 28 day period, as set out in Article 19(3)(b) of the 2003 Order, was complied with by the second claimant in circumstances where he presented his claim to the tribunal on 21 December 2007, having sent his grievance to the respondent on 23 November 2007.

2.4 The Secretary of the Tribunals accepted the claim, in accordance with the acceptance procedure set out in Rule 2(1) and Rule 3(1) of the Rules of Procedure, having concluded, in the judgment of the tribunal, that the relevant 28 day period had been complied with.

Rule 2(1) of the Rules of Procedure provides:-

“On receiving the claim the Secretary shall consider whether the claim or part of it should be accepted in accordance with Rule 3. If a claim or part of one is not accepted the tribunal shall not proceed to deal with any part which has not been accepted (unless it is accepted at a later date). If no part of a claim is accepted the claim shall not be copied to the respondent.”

Rule 3(1) of the Rules of Procedure provides:-

The Secretary shall not accept or register the claim (or a relevant part of it) if it is clear to him that one or more of the following circumstances applies –

…

(c) Article 19 of the Employment (Northern Ireland) Order 2003 (complaints about grievances : Industrial Tribunals) applies to the claim or part of it and the claim has been presented to the tribunal in breach of Paragraphs (2) to (4) of that Article.”

If the Secretary of the Tribunals had concluded it was clear to her there had been a claim presented in breach of Paragraph 3 of Article 19 of the 2003 Order, she could not have accepted the claim. It would have been referred to a Chairman, who would then have been required, under the Rules of Procedure, to make a determination whether or not the claim should be accepted.

2.5 It was not disputed by the parties that the Secretary of the Tribunals must have included 23 November 2007 in her calculation, but had started the calculation of the 28 day period on 24 November 2007. The claim, having been presented on 21 December 2007, which was therefore the 28^th day of the said 28 day period, the claim had then been accepted by the Secretary of the Tribunals. The respondent’s representative, Mr Coll, submitted that the claim should not have been accepted by the Secretary of the Tribunals, having regard to the terms of Article 19(3)(b) of the 2003 Order. In particular, he submitted the earliest date the second claimant could have presented his claim, to satisfy the said 28 day period, was 22 December 2007. In essence, he submitted the second claimant was one day out, and the 28 day period, set out in Article 19(3)(b), had not been complied with; and therefore the tribunal had no jurisdiction to hear the complaint of the second claimant.

2.6 The tribunal concluded that, in order to determine the above issue, it was necessary to consider, in detail, the wording of Article 19(3)(b) of the 2003 Order which states, as set out previously:-

“Less than 28 days have passed since [tribunal’s emphasis] the day on which the requirement has been complied with.”

In particular, the tribunal had regard to the fact the said provision does not state, for example, “less than 28 days from the day on which the requirement was complied with”; but rather states that “less than 28 days have passed since”. The tribunal was satisfied that calculation of time-limits, under the 2003 Order, is governed by the Interpretation Act (Northern Ireland) 1954 (‘the 1954 Act’) and, in particular, Section 39 of the said Act.

Section 39 of the 1954 Act, insofar as relevant, states:-

“ …

(2) where in an enactment a period of time is expressed to being on, or to be reckoned from, a particular day, that day shall not be included in the period;

(3) where in an enactment a period of time is expressed to end on, to be relevant to a particular day, that day shall be included in the period;

…

(5) sub-section (2), (3) … shall apply whether or not the number of days concerned is expressed to be clear days.”

Having regard to the terms of Section 39(2) of the 1954 Act, the tribunal was satisfied, and which was not disputed by the parties, that the Secretary of the Tribunals was correct, as set out above, to calculate the 28 day period from 24 November 2007 (ie the day after the requirement was complied with, which was 23 November 2007). In essence, the issue in dispute between the parties, was whether it was sufficient, in order to satisfy Article 19(3) of the 2003 Order, if the claim was presented by the second claimant to the tribunal on the 28^th day, as it was, namely 21 December 2007; or whether the second claimant was required to wait to present his claim until the 29^th day, namely 22 December 2007, in order to comply with Article 19(3) of the 2003 Order. The difficulty for the second claimant, if he presented his claim on the wrong date, namely a day early, was that, if he was incorrect, it raised issues in relation to the tribunal’s jurisdiction to determine the second claimant’s claim (see further later in this decision).

2.7 Given that it has to be clear days, under Article 39 of the 1954 Act, and the requirement, under Article 19(3)(b) of the 2003 Order, is for 28 days to have ‘passed since … ‘ the tribunal came to the conclusion that, in order for the second claimant to have complied with the provisions of Article 19(3)(b) of the 2003 Order, the second claimant had, by presenting his claim on 21 December 2007, done so one day early and had not therefore complied with the 28 day requirement, as set out in Article 19(3)(b) of the 2003 Order. The tribunal has considerable sympathy for the second claimant, and indeed for any claimant, but especially one who is not legally represented, to follow the technical requirements of the statutory grievance procedure/vetting procedure introduced under the 2003 Order. As His Honour Judge McMullan QC said in the case of the Basingstoke Press Limited (in administration) v Clarke [2007] UKEAT/0375:-

“It is a regime which is very difficult for ordinary workers and employers to understand and it is characterised correctly by Underhill J in this court as rebarbative.”

2.8 As indicated previously, the claim of the second claimant was in fact accepted by the Secretary of the Tribunals in accordance with the acceptance procedure under the Rules of Procedure.

The second claimant had correctly set out in his claim form that the grievance had been sent to the respondent on 23 November 2007.

Under the Rules of Procedure, as set out above, the claim form is required to contain all the relevant required information; and, in particular, under Rule 1(4)(j) such required information is:-

“Whether or not the claimant has raised the subject-matter of the claim to the respondent in writing at least 28 days prior to presenting the claim to the Office of the Tribunals.”

Clearly the reference in Rule 1(4)(j) is to the said 28 day period in Article 19 of the 2003 Order. Although the wording in the said Rule is not the same as that found in Article 19 the tribunal noted, in particular, the Rule refers to ‘at least 28 days’ [tribunal’s emphasis]. This has echoes of the wording in Article 19(3)(b) of the 2003 Order, where there is reference to ‘passed since’. In relation to issues of time, Regulation 11 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Regulations’) provides for the calculation of time under the Rules of Procedure. In particular, under Regulation 11(2) it is provided:- “where any act must or may be done within a certain number of days of or from an event, the date of that event shall not be included in the calculation …“. Thus the calculation of time, under the Rules of Procedure, is similar to the calculation of time, which was applicable to the calculation of the 28 day period under Article 19 of the 2003 Order, pursuant to Section 39(2) of the 1954 Act.

By accepting the claim, which was presented to the tribunal on 21 December 2007, the Secretary of the Tribunals, in the judgment of the tribunal, was therefore ‘in error’ in not recognising that the claim had been presented a day early. However, it must also be noted that this ‘error’ by the Secretary of the Tribunals was also not recognised by the respondent’s representative until, during the course of the substantive hearing, the respondent’s representative was cross-examining the second claimant. In those circumstances, the tribunal concluded the claim of the second claimant had to have been incorrectly accepted by the Secretary of the Tribunals.

2.9 The tribunal was not aware of any decision in this jurisdiction and, in particular, of any decision of the Court of Appeal in Northern Ireland, where the interpretation of Article 19(3) of the 2003 Order has been judicially considered.

However the tribunal has gained support for its conclusion, as set out above, that the claim had been incorrectly accepted by the Secretary of the Tribunals, from the decision of the Employment Appeal Tribunal in the case of the Basingstoke Press Limited (in administration) v Clarke [2007] UKEAT/0375. This decision is not binding on this tribunal; but is clearly of persuasive authority in the absence of any decision of the Court of Appeal in Northern Ireland; and, in particular, where it was considering legislation which, at that time, was in similar terms to the relevant legislation then applying in Northern Ireland. In that case, His Honour Judge McMullan QC was satisfied that the 28 days must ‘come and go’ before the claim can be presented to the tribunal.

2.10 In addition, whilst the tribunal has considerable sympathy for the second claimant, and indeed all parties required to operate these statutory procedures, the tribunal noted the terms of the guidance on the on-line claim form (as used in this case) which stated:-

“You are legally required in most cases to raise your grievance in writing with our employer/respondent and then [tribunal’s emphasis] allow 28 days before presenting your claim. For exceptions please see the guidance notes.

If these procedures apply to you and you send your claim to us without first [tribunal’s emphasis] putting your complaint in writing to the respondent and waiting 28 days [tribunal’s emphasis] we will return … .”

The hard copy claim form was in similar terms to that seen above.

The tribunal also noted what was stated, in the section on both the online claim form and the hard copy application form, where a claimant is asked:-

“6.3 Please tell us, by ticking the appropriate boxes, whether you:-

…

(c) allowed at least 28 days [tribunal’s emphasis] between the date you put your complaint to the respondent and the date you are sending this claim.

6.3 If you did not … why did you not wait at least 28 days before sending us your claim.”

Whether the wording in the guidance/relevant sections of the online and/or hard copy claim form could have been made clearer to ensure compliance with Article 19 of the 2003 Order is not a matter for this tribunal; but rather at all material times was a matter for the Department for Employment and Learning, who have the duty under Regulation 10 of the 2005 Regulations to prescribe the contents/form of the claim form.

But, the tribunal could readily sympathise with the second claimant when, in the course of his submissions on foot of the respondent’s application, the second claimant stated, in essence, that he, as a non-lawyer, believed that he must have complied with the relevant statutory procedures when the claim form was accepted by the Secretary of the Tribunals; and also, in particular, no issue of jurisdiction had been raised, at any later stage by the respondent, until during the course of this substantive hearing – despite the fact there had been a number of Case Management Discussions, where issues were identified and discussed by the parties, including the respondent’s representatives.

2.11 Although Article 19(6) of the 2003 Order is a matter going to the jurisdiction of the tribunal to hear a claim (see Basingstoke Press Limited above; also Excel Management v Lumb UKEAT/0232/06; and Bradford MDC v Pratt [2007] IRLR 192), it does not raise, in the judgment of the tribunal, an absolute jurisdictional bar to proceedings. As Elias P made clear in the case of South Kent College v Hall [2007] UKEAT/0087:-

“Curiously, although Section 32 (Article 19 under the 2003 Order) provides that the claimant shall not present a claim, if he does so it is not necessarily out with of the jurisdiction of the tribunal to hear it.”

The issue of the tribunal’s jurisdiction is covered by Article 19(6) of the 2003 Order, as referred to previously. This provides that the presentation of a tribunal claim, in breach of Articles 19(2) to 19(4), prevents a tribunal from hearing a claim but only in two precise circumstances, namely the specific situations set out in Articles 19(6)(a) or (b).

This is because the jurisdictional bar in Article 19(6) of the 2003 Order is stated to operate ‘if and only if’. But, as Elias P made clear in the case of Hounslow LBC v Millar [2006] UKEAT/0645 … “once the issue of tribunal compliance has arisen in a way envisaged by Section 32(6) [Article 19(6) of the 2003 Order] then the tribunal simply has no jurisdiction to hear it”.

In conclusion, having regard to the above authorities, the tribunal was therefore satisfied that the tribunal had jurisdiction to hear the claim of the second claimant, where the grievance procedure had not been complied, but ;’if and only if’ the issue of non-compliance was raised, as envisaged by Article 19(6)(a) or (b) [see further Paragraphs 10-041/1 of Employment Court Practice 2008].

2.12 The respondent’s representative, in seeking to establish that the tribunal had no jurisdiction to hear the claim of the second claimant, first of all sought to rely on the provisions of Article 19(6)(a) of the 2003 Order. Mr Coll submitted that it was enough for the respondent to establish that, from the information supplied by the second claimant on his claim form, namely the presentation of the grievance on 23 November 2007, that it had to have been apparent to the tribunal, at all material times, given the date of presentation of the claim was on 21 December 2007, the 28 day period requirement had not been complied with; and that there was therefore, at all material times, a breach of Article 19(3) of the 2003 Order. Although the claim had been accepted, albeit incorrectly by the Secretary of the Tribunals, and had progressed to a substantive hearing without the issue having been raised by the respondent in its response form or at any time until during the course of the substantive hearing, the respondent’s representative submitted that, because the condition had been satisfied, as set out in Article 19(6)(a) of the 2003 Order, the tribunal had no jurisdiction to hear the claim; and it must be dismissed – regardless of the time when the issue had been raised.

2.13 It is correct that it was apparent to this tribunal, during the hearing of this matter, whenever the issue was raised by the respondent’s representative during the course of this hearing, that the 28 day period had not been satisfied. But, clearly, it had not been so apparent to the Secretary of the Tribunals when she accepted the claim, on behalf of the tribunal. If it had, she undoubtedly, in the tribunal’s judgment, would not have accepted it.

Not for the first time this legislation and the then statutory grievance procedure has given rise to difficult issues of interpretation and exposed potential lacunae in the legislation. At the heart of the argument, which gave rise to this application, was whether the wording of Article 19(6)(a) of the 2003 Order applied only up to the point at which the acceptance procedure was concluded – in this case whenever the claim of the second claimant was accepted by the Secretary of the Tribunals; or whether it applied at any time thereafter if, in the course of the proceedings, it became apparent to the tribunal there had been a breach of the 28 day period under Article 19(3)(b) of the 2003 Order. The respondent’s representative acknowledged Article 19(6)(a) of the 2003 Order was silent on the issue. Thus, he submitted, the respondent could raise this issue of jurisdiction under Article 19(6)(a) at any stage. In particular, he submitted, as it was an issue of jurisdiction, he did not require to raise it as an issue in the response form or even to make it the subject of an application to amend the response form.

Unfortunately this issue, relating to the proper interpretation of Article 19(6)(a) of the 2003 Order, has not been expressly considered, as far as the tribunal is aware, in any other reported decision in this jurisdiction or in Great Britain. In this case, it has to be noted, there was no issue in relation to the accuracy of the information given by the second claimant on his claim form, which had correctly stated that the grievance had been presented by him to the respondent on 23 November 2007. It was therefore ‘known’ to the Secretary of the Tribunals the claim form had been presented to the tribunal on 21 December 2007; and therefore the 28 day period was able to be properly calculated by the Secretary of the Tribunals, on the basis of the accurate information by the second claimant. This scenario has to be contrasted with the situation where a claim is properly accepted by the Secretary of the Tribunals but on the basis of information given inaccurately on the claim form by the employee. In the cases of Chickerova v Holovachuk [2007] UKEAT/0016 and DMC Business Machines v Plummer [2006] UKEAT/0381, a claim was held to have been properly accepted by the Secretary of the Tribunals, on the basis of such inaccurate information provided by the employee on the claim form; the Employment Appeal Tribunal also held it was not open to the respondent employer to allege, for the first time on appeal, that the tribunal had no jurisdiction to hear the claim, when the respondent employer had not raised the issue of non-compliance in their response and/or had not applied to amend. In Basingstoke v Clarke (see before) a decision to the contrary was taken, albeit without the point being identified as an issue on appeal and in circumstances where the claimant was unrepresented. In the circumstances, the tribunal considered the approach expressed in Chickerova and DMC Business Machines was the correct approach to be followed; but it also recognised the facts in this case were not the same (see also later).

2.14 The difficulty in this particular case was that the information given by the second claimant was correct. Unfortunately; the Secretary of the Tribunals incorrectly applied the information, which had been given by the second claimant, in relation to the calculation of the 28 days period; and thereby incorrectly accepted the claim form at the acceptance procedure stage. Therefore the issue arose, whether in those circumstances, the tribunal ought to adopt a different approach to that seen in Chickerova and DMC Business Machines.

In the absence of any reported decision expressly considering this issue, the tribunal also noted that Elias P, in the case of South Kent College v Hall [2007] UKEAT/0087, in the course of his judgment had stated:-

“Information from either employer or employee might trigger consideration of the position by the tribunal. The claim and response forms have been amended specifically to ensure that the parties address questions relevant to the use of these procedures.” (Paragraph 10)

Indeed, it is probable that it was anticipated that, in many cases, any non-compliance would have been obvious from the claim form itself.

Article 19(6)(a) of the 2003 Order relates to information supplied by the employee, whereas Article 19(6)(b) of the 2003 Order refers to an employer raising the breach. Thus, it would appear to be envisaged that there are two different sets of circumstances. The words of Elias P in South Kent College, above, although not directly relevant to this issue, might be argued, to give some support for the position that Article 19(6)(a) of the 2003 Order was referring to what is contained on the claim form, which is initially considered by the tribunal at the pre-acceptance stage, in order for the Secretary of the Tribunals (and, if appropriate, a Chairman) to determine whether, if relevant, it is clear to him the claim had been presented to the tribunal in breach of Paragraphs (2) to (4) of Article 19 of the 2003 Order. In this particular case, it was the Secretary of the Tribunals who accepted the claim, on behalf of the tribunal, under those said acceptance procedures; albeit she did so incorrectly, in the judgment of this tribunal. This was, it must be noted, an administrative decision, and not a judicial decision, by the Secretary of the Tribunals.

If the Secretary of the Tribunals had decided to reject the claim and the Chairman had been required to make a determination, on foot of the Secretary’s rejection, whether or not to accept the claim, this clearly would have been a judicial decision (see further Grimmer v KLM City Hopper [2005] IRLR 596, Paragraphs 7/8 of the judgment; Butlins Skyline v Beynon [2007] ICR 127). It was of some significance to the tribunal, in determining this issue, that not only had the claimant’s claim been accepted by an administrative decision, albeit incorrectly, of the Secretary and not by a judicial decision of a Chairman, but also there is no provision, under the Rules of Procedure, for a party to seek a review of a decision by a Secretary (or a Chairman) to accept a claim. The Rules of Procedure (Rule 34 of the Rules of Procedure) only allow a review of a decision by a tribunal of Chairman not to accept a claim. Thus, in this case, the second claimant had been given no reason to doubt, until during the course of this hearing, that there was any reason to believe the administrative decision of the Secretary, to accept the claim presented by him, was not correct.

In Employment Court Practice 2008 at Paragraph 10-041/1, it is suggested that, if a tribunal was to decide that it had no jurisdiction to hear a claim, by virtue of Article 19(6)(a) of the 2003 Order, where a claim has been incorrectly accepted by the Secretary of the Tribunals, but the error was only discovered after it was no longer possible for the claimant to raise a valid grievance, this would be incompatible with the claimant’s rights under Article 6(1) of the European Convention of Human Rights.

However, the tribunal, in this context, noted that Article 19(6)(b) of the 2003 Order, by way of contrast, does provide an opportunity for the employer to raise the breach of the 28 day requirement.

The tribunal had no doubt that the purpose of the 2003 Order and the acceptance procedure under the Rules of Procedure was to encourage conciliation and settlement rather than the bringing of proceedings (see further Shergold v Fieldway Medical Centre [2006] ICR 304 [Paragraphs 26 – 27 of Burton J’s judgment]).

In the decision of the Court of Appeal in the case of Suffolk Mental Health Partnership NHS Trust and Others v Hurst [2009] EWCA Civ 309 (previously known as Arnold) the Court of Appeal approved the judgment of Elias P, as he then was, in the Employment Appeal Tribunal.

In the Court of Appeal, Lord Justice Pill accepted that:-

“With a view to achieving the stated purpose, and at the same time protecting both employer and employee, the procedures involved, with their possible variations and options, are complex. Inevitably they give rise to legal issues which it appears parties, and in particular employers, have not been reluctant to raise.”

Elsewhere in the above case, Lord Justice Wall referred to his concern that, arising from these statutory grievance procedures, the worthy aims of the tribunal were in grave danger of being:-

“Frustrated by both over-elaborate and sophisticated argument unintelligible to the layman ... .”

The tribunal, although recognising that the above decision was an equal pay case, also recognised that the said dicta was of relevance to its proper interpretation of the said legislation.

The tribunal was satisfied that one of the principal purposes of Article 19 was to try to ensure that, before the presentation of the claim, the opportunity for conciliation and settlement had taken place; but, if it was necessary to present a claim, the procedural steps had been carried out, and to enable a check, insofar as possible, to be carried out, at that initial acceptance stage, to see if the necessary procedural steps had been carried out to facilitate conciliation and settlement before presentation of the claim.

As set out previously, this check, under the procedures, is required to be initially carried out as an administrative act by the Secretary of the Tribunals. It only is referred to a Chairman for a judicial decision in the event of a rejection, not in the event of an acceptance. An acceptance by the Secretary, or indeed a Chairman, as appropriate, is not able to be the subject of a review. Thus the whole emphasis is to give a right of challenge, but only where there has not been acceptance; and to allow a claim, where it is accepted, to proceed to the response stage.

A claimant is given an opportunity to set out his claim to the tribunal in the claim form. The tribunal, under the acceptance procedure, is then given the opportunity to check the required information and to determine whether the claim should be accepted or rejected, on the basis of the information given. As, in all aspects of litigation, it is possible errors can arise in the course of such a preliminary check and a claim, as in this case, is incorrectly accepted, albeit not known to the second claimant. An opportunity for challenge is given to the respondent in his response form.

In these circumstances, not without some hesitation, the tribunal came to the conclusion that the proper way to interpret Article 19(6)(a) of the 2003 Order, consistent with the purpose of the procedure, was to find that Article 19(6)(a) of the 2003 Order related to the initial procedural stage, when the tribunal was considering this issue under the acceptance procedure; and it was not a way to raise a jurisdictional bar, retrospectively, at any subsequent stage in the proceedings. Indeed, as set out before, Rule 3(1)(c) of the Rules of Procedure provides for the Secretary/Chairman not to accept the claim if it is clear to him that ‘Article 19 of the Employment Order (Complaints about Grievances – Industrial Tribunals) applies to the claim or part of it and the claim has been presented to the tribunal in breach of Paragraphs (2) to (4) of that Article. In this case the Secretary of the Tribunals clearly considered, when carrying out the acceptance procedure, that the claim complied with the said 28 day period from the information supplied by the second claimant; and it was therefore apparent to the Secretary, albeit incorrectly, the claim was not in breach of Article 19(3)(b) of the 2003 Order. In light of the foregoing, the tribunal concluded that, once the Secretary of the Tribunals accepted the claim under the acceptance procedure, in the above circumstances, albeit incorrectly, that Article 19(6)(a) of the 2003 Order was no longer relevant for the purposes of the issue of jurisdiction; and any challenge to jurisdiction by a respondent had to be made pursuant to Article 19(6)(b) and/or the Rules of Procedure, as appropriate. Article 19(6)(a) of the 2003 Order, by its wording, places emphasise on the ‘bringing of proceedings’, which, in the view of the tribunal, also gave support to its conclusion that, once the claim form was accepted under the acceptance procedures, albeit incorrectly, any subsequent challenge to jurisdiction was not able to be made pursuant to Article 19(6)(a) of the 2003 Order.

By providing for jurisdictional issues to be engaged, but if and only if, the two circumstances referred to in Article 19(6) of the 2003 Order apply, the tribunal concluded that, having regard to the matters set out above, that Article 19(6)(a) of the 2003 Order was restricted to the time of the acceptance procedure; and, if the claim was accepted at that time by the tribunal, albeit incorrectly, on the basis of accurate information given by the claimant, it was for the respondent, as set below, to raise any issue of jurisdiction, pursuant to Article 19(6)(b) of the 2003 Order and/or the Rules of Procedure, as appropriate.

In concluding that Article 19(6)(a) of the 2003 Order related to the circumstances up until the time when the claim form was accepted by the tribunal, and not thereafter, the tribunal took the view that this was consistent with the purpose and format of the legislation and the acceptance procedure for the claim form under the Rules of Procedure, and the provision in Article 19(6)(b) of the 2003 Order, which enables a respondent thereafter to raise such an issue. It was also consistent with the approach followed, as noted earlier, in Chickerova and DMC Business Machines; albeit, in those cases, the Secretary of the Tribunals had accepted the claim form of the claimants based on information, which subsequently was found to be incorrect.

2.15 The respondent’s representative submitted that, if the claim of the second claimant was dismissed on the grounds that the tribunal did not have jurisdiction, pursuant to Article 19(6)(a) of the 2003 Order, the second claimant could re-submit his claim. However, given the complications of the issue of time under the then statutory grievance procedures, there could be no guarantee, he accepted, that time would be extended by any future tribunal to allow such a claim to succeed.

For the tribunal, in the absence of any such guarantee, it was further confirmation of its conclusion that, if the claim, has been accepted by the Secretary of the Tribunals, albeit incorrectly, at the acceptance stage, then any issue of jurisdiction, thereafter, has to be raised by the respondent under Article 19(6)(b) of the 2003 Order and not under Article 19(6)(a) of the 2003 Order. In the circumstances, the tribunal, in view of this conclusion, did not require to further consider any potential Article6/Human Rights issue, arising under Article 19(6)(a) of the 2003 Order, as referred to previously.

2.16 Article 19(6)(b) of the 2003 Order refers to the tribunal being satisfied of the breach of Paragraphs (2) – (4) of Article 19 of the 2003 Order as a result of the employer raising the issue of compliance in accordance with Regulations under Article 9 of the Industrial Tribunals Order 1996; and expressly refers to those being the 2005 Regulations which contain, in Schedule 1, the 2005 Rules of Procedure.

In the case of Arnold v Sandwell MBC [2009] IRLR 12, the Employment Appeal Tribunal held:-

“An employer is required to raise the issue of jurisdiction – or rather lack of it – because of non-compliance with the statutory procedures in accordance with the tribunal’s procedural rules.”

The Rules of Procedure do not expressly refer to how an employer should raise the issue of compliance. Clearly one method is, pursuant to Rule 4 of the 2005 Rules of Procedure, to present to the tribunal a response form containing the required information, including the details of the grounds of resistance to the claim (Rule 4(4)(d) of the Rules of Procedure) and/or to answer the questions in Paragraph 6.1 – 6.2 of the response form relating to the grounds on which the respondent is resisting the claim and/or insofar as appropriate, answering the questions in Paragraph 3.5 relating to whether the claimant has raised a grievance in writing.

2.17 In this matter, as previously stated, the respondent, prior to the hearing of this matter, did not raise any issue in relation to the jurisdiction of the tribunal for non-compliance with Article 19(3) of the 2003 Order; and. in particular, did not do so anywhere in the response form . However, the tribunal was satisfied that, in addition to the above said methods, an employer could raise such an issue by way of an application to amend the response, pursuant to Rule 10(2)(q) of the Rules of Procedure. An application to make such an amendment of a response form, subject to what is stated below, can be made at any stage of the proceedings, including during the course of a substantive hearing (see Harvey on Industrial Relations and Employment Law, Volume 5, Section T, Paragraph 311).

As Underhill J in the case of DMC Business Machines Limited v Plummer [2006] UKEAT/0381 emphasised:-

“Non-compliance by an employee with the statutory procedures does not automatically deprive the tribunal of jurisdiction : it is necessary that the point is taken in, or as a result of, the pleadings”;

and he also referred to doing so by way of an application to amend the response form. (See Paragraph 25 of the judgment.)

In the case of Arnold v Sandwell MBC [2009] IRLR 12, Elias P also emphasised, in his judgment, that if such an issue is not raised in the response form, as indicated above, it ought to be done by way of an amendment to the response form – though he does not rule out an application under Rule 10 and 11 of the Rules of Procedure:-

“84

...

(2) In my judgment, since it is a defence to the actions, it should in the normal way be raised in the response form; see Rule 4(3) which requires an employer to identify all the grounds on which he wishes to rely to defend the claim. If it has not been raised in that way, then in my judgment any later attempt to raise it might be way of an amendment to the response. I note that some observations of Underhill J, Plummer v DMC Business Machines PLC [2006] All ER (D) 347 Dec) support that view.

(3) Even if that is not so, and the point can also be raised by way of an application under Rules 10 and 11, as Mrs Ellenberger submits, there would still – as Mrs Ellenberger accepts – be a discretion conferred on the tribunal whether or not to allow the application. In my judgment, any such discretion would have to be exercised in precisely the same manner as it would with respect to a proposed amendment of the response. It would make no sense to adopt different principles for regulating what is essentially the same discretion depending on which procedural route was adopted. Accordingly, nothing turns on the first question in any event.

... .”

Elias J’s judgment in Arnold, as set out above, was guidance and obiter, since, on the particular facts, he did not require to determine such issues. It is apparent amendment is not the only method of raising the issue; but if an application for amendment is made the tribunal then has to determine whether or not to exercise its discretion to allow any such application, after all parties have had an opportunity to call such evidence and/or make such submissions, as may be relevant to any such application.

In fact, as set out below, the respondent’s representative, properly in the tribunal’s view, acknowledged the necessity for him to make an application; which he did by way of an application for amendment of the respondent’s response form. However, whatever the precise nature of the application, the principles relating to the exercise of the tribunal’s discretion would be the same.

2.18 The respondent’s representative acknowledged that, if the tribunal did not accept his submission that the tribunal had no jurisdiction to consider the second claimant’s claim pursuant to Article 19(6)(a) of the 2003 Order, then, given that the issue had not been previously raised in the response form, or indeed at any time, until the substantive hearing commenced, that it would be necessary for the respondent to make an application to amend its response form to raise the said issue. As indicated above, such an application might not be strictly necessary – but was an approach consistent with the guidance of Elias P in Sandwell and Underhill J in Plummer. Thus, subject to the tribunal’s decision in relation to Article 19(6)(a) of the 2003 Order, the respondent’s representative made such an application to amend the response form to raise the issue of jurisdiction; namely by stating that there had been a breach of Article 19(3) in circumstances where the claim had been presented one day too early, as set out above.

There was no dispute that the tribunal had a discretion whether or not to grant the respondent’s application to amend the response form in the above circumstances.

In the case of Holc-Gale v Makers UK Limited [2006] ICR 462, the Employment Appeal Tribunal acknowledged that, to seek leave to amend the response at a later stage, having not raised it in the response form, the respondent could make such an application and was not estopped from doing so; but this was subject to any prejudice to the claimant. Indeed, this decision makes clear, that it is open to a tribunal, in the exercise of its discretion, balancing the prejudice of the parties, to refuse leave to amend the response to raise such an issue of non-compliance in circumstances where it is too late for a claimant to remedy the situation. (See also Arnold v Sandwell MBC)

2.19 Whether or not to allow an application to amend, it has been said should be judged on the basis of whether it is just and equitable to allow the amendment. (See Ali v Office of National Statistics [2005] IRLR 201; where it was suggested this ground of just and equitable would not seem to be dissimilar to the ‘balance of hardship and prejudice ground’ seen in the leading authority, in relation to amendment, of Selkent Bus Company v Moore [1996] ICR 836.) In Selkent it was recognised circumstances may vary in each case, but the following matters normally require to be considered, namely:-

(i) the nature of the application – whether it is major or minor;

(ii) application of any relevant time-limit;

(iii) the timing and manner of the application – though delay in itself should never be the sole reason for refusing an application. As Mummery J emphasised:-

“The paramount considerations are the relevant injustice and hardship involved in refusing and granting an amendment. Questions of delay, as a result of adjournments and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”

2.20 In this matter, there can be no doubt, as submitted by the second claimant, that, to allow the amendment, would be a matter of substance – since it would allow the respondent to raise the issue of the tribunal’s jurisdiction to hear the second claimant’s claim. As found previously by the tribunal, there was a breach of Article 19(3); and therefore, if the issue of jurisdiction, rising from such a breach, was able to be successfully invoked by the respondent, the second claimant’s claim, would have to be dismissed, because the tribunal would have no jurisdiction to determine it. Thus, to allow the amendment, would inevitably give rise to considerable prejudice to the second claimant – who would not be able to continue to pursue his claim, on foot of these proceedings, to a determination by the tribunal. The representative of the respondent submitted that, if the amendment was granted, with the consequence the claim of the second claimant would have to be dismissed, this was in accordance with the circumstances envisaged by the legislation, where the relevant statutory procedures had not been complied with.

2.21 This claim of the second claimant had been prepared for trial, with various Case Management Discussions, preparation of bundles, etc; and indeed the issue of jurisdiction was only raised, for the first time, by the respondent during the course of the cross-examination of the second claimant at the substantive hearing of this matter. The respondent’s representative, Mr Coll, frankly and fairly, accepted that it was not, until that time, that it had been realised by the respondent’s representatives that the claim had been incorrectly accepted by the Secretary of the Tribunals; and that the relevant 28 day period had not expired, when the claim was presented to the tribunal. He accepted that the ‘information’ to enable such an issue to be raised was at all material times in the possession of the respondent from after receipt of the accepted claim form from the tribunal – which claim form had correctly given the date of the grievance as 23 November 2007 and the date of presentation of the claim by the tribunal was stated to be 21 December 2007.

2.22 It is difficult not to have sympathy for anyone required to operate these statutory procedures. Indeed, Elias P in the Arnold case stated at Paragraph 13 of his judgment:-

“ … rarely can legislation have been so counterproductive. Provisions designed to reduce tribunal disputes have spawned satellite litigation in which arcane and complex points of law have been argued frequently so remote from reality that they would surprise even the most desiccated chancery lawyer conjured up by the imagination of Charles Dickens.”

(See also the reference to the dicta in the Court of Appeal decision in the case of Arnold v Sandwell MBC, as set out above.)

The situation in this case has been complicated by the fact that the claim was accepted, albeit incorrectly, by the tribunal under the acceptance procedure. No issue relating to that acceptance was raised by the respondent until the substantive hearing; in circumstances where the second claimant could not effectively remedy the situation in the context of these proceedings. The tribunal could well understand the second claimant’s submission that, the claim having been accepted by the tribunal, he found it difficult to understand how, at such a late stage, the respondent could be allowed to make any application to amend to raise the issue of non-compliance with Article 19(3) of the 2003 Order which, if successful, would mean this tribunal would have no jurisdiction to hear his claim. The second claimant, before this issue arose, had properly prepared for this substantive hearing and, indeed, it only arose in the course of cross-examination by the respondent’s representative. He had incurred already all the costs of time and preparation prior to the hearing and of the hearing itself up until that point in the proceedings. The claim had been case-managed; but at no time had the respondent raised this issue at any Case Management Discussion. The failure to do so was a very relevant factor for the tribunal in deciding whether to exercise its discretion to amend the response. To allow the respondent to amend the response and thereby raise the jurisdictional issue and defend the claim would mean this tribunal would fall into the very trap the Court of Appeal in Suffolk Mental Health Partnership NHS Trust v Hurst warned tribunals to be wary of. In this case there had been a grievance made, albeit it had not resulted, as hoped for by the legislation, in a settlement/resolution of the dispute taking place before presentation of the claim – the purpose of the legislation and the procedures. If the respondent was correct it would allow it to amend the response and thereby defeat the claim. It would be able to do so, at a late stage in the proceedings, by reason of a ‘technical’ failure to present a grievance in time. Further, that one day in which the claim was out of time, in the tribunal’s view, was of no relevance to the issue whether or not this claim could have been resolved without the necessity to present a claim to the tribunal. To allow the respondent to defeat the claim in such circumstances, in the tribunal’s judgment, would have been to impose severe hardship, prejudice and injustice on the second claimant.

In Shergold v Fieldway Medical Centre [2006] IRLR 76, Burton J in Paragraph 28 of his judgment emphasised:-

“It is not … the intention of the legislation … that employees should be barred”;

and that the sanction of exclusion of a claim ‘should be very rarely used’. Thus the lateness of such an application by the respondent had to be a very relevant factor.

The tribunal did not consider it appropriate, in seeking to balance the relevant hardship and injustice involved, to conclude that any such matter could be properly resolved, in the respondent’s favour, by leaving the second claimant to re-submit his claim, with all the complications and additional costs involved; and also the uncertainty he would be allowed to make a successful application, before another tribunal, that time should be extended to bring his claim, because of the incorrect acceptance of his previous claim by the Secretary of the Tribunals. As stated previously, this could not be guaranteed and the tribunal did not consider it appropriate, in exercising its discretion, whether or not to amend the response in the above circumstances, to place any such risk of failure upon the second claimant.

It was apparent that the respondent had prepared for a defended contest of this matter and was not otherwise prejudiced if the tribunal decided to refuse the application and to allow this matter to proceed to be determined by the tribunal.

In balancing all of the above matters the tribunal came to the conclusion that the balance of prejudice, injustice and hardship was therefore much greater for the second claimant than the respondent in the circumstances. As stated in the Selkent case, this is the paramount consideration to be considered by the tribunal.

2.23 The tribunal therefore decided, in exercise of its discretion, to refuse the respondent’s application to amend the response form to raise the issue of jurisdiction under Article 19(6)(b) of the 2003 Order and decided the claim of the second claimant should be allowed to proceed to final determination by the tribunal on the merits. In view of the tribunal’s decision to refuse the said applications, for the reasons set out above, it was not necessary for the tribunal to consider further the second claimant’s submissions that to have granted such an application by the respondent would have infringed his human rights.

2.24 Before leaving this issue the tribunal considered it was relevant to refer to a decision of the Employment Appeal Tribunal, in Scotland, in the case of Glasgow City Council v Stefan Cross and Others [UKEAT/007/09], Lady Smith, whilst confirming, in an equal pay case, the issue of compliance with the statutory grievance procedures, can be raised not only by way of an application for amendment of the response form also suggested, at Paragraph 41 of her judgment, that:-

“The structure of Section 32(6)(b) (Article 19(6)(b) of the 2003 Order) also indicates that the time at which the issue must be raised is before the tribunal starts considering the merits of the complaint; once it has started ‘considering the complaint’ it is too late to prevent it from doing so. The time for raising the issue is then past. Thus, there need be no concern that an employer could raise the issue later in the day, long after the merits hearing has begun, as was apprehended by Mr Gordon. It would be too late to do so by then.”

If Lady Smith is correct, then the tribunal should not have allowed the respondent to make its application to amend its response, given that it was made during the course of the cross-examination of the second claimant at the substantive hearing. This tribunal is not bound by the above decision, albeit it is of persuasive authority. With due respect to Lady Smith, the tribunal did not consider it appropriate to follow the said decision, in the exercise of its discretion, in light of the facts of the case, as referred to previously. Further, as stated previously, it has long been recognised that an amendment of a claim/response form can be made at any stage of the proceedings, including during the course of a substantive hearing (see Harvey on Industrial Relations and Employment Law, Volume 5, Section T, Paragraph 311). An application for an amendment is, as seen before, one way, albeit not the only way, of raising the jurisdictional issue arising out of non-compliance with the statutory grievance procedures.

As Elias P in Sandwell made clear, whatever method is used to raise the issue, the exercise of the discretion will be the same. Indeed, in this jurisdiction, following the Ryder and Boyle cases, it may not be possible to deal with such an issue, save in the course of a substantive hearing. Whilst the tribunal has no doubt (see previously) that a failure to make such an application, as happened in this case, until a very late stage in the proceedings, makes it very difficult to persuade a tribunal to exercise its discretion in favour of allowing the issue to be raised; the tribunal does not consider, for the reasons set out above, Lady Smith was correct to introduce an absolute bar to such an application; once a merits hearing has commenced. The terms of Article 19(6)(b) of the 2003 Order are very broad and do not set out, which could have been done by Parliament, such an absolute bar to such an application. Equally the Rules of Procedure, under which such an application is to be made do not themselves impose such a bar to such an application. Tribunals have always been slow to prevent a party making an application to amend a claim/response, however late it may be made. But, each case has to be looked on its merits, in light of the principles set out in the Selkent case. The tribunal could find nothing in the wording of Article 19(6)(b) of the 2003 Order to suggest such an application could not be made, after the commencement of the substantive merits hearing; and therefore declined to follow the decision in the case of Glasgow City Council v Stefan Cross and Others (see Paragraph 2.23 above). However, the tribunal considered the decision clearly emphasised the difficulties faced by a respondent seeking to make any such application at such a late stage.

Sources of evidence

3.1 The tribunal heard evidence from the first and second claimant. In addition, the tribunal heard evidence, on behalf of the respondent, from:-

Ms Joanna Quinn, Equal Opportunities Manager, Social Security Agency; and

Mrs Grace Nesbitt, Head of Human Resource Policy, Pay and Pensions Division with the Central Personnel Group in the Department of Finance & Personnel.

In addition, the tribunal was provided with folders of relevant documents, including exhibits to the witness statements of the said witnesses and extracts of relevant case law. At the conclusion of the oral evidence, both the claimants and the respondent provided the tribunal with written and oral submissions.

Relevant law

4.1 The 2006 Regulations came into operation on 1 October 2006, and insofar as relevant and material state:-

“Regulation 3 of the 2006 Regulations provides as follow: –

(1) For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if –

(a) on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons, or

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but –

(i) which puts or would persons at the same age of B at a particular disadvantage when compared with other persons, and

(ii) which puts B at that disadvantage,

and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving legitimate aim.

(2) A comparison of B’s case with that of another person under Paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

(3) In this Regulation –

(a) ‘age group’ means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and

(b) the reference in Paragraph (1)(a) to B’s age, includes B’s apparent age.”

Regulation 7 of the 2006 Regulations provides as follows:-

“ ... (2) It is unlawful for an employee, in relation to a person whom he employs at an establishment in Northern Ireland, to discriminate against that person –

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training, or receiving any other benefits;

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d) by dismissing him or subjecting him to any other detriment.”

Regulation 34 of the 2006 Regulations provides as follows:-

“(1) Subject to Paragraph (2), nothing in Part II or Part III shall render it unlawful for a person (‘A’), in relation to the award of any benefit by him, to put a worker (‘B’) at a disadvantage when compared with another worker (‘C’), if and to the extent that the disadvantage suffered by B is because B’s length of service is less than that of C.

(2) Where B’s length of service exceeds five years, it must reasonably appear to A that the way in which he uses the criterion of length of service, in relation to the award in respect of which B is put at a disadvantage, fulfils a business need of its undertaking (for example, by encouraging the loyalty or motivation, or rewarding the experience, of some or all of his workers).

(3) In calculating a worker’s length of service for these purposes, A shall calculate –

(a) the length of time the worker has been working for him doing work which he reasonably considers to be at or above a particular level (assessed by reference to the demands made on the worker, for example, in terms of effort, skills and decision-making); or

(b) the length of time the worker has been working for him in total;

and on each occasion which he decides to use the criterion of length of service in relation to the award of the benefit to workers, it is for him to decide which of these definitions to use to calculate their length of services.

... .”

Regulation 26 of the 2006 Regulations provides as follows:-

“(1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person with the authority (whether expressed or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of these Regulations as done by that other person as well as by him.

... .”

Regulation 27 of the 2006 Regulations provides as follows:-

“(1) A person who knowingly aids another person to do an act made unlawful by these Regulations shall be treated for the purposes of these Regulations as himself doing an unlawful act of the like description.

(2) For the purposes of Paragraph (1) an employee or agent for whose act the employer or principal is liable under Regulation 26 (will be so liable but for Regulation 26(3)) shall be deemed to aid the doing of the act by the employer or principal.

In this matter, there was no issue that the respondent was liable for the actions of the various employees involved in the actions, the subject-matter of these claims.

Regulation 42 of the 2006 Regulations provides as follows:-

“(1) This Regulation applies for any complaint presented under Regulation 41 to an industrial tribunal.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Regulation, conclude in the absence of an adequate explanation that the respondent –

(a) has committed against the complainant an act of which Regulation 41 (jurisdiction of industrial tribunals) applies; or

(b) is by virtue of Regulation 26 (liability of employers and principals) or Regulation 27 (aiding in unlawful acts) is to be treated as having committed against the complainant such an act,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having, committed that act.

4.2 The claimants, as indicated previously, brought claims of indirect age discrimination, pursuant to Regulation 3(1)(b) of the 2006 Regulations, the terms of which were set out in the previous sub-paragraph.

To establish such a claim, it is first necessary for a claimant to establish whether a relevant provision, criterion or practice has been applied to the claimant. This is a wide concept, which is to be found in the other anti-discrimination legislation.

4.3 Once the provision, criterion or practice (‘PCP’) has been established it is necessary for a claimant to show that he/she is at a particular disadvantage, which has been suggested equates to the concept of a ‘detriment’.

However, a major difficulty for a claimant is that it is not sufficient, having regard to the said wording of Regulation 3(1)(b) of the 2006 Regulations, for a claimant to only show that he/she is personally at such a particular disadvantage by reason of the PCP; but rather the claimant must show the PCP disadvantages persons within the same ‘age group’ as him/her. Further, a claimant must show the disadvantage arises from the provision, criterion or practice and not one which is a natural consequence of the ageing process (see further Chief Constable of West Yorkshire Police v Homer [2009] IRLR 262).

Neither the Regulations, or to date relevant case law, has provided any guidance in relation to this issue of ‘age group’.

In Discrimination and Employment, Tucker and George, in Paragraph H3.011, contained in a commentary on the 2006 Regulations suggested:-

“The relevant provisions, criterion or practice, must be applied to the claimant as well as others who are not of the same ‘age group’. Regulation 3(3)(a) defines ‘age group’ as a group of persons defined by reference to age, whether by reference to a particular age or a range of ages.

However the concept of an ‘age group’ remains something of a nebulous one. It appears that an age group can be either a group of people of a particular age (eg people aged 50), or, a range of ages (eg people aged 18 – 30). However, on the face of the Age Regulations 2006, it is not clear how precise the reference to age must be. There appears to be no reason why an age group could not, for example, be a group such as ‘retired persons’. More contentious perhaps might be groups described as ‘older employees’ or ‘junior staff’.

The difficulty with such ‘loose’ definitions is that they present problems in defining accurately limits of any particular age group. …”

In the absence of any such guidance or authority, the tribunal concluded that the claimants were entitled to define themselves as being within a particular age group; and which they relied upon for the purposes of this claim under the 2006 Regulations.

4.4 Unlike other anti-discrimination legislation, both direct and indirect discrimination on the grounds of age can be justified by a respondent. As set out previously, justification requires a respondent to show the PCP to be a proportionate means of achieving a legitimate aim (Regulation 3 of the 2006 Regulations).

The 2006 Regulations do not set out a list of legitimate aims. Thus this, in the absence of any specific definition, guidance or examples, could be a very wide concept. Indeed, the draft 2006 Regulations in Great Britain provided examples – but these were not included in the 2006 Regulations passed by Parliament in Great Britain or in Northern Ireland (both sets of Regulations, as in force, are in similar terms).

In considering this issue and other issues in relation to the interpretation of the 2006 Regulations, the tribunal was satisfied that it had to have regard to the terms of the EC Framework Directive (‘the Framework Directive’) (Council Directive 2000/78 of November 27 2000). The 2006 Regulations were intended to implement (in Northern Ireland) the said Framework Directive, which was to establish a general framework for equal treatment in employment.

In particular, insofar as relevant to age discrimination, Article 2(2)(b) of the Framework Directive sets out a general definition of permitted indirect discrimination on the grounds of age:-

“Indirect discrimination shall be taken to occur where an apparently neutral provision criterion or practice would put persons having ... a particular age ... at a particular disadvantage compared with other persons unless:-

(1) that provision objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

But, in addition, Article 6 of the Framework Directive deals specifically with:-

“Justification of differences of treatment on grounds of age.”

It sets out the circumstances in which Member States are entitled to provide an exception to the principle of equal treatment by permitting direct and relevant discrimination on grounds of age to be justified.

It is necessary to set out, for the purposes of this decision, Article 6 in full:-

“Article 6 – Justification of differences of treatment on grounds of age

(1) Notwithstanding Article 2(2) (which provides that the principle of equal treatment shall mean that there should be no direct or indirect discrimination on the grounds of age), Member States may provide the differences of treatment on grounds of age shall not constitute discrimination if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocation training objectives, and if the means of achieving that aim are appropriate and necessary.

Such differences of treatment may include, among others –

(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensuring their protection;

(b) the fixing of minimum conditions of age, professional experience or seniority in service or access to employment or to certain advantages linked to employment;

(c) fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

(2) Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or in groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.”

4.5 As appears from the foregoing, there are some differences in the wording in the 2006 Regulations (Regulation 3) and the terms of the Framework Directive in relation to this concept of justification.

For example, Regulation 3 of the 2006 Regulations uses the word ‘proportionate’, whereas the said Articles of the Directive refer to achieving the legitimate aims by means which are ‘appropriate and necessary’. In various cases (see further Johnston v RUC [1986] ECR 1651 and Mangold v Helm [2006] IRLR 143) the European Court of Justice has used the terms interchangeably. It was certainly the view of Government, as set out in explanatory notes relating to the said Regulations, it did not consider that the said differences were of any significance or relevance. The tribunal, having considered the said authorities, was of a similar opinion.

Similarly, Article 2(2)(b)(i) of the Framework Directive provided that the PCP had to be ‘objectively justified’ by a legitimate aim. Article 6 referred to ‘objectively and reasonably justified’. Again, it was the view of the Government, as set out in the explanatory notes that the reference to ‘objectively justified’ did not add anything to the requirement that the discriminator must show the existence of a legitimate aim.

In this context, the tribunal noted that in the case of Hampson v Department of Education and Science [1989] IRLR 302, Balcomb LJ had stated, albeit in a case of sex discrimination:-

“In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.”

In light of the foregoing, the tribunal concluded that the test is an objective test, taking into account all the relevant factors.

4.6 However, there have been a series of recent decisions which have given some assistance in relation to how tribunals should approach this difficult issue of justification, in the context of the 2006 Regulations:-

(a) In a decision of the Employment Appeal Tribunal, in the case of MacCulloch v ICI [2008] IRLR 846, Elias P (as he then was) summarised the legal principles with regard to justification in relation to a case of age discrimination:-

“10 The legal principles with regard to justification are not in dispute. It can be summarised as follows:-

(1) the burden of proof is on the respondent to establish justification : see Starmer v British Airways [2005] IRLR 826;

(2) the classic test was set out in Bilka-Kaufhaus GnbH v Weber Von Hartz [1984] IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must ‘correspond to a real need ... are appropriate with a view to achieving the objectives pursued and are necessary to that end’ [Paragraph 36]. This involves the application of the proportionality principle, which is the language used in Regulation 3 itself. It has been subsequently been emphasised that the reference to ‘necessary’ means ‘reasonably necessary’ : see Rainey v Greater Glasgow Health Board (HL) [1987] IRLR 26 per Lord Keith of Kinkel at Pages 30 – 31;

(3) the principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it : Hardys and Hansons PLC v Lax [2005] IRLR 726, Pill LJ at Paragraphs 19 – 34, Thomas LJ at 54 – 55 and Gauge LJ at 60;

(5) it is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the former outweigh the latter. There is no ‘range of reasonable response’ test in this context : Hardys and Hansons PLC v Lax [2005] IRLR 726.

... .”

(b) Pill LJ in the Court of Appeal in the Hardys and Hansons case, in the course of his judgment in that case stated, after confirming that it must be objectively justified:-

“32 ...

the employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellant’s submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer’s view are within the range of views reasonable in the particular circumstances.

The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job-sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer’s freedom of action ... .”

Pill LJ elsewhere made reference to the tribunal having to conduct ‘a critical evaluation’ – which therefore requires a respondent to produce cogent evidence in sufficient detail to enable such an evaluation to be conducted.

(c) In the case of R (on the application of the Corporate Trustees of the National Council on Aging) (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] IRLR 373 the ECJ, in a case sometimes known as ‘Heyday’, in relation to the default retirement provisions in the 2006 Regulations, which have now been abolished, subject to certain transitional provisions, was required to consider whether the 2006 Regulations (in Great Britain) had properly transposed the Framework Directive in relation to Article 6(1), by providing for an exception of non-discrimination where the reason for dismissal of the employee aged over 65 or over was retirement and, by not doing so, had thereby infringed Article 6(1) of the Directive.

In the course of its judgment, in relation to the above issue, the ECJ held, inter alia, in the context of the issue of justification, that ‘no particular significance should be attached to the fact that the word ‘reasonably’ used in Article 6(1) of the Directive did not appear in Article 2(2)(b) thereof’. ‘It is inconceivable that a difference in treatment could be justified by a legitimate aim achieved by appropriate and reasonable means, but that the justification would not be reasonable’. It also held no particular significance should be attached to the fact that the word is used only in Article 6(1). However, the provision imposes upon Member States, notwithstanding their broad discretion in matters of social policy, the burden of establishing to a high standard of proof the legitimacy of the aim pursued. (See Paragraph 33 of Pill LJ’s judgment in Hardys case above.)

Further, in relation to the test of justification, the ECJ made clear that the test for direct age discrimination under Article 6(1) of the Framework Directive is not stricter than the general test of justification for indirect discrimination in Article 2(2) of the said Directive.

In particular, it also stated Article 2(2)(b) of the Framework Directive, which it must be noted refers to indirect discrimination, in general and not specifically to age discrimination, provides that a provision, criterion or practice may escape classification as discrimination ‘if objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’. Article 6(1) of the Framework Directive, which relates only to justification of differences of treatment on grounds of age, by way of contrast, does not provide such a general derogation for direct discrimination on the grounds of age. The ECJ concluded, under Article 6(1) of the Directive, Member States are allowed to introduce into their national law measures providing for differences in treatment on grounds of direct age discrimination, notwithstanding Article 2(2) of the Directive. It is an exception to the principle prohibiting discrimination but it is strictly limited by the terms of Article 6(1) of the Directive itself.

4.7 The tribunal, in light of the foregoing, therefore concluded the test for justification, whether it be a case of direct or indirect age discrimination, was not significantly different and therefore legal authorities, both in the case of direct and/or of indirect discrimination, might be relevant to the determination of these claims.

4.8 The ECJ also confirmed, in the Heyday case, that Article 6(1) did not require the 2006 Regulations to set out a specific list of differences in treatment, which might be justified by a legitimate aim; and the failure to do so was not incompatible with the Directive. The list of examples in Article 6(1), albeit these strictly relate to cases of direct discrimination (see above), and the legitimate aims and differences of treatment referred to therein, are purely illustrative. Even if the scope for justification in the case of indirect age discrimination is wider, clearly the examples seen in Article 6(1) of the Framework Directive are of particular significance and relevance in consideration of such issues relating to justification.

In particular, it is necessary to bear in mind [see later] that the ECJ in the course of its judgment, made clear that:-

“It is apparent from Article 6(1) of the Directive the aims, which may be considered ‘legitimate’ within the meaning of that provision and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting discrimination on the grounds of age are social policy objectives, such as those related to employment policy, the labour market or vocational training. ‘By their public interest nature, those legitimate aims are distinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness, although it cannot be ruled out that a national rule may recognise, in the pursuit of those legitimate aims, a certain degree of flexibility for employers.”

4.9 So the tribunal was satisfied that, in the case of indirect age discrimination (as opposed to a case of direct age discrimination, where justification might be limited to the examples given in Article 6(1) of the Framework Directive) and, in the absence of any specific list of examples in the 2006 Regulations, it was entitled to have regard to not only the examples set out Article 6(1) of the Framework Directive but also any examples set out in case law and/or appropriate guidance documents (see later reference to the examples given in Regulation 34).

It was suggested in the age guidance, issued by ACAS that legitimate aims might include economic factors such as business needs and efficiency/the health, welfare and safety of the individual (including protection of young people or older workers) and the particular training requirements of the job.

In Fact Sheet No 2 ‘Objective Justification’, issued by the DTI in Great Britain, it was stated:-

“That any aim asserted must correspond with the reasonable need on the part of the employer and that it will be for the employer to show that the aim in question is valid.”

It identified the following examples of what might amount to a legitimate aim:-

vocational integration of individuals of a particular age;

the particular training requirements of the job;

the need for a reasonable period of employment before retirement.

In the consultation paper ‘Age Matters’ the Government at Paragraph 4.1.16 stated:-

“A wide variety of aims may be considered as legitimate. The aim must correspond with the real need on the part of the employer (or other person; or organisation wishing to apply a discriminatory practice). The economic factor such as business needs and considerations of efficiency may also be legitimate aims. However, discrimination will not be justified merely because it may be more expensive not to discriminate.”

It then went on to give six examples of legitimate aims:-

(1) Health, welfare and safety.

(2) Facilitation of employment planning.

(3) Particular training requirements.

(4) Encouraging and awarding loyalty.

(5) The need for a reasonable period of employment before retirement.

(6) Recruiting or retaining older people.

As indicated above, the Government, in the 2006 Regulations, which came into force, decided not to give any specific lists of examples. In the Heyday case it was held it was not required to do so. However, it is apparent that these examples, to be found in the said guidance documentation/fact sheets/consultation documents, bear a strong resemblance to the examples given in Article 6(1) of the Framework Directive. The tribunal therefore was satisfied such documents could be considered to be of some relevance and application, when considering any issue of justification. This was particularly so, in these cases, where the respondent was a Department of the Northern Ireland Executive, which was applying similar legislation to that in force in the rest of Great Britain to which such guidance/fact sheets applied.

4.10 Both the ACAS Age Guidance and the DTI Fact Sheet suggested that economic reasons might be a legitimate aim. The Fact Sheet observed that:-

“Economic factors such as business needs and efficiency may be legitimate aims, but arguing that it could be more expensive not to discriminate will not in itself be a valid justification.”

Given the findings of fact by the tribunal the above was of particular relevance in relation to the respondent’s reliance on justification.

Indeed, this approach was reflected in the case of Cross v British Airways [2005] IRLR 863, albeit a claim of sex discrimination, where the Employment Appeal Tribunal considered that the European jurisprudence was clear that a Government could not rely on cost to justify a discriminatory policy, but accepted that private bodies and individuals might point to costs as one of the reasons which justifies discrimination or a discriminatory policy.

However, in the case of Woodcock v Cumbria Primary Care Trust [2010] UKEAT/0489, Underhill J held that the accelerated redundancy dismissal of a long-serving employee, motivated at least in part by the costs implications of pension rights to which he would become entitled, if still in employment at the age of 50, was justified age discrimination. In doing so he was satisfied the tribunal had not decided the justification issue on the basis only of the cost to the Trust but had applied the ‘cost plus’ test in Cross v British Airways. Significantly, albeit obiter, he expressed doubt whether Cross was right to hold that ‘cost alone’ could never constitute objective justification. In the case of Cherfi v G4S Security Services Ltd [2011] EqLR 825, the Employment Appeal Tribunal, in a case of religious discrimination, concluded that employers can justify discriminating on cost grounds alone.

4.11 Again, having regard to the facts as found by the tribunal in this particular matter, the judgment of Elias P in the case of Loxley v BAE Land Systems (Munitions and Ordnance [2008] IRLR 853 is of major importance and relevance when he stated, in the course of his judgment:-

“The fact that an agreement is made with the trade unions is potentially a relevant consideration in determining whether treatment is proportionate. A decision of the ECJ in the case of Palacios de la Villa v Cartefiel Servicios SA [2007] IRLR 989 strongly supports that proposition. The court recognised that one of the considerations that could properly weigh in the assessment of whether compulsory retirement was justified was that the rules in question had been collectively agreed : see Paragraph 53 ... Plainly the imprimatur of the trade union does not render an otherwise unlawful scheme lawful, but any tribunal will rightly attach some significance to the fact that the collective parties have agreed a scheme which they consider to be fair. There is, however, always the risk that the parties will have been influenced, consciously or unconsciously, by traditional assumptions relating to age. Hence the reason why any justification relied upon by the employer, even when the treatment under consideration is supported by the union, must be subject to critical appraisal.”

4.12 In the case of Seldon v Clarkson Wright and Jakes [2009] IRLR 267, the Employment Appeal Tribunal considered further the issue justification of a mandatory retirement age for a non-employee – an issue now of less importance given the abolition of the default retirement age provisions.

The Employment Appeal Tribunal gave a wide ranging judgment in relation to the age discrimination legislation. The Employment Appeal Tribunal found that compulsory retirement was justified as a matter of principle and achieved certain legitimate objectives as found by the tribunal; but took the view that requiring retirement at 65 involved stereotyping “the partners will be by the age of 65 more likely to be under-performing than partners of a younger age”. In particular, it was found there was no evidence to support that contention. There required to be “a considered and reasoned explanation” why that age was chosen in circumstances where it found it was not self-evident. Again, the Employment Appeal Tribunal made clear an employer requires to have an evidential basis for justification.

In the course of his judgment, Elias J also said, by way of guidance:-

“A tribunal does not always need concrete evidence, to be weighed, to support each assertion made by the employer. Tribunals have an important role in applying their common sense and their knowledge of human nature. However, tribunals must be astute to differentiate between the exercise of their knowledge of how humans behave in stereotypical assertions about behaviour. Where a business has plainly given careful thought to its policy, and has taken a view in light of its past experience, or that of similarly based businesses, that a particular retirement age should be stipulated for rational reasons which it can explain, that will often quite properly carry weight with the tribunal. Those who are involved daily in the operation of the business are plainly in a much better position to assess business needs, and the effect of the business on staff, than tribunal members who may come from a totally different business background. Tribunals must be alive to this and not readily substitute their relevant ignorance of particular area for the considered wisdom of those who are in a better position to understand how the business operates. Tribunals must always bring a critical eye to evidence of this nature, and must be very careful to ensure there is no stereotyping, but they must also recognise their own limitations.”

The Employment Appeal Tribunal in Seldon also made clear that the test for justification of direct age discrimination is not different from that found in indirect discrimination – namely the normal principles of legitimate aim and proportionality apply, without any further criterion of exceptionality.

Further, the Employment Appeal Tribunal accepted that consent can be a relevant factor and, in particular, where the measure has resulted from collective bargaining (see further the judgment of the European Court of Justice : Paloacios).

The Court of Appeal dismissed the appeal, holding it was fair and proportionate to operate a mandatory retirement age of 65 for partners. In doing so, the Court of Appeal made no criticism of the judgment of the Employment Appeal Tribunal. In so holding the Court of Appeal placed great emphasis on the fact the default retirement age was justified by the Government as a social policy aim ‘advancing confidence in the labour market’ and it would be quite inconsistent with upholding that justification of the Regulations to hold that a compulsory retirement age, whose aim was consistent with that social policy, was not legitimate. (This is one of the decisions referred to previously which are now the subject of appeal to the Supreme Court, whose judgments are awaited.)

4.13 In Chief Constable of West Yorkshire Police v Homer [2009] IRLR 263, the Employment Appeal Tribunal considered an indirect age discrimination case, where the employer introduced a requirement that to be graded at the top grade for a legal adviser and to receive the higher salary linked to that grade, an employer had to have a law degree. The claimant was 61 and the tribunal held that it was indirect age discrimination because someone in his age group would not be able to finish the course, obtain the degree before reaching the employer’s normal retirement age. The Employment Appeal Tribunal held there was no indirect age discrimination because:-

“There was no basis for concluding there was any particular advantage which affected persons falling within the age bracket 60 – 65.”

The financial disadvantage resulting from the above requirement was the inevitable consequence of age; it was not a consequence of age discrimination, where the claimant at 61 was close to the said retirement age.

The Court of Appeal dismissed the appeal and upheld the judgment of Elias J in the Employment Appeal Tribunal. This case has also been appealed to the Supreme Court, and judgment is awaited. However, it has to be recognised the case is very different to the facts in these matters; and pending further appeal, the Tribunal concluded the Homer decision was of limited application to these matters.

4.14 In the case of Pulham v London Borough of Barking [2009] UKEAT/0516, Underhill P in the Employment Appeal Tribunal confirmed that age discriminatory pay protection arrangements were always potentially justifiable. However, in considering the issue of justification, he accepted a Tribunal was entitled to have regard to the fact a discriminatory measure was negotiated with the trade unions; but in essence, this was not conclusive of the proportionality issue; albeit it remained relevant and important evidence in determination of such an issue. Also in the case, Underhill P, obiter, suggested that, since age discrimination could be justified the use of transitional pay arrangements could be relevant, in considering issues of justification, which take account over a period of time of the change in the law in relation to a pay policy, which previously was not discriminatory. Underhill J also emphasised that in relation to issues of unaffordability/does involve an exhaustive review of the financial position of a relevant body; but the tribunal must be in a position where it can assess the broad picture (seed also Bury MBC v Hamilton [2011] IRLR 358).

4.15 The burden of proof relating to these claims, as set out in Regulation 42 of the 2006 Regulations, is in similar terms to that found in other anti-discrimination legislation. The English Court of Appeal in the case of Igen v Wong [2005] IRLR 258 considered the provisions, equivalent to Regulation 42 of the 2006 Regulations, in a sex discrimination case; and approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong and the said two-stage process.

In the case of Bridget McDonnell & Others v Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 3, the Court of Appeal, in referring to the two-stage process stated:-

“ ... the first stage required the claimant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant. The second stage (which only came into effect if the claimant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld ... .”

The decision in Igen v Wong has been the subject of a number of further decisions, including Madarassy v Normura International PLC [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006] IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the Arthur v Northern Ireland Housing Executive and SHL (UK) Ltd NICA 25.

In Madarassy, the Court of Appeal held, inter alia, that:-

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. ‘Could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could probably conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.

Subject only to the statutory ‘absence of an adequate explanation’ at this stage the tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence as to the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparison being made by the claimant were of like with like as required by Section 5(3), and available evidence of the reasons for the differential treatment. ... .”

Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the claimant’s evidence of discrimination.

In the case of Laing v Manchester City Council, quoted with approval by Campbell LJ in the Arthur case but also by Coghlin LJ in the case of Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, Elias J held that it was not obligatory for a tribunal to go through the formal steps set out in Igen in each case. Coghlin LJ in the Curley case quoted with approval of the dicta of Lord Nicholls in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 174, when he stated:-

“Some times the less favourable treatment issue cannot be resolved without, at the same time, the reason why issue. The two issues are intertwined.”

Most of the legal authorities, referred to above, relating to the said burden of proof legislation, relate to cases of direct discrimination rather than indirect discrimination. However, although the guidelines set out in the Igen case and subsequent legal authorities both in this jurisdiction and in Great Britain, might be argued to be of more relevance to a case of direct discrimination, there is no doubt that the said two-stage process is of equal relevance and application to a case of indirect discrimination – albeit it may be more difficult to apply in each particular case.

4.16 Indirect discrimination consists, as set out previously, of a number of elements, namely:-

(i) that the employer supplied to the employee a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as the claimant, but

(ii) which puts or would put persons of the same age group as the claimant at a particular disadvantage compared with other persons; and

(iii) which puts the claimant at that disadvantage; and

(iv) which he cannot show to be proportionate means of achieving a legitimate aim.

Clearly all four conditions have to be met before indirect discrimination can be established; but given the nature of the claim, it is difficult to strictly apply the two-stage process, as referred to in the guidelines set out in Igen v Wong and the other legal authorities referred to above.

The tribunal came to the conclusion that, in order to comply with Regulation 42 of the 2006 Regulations, consistently with the guidance set out in the case of Igen v Wong, that it was necessary for the tribunal to firstly find that it could conclude that the first, second and third elements referred to above had been satisfied by the claimant; and then, if so satisfied, to find that the burden of proof had shifted, requiring the respondent to justify the provision, criterion or practice.

4.17 Regulation 34 of the 2006 Regulations (set out in Paragraph 4.1 of this decision) sets out an exception for provision of certain benefits based on length of service and is one of the statutory derogations from the principle of non-discrimination under the 2006 Regulations. This Regulation recognises the need to reward employees for experience/length of service. Indeed, as seen in Cadman v Health & Safety [2006] ICR 1623, albeit in an equal pay case, the ECJ gave similar recognition. In Cadman, the European Court of Justice held that employers do not have to justify length of service as a pay criterion unless the worker provides evidence that cast serious doubts on whether its use was appropriate.

In Wilson v Health & Safety Executive [2010] IRLR 59, Arden LJ dealt with the issue of a length of service criterion in the context of an indirect discrimination case when she held that the onus shifts to the employer when the employee has shown ‘serious doubts’ as to the appropriateness of the service-related criterion (see further Harrison case later, which followed the Wilson test).

Regulation 32 (the equivalent of Regulation 34 under the 2006 Regulations) of the 2006 Regulations in Great Britain was not directly the subject of the Heyday reference to the European Court. However, it is apparent from that decision that, in considering Regulation 34, that regard has also to be had to Article 6(1) of the Framework Directive, in relation to its interpretation. Regulation 34 is the transportation into the domestic legislation of the Framework, as articulated in Article 6 of the Directive, particularly Article 6(1)(b). (See Paragraph 4.4 of this decision.)

As stated previously, the Heyday judgment of the European Court of Justice confirmed that Article 6(1) gives Member States the option to provide, within the context of national law, that certain forms of differences in treatment on grounds of age do not constitute discrimination within the meaning of the Directive - if they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives or the means of achieving that aim are appropriate and necessary. (See discussion previously in this decision in relation to Regulation 3 and Article 6 of the Framework Directive in the judgment of the ECJ in the Heyday case.)

4.18 The claimants did not, in the course of this hearing, raise, as an issue, that the Regulations, in particular, Regulation 34 incorrectly implemented Article 6(1) of the Framework Directive into domestic legislation. If this issue had been raised, the tribunal would have had to consider whether a reference should be made to the European Court of Justice and/or whether the Office of the First Minister and Deputy First Minister, who made the 2006 Regulations, should be joined into the proceedings and given an opportunity to provide the justification for the said derogation contained in Article 34. In the circumstances, it was not necessary to consider these issues further.

The tribunal therefore accepted that Regulation 34 had directly implemented the Framework Directive and, in particular, Article 6(1) of the Framework Directive. However, that is not to say that the claimants did not raise an issue as to the application of Regulation 34 to the particular facts of this case and, in particular, whether the necessary justification had been shown by the respondent, as required under Regulation 34(2) of the 2006 Regulations.

Unlike in relation to Regulation 3, where no specific list of examples was given in relation to the issue of justification, (which in the Heyday case was not found to be incompatible with the Directive), under Regulation 34(2) there are specific examples given – namely ‘for example, by encouraging the loyalty or motivation or re-wording the experience, of some or all of his workers’. However, such a list by its nature could not be exhaustive. Again the list of examples has echoes of those seen in the guidance/consultation documents referred to earlier, in relation to the issue of justification under Regulation 3.

Under Article 34, as set out above, there is the exception for provision of certain benefits based on length of service. Unfortunately, benefit is not defined save that, in Regulation 2, it is stated ‘benefit’, except in Regulation 12 and Schedule 1 (pension schemes), includes facilities and services. In this matter, the respondent relied upon Regulation 34 in the alternative to its defence under Regulation 3. However, if it could not show that the pay scales came within the definition of benefits, Article 34 could not be applicable and the tribunal would have had no reason to consider further the necessary justification required under Regulation 34(2).

4.19 In the case of Rolls Royce PLC v Unite the Union [2009] EWCA Civ 387 the Court of Appeal in England and Wales held, by a majority, that the inclusion of a length of service criterion in a redundancy selection policy constituted a proportionate means of achieving a legitimate aim and that therefore no issue of indirect discrimination arose; but it also gave a provisional view that the use of length of service as a criterion could be considered a benefit under Regulation 34 of the 2006 Regulations.

Lady Justice Arden accepted the word ‘benefit’ was a very wide one and it was a word which was difficult or undesirable to place limits upon. Similarly, Lord Justice Wall, in finding the length of service criterion constituted a benefit within the meaning of the Regulations reached this conclusion on the plain meaning of the word. Therefore the Court of Appeal found, albeit provisionally, that a length of service criterion, which involved the allocation of points in a redundancy selection exercise was plainly capable of constituting a benefit within the meaning of the Regulations.

In Regulation 34(7), it is stated that in Regulation 32 ‘benefit’ does not include any benefit awarded to a worker by virtue of his ceasing to work for his employer. That inclusion would not appear to be relevant to the alleged ‘benefit’ in this matter. As indicated above, benefit is not otherwise specifically defined in the Regulations other than the partial definition given in Regulation 2, which is clearly not exhaustive. The Concise Oxford English Dictionary defines benefit as including:-

“An advantage or profit gained from something.”

4.20 In this particular matter, since under the pay scheme a person is paid at a higher scale, depending on the greater length of service, the tribunal concluded, giving the word ‘benefit’ its plain meaning and having regard to the dicta found in the Rolls Royce case, this could be said to be an advantage or profit gained from something; and therefore pay was a benefit within the terms of Regulation 34.

4.21 The Rolls Royce decision in the Court of Appeal is somewhat unsatisfactory in that the majority held that, although the trial judge had failed to consider proportionality, the length of service criterion was proportionate.

Aikens LJ dissenting, considered the wording of Regulation 32 (34 in Northern Ireland) and concluded that, unless it reasonably appeared to the employer that a measure met a business need, then the measure could not fall within the exception in Regulation 32. However the majority did not consider that it was necessary that the measure met a business need. The decision is not binding on this tribunal. With respect, the tribunal preferred, in relation to this issue, the minority decision as, in the view of the tribunal, it properly took into account the actual wording of the Regulation 34 where it states, in relation to justification of a benefit, which is greater than five years, it must ‘reasonably appear’ to the employer that the use fulfils a ‘business need’.

Aikens LJ held that to determine the above test:-

“ … involves a judgment by the court of whether objectively speaking, in the circumstances that exist when the criterion was used, Rolls Royce could objectively (ie reasonably) arrive at the conclusion that its use of the length of service criterion did fulfil a business need for Rolls Royce. That may involve consideration of what other employers, or trade unions, or perhaps third parties, might think concerning the exercise [tribunal’s emphasis].”

However, as seen above, since the majority in the Rolls Royce case concluded that a length of service criterion in the redundancy selection policy satisfied the test of justification under Regulation 3, it was not necessary for it to come to any final conclusions in relation to the proper interpretation to be applied by the tribunal in relation to Regulation 34 and/or whether it had been satisfied. However, although obiter, the tribunal found the decision helpful, as set out above, in the absence of any relevant decided legal authorities on the proper interpretation of that Regulation.

4.22 In a first instance decision, by the Cardiff Employment Tribunal, in the case of Harrison and Others v Ministry of Defence [2010] Eq LR 223 the Tribunal was required to consider a pay system across many GB Government Departments, which was a pay system, on the basis of the limited facts set out in the decision, which was similar to the subject-matter of these proceedings. In the Harrison case, the central issue was whether the criterion of length of service for progression in a pay system, and other benefits including holiday entitlement, and the number of years to reach the maximum entitlement, involved unlawful indirect discrimination on grounds of age contrary to Regulation 32 (Regulation 34 in Northern Ireland). Again, on the limited facts, set out in the decision, the claim of Mr Harrison was very similar to the claims made by the claimants in this matter.

At a pre-hearing review, the Employment Tribunal in Harrison found, inter alia, when considering the proper interpretation of Regulation 32 that it was for the employer, when relying upon Regulation 32, as a defence, to establish each element of Regulation 32 and that the correct test for justification under Regulation 32(3) was a combination of both the subjective and objective. The Tribunal drew support for this dicta from the Rolls Royce v Unite Union case and the obiter comments in the judgments to a partly subjective test (‘employer-centric’) and ‘partly objective’. In relation to the subjective element, reference was made by the Tribunal to the use of the words in the Regulations ‘appears to the employer’ and insofar as an objective element was concerned the use of the word ‘reasonably’ in the Regulation. It was the tribunal’s understanding the decision in Harrison has not been the subject of any appeal.

4.23 Regulation 42 of the 2006 Regulations, relating to burden of proof (see Paragraph 4.12 of this decision), in the tribunal’s judgment, is also relevant to any determination by a tribunal of the application of Regulation 34 of the 2006 Regulations.

4.24 Substantial changes to employment law, including insofar as relevant to age discrimination law, were introduced following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘2003 Order’) and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘2004 Regulations’). The 2003 Order and the 2004 Regulations introduced, inter alia, statutory grievance procedures to be complied with in connection with the bringing of certain claims before a tribunal. These procedures set out the minimum requirements which require to be followed by both employer and employee prior to the presentation of such claims. There was no dispute that the statutory grievance procedures applied to a claim of age discrimination. There are two alternative statutory grievance procedures known as the ‘standard’ grievance procedure and the ‘modified’ grievance procedure. In relation to these claims, again, there was no dispute that the ‘standard’ grievance procedure was applicable. If a party fails to complete the statutory grievance procedures under the 2003 Order and the 2004 Regulations, a major consequence relates to the adjustment of awards by an Industrial Tribunal where the Industrial Tribunal decides there has been a finding of unlawful discrimination and an award of compensation is appropriate.

In view of the tribunal’s decision, as set out below, that the claimants and each of them were not unlawfully discriminated against on the grounds of age pursuant to the 2006 Regulations and no award of compensation was therefore required to be made against the respondent, it was not necessary for the tribunal to consider further the claimant’s allegations relating to non-completion of the statutory grievance procedures by the respondent.

5.1 As stated previously in this decision, the first issue to be determined by the tribunal, pursuant to Regulation 3(1)(b) of the 2006 Regulations was whether a relevant provision, criterion or practice (‘PCP') had been applied to each claimant, arising out of the introduction, by the respondent of the 2006 pay agreement, to which further reference will be made elsewhere in this decision.

At the relevant time, for the purposes of these proceedings, the first claimant was employed by the respondent as a Staff Officer and the second claimant was employed by the respondent as an Executive Officer 1 (EO1). In general terms, the 2006 pay agreement provided for incremental pay scales, which involved a length of service criterion. The thrust of the case made by each claimant was that the older you were the higher up the spine points in each of the pay scales you would be; with the result you would be paid more for doing the same job as another employee with less service who was therefore, under the pay scales, on a lower spine point and would be younger in age. There was no dispute between the parties that the application of this incremental pay system, based on a length of service criterion, under the 2006 pay agreement was a PCP for the purposes of the 2006 Regulations.

5.2 Having established the necessary PCP, it was necessary for each claimant to show he was at a particular disadvantage. As set out in Paragraph 4.2 of this decision, this involved showing not only that he was at a particular disadvantage by reason of the PCP but also the PCP disadvantaged persons within the same group as the claimant and that any disadvantage arose from the PCP and not as a consequence of age (see Homer).

5.3 The tribunal, in essence, had to be satisfied the PCP had a discriminatory impact. It has to be noted that neither claimant was legally represented and, not surprisingly, each claimant had difficulty in applying the above Regulations to their particular claim and, in particular, the relevant respective age groups upon which the claimant relied. This difficulty was compounded by any relevant legal authority in relation to the term ‘age group’, as set out in the Regulations. Although the tribunal was concerned in these proceedings with the application of the 2006 pay agreement to these two claimants, who were employed in different roles/grades in the respondent (Government Department), the tribunal considered it significant the 2006 pay agreement, with its length of service criterion, applied equally to all employees of the Northern Ireland Civil Service employed in all Government Departments in Northern Ireland.

5.4 At the relevant date, for the purpose of these proceedings, the first claimant was aged 40 and the second claimant was aged 39. The tribunal was satisfied that the age group could be taken to be a range of ages for these purposes and the claimants were entitled to identify, for the purpose of these proceedings, the range of ages relied on by them.

It has been noted in many cases, in particular when dealing with issues of indirect sex discrimination, that there can be dangers in strict reliance on statistical evidence in establishing any such disparate impact.

In Enderby v Frenchay Health Authority [1994] IRLR 112, the European Court of Justice held:-

“It is for the National Court to assess whether it may take those statistics into account, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short term phenomena, and whether, in general, they appear to be significant.”

In the case of Rutherford v Secretary of State for Trade & Industry (No 2) IRLR 892, Mummery LJ said:-

“No methodology has been laid down in the Treaty or in any Directive or in National Legislation. It has been left to the National Courts and Tribunals, which hear and assess the evidence and find the facts, to work our from case to case a satisfactory method for assessing whether or not there is disparate 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 analysis in order to determine the existence or otherwise of the objectionable state of affairs.”

There is no doubt that since the Equal Pay Act (Northern Ireland) 1970 and the Sex Discrimination (Northern Ireland) Order 1976, and the equivalent legislation in Great Britain over the years, considerable statistical evidence in relation to gender, disparity, but also expertise in analysing such evidence, has built up. Given the 2006 Regulations only came into force in October 2006 and the claims of the claimants commence in late 2007/early 2008, following the commencement of the 2006 Regulations and the 2006 pay agreement in Northern Ireland, it was not surprising, in the opinion of the tribunal, there was not the same level of statistical evidence and/or expertise available in relation to age disparity, as there is with gender disparity (see further Cadman v Health & Safety Executive [2004] IRLR 971).

It was further apparent, from the evidence of the claimants, who did not call any witnesses, neither had any expertise in relation to statistical evidence and/or its significance. Further, the respondent also did not call, as a witness, anyone with specific expertise in relation to statistical evidence.

The tribunal was satisfied that the relevant range of ages, relied upon by them was appropriate, namely 39 – 43 years, in respect of Staff Officers and/or EO1s in comparison to older Civil Service employees in the age group of 49 – 53 years in the same position across the Northern Ireland ; and that each claimant had shown there was some evidence, amounting to a trend, that such a disparate impact on age existed across the whole of the Northern Ireland Civil Service, as the average age of an employee on a particular pay point on the scale was shown to increase as a person moved up the pay scale. It was further demonstrated to the tribunal in evidence, if, for example, a particular age was used, using limited statistics relating to the claimant’s own Department statistical anomalies could be shown to exist. Indeed, the respondent, in the course of cross-examination of the claimants, sought, by way of example from these limited statistics, which were confined, in essence, to employees of the same grade in their own Government Department, the respondent to show that this trend was no more than a general trend, which was not explained by reference to age and that other factors could be at play. However, in the absence of relevant expert evidence, in particular by the respondent, in relation to such statistics, the tribunal was unable to conclude it was only a trend unrelated to age – especially when the examples were based on such limited statistics, which might themselves be the subject of statistical anomalies. However, the tribunal also was not prepared to reach such a conclusion on statistics, which were limited to the respondent Government Department, in circumstances where the 2006 pay agreement, which had resulted in the relevant PCP, was a pay agreement applicable across the whole of the Northern Ireland Civil Service and was not limited to just one Government Department, such as the respondent. The tribunal was satisfied this issue had to be considered on the basis of the whole Northern Ireland Civil Service, not just the respondent, given the application of the 2006 pay agreement to all Departments.

Further, in particular, the tribunal, in considering this issue of disparate impact, as required by the 2006 Regulations, could not ignore, in the circumstances, the evidence of Mrs Grace Nesbitt, on behalf of the respondent. She was, as shall be illustrated later in this decision, closely involved in her position as Head of Human Resource Policy, Pay & Pensions Division, within the Central Personnel Group [tribunal’s emphasis] in the Department of Finance & Personnel, with the development and introduction of the 2006 pay agreement, across the whole of the Northern Ireland Civil Service in all Government Departments. In the course of her evidence she frankly acknowledged, the PCP was open to challenge on age grounds, as put forward by each claimant; and that any such disparate impact affected each of the claimants, as alleged by them, as a result of the said pay system; but in her opinion it could be justified. Further, the tribunal concluded it also could not ignore that, the ‘business case’ produced for the purposes of the introduction of the 2006 pay agreement across all Government Departments in Northern Ireland, not just in relation to those employed in the respondent, recognised the pay system was vulnerable to successful challenge on age discrimination grounds. As seen above, Mrs Nesbitt, in her evidence to the tribunal did not dissent from that view.

In particular, in Paragraph 54 of the business case, it was stated:-

“Age discrimination legislation will be introduced in Northern Ireland from 1^st of October 2006. We have considered the implications of this legislation for our current pay system, and have identified a number of challenges which will need to be addressed as a matter of urgency, in order to pre-empt likely legal challenge. Specifically the length of our pay scales, based as they are on seniority as well as performance, will be subject to potentially successful challenge under the legislation as using length of service as a criterion within pay systems is likely to amount to indirect discrimination against younger staff unless it can be objectively justified. Any such justification is likely to be more sustainable with regard to the more senior grades, but the junior grades present a difficulty we must focus on in the context of the pay remit.”

5.5 The precise challenge identified and recognised in the business case was the very focus of the claims of each of the claimants. In light of the burden of proof provisions (see further Igen v Wong) the tribunal was entitled to have regard to the evidence of the respondent in relation to such matters, in determining whether the claimants had satisfied the tribunal in relation to the issues of disparate impact.

In light of the foregoing, the tribunal, not without some hesitation, on the basis of the evidence before it, considered, applying the said burden of proof provisions, that each of the claimants had shown, when taking into the account the employees of the same grade of the Northern Ireland Civil Service as a whole, not the respondent itself and/or any particular part or unit of it, that the first three elements of Regulation 3(1)(b) of the 2006 Regulations (see further Paragraph 4.17 of this decision) had been satisfied; and it was therefore for the respondent to justify the said PCP, the fourth element of the said Regulation (‘proportionate means of achieving a legitimate aim’).

6.1 In seeking to justify the said PCP, pursuant to Regulation 3(1)(b) of the 2006 Regulations, the respondent relied, in particular, on the evidence of Mrs Grace Nesbitt. It was not disputed that the onus to justify the said PCP was on the respondent.

It should be noted that the tribunal found Mrs Nesbitt a very impressive witness and further a person who demonstrated, in her evidence, considerable knowledge and experience of the history of pay systems in the Northern Ireland Civil Service but, in particular, in relation to the 2006 pay agreement, the subject-matter of these claims.

6.2 By way of background, historically pay structures in the Northern Ireland Civil Service have involved a range of pay points across a pay scale for each grade. However, it became clear in early 2000 that the pay scales had become too long. Another feature was that some pay scales were overlapping resulting in the potential for newly-promoted staff to start on a pay point, in the new higher pay scale, of a lesser value than experienced officers in the lower grade and pay scale. Another feature of these long and overlapping pay scales was ‘leapfrogging’ – which had the potential for a newly-promoted member of staff to be placed into a grade at the same point on the pay scale as an officer with three or four years’ experience in the grade who is promoted onto the minimum of the scale.

In 2002, following negotiations between management and trade unions, a new single pay agreement was agreed, which attempted to address some of the issues referred to above. It was a single pay agreement, which introduced new pay bands for each Northern Ireland Civil Service grade (non-industrial), below senior Civil Service level, with a fixed progression system. The new pay bands consisted of a minimum point, fixed pay points and a maximum pay point. It was designed to be a simpler, fairer and more transparent pay system and removed the two element award of separate performance-related pay and cost of living elements. It also allowed for more flexibility by allowing increases to be in part-percentages. It was felt the new system was clearer for staff, who now knew what to expect in terms of progression towards the maximum point on the relevant scale.

6.3 The main focus of the claimants’ claims relates to the 2006 pay agreement, which the tribunal accepts was a refinement/amendment/development of the earlier 2002 pay agreement. The tribunal is further satisfied that the aim, since the 2002 pay agreement, has always been to reduce/shorten the pay scales; and the 2006 pay agreement was a further manifestation of that aim. However, it further accepts that the aim, at the relevant time for the purposes of these proceedings, of the Central Personnel Group of the Department of Finance & Personnel, who handled all relevant negotiations and implementation of the pay agreements reached, was not to do this immediately but to gradually reduce the length of the pay scales across the grades to four, six and eight points, by 2011, with junior posts attracting a pay scale of four points and the most senior post having the longer pay scale of eight points (see the minutes of the Central Whitely Sub-Group on Pay Grading 16 August 2009). However, the tribunal further accepts that it was recognised by both management and the trade union side that the aim to reduce the pay scales had to happen gradually and could not happen overnight or in a vacuum. It also had to take account of the money available, on foot of the Treasury’s pay policy, the relevant Civil Service pay guidance issued annually and the then Chancellor’s determination to secure pay restraint in the Public Sector. In essence, in light of the money made available by the Treasury, there were not unlimited resources available to achieve the above aims. This was a significant and relevant factor, which could not be ignored.

The main features of the 2006 pay agreement, insofar as relevant, included:-

(i) the continuance of the 2002 one-step pay progression for all eligible staff who received Box 1 to 3 marks in annual appraisals with the non-consolidated bonus being set at £150.00 for Box 1 performers and £50.00 for Box 2 performers; and

(ii) restructuring of pay scales by, for example –

(a) reducing the number of points on the relevant scale;

(b) reducing the financial gaps between the points in the scale; and

6.4 In considering this issue of justification, in the above context, the tribunal took particular account of what was set out in the draft business case, dated 9 August 2006, to which earlier reference has been made in this decision. The tribunal accepts that the issues, as set out in the business case, were the subject of lengthy negotiations between, firstly, the Central Personnel Group on behalf of all the Northern Ireland Government Departments and the Treasury, from where the funds for any agreement required to come from, and then the Central Personnel Group and the trade union side.

It is of particular significance that, at the conclusion of these negotiations, the 2006 pay agreement was agreed to by the trade union side. Mrs Nesbitt accepted that, ideally, it might have been hoped by both Central Personnel Group but also the trade union side, to do more in the 2006 pay agreement to reduce the number of points on the pay scale; but, given the historical context in which these reductions were sought to be reduced but also the overall financial restraints imposed by the Treasury, she emphasised that it was not possible to do so and this was accepted by the trade union side, negotiating on a collective basis for all relevant employees in the Northern Ireland Civil Service.

Indeed, the tribunal is equally satisfied that, whilst the above matters were relevant and of importance in the final outcome of the 2006 pay agreement considerations of retention and/or motivation of staff and/or rewarding of experience of staff, as referred to in the business case, were also relevant and significant considerations in the overall package agreed, which retained the said length of service criterion. The tribunal also took account, in particular, the evidence of Mrs Nesbitt of the importance which was placed on those issues in the construction of the agreement, as it was drawn by the Central Personnel Group and which was finally agreed by the management and trade union side. In the tribunal’s view, what was stated in the business case and in light of the detailed evidence given by Mrs Nesbitt on such matters, was not a mere assertion. Indeed, the tribunal, as an industrial jury, could itself readily recognise, without the necessity for detailed survey/questionnaire, that pay systems are a primary means by which an employer can reward experience, encourage loyalty, retain and motivate staff. In this context, the tribunal noted that, insofar as relevant, the evidence put before the tribunal, showed turnover of staff in the respondent had been low, including, in particular, Staff Officer and EO1 grades (3%). This suggested that the pay system in operation was achieving the objective of trying to retain staff, at least in that Department.

6.5 The business case document was a well researched and developed document, showing again this was not mere assertion by the respondent. After setting out the historical context on the financial restraints imposed by the tribunal and relevant to any pay agreement, as referred to previously, the document set out specific references to the above matters.

For example, in Paragraphs 21 – 22 it was stated:-

“(21) If the Service is to successfully deliver on this challenging programme of reform and thus support the achievement of our business and operational requirements we must also review our current award system so that our staff are sufficiently motivated to the fair and appropriate recognition of their performance and contribution towards Departmental business objectives. A pay and reward system that is fair, recognised and rewards good performance and is capable of adaptation as the needs of the organisation change, is key to our future success.

(22) Our existing strategy would be further developed to place a greater emphasis on Total Reward, including the integration of the various pay and non-pay aspects of our employment offering and the more active promotion of the nature and value of the total award package among our staff. Within the context of Total Reward, our 2006 remit proposals are designed to provide greater scope for the development of workforce segmentation within remit for future years, reflecting any needs or opportunities emerging from our restructuring both during and post-reform. This will allow us to consider the suitability of a number of reward concepts within different segments of the resulting NICS workforce, in order better to attract, motivate and retain the necessary talents … while providing staff with personal choice and flexibility.”

Further, in Paragraphs 26 – 30, the business case addressed the issue of motivation and morale and how financial remuneration was a relevant factor.

It referred to relevant staff surveys and the current difficulties in the workforce, including ‘consequence reduction in promotion opportunities’. It concluded in Paragraph 30:-

“These issues point to a clear need to develop and maintain a reward strategy that will command the confidence of the staff, make them feel valued and provide them with the motivation needed to deliver our extensive reform programme.

… .”

Paragraphs 31 – 33 addressed the issue of recruitment and retention, and the ‘growing body of evidence that we are no longer able to attract the best candidates in the labour market and the relevance of pay to such issues …’. The document further confirmed the necessity for the pay system to continue to provide transparency for staff and for a clear progression path towards the pay scale maxima – principles which underlined the 2002 pay agreement and now subsequently the 2006 pay agreement.

In Paragraph 38 of the document the following conclusion was set out:-

“In summary, our strategic objectives in reforming the current pay system are to remove the unnecessary complexities, inconsistencies, inherent unfairness … and replace it with a system that is fair to all staff, is transparent, affordable, adaptable, is more sufficient to administer and is sufficient to enable the Northern Ireland Civil Service to recruit, retain and motivate staff.”

The tribunal is satisfied these principles set out in the draft business case were fully and properly reflected in the said 2006 pay agreement and were not mere empty words, as suggested by the claimants.

6.6 The tribunal noted the business case did not expressly refer to rewarding loyalty (see further Regulation 34(2) of the 2006 Regulations, referred to elsewhere in this decision); but it is satisfied it was encompassed in the references to retaining and motivation of staff referred to above. Indeed, the tribunal accepted that it was, in essence, the other side of the same coin, as indicated by Mrs Nesbitt. The tribunal could further accept that, in the Northern Ireland context, use of a phrase such as ‘rewarding loyalty’ might have been misunderstood and/or misconstrued and/or taken out of context.

6.7 The tribunal accepted that the 2006 pay agreement has not shortened the pay scales, so there is no disparate impact remaining arising from the use of the said length of service criterion; albeit it has gone further than, for example, the earlier 2002 pay agreement. It further accepts Mrs Nesbitt’s evidence that a possible solution to shorten the pay scales by freezing the maximum, for example, would not have been acceptable to the trade union side and was therefore not a viable option. Therefore, any agreement, albeit not perfect, had, in essence, to be a form of compromise/balancing exercise in an attempt over a number of years to reduce the ‘offending’ pay scales and had to recognise that goal could not be achieved in one agreement and, in particular, in light of the financial restraints applicable across the Northern Ireland Civil Service. In the judgment of the tribunal, it was, in essence, proportionate.

7.1 The tribunal, in light of the facts as found in Paragraph 6 of this decision and applying the case law set out in Paragraph 4, was satisfied that the respondent has justified the PCP of the service-related criterion under the 2006 pay agreement – by showing it was a proportionate means of achieving a legitimate aim (see further the principles referred to by Elias J in MacCulloch v ICI [2008] IRLR 846 at Paragraph 4.6 of this decision and which the tribunal is satisfied in the circumstances have been followed by the respondent in this matter).

In particular, the tribunal was satisfied that the respondent had shown it had a legitimate aim, in the circumstances, and had done so by proportionate means. In particular, by continuing to operate such a pay structure it fulfilled the business needs across all the Northern Ireland Government Departments, for all Northern Ireland Civil Service staff, as specifically referred to in the business case document, including, in particular, dealing with the issues relating to recruitment and retention of staff, encouraging motivation, loyalty and experience and removing unnecessary complexities, inconsistencies, and inherent fairness. It had resulted in a pay system which, was fair, transparent, affordable and adaptable and would allow staff to know what to expect towards the maximum point in the relevant scale. It was part of a programme of progressive reduction, which was agreed by the trade union side (see further Loxley and Pulham cases). The tribunal does not underestimate the relevance and importance of the costs context and the overall amount of money which had been made available by the Treasury; but it does not consider it was the only factor in continuing to use the length of service criterion. It was therefore consistent with the ‘cost plus test’ seen in Cross v British Airways. In the circumstances, it was therefore not necessary to consider whether cost alone would have been sufficient to constitute objective justification (see the Woodcock and Cherfi cases). The tribunal acknowledged that the trade union side had clearly recognised and accepted the issues set out in the business case in accepting the 2006 pay agreement, on behalf of its members, after detailed and full negotiation. The tribunal accepted this was a very relevant factor in concluding justification had been established – but it was not conclusive (see further Pulham case). Underhill P, albeit obiter, in the Pulham case also gave weight to the fact that transitional pay arrangements, as occurred in this case, was relevant to issues of justification. The tribunal accepts that the 2006 pay agreement was intended as a three year agreement and it was also hoped, at the end of the period, to take further steps to reduce the incremental pay periods. The tribunal was satisfied the business case and Ms Nesbitt’s evidence provided sufficient evidence to allow the tribunal to properly consider the issues of affordability in the then economic climate (see further Pulham).

7.2 The tribunal, in concluding that justification of the service-related criterion, under the 2006 pay agreement, had been established by the respondent also had regard to the ‘margin of appreciation’, which was recognised by Arden LJ in the Wilson case, when she stated:-

“It may be difficult for a Court to determine whether the use of a service-related criterion was justified. That will be a reason for the Court giving the employer ‘a margin of appreciation’, that is a margin, within which it would defer to his commercial judgment but it is not an argument for excluding review of the Courts altogether … .”

Similarly, the tribunal felt confirmed in its view, in light of the dicta of the judgment of Elias J in Seldon, which judgement was approved in the Court of Appeal; albeit it is acknowledged that the case is presently under appeal to the Supreme Court.

Elias J, inter alia, referred to the necessity for a tribunal to give weight ‘to the evidence of those who are involved daily in the operation of the business and are plainly in a better position to assess business needs and the effect of the business on staff …’. As the tribunal did, it relied on the evidence of Mrs Nesbitt, with all her experience, but also the contents of the business case document, to which reference has been made previously.

7.3 Having established the necessary justification, the tribunal decided the claimants had not been indirectly discriminated against, pursuant to the 2006 Regulations and that therefore the claims must fail.

7.4 In light of its conclusions, as set out above, it was not necessary for the tribunal to deal in detail with Regulation 34 of the 2006 Regulations in the context of the claimant’s claims. However, if it had been necessary for the tribunal to do so, the tribunal would have concluded, relying on the dicta in the Rolls Royce case, that the length of service criterion applied in this matter, under the 2006 pay agreement, was a benefit for the purposes of Regulation 34. Both claimants’ length of service exceeded five years.

The tribunal further considered that, in light of the judgments in the Rolls Royce case, but also the first instance decision in the Harrison case, that the test of justification, set out in Regulation 34(2) probably with its mixture of subjectivity (appears to the employer) and objectivity (‘reasonable’) is probably easier to achieve than the test of justification under Regulation 34(1)(b) of the 2006 Regulations.

7.5 Given the tribunal’s conclusions in relation to the issue of justification under Regulation 3/4(1)(b) of the 2006 Regulations, as set out previously, the tribunal would therefore have had no hesitation, if it had done so, in concluding, for similar reasons, that the test of justification under Regulation 34 was also established by the respondent. Regulation 34, as stated previously, gives examples relevant to the test of justification, unlike Regulation 3(1)(b). However, these are merely examples and not exclusive. Indeed, all these matters had been fully considered by the tribunal, as set out above, when it found the test of justification had been established by the respondent under Regulation 3(1)(b) of the 2006 Regulations.

8. The claimants’ claims are therefore dismissed.

Chairman:

Date and place of hearing: 10 -14 November 2008;

17 - 21 November 2008;

24 – 25 November 2008;

17 December 2008;

11 January 2011; and

24 March 2011

Date decision recorded in register and issued to parties: