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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Ware v Northern Regional College [2012] NIIT 02220_11IT (04 January 0 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/2220_11IT.html
Cite as: [2012] NIIT 02220_11IT, [2012] NIIT 2220_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2220/11
CLAIMANT: James Ware
RESPONDENT: Northern Regional College
DECISION
The unanimous decision of the tribunal is that the claimant’s claims for equal pay, sex discrimination, breach of contract, unlawful deduction of wages and less favourable treatment on the basis of his fixed term working status are dismissed.
Constitution of Tribunal:
Chairman: Mr B Greene
Members: Mr P Killen
Mrs S Butcher
Appearances:
The claimant appeared in person.
The respondent was represented by Mr Neill Richards, of counsel, instructed by Worthington solicitors.
Sources of Evidence
1. The tribunal heard evidence from the claimant and on behalf of the respondent from Barbara Laverty, Brenda Crotty and Trevor Neilands. The tribunal also received three bundles of documents amounting to some 389 pages and a written submission from the claimant.
The Claim and Defence
2. The claimant claimed under the equal pay legislation, sex discrimination, less favourable treatment on the basis of being a fixed-term worker, breach of contract and unlawful deduction from wages. The respondent denied the claimant’s claims in their entirety.
The Issues
3. The agreed issues of fact and law were handed in by the parties on 8 May 2012.
Legal Issues
(1) The claimant claims equal pay. His comparator is Karla Kosch.
(2) Was the comparator engaged on like work?
(3) Can the respondent avail of the general material factor defence?
(4) Did the respondent discriminate against the claimant on the grounds of his sex? His comparator is Karla Kosch.
(5) Is Karla Kosch a valid comparator for the purposes of the Sex Discrimination (Northern Ireland) Order 1976?
Breach of Contract
Was the claimant’s contract of employment breached by:-
(1) The determination of the salary by the respondent, and
(2) by the application of the grievance procedure by the respondent?
(3) does the claimant’s claim include a claim for breach of contract by using the statutory grievance procedure?
Unlawful Deduction from Wages
(1) Was the claimant entitled to the wage increase he claims under his contract of employment?
(2) Did the respondent take unlawful deduction of wages from the claimant?
Fixed-Term Worker
(1) Was the claimant treated less favourably by the respondent in relation to the level of salary based on his status as a fixed term worker? His comparators are Karla Kosch and Brian Lyons.
(2) Are the comparators valid comparators for the purposes of the Fixed-term Employee (Prevention of less Favourable Treatment) Regulations (Northern Ireland) 2002?
(3) Has the claimant satisfied the requirements of any applicable statutory grievance procedure?
Factual Issues
(1) Did the respondent correctly apply circulars CEF2008/03 in the determination of the claimant’s salary?
(2) What are the similarities and differences between the comparators relied upon by the claimant in relation to equal pay, sex discrimination and fix term worker?
(3) Why was Karla Kosch awarded salary increments by the respondent?
(4) Is the claimant’s claim in relation to salary which is regulated by his contract of employment?
(5) Can the claimant claim a contractual right to the higher salary that he claims?
(6) Did the respondent breach the claimant’s contract of employment in its application of the grievance procedure and if so what if any loss did the claimant incur?
(7) When did the acts that the claimant complains of occur? Did the claimant raise an adequate grievance in relation to all heads of claim, and if not why not?
Findings of Fact
4. (1) The respondent employed the claimant from 1 September 2010 until 31 August 2011 as a temporary lecturer in IT and multi-media.
(2) The claimant earned per month £1,863.50 gross and £1,200.00 net.
(3) The claimant’s contract of employment incorporates circulars CEF2008/03.
(4) The pay range for his post was from £22,362.00 to £32,421.00.
(5) The letter of offer of employment of 18 August 2010 informed the claimant that he would be at the bottom of the pay scale.
(6) The claimant signed the contract and accepted the salary scales.
(7) The claimant believed he should have been on a higher scale. He believed he should have received an increment by reason of his Masters Degree and a further incremental credit for his industrial and commercial experience.
(8) Circular number CEF2008/03 establishes the scheme for the placing of lecturers on a salary scale from September 2006.
(9) The circular provides:-
“Lecturer
4. Subject to Paragraphs 3, 5, 6 and 7, a lecturer on appointment shall enter the scale at the minimum to which shall be added, subject to the maximum of the scale not being exceeded:
(1) one increment in the case of a lecturer who holds an approved University degree with first or upper second honours or other qualification considered by the Education and Training Inspectorate to be equivalent thereto.
(2) …
(3) incremental credit in accordance with Appendix 1, in respect of previous experience which the college considers to be of value to him/her in the performance of his/her duties. Claims for consideration of incremental credit must be submitted to the college no later than six months following commencement of employment.
(4) …
7. Subject to paragraph 3, a lecturer shall enter the appropriate scale at such a point as the Governing Body of the Institution may determine where the salary calculated under paragraph 4 or 6 is considered inadequate taking into account any previous educational service, commercial, trade or professional expertise, research work or relevant post graduate qualification which the college considers to be equivalent to service as a lecturer.”
(10) The claimant queried the salary he was receiving from June 10 onwards. He initiated a series of written correspondence about it. The respondent treated his correspondence as a request for an incremental uplift.
(11) The claimant pursued his claim for an increase in salary, had various meetings including an appeal meeting but was unsuccessful. Although the respondent has a number of grievance procedures it proposed to the claimant the use of the statutory grievance procedure and he used that procedure without challenge.
(12) The respondent’s contention is that the claimant’s Masters Degree was not stated by the Educational and Training Institute to be equivalent to a first or upper second class honours degree and therefore an incremental uplift was not appropriate. The respondent further contended that his industrial and commercial experience did not entitle him to an incremental uplift as the college only has regard to previous experience in the candidate’s teaching field and they did not consider his experience sufficient to warrant an uplift.
(13) Brenda Crotty was sympathetic to the proposition that the claimant’s Masters Degree was equivalent to a first or an upper second degree and she sought advice from the University of Ulster and also from Jim McNulty, District Inspector for the Education and Training Inspectorate. He responded to Brenda Crotty on 8 June 2011 and stated:-
“… therefore the MSc which your employee has achieved cannot be deemed equivalent to a Bachelor’s Degree whether awarded a first class honours or other level.”
(14) Karla Kosch is a Romanian national and she was employed by the respondent from 2009. She was awarded one incremental uplift by reason of her degree from a Romanian University. Karla Kosch’s degree of Diploma de Inginer was recognised as equivalent to a UK Honours Degree under the Bologna declaration, which is a process whereby foreign degrees can be recognised as equivalent to UK degrees. On foot of that recognition Karla Kosch received an increment. Her increment was not awarded by virtue of any declaration by the Educational and Training Institute.
(15) The claimant was a senior lecturer in IT and multi-media. According to the claimant’s contract of employment most of his duties related to organising and delivering the teaching of the IT and multi-media curriculum and a number of administrative and financial duties that are connected with that. He was also required to establish links and ongoing liaison with industry, schools, parents, verifiers, inspectors and awarding bodies.
(16) Karla Kosch was a lecturer in manufacturing engineering. In addition to the normal delivery and organisation of the teaching curriculum and the associated work with students and administration Karla Kosch was also required to develop new technologies along side manufacturing industry or develop specialist training as requested and to work as part of an industrial team for industrial development.
(17) Brian Lyons, the other comparator relied on by the claimant, had been appointed by the Department of Education and his salary determined before the respondent became responsible for the appointment of staff and the determination of salary levels. He had been awarded an increment for his industrial and commercial experience from November 2007. The claimant submitted that this demonstrated a custom and practice from which he should benefit.
The Law
5. (1) An equality clause is inserted into a Contract of Employment where a woman is employed in like work with a man in the same employment (Section 1(2) Equal Pay Act (Northern Ireland) 1970).
(2) A woman is to be regarded as employed in like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences (Section 1(5) Equal Pay Act (Northern Ireland) 1970).
(3) An equality clause shall not operate in relation to a variation between the woman’s contract and the man’s contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor must be a material difference between the woman’s case and the man’s (Section 1(3) Equal Pay Act (Northern Ireland) 1970).
(4) It is unlawful direct discrimination for an employer to treat a women less favourably than he would treat a man on the ground of her sex (Articles 3(1)(a) and 3(2)(a) Sex Discrimination (Northern Ireland) Order 1976).
(5) A fixed-term employee has the right not to be treated by his employer less favourably than the employer treats a comparable permanent employee, as regards the terms of his contract, or by being subjected to any other detriment by act, or deliberate failure to act, of his employer (Regulation 3(1) Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002.)
(6) An employer shall not make an unauthorised deduction from wages unless the deduction is required or authorised by statute or the employee’s contract or the worker has previously signified his consent already to the making of the deduction (Article 45 The Employment Rights (Northern Ireland) Order 1996).
(7) An employee may bring a claim for the recovery of damages for any sum which is due or is outstanding on the termination of the employee’s employment (Article 3 Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).
The Application of the Findings of Fact and the Law to the Issues
6. (1) The respondent correctly applied circular CEF2008/03 in determining the claimant’s salary. An employer is only required to give an incremental uplift to an employee following a comparison of qualifications and the Education and Training Inspectorate have considered that the qualification is equivalent to a first or upper second honours degree. Despite the sympathic approach of the respondent, and Brenda Crotty in particular, the Education and Training Inspectorate did not so declare and therefore the respondent is not obliged to pay an increment to the claimant in the absence of such declaration.
(2) In relation to Section 4(3) of the circular the discretion lies with the employer to award an incremental credit for previous experience which the college considers to be of value to him in the performance of his duties. In the instance case the respondent considered that relevant experience had to be in the field for which the lecturer was engaged. As the claimant’s experience did not relate to his teaching post, in the respondent’s view, but to other commercial experience it was at liberty not to award an increment here and failure to do so is not a breach of Circular 2008/03.
(3) In relation to Paragraph 7 of the Circular the respondent has the discretion to increase the point at which a person enters the salary scale if it is seeking to attract particular lecturers to the college and it is finding it difficult to attract suitably qualified persons and it is thought that the salary on offer is inadequate to attract such qualified persons.
(4) Karla Kosch is not doing like work to the claimant. By virtue of her contract of employment Karla Kosch was required to discharge duties in relation to industry which the claimant was not.
(5) Brian Lyons, who is a comparator with the claimant for the purposes of his fixed-term work claim, was appointed by the Department of Education who then had responsibility for appointments. Although the criteria, under which increments were awarded, were largely the same as paragraphs 4 and 7 of the Circular the awarding body has a discretion in the awarding of increments. The Department exercised the discretion in a particular way in relation to Mr Lyons. The system of appointments was changed and devolved to the particular college which then had to exercise the discretion in relation to awarding of increments. Mr Lyons therefore is not an appropriate comparator for the purposes of the claimant’s fixed-term claim. In addition one example of getting an increment following the exercise of discretion does not establish a custom and practice because the manner and circumstances for the exercise of that discretion had significantly changed.
(6) Karla Kosch was awarded increments by reason of her teaching degree and by reason of her Diploma de Inginer being recognised under the Bologna agreement as equivalent to an honours degree at first or upper second level and by reason of tenure she obtained other increments.
(7) Insofar as the tribunal understands factual issue 4 the claimant’s salary is regulated by his contract of employment.
(8) The claimant certainly can make a claim for a higher salary on the basis of his contract. However on the basis of the evidence before the tribunal he is unable to benefit from Sections 4(1), 4(3) or 7 of the Circular. The respondent did not break the statutory grievance procedure.
(9) Although there exists a number of different grievance procedures within the respondent college the respondent proposed and the claimant agreed to use the statutory grievance procedure to deal with his grievances.
(10) As the claimant’s claims have been unsuccessful it is unnecessary to determine whether he raised an adequate grievance or not.
(11) As the claimant’s chosen comparator in his equal pay claim, Karla Kosch, is not engaged in like work and he has not identified a proper comparator his equal pay claim cannot proceed any further and is therefore dismissed.
(12) In relation to the claimant’s claim for sex discrimination there is considerable doubt as to whether Karla Kosch is a proper comparator given that her duties and responsibilities differ significantly from those of the claimant but even if she is a proper comparator and assuming her receipt of incremental awards and the claimant’s failure to be awarded an increment amounts to less favourable treatment of him there was no evidence before the tribunal on which it could find or conclude that the reason for those incremental awards was because of Karla Kosch’s sex. The respondent adduced reasons why she received incremental uplift and why the claimant did not. None of those reasons has anything to do with sex.
(14) As the respondent was within its rights in not awarding the claimant an increment for his qualification or commercial experience there cannot be an unlawful deduction from his wages and therefore there is no breach of contract and his claims for breach of contract and unlawful deduction of wages are dismissed.
(15) The claimant’s claim of having suffered a detriment by reason of his fixed-term status is also dismissed. There was no evidence before the tribunal that the reason that the claimant did not receive incremental uplift and others did was because he was a fixed-term worker. Even if the tribunal were to accept that the awarding of increments to Karla Kosch and/or Brian Lyons amounted to less favourable treatment of the claimant the awards can be justified on objective grounds. Karla Kosch received increments for her teacher qualification by reason of the declaration that her Romanian degree was equivalent to a UK first or upper second under the Bologna agreement, and by reason of tenure. Brian Lyons also got an increment in relation to his previous experience but that was awarded by the Department of Education and not by the respondent and it was done following the exercise of discretion. The respondent is required to exercise its discretion and it had made a decision about the type of experience it would consider merited an increment and the claimant fell without such relevant experience.
(16) Accordingly all the claimant’s claims are dismissed.
Chairman:
Date and place of hearing: 8, 9, 11 and 14 May 2012, and 29 August 2012, Belfast.
Date decision recorded in register and issued to parties: