Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/01443_11IT.html
Cite as: [2012] NIIT 01443_11IT, [2012] NIIT 1443_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1443/11

CLAIMANT: Julie Muldrew

RESPONDENT: Board of Governors of Larne Grammar School

DECISION

The unanimous decision of the tribunal is that the claimant was unlawfully and indirectly discriminated against by the respondent on the ground of her gender by the requirement that a Head of Year post could only be held by a full-time teacher. The claimant is awarded £5,000.00 as compensation for injury to feelings. Interest on that sum calculated at £185.20 is also payable. She should also be paid a sum equivalent to the Teachers Allowance she was required to relinquish from September 2011 to the end of that academic year, net of income tax and statutory contributions.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Dr C Ackah

Mr D Walls

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by The Equality Commission for Northern Ireland.

The respondent was represented by Mr B McKee, Barrister-at-Law, instructed by O’Reilly Stewart, Solicitors.

Background

1. The claimant was at all material times, and remains, a teacher in Larne Grammar School. She commenced that employment in 1995. It is common case that she is a competent and experienced teacher.

2. The respondent is the Board of Governors of Larne Grammar School, a voluntary grammar school. The respondent is the claimant’s employer.

3. After a restructuring of management posts within the respondent school, the claimant was appointed Year Head in 2008.

4. In 2008/2009 and in 2009/2010, the claimant applied for and was granted temporary variation in her employment contract, which reduced her working week from five days to four days. The variation was sought to facilitate childcare.

5. During that two year period, the claimant was required to relinquish her Year Head post, and the associated salary supplement, as part of the temporary contract variation.

6. The claimant returned to her normal contractual terms and worked full-time from September 2010 for a one year period. During that period, she resumed her responsibilities as Year Head and received the related salary supplement.

7. In September 2011, the claimant again reduced her working week from five days to four days as a temporary contractual variation for the purposes of childcare. The claimant was again required to relinquish her Year Head post and the associated salary supplement while she worked part-time.

8. The claimant lodged a claim (‘the first claim’) on 24 June 2011. That claim raised several matters, most of which had been resolved between the parties and no longer required determination by the tribunal. The first claim also raised an allegation of indirect sex discrimination in relation to the temporary variations in contract from full-time to part-time in 2008/2009 and 2009/2010 and in relation to the further temporary variation in contract which was due to commence from September 2011. The first claim, and indeed the second claim referred to below, did not specifically refer to part-time worker discrimination. However, they made it plain that the focus of the claims was the exclusion of part-time teachers from Year Head posts. The respondent did not object to part-time worker discrimination being included as an issue to be determined.

9. The claimant lodged a further claim (‘the second claim’) on 27 January 2012 raising the same issues. The respondent lodged a response to the second claim on the first day of the hearing. Both parties consented to the second claim and response being accepted by the tribunal and being consolidated with the first claim for hearing.

The issues

10. Counsel for both parties, and their instructing solicitors, have to be commended for the constructive approach that they have adopted in this case to both narrow the issues, and to further the overriding objective, as set out in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

11. It was common case that:-

(i) The requirement that Year Heads be full-time teachers (‘the PCP') had an adverse and disproportionate impact on female teachers.

(ii) The PCP had had an adverse impact, amounting to a detriment, on the claimant.

(iii) That PCP had been put in place for a legitimate purpose.

(iv) That legitimate purpose was securing pastoral care for pupils at the respondent school.

12. Other matters had been resolved between the parties before the commencement of the hearing and the only issues which remained for determination by the tribunal were:-

(i) Did the tribunal have jurisdiction to determine the first or second claim? Specifically had the claimant complied with the statutory grievance procedure as set out in the Employment (Northern Ireland) Order 2003 and were the claims within time?

(ii) If the tribunal had jurisdiction for the purposes of a claim of indirect sex discrimination under the Sex Discrimination (Northern Ireland) Order 1976 and/or a claim of part-time worker discrimination under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, was the PCP a proportionate means of securing the legitimate objective, and therefore, was the PCP objectively justified?

(iii) If the PCP was not objectively justified, what was the appropriate remedy in relation to either the first or second claim in terms of injury to feelings, loss of salary supplement and pension loss?

The hearing

13. The evidence was heard over three days from 30 January 2012 – 1 February 2012. The witness statement procedure was used, with one minor exception. Each witness, with that one exception, adopted their statement(s) as their evidence-in-chief and moved directly to cross-examination and re-examination.

14. The tribunal heard evidence from the claimant and, on her behalf:-

(i) Mr Mark Langhammer, Director of the Association of Teachers & Lecturers (‘ATL’);

(ii) Reverend Dr Paul Irwin Reid, a member of the Board of Trustees and of the Board of Governors of the Head of Year; and

(iii) Mr Darwin Workman, a recently retired Year Head in the respondent school.

15. The tribunal also heard from the following witnesses, called on behalf of the respondent:-

(i) Mr John Wilson, the Principal of the respondent school;

(ii) Ms Lynn Hunter, one of two Vice Principals of the respondent school;

(iii) Reverend Dr Colin David McClure, Chair of the Board of Governors of the respondent school; and

(iv) Mr Richard McGeagh, Year Head and Teacher Governor of the respondent school.

16. Issues arose in the course of the hearing and, with the consent of the claimant, Ms Hunter gave limited oral evidence-in-chief to deal with those matters and to ensure that as complete a picture as possible was presented to the tribunal.

17. At the close of the evidence, the parties agreed to lodge written submissions dealing with the remaining issues, by 5.00 pm on 3 February 2012. Those written submissions are annexed to this decision.

Findings of fact

18. The respondent school employs approximately 49 teaching staff headed by the Principal, Mr Wilson.

19. There are two Vice Principals. Ms Hunter is responsible for pastoral care issues. The other Vice Principal takes the lead on academic issues.

20. The respondent school has seven year groups, from Year 8 to Year 14. Each year has a Year Head. Each Year Head receives a salary supplement known as a Teaching Allowance. Each Year Head is required to be a full-time teacher. Year Heads have pastoral care responsibilities.

21. There are several Departments in the respondent school, eg Modern Languages. Each Department has a Head of Department. Heads of Department have responsibility for academic issues.

22. Apart from the Principal, the Vice Principals, certain members of senior management, the Year Heads, those teachers engaged in a mentoring programme, and the teacher assigned responsibility for preparing and maintaining the class timetable, all other teachers employed in the respondent school are assigned duties as Class Tutors.

23. Each Class Tutor has specific responsibility for one quarter of a particular year group.

24. There is presently no requirement that Class Tutors need be full-time teachers. In the case of two groups of pupils, each comprising one quarter of their respective year group, two part-time teachers share class tutor responsibilities and duties. In the case of one other group of pupils, a full-time teacher and a part-time teacher share those duties and responsibilities. Unlike Year Heads, Class Tutors receive no additional payment.

25. The respondent school has a formal pastoral care policy which issued in 2010 and which superseded earlier versions of the policy. It provides:-

“The importance placed on the pastoral care of our pupils is reflected by, and embedded within our school aims:-

(i) to enable all pupils to develop aesthetic and cultural awareness and to realise their intellectual and physical potential through the provision of a broad, balanced and coherent curriculum;

(ii) to create an awareness of, and encourage a respect for, spiritual, religious and moral values and to promote tolerance for the view of others;

(iii) to provide a caring and supportive environment in which pupils may have equal opportunities to pursue their studies, interests and personal development in a spirit of enjoyment and co-operation, regardless of sex, race, culture or religion; and

(iv) to help all pupils to grow into independent, self-disciplined, confident and responsible adults able to fully participate in society.

Pastoral care is an integral part of the whole educational experience offered to our pupils and is not a distinct entity. It underpins every aspect of the pupil’s experience in school and exists, not for its own sake, but to enable pupils to achieve their potential.

Our pastoral care aim is:-

‘To offer the best possible pastoral care by providing support and guidance for pupils in an environment which is characterised by good relationships, mutual respect and tolerance.’.”

26. In cross-examination, the respondent’s witnesses frequently emphasised that the respondent’s policy was to offer the best possible pastoral care.

27. The pastoral care policy also provided that:-

“The pastoral care system should provide academic and emotional support and help to promote good discipline and change unacceptable behaviour. In this school we undertake the following tasks:-

- devise policies and procedures which ensure the physical and emotional security of our pupils (child protection policy, behaviour management policy, special educational needs and disciplinary policy, anti-bullying policy and any others which may be relevant);

- monitor pupil progress and communicate this to parents;

- help and guide pupils through critical transition times by providing advice, support, mentoring and counselling;

- liaise with parents and other agencies for the benefit of the pupils;

- create a caring and orderly community which is sensitive to the needs of pupils, staff and parents and promotes good relationships;

- aim for high standards of behaviour to provide an environment in which pupils can achieve their potential;

- provides support services (school nurse, school counselling support staff, education, welfare officer, behaviour guidance support officer).”

28. Under the heading ‘the organisation of pastoral care in Larne Grammar School’, the policy provides:-

“Individual guidance and welfare of pupils is provided through a year-based pastoral system. On entry to the school each pupil is allocated to a tutor group with a class tutor who has daily contact with the children and is responsible for dealing with day-to-day matters, as well as monitoring overall progress and providing educational guidance. Year 8, 9 and 10 tutor groups have one session each of personal development, employability and citizenship weekly. Year 13 and 14 tutor groups have one weekly session of class tutorial with their class tutors, Year Head and on occasions, a visiting speaker. Year 11 and 12 tutor groups follow a modular ‘life skills’ programme which includes careers, personal development and citizenship. Drugs and sex education are covered by personal development, biology and RE classes.

Class tutors are supported by experienced Year Heads and a Vice Principal who keeps in close contact with the Principal and parents as well as support and welfare services.”

Contentions of the parties

29. The contentions of the parties are set out more fully in the written submissions attached to this decision. However, in essence, the respondent argued that the requirement to provide the best possible pastoral care to pupils means that continuity of care is essential and that a Year Head needs to be present in the school on five days a week to provide the necessary continuity and to deal with matters at the appropriate level of experience. In essence, the claimant argues that pastoral care is provided by a team encompassing all teaching staff, the class tutors, the Vice Principal, the Principal, the school counsellor (who is available on one half day per week) and mentoring services. The claimant argues that during her absence on one day a week (Monday) the small number of urgent cases could, and probably would in any event, be dealt with by the Vice Principal. The less serious cases could be dealt with, and probably would in any event be dealt with, by Class Tutors. Other matters could wait until her return to work on the following day.

Evidence of the claimant

30. Much of the claimant’s witness statement related to matters which had already been resolved between the parties before the commencement of the tribunal hearing.

In relation to the remaining core issue; ie whether the Year Head needed to be a full-time teacher, the claimant’s evidence was that she could properly carry out all the duties of the post, over a four day week, taking Monday off. She emphasised that pastoral care was the responsibility of all staff at the school and that it was delivered by a team comprising Class Tutors, Year Heads and the Vice Principal in charge of pastoral care, with the assistance of others, including a part-time school counsellor and individual class teachers.

31. The claimant stated that the Year Head had to lead and support those Class Tutors who had responsibility for pupils within their year group, to build relationships with the pupils, their parents and staff, to supervise pupil attendance and punctuality and to arrange any necessary meetings with parents to acquaint them with school policy or to discuss particular problems. A Year Head also had to supervise and direct weekly reports, to proof read annual reports before they are sent to parents and to maintain all appropriate records of pupils within their year group. The Year Head must also organise a year assembly for her particular year every seven weeks.

32. In cross-examination the claimant was asked to comment on several examples put forward by the respondent’s witnesses of incidents in which it was argued that it had been necessary, or least highly desirable, for a Year Head to be present on five days per week. In relation to each such incident, the claimant argued that an experienced Year Head working together with other members of the pastoral care team, ie the Class Tutors as the initial points of contact, other teaching staff, the Vice Principal, the School Nurse, and School Counsellor, etc would be able to provide a fully satisfactory service in relation to pastoral care. While the claimant accepted in certain cases her absence on a Monday might cause a delay in completing an investigation, she felt any such investigation could still be completed satisfactorily and that proper continuity of care and proper reassurance could be afforded to both pupils, parents and staff.

Evidence of Mr Mark Langhammer on behalf of the claimant

33. Again, much of the evidence submitted by Mr Langhammer in the form of a witness statement had been overtaken by events and related to matters which had been resolved prior to the commencement of the hearing.

34. Mr Langhammer stated in cross-examination that where a teacher has a Teaching Allowance (salary supplement), it could be paid pro rata if that teacher worked part-time, but if that teacher undertook the whole of the appropriate range of duties covered by that Teaching Allowance, that teacher could be paid the full allowance.

Evidence of the Reverend Dr Paul Reid on behalf of the claimant

35. The Reverend Dr Reid stated, in his witness statement, that at a meeting of the Board of Governors in March 2008, ie at the meeting which the first temporary variation of contract was approved, he had moved an amendment to provide that the claimant should retain her responsibilities and salary supplement as Year Head. That amendment does not appear to have been moved because of concerns about unlawful discrimination. He stated that this amendment had been seconded by the teacher representative on the Board of Governors but had not been accepted by the Board. He pointed out that there would be several instances in which Year Heads would not be immediately available to deal with pastoral care issues or indeed even be on school premises. He referred to illnesses, domestic crises, such as bereavements, school trips and training. He accepted, in cross-examination, that the need for pastoral care is constant but responded that the need for academic education is similarly constant. If one can be delivered by staff on a part-time basis, he argued that the same would also apply to the other. He accepted that a Year Head who was not on duty and not being paid on a set day each week could not be obliged as a matter of contact to respond to any particular pastoral care issue on that day. However, he felt a Year Head could in reality be contacted by mobile telephone and would respond, if it were necessary to do so.

The Reverend Dr Reid accepted that, in certain instances, the absence of a Year Head on a particular school day would delay the conclusion of an investigation or the resolution of a pastoral care matter. He maintained that, in his view, the Year Head and the Head of Department were equal in terms of responsibility; the Year Head had responsibility for pastoral care and the Head of Department for academic matters. The respondent had allowed Heads of Department to work for three days a week. In his view, academic matters were as important as pastoral care matters to the respondent school and if academic education could be delivered by a team of teachers, some of whom were part-time, so could pastoral care.

Evidence of Mr Darwin Workman on behalf of the claimant

36. Mr Workman had recently retired but had been employed by the respondent school as a Year Head for some 12 years. He stated that it was his considered opinion that, with careful planning, the responsibilities of the role could be carried out in four days per week as opposed to five days per week, by a dedicated and well-organised Year Head. He stated that much of the work involved was administrative and could be completed during non-teaching time in school, after school or at home. He also stated that pastoral care problems often revealed themselves over a period of days and that it was seldom, in his experience over 12 years, that a matter needed to be dealt with by a Year Head immediately. Such matters would be dealt with in the first instance by the Class Tutor in accordance with the pastoral care policy and in the unlikely event that it could not be properly dealt with by the Class Tutor and could not be put on hold for a day pending the return of the Year Head, then the Vice Principal could deal with the matter. He stated that in his experience such a situation had seldom, if ever, arisen. He also stated that only on the rarest occasions would an interview be arranged with parents on the same day as a problem had been brought to the attention of a Year Head.

More serious issues, such as child protection or criminal offences, were brought immediately to the attention of the Vice Principal as the person in charge of pastoral care and the person responsible for dealing with those serious issues.

Evidence from the respondent’s witnesses

Evidence of Mr John Wilson, Principal of the respondent school

37. Mr Wilson referred to the 2008 salary policy promulgated by the respondent school. It stated:-

“Teaching Allowances will be accessible to all staff and will be allocated on a pro rata basis for part-time staff. All allowances will be based on the totality of teaching and learning responsibility.”

It also stated that:-

“Teaching Allowance 2 may be awarded to Year Heads. Given the pastoral nature of the post (including child protection) these will only be available to full-time members of staff.”

38. Mr Wilson stated that the claimant had agreed to relinquish the status and salary supplement of Year Head when her contract was temporarily varied for the years 2008/2009 and 2009/2010.

39. Mr Wilson stated that the needs of the pupils required that the Year Head should be present in the school for five days per week and that the post could not be adequately fulfilled by a part-time teacher working four days per week. Since he and the Board of Governors were satisfied that the duties of Year Head could not be carried out on four days per week, the question of whether or not a full Teaching Allowance or a pro rata Teaching Allowance would be paid to the claimant did not arise.

40. Mr Wilson set out in his witness statement several different instances which he stated indicated to him that the post of Year Head needed to be filled by a full-time member of staff. In each of these incidents, the Year Head had personally taken action in relation to a pastoral care issue. Mr Wilson stated that the support which had been given would not have been as effective if the Year Head had not been available in the school consistently on each day of the week.

Evidence of Ms Lynn Hunter, Vice Principal of the respondent school

41. Ms Hunter stated that she had assumed full responsibility for pastoral care in the respondent school in 2002 following the publication of a pastoral care document in 2001. She stated that since 2001 there had been an increase in the workload of Year Heads. This included dealing with issues such as indiscipline, disengagement, family issues, attendance concerns, special educational needs, bullying, issues relating to self esteem and self harming, and issues relating to the increased use of social networks and information technology. She stated that it was important that all pastoral care issues should be dealt with as soon as they arose and that it was vital that parents or guardians be kept informed of all such issues and the outcome of any relevant investigations.

42. She stated that Class Tutors were responsible for day-to-day monitoring of the pupils and dealing with low level matters, such as a lost school book or a lost piece of homework, etc. More serious issues were referred by Class Tutors to the Year Head who could refer the most serious matters on to her as Vice Principal. Pupils could also approach a Year Head directly for advice and assistance. She stated that pupils recognised their Year Head as someone they could turn to if they had a serious problem. In her view, this required full-time presence of the Year Head on school premises.

43. She emphasised the need for personal contact between Year Heads and parents and stated that Year Heads often contacted parents by telephone on the day any particular incident occurred to explain that the school was aware of the incident and to explain what the school was doing in relation to that incident.

Evidence of the Reverend Dr Colin David McClure, Chair of the Board of Governors at the respondent school

44. The Reverend Dr McClure emphasised in his evidence the priority that the respondent school attached to the pastoral needs of children.

45. In cross-examination, the Reverend Dr McClure accepted that the focus of his witness statement had been the priority to be accorded to the pastoral needs of the pupils. He also accepted that there were other factors that should be weighed in the balance when considering whether a post should, or should not, be offered to a part-time worker. He further accepted that he had referred nowhere in his witness statement to European or domestic sex discrimination legislation. He had referred to the Children (Northern Ireland) Order 1995, the Human Rights Act and the United Nations Convention on the Rights of the Child. On further cross-examination, he stated that he ‘didn’t think that we (the Board) spent any time considering any other factors’ (when considering whether the Year Head post could be filled by part-time teachers. He confirmed again that the primary concern of the Board in imposing the PCP had been the best interests of the pupils. When pressed on whether there had been any discussion at all of the potential adverse impact on women he responded:-

“I certainly don’t recall any discussion.”

46. He further stated when asked whether there had been any review of the PCP given the potential adverse impact on women that he ‘didn’t recall any’.

He stated:-

“If you’re asking if we as a Board gave detailed consideration to that – I don’t believe we did – but it was part of the culture.”

47. The Reverend Dr McClure accepted that pastoral care was delivered by a team and that every teacher and indeed every person employed in the school shared a responsibility for pastoral care.

48. He stressed the need for continuity and the need for the Year Head to develop relationships with pupils and parents and he felt that that required the Year Head to be a full-time teacher. He also felt that all Class Tutors should be full-time teachers, although the school did not require that at present. His view was that best practice would point to that result. He also felt that that would be the normal assumption. He stated that ‘the time would come when it should be inserted (in the school policy)’.

49. When teachers were away from school premises on training courses or school trips, he felt that they were still engaged on their employment contracts and were contactable in an emergency. He confirmed that there was no specific requirement in school policy that teachers engaged in such activities should carry a mobile phone but he was confident that they would nevertheless be easily contactable since such courses were usually carried out at fixed locations.

Relevant law

50. The Employment (Northern Ireland) Order 2003 provided for a statutory grievance procedure. In broad terms, it included a requirement that an employee who wished to lodge a tribunal claim of unlawful discrimination had to first lodge a written grievance with his/her employer and then wait 28 days before lodging the tribunal claim. If the employee did not do so, the tribunal had no jurisdiction to hear the claim.

51. That part of the 2003 Order was revoked by the Employment Act (Northern Ireland) 2011 with effect from 5 April 2011. The 2011 Act provides for voluntary compliance with a LRA Code of Practice. If the employee unreasonably fails to comply with the Code an award can be reduced by up to 50%.

52. Transitional provisions apply to continuing acts which commenced on or before 2 April 2011.

53. In the circumstances of this case, a claim of unlawful discrimination must be lodged within three months from the act complained of or, in the case of a continuing act, three months from the last relevant date.

54. The only substantive issue, as opposed to jurisdictional issue, remaining to be determined is whether the requirement imposed by the respondent school for Year Heads to be full-time teachers was a proportionate means of achieving what was accepted by both parties to be a legitimate objective, ie the need to provide pastoral care to pupils.

55. Where there is a clear, and in this case, an agreed adverse disproportionate impact on a protected group, in this case women, it is for the employer to establish, on a balance of probabilities, cogent and convincing reasons for the imposition of the relevant provision, criterion or practice.

56. The parties have set out references to case law in the attached written submissions. The tribunal has considered those references and submissions in reaching its decision.

57. In R (on the application of Elias) (claimant) v Secretary of State for Defence (defendant) [2006] IRLR 934, the Court of Appeal considered a non-statutory compensation scheme for those were interned by the Japanese during the Second World War. That scheme provided an ex-gratia payment to civilian internees who could establish that they were ‘British civilians’. That meant that an applicant had to establish that they had been born in the UK or that a parent or grandparent had been born in the UK (‘the birth link criteria’). Mrs Elias alleged that that requirement was, inter alia, indirectly discriminatory on grounds of national origin and that it could not be justified.

The Court of Appeal stated:-

“The Judge correctly held that the desire of the Government to limit the category of those who claim under the compensation scheme to persons with a close link with the UK at the time of internment was a legitimate aim.

The Judge also correctly held that the eligibility criteria were not proportionate, however, to the aim to be achieved. In so finding, the Judge correctly adopted a rigorous standard in scrutinising the reasons advanced by the Secretary of State in justifying the birth link criteria. The argument that the Secretary of State had a wide margin of appreciation or discretion could not be accepted. A stringent standard of scrutiny of the justification was appropriate because the discrimination, although indirect in form, was so closely related in substance to the direct form of discrimination on grounds of national origins, which can never be justified.

A three stage test is applicable to determine whether criteria are proportionate to the aim to be achieved. First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?

In the present case the Secretary of State was in breach of an express statutory duty not to discriminate on racial grounds. It was more difficult to justify the proportionality of his choice of the birth link criteria as a matter of discretionary judgment when he did not even consider whether or not he was indirectly discriminating on racial grounds. It was also relevant to take account of the fact that the compensation scheme was not properly thought out in the first place, the issue of discretion was not properly addressed at the relevant time and that poor standards of administration were evident. Consequently, there was no proper attempt to achieve a proportionate solution by examining a range of criteria and by balancing the need for criteria to achieve the legitimate aim of close links with the UK with the seriousness of the detriment suffered by individuals who were discriminated against. As there was no proper consideration of whether there were other less discriminatory means of restricting payments to those with a close link to the UK, there was no evidential basis for finding that the birth link criteria were the only criteria that were reasonably necessary and proportionate to achieving the legitimate aim.”

58. In Colman Coyle v Mrs Z Georgiou [EAT/535/00] the EAT addressed the issue of establishing objective justification in the following way:-

“The question is whether the tribunal erred in law in deciding that the appellants had discharged the burden of establishing justification. As we have already indicated, Ms McKie’s attack on the tribunal’s decision that the respondent’s claim of sex discrimination failed was based primarily on the failure by the tribunal to take into account and make findings about material parts of the evidence. Ms McKie accepted that the tribunal correctly directed itself by reference to Hampson v Department of Education & Science which, although it had been qualified to a degree was, in essence, that:-

‘If there is a prima facie discriminatory situation, clear and cogent reasons must be given to justify it.’

“Per Lord Johnston, Lord Chancellor and Lord Chancellor’s Department v Coker and Osamor [2001] IRLR 116.”

Decision

59. Time-limitation is the first issue to be considered. The claimant originally worked and had agreed to work for 2008/2009 and 2009/2010 on a part-time basis with no Teaching Allowance and the loss of the status and duties as Year Head. However, she then worked for one full year in 2010/2011 as Year Head with the full Teaching Allowance. The tribunal has concluded that this must break any continuing act of discrimination and that the claim can only properly refer to the summer of 2011, when the claimant again sought and was granted a temporary variation in contract but on terms that she relinquished the Year Head post and the associated Teaching Allowance from September 2011.

60. The tribunal has concluded that the first and second tribunal claims were within time. The first claim was lodged on 24 June 2011 following the decision of the respondent school to grant the 2011 temporary variation of her contract subject to the PCP. That decision had first been communicated to her in a letter dated 25 March 2011.

The second claim, lodged on 27 January 2012, was lodged during a continuing act, ie during the continuing failure to allow the claimant to undertake the responsibilities of Year Head while working four days a week.

61. The second issue to be considered is the effect of the statutory grievance procedure. The act complained of, ie the decision of the respondent school to impose the PCP in relation to the temporary contract variation in 2011/12, commenced on 25 March 2011, ie before the law in relation to statutory grievances changed on 3 April 2011. The act continued after 2 April 2011 and the first tribunal claim was lodged on 24 June 2011. Under the transitional Rules, the pre-3 April 2011 regime applies to the first claim.

62. The statutory grievance issue has not been fully addressed in the written submissions lodged on behalf of either party. However, on the balance of probabilities, the tribunal concludes that the claimant did lodge a grievance on 20 June 2011. However, she did not wait 28 days before lodging the first tribunal claim. The tribunal therefore does not have jurisdiction to deal with the first tribunal claim.

63. The second claim is similarly subject to the pre-3 April 2011 regime under the transitional provisions, since a grievance was lodged before 2 July 2011. However, the claimant has waited 28 days before lodging the second tribunal claim. The claim is therefore within the tribunal’s jurisdiction. The claim is still within time because it is a continuing act; see above.

64. Turning to the substantive issue, the unanimous decision of the tribunal is that the respondent has not discharged the burden placed upon it to establish that the PCP was a proportionate means of achieving the legitimate objective of securing pastoral care for pupils at the school.

65. Firstly, it has to be remembered that this is not a subjective test. There can be no doubt that the Reverend Dr McClure, Mr Wilson, Mr McGeagh and Ms Hunter genuinely believed that the PCP was both right and that it was based solely on the ground of pastoral care. However, the test to be applied by the tribunal in assessing proportionality is objective in nature and requires the tribunal to carefully scrutinise the reasons put forward by the respondent to justify a PCP which, on the facts of this case, has been accepted to have a disproportionately adverse impact on women and an adverse effect on the claimant in particular.

66. An employer in such circumstances does not, as a matter of law, need to prove that, before the PCP came into operation, it had conducted a proper and structured analysis of the impact of the PCP and had conducted a balancing exercise between the need to secure pastoral care on the one hand, and the need to avoid, or to minimise, any discriminatory impact on protected groups on the other. However, it is clear that the respondent in the present case had completely failed to consider the potential discriminatory impact on women of a requirement that Year Heads should be full-time. The Year Head posts are important both in terms of school management and in terms of individual career development. The fact that restricting those posts to full-time workers could have an unlawful and indirect impact on women, or an unlawful and direct impact on part-time workers, can hardly have come as a surprise to anyone with any knowledge of personnel management. Every manager knows, or should know, that excluding part-time workers from consideration for certain posts raises the risk of indirect sex discrimination and of part-time worker discrimination. Such a policy is something that requires careful consideration. The respondent, in this case, focused entirely on securing pastoral care. It is clear from the evidence from the Reverend Dr McClure that no consideration whatsoever was given to the possibility of indirect sex discrimination or part-time worker discrimination and equally clear that that issue has not been the subject of any review since the PCP was first imposed in or around 2008. While that failure to properly consider discriminatory impact, and to properly conduct a balancing exercise between the legitimate objective and the protection of particular groups, is not necessarily fatal to the respondent’s position, it must make it more difficult for the respondent to establish an objective justification. As the Court of Appeal stated in Elias:-

“It was more difficult for him to justify the proportionality of his choice of the birth link criteria as a matter of discretionary judgment when he did not even consider whether or not he was indirectly discriminating on racial grounds.”

67. In the Elias decision, the Court of Appeal stated that a particularly stringent standard of scrutiny of the justification was appropriate because the alleged discrimination, although indirect in form, was so closely related in substance to the direct form of discrimination on grounds of national origins that extra scrutiny was justified. In that particular case an applicant for the ex gratia payment had to establish that they were a ‘British civilian’ by proving that they had either been born in the UK or that they had a parent or grandparent born in the UK. Clearly such a requirement should have ‘leapt off the page’ in terms of raising a potential risk of unlawful discrimination. The facts of the present case are not that far removed in essence from that situation. As indicated above, it appears to this tribunal that any measure which deliberately and openly excludes part-time workers from a management post or a career advancement post must, or at the very least should, have alerted those considering its introduction to the potential for unlawful discrimination. Alarm bells should have been ringing. In such circumstances, if no consideration of that potential takes place, and if no consideration is given to whether an alternative approach is possible, the respondent must be in a difficult position.

In any event, it is clear from Hampson, that the employer must provide clear and cogent reasons for the PCP where there is a prima facie discriminatory situation.

68. The respondent’s witnesses struck the tribunal as genuine individuals who were primarily, and indeed solely, concerned with securing the best possible pastoral care for pupils. However, it appears to this tribunal that they had completely shut their eyes and ears to the possibility of unlawful discrimination against members of the teaching staff and to the possibility of finding an alternative and more proportionate means of providing the best possible pastoral care to its pupils, while not at the same time unlawfully discriminating against a protected group. The Reverend Dr McClure, the Chairman of the Board of Governors, was quite explicit that he felt that not just Year Heads but Class Tutors needed to be full-time to properly carry out their duties and that the respondent’s policy may have to be amended to specifically secure that objective. In the meantime, even though there was no formal requirement in the respondent’s policy that Class Tutors should be full-time and even though there were currently three part-time Class Tutors, his view was that best practice would require Class Tutors to be full-time. That would be the ‘underlying assumption’ of the pastoral care policy. In cross-examination, Ms Hunter was equally clear in stating that in her view a part-time manager could not properly manage full-time staff. She was referring to the relationship between Year Heads and Class Tutors. When pressed, under cross-examination, both witnesses genuinely failed to understand that their position was somewhat unrealistic and somewhat old-fashioned.

69. It cannot be the case that, solely to secure the best possible provision of a particular service in an ideal world, it is objectively justifiable to exclude those who, for family reasons, need to work part-time. Such a requirement would have a significant discriminatory effect, as has been admitted on the facts of this particular case. It is widely understood, as a personnel management issue, that that can only be permitted where there are clear and cogent reasons underpinning that position. If the view taken by the respondent organisation were more widely recognised, it would be impossible for general practitioners, consultants, lawyers, managers, or indeed workers in any significant professional or managerial post to work part-time. With any such post, there can always be an argument that continuity over the full working week would provide the best possible service and there can always be an argument that it is better for the customer or client to deal with one individual throughout the process from first contact to last. There can always be an argument that something may, at some point, be lost in translation between a part-time worker and another part-time worker or between a part-time worker and a full-time worker as responsibilities shift during the working week. To exclude part-time workers from such positions, solely on the ground that service provision might sometimes fall short of the gold standard, or might sometimes involve flexibility from other workers, would be to reverse any progress in equal opportunities terms back to the 1950s.

70. It is clear that pastoral care is the responsibility of all the members of staff, particularly the teaching staff, of the respondent school. It is also equally clear that pastoral care is delivered by a team, comprising primarily the Class Tutors, the Heads of Year and the Vice Principal, with the assistance of the School Counsellor, School Nurse and other teachers. Day-to-day matters of no particular importance would be dealt with routinely by the Class Tutors or indeed by class teachers. The most serious issues, particularly those involving child protection matters, would be dealt with by the Vice Principal who would in many such cases, refer the matter directly to the PSNI or Social Services. In between those extremes, the Year Head would deal with matters, in many cases referred to her by Class Tutors and in other cases brought directly to her by pupils or others.

71. It seems clear to this tribunal that the bulk of the matters which would fall to be dealt with by the Year Head could be dealt with by the Year Head on the days when present in school if that Year Head were present for four days out of five. It may well be a different situation if a Year Head were part-time to the extent of being present in school for only two or three days a week. However, that is not the situation in the present case and is not the situation that we are called on to consider. In most cases, the Class Tutor, class teacher or even the Vice Principal could advise the pupil’s parents or other interested parties that the Year Head would look at the matter immediately on her return to the school on the next day, and that she would then interview the relevant parties, prepare a report as required and take further action. The relevant individuals could also be advised that a Year Head would keep them up-to-date with progress and report back to them on an appropriate basis. In those cases where instant action was needed, preliminary action could, it appears to this tribunal, be undertaken by Class Tutors or teachers or, in the most serious cases, by the Vice Principal. In many of the most serious cases, the Vice Principal would have been involved in any event. In many other cases, the Class Tutor would have been the primary contact point and would have initiated preliminary action in any event. There would be, on the evidence before this tribunal, comparatively few instances where a case was of such urgency and of such a particular level of seriousness that it would not have gone directly or immediately to the Vice Principal for action in any event; but would require action to be taken on the one day the Year Head was absent by either the Vice Principal, Class Tutor or some other member of staff, undertaking duties which would otherwise have been undertaken by the Year Head.

Perhaps the best way to consider this question is to refer to the three stage test set out in Elias. The first stage is whether the objective is sufficiently important to justify limiting a fundamental right. Clearly pastoral care is sufficiently important. The second stage is whether the PCP is rationally connected to the objective. Again the answer has to be ‘yes’. The availability of part of the pastoral care team is rationally connected to the provision of pastoral care. The third stage is whether the PCP is no more than is necessary to accomplish the legitimate objective. The answer this time has to be ‘no’. It is on this point that the respondent’s case fails. The respondent has failed to establish that the PCP was no more than was necessary to secure the legitimate objective and has failed to establish that a little flexibility within the pastoral care team would have had any real effect on the provision of pastoral care.

72. The unanimous decision of the tribunal is that the claimant would have been able to discharge effectively the duties of Year Head on four days attendance at the school per week. A small minority of matters would require some action to be taken in the interim by someone who would not have, in the circumstances of that particular case, been undertaking that action in any event. In the tribunal’s opinion, the claimant could and should have been permitted to undertaken the duties of the post on four days per week. It therefore follows that the claimant was entitled to a full payment of the Teaching Allowance rather than a pro rata payment of the Teaching Allowance and it is so ordered.

73. The tribunal is satisfied that the PCP, in the circumstances of this case, amounted to indirect sex discrimination. There is therefore no need for the tribunal to consider the alternative head of claim; ie part-time worker discrimination.

Injury to feelings

74. Deciding whether to award compensation for injury to feelings, and, if an award is made, deciding on the level of an award is always a difficult exercise. In Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 the Court of Appeal stated:-

“It is self-evident that the assessment of compensation for an injury or loss, which is neither physical nor financial, present special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anxiety, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in money terms. Translating hurt feelings into hard currency is bound to be an artificial exercise.

Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are nonetheless real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury.”

75. The three Vento bands have now been updated for inflation. The tribunal has concluded that an award in the lowest band, ie between £500.00 and £6,000.00 would be appropriate. The claimant must have experienced hurt at the loss of status, and indeed loss of remuneration, which was imposed in a somewhat arbitrary manner and without any consideration of the potential for unlawful discrimination. However, this case cannot be compared, in terms of subjective injury to feelings, to a ‘standard’ harassment case or to a case where there is malice. The tribunal therefore fixes the appropriate award at £5,000.00.

76. Interest at 8% may be awarded from the date of the act of discrimination under the Industrial Tribunals (Interest on Awards in Sex Discrimination and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. The imposition and maintenance of the PCP in the present case was a continuing act, commencing in September 2011. Interest at 8% to the date of the decision is therefore, without absolute mathematical precision, £185.20. The tribunal can see no grounds on which it could be determined that interest should not be awarded.

77. The claimant in terms of past and future loss is entitled to the salary supplement (Teaching Allowance) for 2011 to 2012, ie during her latest temporary contractual variation. The tribunal however does not know the claimant’s marginal tax rate and therefore is not in a position to calculate the appropriate net figure as compensation for that loss. It is hoped that the parties can resolve this matter between themselves and can agree the appropriate figure. If not, the tribunal can be asked to hold a remedies hearing.

78. The issue of pension loss does not appear to be a matter which should trouble the tribunal. The claimant is in a final salary pension scheme rather than a career average scheme. Given the claimant’s age and the temporary nature of the contractual variation, it seem improbable that there could be any impact on her pension position.

79. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Vice President:

Date and place of hearing: 30 January 2012 – 1 February 2012, Belfast

Date decision recorded in register and issued to parties:

IN THE MATTER OF AN INDUSTRIAL TRIBUNAL

Between:

JULIE MULDREW

Claimant:

-and-

BOARD OF GOVERNORS OF LARNE GRAMMAR SCHOOL

Respondent:

Written Submission on behalf of the Claimant

Following amendments made to the Sex Discrimination (Northern Ireland) Order 1976 indirect sex discrimination in the employment field is defined as follows.

A person discriminates against a woman if the person applies to her a provision, criterion or practice that is applied equally or would be applied equally to a man but:

• which puts or would put women at a particular disadvantage when compared with men; and
• which puts her at that disadvantage; and
• which the person cannot show to be a proportionate means of achieving a legitimate aim.

The test for disproportionate impact was amended in 2001 and again in 2005. When considering cases that relate to events prior to the 2005 amendment regard should be had for the fact that the test was different and, arguably, narrower than the current test.

This part of the definition now requires the claimant to show that the application of the provision, criterion or practice puts or would put women at a particular disadvantage when compared with men who are in the same circumstances. Government guidance suggests that statistics can be helpful in ascertaining relative

disadvantage, but they are not essential. In the present case the disadvantage has been accepted by the Respondent.

The choice of the appropriate pool is a matter for the tribunal but it should be sufficiently wide to include all those who might be affected by the provision, criterion or practice.

The Court of Appeal in Jones v University of Manchester [1993] IRLR 218 CA held that the appropriate pool for comparison in a recruitment case was all those people who could comply with the other selection criteria, apart from the requirement at issue.

In Hacking & Paterson and another v Wilson EAT/0054/09 the EAT reaffirmed that where an indirect sex discrimination complaint is based on an employer’s refusal to grant a benefit the appropriate pool of comparators should include only those employees who want the benefit.

London Underground Ltd v Edwards (No.2)[1998] IRLR 364 CA concerned changes to the rostering system for train drivers on the London Underground. All the male drivers (over 2000 in total) were able to comply with the new rosters, as were 20 of the 21 female drivers. The only exception was Ms Edwards, a single parent, who found that she could no longer reconcile work with her childcare responsibilities. The Court of Appeal upheld the tribunal’s decision that the new rosters indirectly discriminated against women, even though 95% of the female drivers were able to work them, because all the men could comply. Where the number of employees in the relevant pool was as small as in the instant case, the tribunal was entitled to draw on the well-known fact that women are more likely to be single parents than men. A considerably smaller proportion of women would, therefore, have been able to work the new rules, i.e. 95% as against 100% of the men. This authority demonstrates that a tribunal may use its common sense and experience in answering the proportionality question and in defining the pool.

In the present case the tribunal has evidence at paragraph 77 of the Claimant’s substantive witness statement (Witness Bundle pages 24-25) in respect of the teaching staff in the school. Of the 8 staff who work part time only 1 is male. The tribunal has also been furnished with DFP statistics relating to Northern Ireland as a whole which demonstrate that 40% of female employees work part time compared to 7% of male employees and that 85% of part time employees are women. Further statistics which have been obtained from DENI and which have been forwarded to the Respondent’s representative (and which are appended hereto) demonstrate that the preponderance of part time teachers in post-primary schools in Northern Ireland is female. None of this is likely to be a surprise having regard to the matters at issue. It is also likely given that the post of Year head in Larne Grammar is an internal appointment that the internal pool is the appropriate pool. In any event, the parties are in agreement that on the figures the Claimant is able to demonstrate indirect discrimination subject only to the defence of justification.

In Chief Constable of Avon & Somerset Constabulary v Chew EAT/503/00 the EAT upheld a tribunal’s finding that a requirement to comply with shift rosters in order to be entitled to work part time was indirectly discriminatory. The tribunal considered the appropriate pool to be all officers to whom the condition was applied. The tribunal identified at least 11 officers in this pool who could not comply with this condition. This produced a difference of 2.26% between the proportions of men and women who could comply. Although this difference did not, on the face of it, amount to a sufficiently disparate effect the EAT held that the tribunal had been correct to adopt a flexible approach and have regard to other factors in concluding that the condition had a disparate adverse impact on women, i.e. the fact that the statistics indicated the bare minimum of officers who could not comply and that an inherently likely effect of the condition was that it would disadvantage officers with childcare responsibilities, and that the overwhelming burden of such responsibilities falls on women.

In British Airways plc v Starmer [2005] IRLR 862 EAT the EAT held that British Airway’s refusal to allow the pilot claimant to halve her working hours, as opposed to working 75% of her hours, was indirect sex discrimination. The EAT agreed that a 3.66% difference in men and women who could work full time constituted a disproportionate impact, saying that the tribunal was entitled to take into account where appropriate, a more general picture than is specifically displayed by statistics put in evidence. The EAT did not accept British Airway’s justification that it would be unsafe if the claimant flew less than 15% of full-time hours, this being based on a generalised standard requiring a minimum number of flying hours. Although British Airways appealed, it later withdrew the appeal, accepting that the claimant had been able to maintain high standards of performance, even though she had less flying time.

In this case the Respondent accepts that it has applied a provision, criterion or practice which puts or would put women at a particular disadvantage when compared with men and which puts the Claimant at that disadvantage. In short the Respondent’s defence to the Claimant complaint of indirect discrimination is confined to “justification”, namely that it contends that it can show that this is a proportionate means of achieving a legitimate aim.

The legitimate aim relied on by the Respondent is that contained in its “Pastoral Care Policy” (Bundle page 117):

“Our Pastoral care aim is: to offer the best possible pastoral care by providing support and guidance for pupils in an environment which is characterised by good relationships, mutual respect and tolerance.”

It is accepted that this is a legitimate aim — the matter at issue is whether PCP relied on by the Respondent is a proportionate means of achieving that aim.

The PCP is set out in the School Salary Policy (Appendix A, Clause 4) which states:
“TLR2 may be awarded to Year Heads. Given the pastoral nature of the post

(including child protection) these will only be available to full time members of
staff’.

Justification

An employer maybe able to defend the discriminatory result of a provision, criterion or practice by establishing that it is justifiable because the application of that
provision, criterion or practice is a proportionate means of achieving a legitimate
aim. The burden is on the employer to prove the defence on objective grounds, and tribunals and courts are required to carry out a balancing exercise between the
employer’s reasonable need to impose the provision, criterion or practice and the discriminatory effect of the provision, criterion or practice: Hampson v Department of Education and Science [1989] IRLR 69 CA.

The more discriminatory the provision, criterion or practice, the more difficult it will be for the employer to show that it was justifiable.

Once a provision, criterion or practice has been shown to put a Claimant at a
particular disadvantage because of her gender and to be to her particular
disadvantage because she cannot comply with it, the burden of proof shifts to the Respondent to prove that its imposition was nevertheless objectively justifiable as a legitimate aim and that the means of achieving that aim are appropriate and
necessary irrespective of the gender of those to whom it was applied. This is the
requirement of the European Directives.

In LB Steel v (1) The Union of Post Office Workers and (2) The General Post Office [1977] IRLR 288 EAT the EAT held that it is necessary to distinguish between a
discriminatory requirement or condition, the imposition of which is necessary, and one that is imposed merely as a matter of convenience. Consideration should be
given as to whether or not the aim could have been achieved in a non-discriminatory manner. In conclusion, it is necessary to weigh up the needs of the employer against the discriminatory effects of the requirement or condition.

In Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317 ECJ the European Court of Justice (ECJ) held that in order to justify a discriminatory objective, an employer must show that the means chosen for achieving that objective correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objective in question and are necessary to that end”.

In Whiffen v Mllham Ford Girls’ School [2001]IRLR 468 CA the Court of Appeal held that a condition in a redundancy policy under which employees on fixed-term
contracts were automatically selected for redundancy before employees on
permanent contracts, and which had a disparate adverse impact on women, was not justified.

In Allen and others v GMB [2008] IRLR 690 CA the Court of Appeal restored a
tribunal’s decision that the union indirectly discriminated when it advised female

members to accept a settlement of their equal pay claim that was lower than they might have expected, in the interests of tying up successful negotiations on behalf of other groups of members who were predominantly male. The Court did not consider that the employment tribunal had erred in concluding that the GMB’s means
(choosing not to pursue a better deal for the women) were disproportionate to the achievement of its legitimate aim (securing pay protection and future pay for other groups). The House of Lords refused GMB’s request for permission to appeal.

Many of the cases in relation to indirect sex discrimination are connected with the refusal of part-time or job-share work to employees who have caring responsibilities for children In The Home Office v Holmes [1984] IRLR 299 EAT (decided under the repealed Sex Discrimination Act 1975) the EAT rejected the Home Office’s argument that a requirement of full-time working is justified simply because the bulk of
industry is organised in this way The employer must be able to show objective
justification for the refusal to allow a woman to return from maternity leave on a
part-time basis when she has previously worked full time.

EU law views treatment as proportionate if it is an ‘appropriate and necessary’
means of achieving a legitimate aim” Article 2 (1) (b) of the Recast Equal Treatment Directive provides that a PCP will be indirectly discriminatory unless it is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

This is a strict test. The UK legislation requires the alleged discriminator to show that the provision, criterion or practice in question is a proportionate means of achieving a legitimate aim This omits the requirement, required by the Directive, to show that the provision, criterion or practice is “necessary”.

It is important to note that it is the Directives that set the standards and courts and tribunals must interpret domestic law in line with European Directives. In cases of indirect discrimination it is not sufficient to assert that there is a non-discriminatory justification for the action complained of. Respondents must prove evidence to support this. In Nimz v Freir und Hansestadt Hamburg [1991] IRLR 222 part-time workers were required to have more years of service than full-timers before being moved to a higher grade. The ECJ held that in order to justify such a practice the employer had to show that there was a relationship between the nature of the duties performed and the experience afforded by the performance of those duties after a certain number of hours had been worked. The argument that full-time workers acquire necessary skills more quickly and of greater experience, in so far as there were generalisations, could not amount to objective criteria capable of justifying a disparately impacting practice.

In Greater Manchester Police Authority v Lea [1990] IRLR 372 the EAT held that there had to be a “nexus established between the function of the employer ... and the imposition of the condition, otherwise it is impossible to carry out the objective balance”. Bilka-Kaufhaus was also considered by the House of Lords in Barry v Midland Bank plc [1998] IRLR 138 where Lord Nicholls said: ….the ground relied

upon as justification must be of sufficient importance for the national court to regard this as overriding the disparate impact of the difference in treatment either in whole or in part. The more serious the disparate impact on women or men as the case may be, the more cogent must be the objective justification.”

Tribunals are required to carry out a balancing exercise, taking into account all the surrounding circumstances and giving due emphasis to the degree of discrimination caused, against the object or aim to be achieved.

While the Courts are prepared to consider the “reasonable” needs of the business, the test of whether the provision, criterion or practice comes within a range of
reasonable responses has been explicitly rejected. The Court of Appeal in Hardy and Hansons plc v Lax [2005] IRLR 726 makes clear that the word “necessary” must be
interpreted to mean “reasonably necessary”. Pill LJ made his own observations on what is required to establish justification:

“…requires the employer to show that the proposal is justifiable irrespective of the, sex of the person to whom it is applied, It must be objectively justifiable (Barry) and I accept that the word ‘necessary’ used in Bilka is to be qualified by the word
‘reasonably’, That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend, The presence of the word ‘reasonably’ reflects the presence and applicability of the principle of
proportionality. 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 appellants’ submissions (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 views 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, The effect of the judgment of the employment tribunal may be profound both for the business and for the employees involved. This is an appraisal requiring
considerable skill and insight.”

In Allonby v Accrington and Rossendale College [2001] IRLR 364 the Court of Appeal made clear that once a tribunal has concluded that a condition has a disparate impact on a protected group, it must carry out a critical evaluation of whether the employer’s reasons demonstrate a real need to take the action in question. The tribunal must weigh the justification against its discriminatory effect. This should include consideration of whether there was another way to achieve the end

question. If the employer can demonstrate a real need, and in this case it is submitted it cannot the tribunal will then have to consider the seriousness of the disparate impact on the Claimant and weigh it against the employer’s need to take the action in question. The test is objective and although the decision of the employer must not be uncritically accepted: see British Airways plc v Starmer above.

In assessing any justification put forward, tribunals are under a duty to conduct a rigorous assessment of the business requirements or rationale for imposing the PCP. A stringent standard of scrutiny of the justification is appropriate where the discrimination, although indirect in form, is very closely related in substance to the direct form of discrimination, since the latter can never be justified. Under the principle set out in Bilka-Kaufhaus the employer must show that the means chosen for achieving that objective corresponds to a real need on the part of the undertaking; are appropriate with a view to achieving the objective in question; and are necessary to that end.

It is clear that it is not enough for it to be shown that the measure was imposed in pursuit of an intrinsically laudable and otherwise reasonable policy. It is not enough that the discriminator has the desire, however worthy, to further some social need or otherwise reasonable policy.

In indirect discrimination claims there will often be cogent reasons for the discrimination, otherwise the tribunal might draw an inference of direct discrimination. Accordingly, the issue is whether the justification outweighs the disparate impact.

In Mitchell v David Evans Agricultural Limited [Appeal No. UKEAT/0083/06/SM] the EAT held that the Tribunal had failed to undertake a full analysis of the justification put forward by the employer as to why it needed a part-time administrator to go full-time. The Claimant was dismissed after her employer decided it required a full- time employee. Her request to work as part of a job share so that she could accommodate her childcare responsibilities was rejected. The Employment Tribunal held that the company had justified its need for a full-time member of staff on the basis that a new computer system had been introduced which the employer expected would take it to another level of business operation and efficiency. It had a justifiable requirement for greater administrative efficiency and required one individual who could assist with the bespoke service of a client. However, allowing the Claimant’s appeal the EAT held that it was not enough for the Tribunal to identify in a relatively cursory form the factors that it had found to amount to objective justification and it was not clear from the Tribunal’s reasoning that it had adopted the correct approach. The Tribunal should have assessed the reasonable needs of the business and made its own judgment upon a fuller analysis than was carried out as to whether the proposal was reasonably necessary and whether it would be justified notwithstanding its discriminatory effect. This involved a quantitative assessment of the numbers of proportions of people adversely affected and a qualitative assessment of the amount of damage or disappointment that may result to those persons.

In McGarr v Ministry of Defence Tribunal Case Nos. 2300464/02 and 2303733/03 the tribunal held that the Respondent’s reaction to the Claimant’s wish to undertake judicial duties had “borne all the hallmarks of an institutional knee jerk reaction to what it saw as a threat to its established way of doing things” The Tribunal found that no proper assessment had been made by the Respondent “as to the extent to which in operational requirements, might be adversely affected by permitting officers below the rank of colonel to undertake part-time judicial duties “ In Savva v Hillgate Travel Limited Tribunal Case No 2200525/06 the tribunal held that the employer had failed to put forward sufficient evidence that it had carried out any research or made any enquiries as to the need to abandon the fixed shift which had lifted in with the Claimant’s childcare needs.

It is not proposed to rehearse the evidence in this case The tribunal has the witness statements (including supplemental statements) of the Claimant and her witnesses together with the statements of the Respondent’s witnesses The tribunal has also heard oral evidence .

Bearing in mind that the burden is on the Respondent to prove the defence on objective grounds it is submitted as follows

1 The Respondent has failed to satisfy the burden upon it to show that the provision, criterion or practice relied on, namely, that a Year Head must be full time members of staff, is a proportionate and necessary means of achieving a legitimate aim.

2. The Pastoral Care Policy (Bundle pages 117-118) envisages a system where “an atmosphere” is created and systems put in place to deliver pastoral care. It is clear, and has been accepted by the Respondent’s witnesses, that pastoral care is the responsibility of every teacher and that there is a team approach to pastoral care. There is nothing in the pastoral care policy which states, or indeed infers, that a Year Head must be full time.

3. The Respondent has an Equal Opportunities Policy Statement (Bundle pages
112— 116). It is clear from an examination of the documents in this case and the evidence of the Respondent’s witnesses that no consideration was given to the potential adverse impact or discriminatory effects of putting such a PCP in place. The Respondent has not considered the effects of this on women teachers and despite the commitment to monitor and review practices it has signally failed to do so, even at the date of this hearing. The Respondent itself did not carry out any balancing exercise even though the Respondent’s flexible working scheme (Bundle page 122) aims “to assist teachers with caring responsibilities and to balance these with their role at the school” ... “to ensure compliance with the legislative requirements for employees with caring responsibilities ...“ and the Principal’s “duty of care to teachers” and “work life balance”. (Bundle page 153)

4. The TNC model school salary policy (TNC 2008/2) suggests to Boards of Governors that in “exercising its responsibilities with regard to a school salary policy, it will take account of the requirements of legislation on Employment, Equal Pay and Fair Employment, and to considerations of Equal Opportunities”

5. The Pastoral Care Policy, the tribunal was told, was evaluated after the DENI document was published in 2001. There is no suggestion in the DENI document nor is there any suggestion that there are any departmental guidelines requiring Year Heads to be full time in order to deliver the best pastoral care. It refers specifically to support services — school nurse, school counselling support staff, Education Welfare Officer, Behaviour Guidance Support Officer.

6. The old job description for Year Tutors, now called Year Heads, (Bundle 134-
135) makes no reference to any requirement for a Year Head to be full time. Indeed, the essential function of the Year Tutor, as set out in the specific “duties and responsibilities” are leadership, assisting, ensuring, liaising, supervising, directing, have oversight monitor, make regular spot-checks etc. There is frequent reference to needing to perform certain takes on a “regular” basis. In relation to meeting parents “to acquaint them with school policy, or to discuss the general and welfare problems arising with a particular pupil ... meetings with parents should be arranged for a time when both class teacher and year tutor can be present”. There is no requirement for the class teacher to be full time and accordingly must infer some flexibility about when such meetings are arranged. The overall duties are consistent with a scheme for delivery of pastoral care and are not consistent with any requirement nor justification for any condition that a Year Head be full time.

7. The new job description for Year Heads, (Bundle 141J-K) states that applicants must be full time members of staff. However, it is submitted that any objective reading of the specific “duties and responsibilities” of the function set out in the Job Description are of the broad leadership, management, supervision, co-ordination and assistance type referred to above. The preamble explicitly states that the Year Head is “accountable to the Principal through the Vice Principal (Pastoral) for the effective management (my emphasis) of pastoral care of pupils in the relevant year and contributing to (my emphasis) pastoral care throughout the school.

8. Under the sub-heading “RESPONSIBILITY” it states: “Under the direction of the Principal and appropriate Vice Principal, the Year Head is responsible for the organisation (my emphasis) of pastoral care within the year group and leading (my emphasis) class tutors in pursuit of high standards of pupil behaviour and achievement ..“

9. There is also a Child Protection Policy and procedures (Bundle 141A-F). Nothing in this document dated 2009 requires a Year Head to be full-time

NJ
and indeed this document provides for a designated procedure to address child protection issues which specifies reference to the Designated teacher, the Deputy Designated teacher or in their absence the Principal.

10. The Respondent also has a Behaviour Management Policy and Procedures (Witness Bundle 174-188) This stipulates the procedure to be followed when behaviour management issues arise It is clear that this procedure provides for issues to be dealt with other than the year head and there is nothing in this policy which states or infers that a Year Head be full time.

11. The Guidance for Boards of Governors on the Formulation and Implementation of Salary Policy (Witness Bundle pages 198-225) provides at paragraph 2 5 that in determining pay the relevant body should in all cases take carer to avoid approaches likely to give rise to complaints under employment legislation In addition to the argument that the Board of Governors took no account of the question of possible disparate impact it appears that the Respondent applied the PCP to the Claimant even before it was formally adopted.

12. The Respondent’s witnesses were cross-examined on the specific “scenarios” put forward by them in an attempt to justify the PCP It is submitted that upon a critical analysis and assessment of these constructed scenarios the respondent has failed to meet the requirements of the burden which rests upon it to prove objective justification Even if, as the Respondent argues, there is a need for pastoral care 5 days per week there is a system in place to deliver that care. It does not require a Year Head to be present 5 days a week to ensure its delivery. The Year Head’s role, which is the focus of this hearing, can properly and appropriately be delivered without requiring the Claimant to work full-time.

13. Despite the repeated assertion that continuity was vital the Respondent has failed to satisfactorily address the situation of Mr Rhyan McCoy and his absences which is inconsistent with the Respondent’s purported needs for 5 day continuity. It is also difficult to understand how the need for the type of continuity promulgated by the Respondent can be met when a Year Head is, for example, out of the jurisdiction on a school trip or when pupils and parents are presented with a different Year Head each year.

The Respondent refers to the provisions of the UNCRC and, in particular, Article 3 thereof. Although the UK ratified the UNCRC in 1991, it has not been directly incorporated into UK law. This means that a child cannot rely directly on the provisions of UNCRC. Further, no child is advancing any argument before this tribunal.

It is entirely possible “to offer the best possible pastoral care” by delivering the system of pastoral carer provided for in the policy and without requiring a year Head to be a full-time member of staff. It cannot be that the aim of the policy demands a

standard of perfection — that would require class tutors to be full-time and for all to be available at all times to minister to the instant demands or needs of the pupils and their parents. Such an approach would not be consonant with an appreciation of the demands of the real world and ordinary common sense.

It is by now well established that European Union law has supremacy over domestic law. In the case of Von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR l891 the Court stated: “[T]he Member States obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures ... to ensure the fulfilment of that obligation, is binding on all the authorities of Member States ... including the courts. It follows that6, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement [a directive], national courts are required to interpret their national law in light of the wording and the purpose of the directive in order to achieve the [required] result…

The Respondent is also required to have regard to the clear intention of the legislature and the EU Directives to avoid discrimination against women on grounds of sex. In this case the Respondent has ignored the potential adverse impact on the vast majority of its part-time staff.

Accordingly, it is submitted that having regard to the evidence in this case the Respondent has failed to demonstrate that the provision, criterion or practice relied on, namely, that a Year Head must be a full time member of staff is a proportionate and necessary means of achieving the aim of offering the best possible pastoral care in the relevant circumstances. In those circumstances, the Claimant contends that she has been subjected to unlawful indirect discrimination on grounds of sex and is entitled to a remedy.

Further, and in the alternative, the Claimant contends that she has been subjected to less favourable treatment as a part-time worker under the provisions of Regulation 5(1) of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000. The Regulations provide protection for workers against unjustifiable discrimination by employers on the basis of their part- time status. The main protection established by the Regulations is the right for part- time workers not to be treated less favourably than full-time workers, unless that treatment can be justified.

The definition of a “comparable full-time worker” is set out at regulation 2(4). A full- time worker is a “comparable full-time worker” if at the time when the less
favourable treatment of the part-time worker takes place:

(a) both workers are- —
(i) employed by the same employer under the same type of contract, and

(ii) engaged in the same or broadly similar work, having regard, where relevant, to whether they have a similar level of
qualification, skills and experience; and

(b) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.

In determining whether a part-time worker has been subjected to less favourable treatment the pro-rata principle shall be applied to any comparison “unless it is inappropriate”. This means that where a benefit can be broken down into parts related to the amount of time worked, then this should generally be done for the purposes of the comparison. In those circumstances paying benefits pro-rata will usually be appropriate.

A claim may be defeated if a Respondent can demonstrate that any less favourable treatment is justified. In order to justify the treatment it must be shown that the treatment in question was a necessary and appropriate means of achieving a legitimate business objective.

The Regulations implement the Part-time Workers Directive (97/81/EC) and the purpose of the Regulations is “to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work”. Part-timers must not be denied opportunities for training, promotion or transfer otherwise available to comparable full-time workers because they work part time.

An employment tribunal may consider a complaint that was out of time if, in all the circumstances of the case, it considers it just and equitable to do so. In deciding when the act complained of was done the following principles apply:

• Where the act is attributable to a term in the contract that act is to be treated as extending through the duration of the contract.
• Any act extending over a period shall be treated as having been done at the end of that period.

In Barclays Bank plc v Kapur & Ors [1991] ICR 208 the House of Lords held that where an employer operates a discriminatory regime, rule, practice or principle, then such a principle will amount to an act extending over a period and the relevant date is the date on which the discriminatory regime ends. It is submitted that this is a case in which the discriminatory practice continues and continues to adversely impact on the Claimant despite it being drawn to the attention of the Respondent. It is further submitted, that in any event, this issue is confined as to the period in respect of which compensation should be awarded rather than, subject to the issues of justification being determined, whether the Claimant is entitled to compensation.

The Claimant contends that she is entitled to be compensated for the entirety of her loss.

Where a tribunal upholds a case of unlawful sex discrimination it may grant whichever of the following remedies it considers “just and equitable”:
1. A declaration of the rights of other parties;
2. An order of compensation to be paid to the complainant;
3. A recommendation that the respondent take, within a specified period, action appearing to the tribunal to be practicable in order to obviate or reduce the adverse effect on the complainant of the discrimination.

The tribunal is empowered to award compensation to a person who has suffered indirect sex discrimination even where the respondent did not intend to discriminate unlawfully against that person and where it would both be just and equitable only to grant other remedies. Any domestic provision seeking to make compensation for sex discrimination conditional on proving fault is incompatible with the EC Equal Treatment Directive. The Claimant contends that she is entitled to compensation for injury to feelings and to compensate her for the loss sustained.

The Claimant contends that this case is a case of unlawful indirect sex discrimination.
In the event that it is necessary to address the issue in respect of the Part-Time
Workers Regulations the Claimant refers to the mailers set out herein.

In respect of a claim under the Part-Time Workers legislation where a tribunal holds that their employer has infringed their statutory rights under the Regulations by treating them less favourably than comparable full-time workers, the tribunal may:

• make a declaration to that effect; and/or
• order the employer to pay such compensation as the tribunal considers just and equitable in all the circumstances; and/or
• recommend that the employer take action, within a specified period, to obviate or reduce the adverse effect on the complainant.

G. Grainger
Counsel for the Claimant
06 February 2012

Appendix 1

Teachers in Post-Primary Schools by Gender, Full-Time and Part-Time 2010/2011

Gender	Mode of working	Secondary	Grammar.	Post Primary
Female	Full-time	3726	2322	6048
	Part-time	538	401	939
	Total	4264	2723	6987
Male	Full-time	1925	1490	3415
	Part-time	50	47	97
	Total	1975	1537	3512
All	Full-time	5651	3812	9463
	Part-time	588	448	1036
	Total	6239	4260	10499

Muldrew v The Board of Governors of Larne Grammar School
Submissions on behalf of the Respondent

This claim is arises from the provision of pastoral care to pupils of Larne Grammar School. Pastoral care is concerned with promoting pupils’ personal and social development and fostering positive attitudes. Through pastoral care arrangements and provision a school demonstrates its continuing concern for its pupils as individuals, actively encouraging them to be secure, successful and fully participating members of the school and its wider community.

Larne Grammar School has the declared aim

“To offer the best possible pastoral care by providing support and guidance for pupils in an environment which is characterised by good relationships mutual respect and tolerance.” (page 117)

The importance of pastoral care is put in this way:

Pastoral care ... underpins every aspect of the pupils’ experience in school and exists, not for its own sake, but to enable pupils to achieve their potential

Larne Grammar School uses a tiered pastoral system:
• Class Tutors who deal with low level day to day issues;
• Year Heads who oversee the 4 Class Tutors and deal with more serious issues arising within the student year group to which they are assigned, and the
• Vice-Principal (Pastoral), who oversees the pastoral care of the whole pupil body and deals with the most serious pastoral issues
Nearly every teacher is a class tutor unless they have other specific responsibilities (such as senior management, time-tabling or Year Head). The role of class tutor is part and parcel of the normal teaching role. Year Head is a specific role. It is predominantly pastoral and it attracts a bonus of approximately £3,000 per year.
The Board of Governors Larne Grammar School determined that in order to provide the best pastoral care for their pupils they require the position of Year Head to be

occupied by a full time teacher. This requirement is set out in a School Policy:
“TLR 2 may be awarded to Year Heads. Given the pastoral nature of the post (including child protection) these will only be available to full time members of staff” Appendix A point 4 on page 107 of the documents bundle.
The Year Head is an internal appointment and so affects the teaching staff of Larne
Grammar School. There are 30 female members of staff of whom 6 are part time.
There are 10 male members of staff of whom 1 is part time.
This requirement therefore has a greater impact on female teachers (more of whom and a greater proportion of whom are part time). The Board of Governors contends that this disadvantage is outweighed by the pastoral needs of the pupils. The Board of Governors bases this conclusion on a number of premises:

(1)That the pastoral needs of the pupils are present each and every day
(2) In many instances it is crucial to deal with pastoral needs urgently
(3) Continuity in relationships is crucial to pastoral care

From these premises the Board concludes that

(1) Pastoral care for 5 days cannot be provided in 4 days

(2) The absence of a Year Head on a given day is detrimental, in that

a. It means that a matter which would normally be dealt with by the Year Head cannot be, and
b. It means that a break in continuity between the pupil, parents and Year Head is more likely

The Board considers that while some pastoral care can be provided in the absence of the Year Head, it is not the best pastoral care. Adequate pastoral care is not sufficient. It does not place enough weight on the pastoral needs of the pupils and the unique position and responsibilities which are placed on schools.
The evidence of Rev Dr McClure refers to the pastoral responsibilities placed on the
Board of Governors. At page 154 of the witness statement bundle the Executive
Summary of “Every School a Good School” contains the following:

The Board of Governors has a statutory duty to:

· Safeguard and promote the welfare of registered pupils at the school at all times when the pupils are on the school premises or in the lawful control or charge of a member of schools staff

The Indicators of effective performance contained within the Department of Education Policy document Every School a Good School the characteristics of a good school are set out. These are described at page 13 as “key characteristics will be sued through inspection and by ESA in determining how best to provide support services to schools and help them raise standards ... The indicators of effective performance associated with each characteristic are set out in the table below”. At page 14 under Characteristic: Child-centred an indicator specified is

· the highest standards of pastoral care and child protection are in place.

(1) Is the Year Head’s pastoral responsibility a four or five day role?

The claimant maintains that the role of Year Head requires only 4 days to fulfil. Hers is not a pro-rata claim stating that the role can be fulfilled by other people on the day she is absent. On the contrary, the claimant contends that “it is my sincere belief that the Year Head post can be carried out efficiently and effectively in 4 days… ...“ (p22 para 72)… “... I wish to state again that I do not believe that the role of Year Head requires a member of staff to work 5 days a week (p24 para 77).

Accordingly the claimant contends that should she work as Year Head for 4 days, she should be entitled to 5 days of the teaching allowance: better terms pro-rata than any full time member of staff.

However, contrary to her assertions in her witness statement, the claimant accepted that:

• the pastoral needs of the pupils exist throughout the week

• pastoral matters which would normally fall to be dealt with by the Year Head may arise when a part-time Year Head is not in school.

• while not all matters for the Year Head are urgent, nevertheless there were matters which would require to be dealt with on the day they arose.

• the first contact in a matter was important in building or strengthening

relationships with pupils and parents.

• it was better to deal with matters quickly rather than delay which would be detrimental.

• continuity in the person dealing with a pastoral issue was important, and

• a break in continuity was detrimental to pastoral care

• if a Year Head was not present then there may be delay and/or a break in continuity.

Mark Langhammer did not deal with this issue. Rev Dr Reid did not provide the tribunal with any evidence on the point. Darwin Workman suggested in his first witness statement that the role could be carried out in 4 days (para 3 page 63) but resiled from this position in his response statement (page 228) in which he stated that:

“(t)he Pastoral element of the role is a given and will take up the majority of the Year Head’s time in school ... on the day the Year Head is not in school, the role could possibly be carried out by a Class teacher who “shadows” the Year Head throughout the year’.

This is a clear concession that the role remains to be carried out on the day in which a Year Head is absent. The evidence before the tribunal from both claimant in answer to cross examination, the claimant’s witnesses and respondent is that the pastoral role of Year Head exists on all 5 days.

Lynn Hunter pointed out that “at any time a pupil can approach their year Head for support or advice and, unless it is a matter for referral within child protection guidelines, the Year Head will provide support and guidance. Pupils recognise the year Head as someone they can turn to with a serious issue.” See paragraph 9 of her witness statement at page 83. Lynn Hunter also pointed out in oral evidence that all pupils and parents are introduced to the Year Head at a meeting before the start of year 8 and it is explained that the Year Head is the person with whom a child can raise concerns and issues.

It is submitted that given the evidence before the tribunal on this aspect of the case it would be an error of law and perverse for the tribunal to find otherwise than that pastoral care of the year Head role is required 5 days per week.

(2) Can the best pastoral care be delivered by sharing the role of Year Head: continuity and first contact?

It was not suggested by the claimant or on her behalf that another teacher should be appointed Year Head for the day upon which the claimant is not in school. Rather, two scenarios were put to the respondents witnesses:

(1) That most if not all matters which arose on the day off could be put off for a day until the Year Head returned to school, or
(2) Most matters could be dealt with by other members of the pastoral team.

It would appear that the fall back position for the claimant, from receiving a full 5 day allowance for 4 days, is that she should receive a pro-rata allowance for 4 days (£2,4OO per annum), while other members of staff cover her role for her but receive no payment.

There were a number of specific examples of pastoral issues which have arisen requiring to a greater or lesser degree, urgent contact, or continued contact with parents and pupils.

It was suggested that another member of staff (whether the Vice Principal or a Class Tutor) “could” provide pastoral care if a Year Head was absent. It was not disputed by the respondents witnesses that if a matter was urgent it would have to be dealt with by someone else, or that if the matter was riot urgent then resolution could be delayed until the Year Head had returned. Even if the Year Head was full time there will always be instances of illness or occasional training absences. However, it was not suggested to them on behalf of the claimant that such an arrangement was the ‘best possible pastoral care”. Indeed, the teachers who gave direct evidence of dealing with such pastoral matters pointed out that the absence of the Year Head was detrimental to pastoral care.

The tribunal is aware of the detail of these examples, but I would like to highlight one:, the pupil who had been sick and had lost confidence (page 159 of the witness statement bundle at paragraph 6(a)). He was described as being peeled off his parents each morning as the Year Head accompanied him to class. Mr McGeagh gave clear evidence of the need for continuity in this delicate and sensitive situation. He was in no doubt as to the importance of continuity in these circumstances. The claimant’s response to this was “I reject the notion that this needs to be done 5 days

per week’ (page 190 paragraph 6(a)). This is not a reasoned response, but rather a statement. This statement does accord with the claimant’s desire to be paid the entire 5 day allowance for 4 days.

Mr McGeagh’s passage of evidence highlighted the difference in roles between Class Tutors and Year Heads. The Year Heads have a daily (5 days a week) 15 minute slot timetabled as free for them to deal with pastoral issues while the class tutors took registration.

Lynn Hunter, the Vice Principal (pastoral) gave evidence directly relating to this issue. She set out the developing emphasis on pastoral care in schools. The position in respect of dealing with matters quickly is set out simply at paragraph 6 of her statement (page 82 of the witness bundle) where she states:

It is important that all issues are dealt with as soon as they arise, to keep the disruption to learning a minimum. It is also vital that parents/guardians are informed of all issues and the outcomes of any investigations to prevent a situation escalating.

The Claim

The claimant alleges that she has suffered indirect discrimination on the grounds of her gender.

The Relevant Law

Part Ill of the Sex Discrimination (NI) Order deals with discrimination in the Employment Field. It provides:

8 (2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her—

(a) in the way he affords her access to opportunities for
promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment.

“discrimination” is defined in Part II of the Order The relevant form of discrimination is defined in article 3(2)

3 (2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a
woman if—

(a) on the ground of her sex, he treats her less favourably than he
treats or would treat a man, or

(b) he applies to her a provision criterion or practice which he applies or would apply equally to a man, but—

(i) which puts or would put women at a particular disadvantage when compared with men,

(ii) which puts her at that disadvantage, and

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

(2) Paragraph (2) applies to—

(a) any provision of Part III,

There is also the issue of less favourable treatment of a part4ime worker. In essence the test required is the same as the respondent accepts that the measure is discriminatory but contends that it is justified.

Issue before the Tribunal

It was agreed that the criterion applied by the respondent was:

“TLR 2 may be awarded to Year Heads. Given the pastoral nature of the post (including child protection) these will only be available to full time members of staff.”
(point 4 of Appendix A of the School Policy (107) and contained in the Year Head Job Description (141J))

It was agreed that this criterion put women at a particular disadvantage when compared to men. The appointment for the post of Year Head was an internal one. The appropriate pool for consideration was the staff of Larne Grammar School:
approximately 30 females of whom 6 were part time, and 10 makes of whom 1 was part time. It was noted that the discriminatory impact was likely to be replicated in

other schools throughout Northern Ireland.

(1) was the application of the criterion that a Year Head must be full-time a proportionate means of achieving a legitimate aim.

The law in relation to proportionality has been considered in Bilka-Kaufhaus v Weber von Hartz [1986] IRR 317 a case in which Karin Weber von Hartz was denied, by the department store which employed her, admission to a pension scheme due to her lack of full time service. The ECJ held that the measure which causes the disparate impact must correspond to a real need and the measure must be appropriate with a view to achieving the objectives pursued and be necessary to that end. This has been re-interpreted in R v Secretary of State for Employment, ex parte Seymour- Smith and Perez [1999] IRLR 253 and Kutz-Bauer v Freie und Hansestaadt Hamburg [2003] IRLR 368 in the following manner:

(1) whether the measure in. question has a legitimate aim, unrelated to any discrimination

(2) whether the measure is capable of achieving that aim

(3) whether in light of all the relevant factors, and taking into account the possibility of achieving by other means the aims pursued by the provision in question the measure is proportionate.

In the present case the aim is providing the best pastoral care for children as set out in the school’s pastoral care policy. It is submitted that this is clearly a legitimate aim.

The measure is the requirement that Year Heads are full time.

For the reasons set out above it is submitted that full time Year Heads provide the best pastoral care because they satisfy the needs of continuity and availability for urgent matters and first contact.

This leaves the issue of proportionality for the tribunal to determine. There are a number of principles which can be distilled from the case law:

• The burden of proof is on the employer to satisfy the tribunal that the measure is proportionate: Rainey v Greater Glasgow Health Board [1987] ICR 129

• The test is objective and not a band of reasonable responses: Hardys & Hansons plc v Lax [2005] IRLR 726

• The tribunal must balance the discriminatory effect of the measure against the legitimate aim in question that is the loss of the pro-rata teaching allowance against the provision of the best pastoral care for pupils: Ojutiku v Manpower Services Commission [1982] ICR 661 and Kucukdeveci v Swedex GmbH & Co [2010] IRLR 346

• It is not necessary for the employer to considered the proportionality question at the time of making the decision: Cadman v Health & Safety Executive [2004] IRLR 97 and Seldon v Clarkson Wright & Jakes [2011] ICR 60

Remedy

It should be noted that the remedy under the part time legislation is a pro-rata finding yet the claimant consistently maintains that she should be entitled to the full allowance while working fewer days. This is inconsistent with the basis upon which she seeks wishes to establish liability.

The allegation of sex discrimination is similarly limited to a pro-rata remedy. If the measure restricting the position to full time is unlawful then the claimant should be allowed to work part time. As a part time worker she can expect no more than pro-rata payment.

If the tribunal considers that the measure is discriminatory then it should make a declaration. The tribunal is not required to make an award for injury to feelings. The test is always was the tribunal considers is lust and equitable. In this case it is submitted that the claimant was well aware of the measure in question and had agreed to it on two previous occasions. On neither of those occasions had she raised a grievance. In respect of the year 2011-12 she raised a grievance but failed to follow through the appeal process. Further, the measure in question raises a clear case of a conflicting legitimate aim which the respondent has chosen in good faith believing it to be appropriate. Also, the claimant has maintained throughout the case that she can carry out the post in 4 days and yet should be paid for 5, even if, as was suggested on her behalf in cross-examination, other staff cover her role without payment on the days she is absent. It is submitted that this contention is untenable and the claimant’s dogged refusal to accept anything less than better treatment than full time comparators is a factor that should be reflected in considering whether any award for injury to feelings should be made and if so to what level. It should also be

noted that the claimant devoted the majority of her witness stamen to complaining about the loss of her teacher in charge of Spanish post: this entire claim was not pursued at tribunal.

Time

A complaint that another person has committed an act of discrimination which is unlawful by virtue of Part Ill against a complainant may be presented to a tribunal under article 63 of the Sex Discrimination (NI) Order.

have to be presented within three months of the date of the act complained of. Article
76

Period within which proceedings to be brought

76.—(1) An industrial tribunal shall not consider a complaint under Article
63 unless it is presented to the tribunal before the end of

(a) the period of three months beginning when the act
complained of was done; or

(b) in a case to which Article 82(9A) applies, the period of six months so beginning.

(5) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(6) For the purposes of this Article—

(a) where the inclusion of any term in a contract renders the making of the contract an unlawful act that act shall be treated as
extending throughout the duration of the contract, and

(b) any act extending over a period shall be treated as done at the end of that period, and

(c) a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it

were to be done.

A number of discrete acts may provide evidence of a policy: Owusu v London Fire and Civil Defence Authority [1995] IRLR 574. There are conflicting authorities regarding the existence of a policy when separate discrete requests are made and refused: Cast v Croydon College [1998] ICR 500 in which the Court of Appeal suggested that 2 discrete but similar decisions were evidence of a policy; and Rovensnska v GMC [1998] ICR 85 in which a number of refusals of a request were held to be separate cause of action.

The claimant first requested a 4 day week in February 2008 (para 47 page 15). The application was accepted by the Board of Governors subject to relinquishing the Year Head role. The claimant raised no grievance in relation to this issue and accepted the offer. In April 2009 the claimant requested a further year on a 4 day week. Again the request was accepted subject to proviso that the Year Head post could not be maintained. Again the claimant accepted this position. Again there was no grievance.

It should be noted that the claimant was in contact with her trade union throughout this period arising from the removal of her position as teacher in charge of Spanish. It should also be noted that the school paid the claimant 1 teaching allowance so that the claimant suffered no financial loss, even though she was no longer carrying out the role and refused an alternative role of the same responsibility level.

The claimant returned to a full time role in 2010-2011. It is submitted that this represents a clear and unequivocal break in any alleged detriment suffered by the claimant and that this defeats any claim the claimant may have that she was subject to an on-going act of discrimination. The respondents points are therefore that any claim relating to 2008-09 and 2009-10 should be excluded on the following grounds:

(1) If the tribunal considers the two acts should be treated as an on-going act or policy, this chain was broken when the claimant returned to full time work in
20 10-11

(2) The claims are significantly out of time

(3) The claimant raised no grievance in respect of them at the time despite apparently being aware of her rights, and considering that the Headmaster

was taking advantage of the situation (while paying her a teaching allowance for a role she was not carrying out)

(4) The claimant was in receipt of union advice throughout this period.

(5) There is insufficient evidence before the tribunal to support an extension of time