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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McFarland v Dungannon and South Tyrone Bor... [2014] NIIT 1781_13IT (11 June 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1781_13IT.html
Cite as: [2014] NIIT 1781_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1781/13
CLAIMANT: Margaret Evelyn McFarland
RESPONDENT: Dungannon and South Tyrone Borough Council
DECISION
The unanimous decision of the tribunal is:-
(1) The claimant’s claim for equal pay on the grounds that she is engaged on “like work” with a male comparator is dismissed. The “equal value” aspect of her claim will now be listed for hearing.
(2) The claimant’s claim of discrimination on grounds of her part-time status is dismissed.
(3) The claimant’s claim in respect of the respondent’s failure to complete the grievance procedure is well-founded, but no award can be made in respect of it, for the reasons set out at paragraph 4.16 of this decision.
Constitution of Tribunal:
Employment Judge: Employment Judge McCaffrey
Members: Mr B Irwin
Mr J Magennis
Appearances:
The claimant was represented by Ms S Bradley, BL, instructed by the Equality Commission for Northern Ireland.
The respondent was represented by Mr R Shields, BL, instructed by Simmons Meglaughlin and Orr Solicitors LLP.
1.0 ISSUES
1.1 There were three elements to this claim; the first a claim for equal pay, the second claim for uplift of damages due to the respondent’s alleged failure to comply with the grievance process, and thirdly, a claim of unlawful discrimination on the basis of the claimant’s part-time status. All of these claims were disputed by the respondent. The claim had been formulated as a claim for equal pay for like work but also of equal value. The “equal value” element of this claim was stayed pending resolution of the initial claim for equal pay for “like work”.
1.2 In respect of the claimant’s equal pay claim, there were a number of different elements to be considered by the tribunal. First of all, the claimant’s job was split into two main parts: her duties as a part-time caretaker and her duties in cleaning the public conveniences at Moy Public Service Building. Secondly, she made a claim that she should be paid a call-out payment of £115.00 a week on the basis that she was liable to be called out like her male comparator (Raymond McGlinchey) who was a full-time caretaker. We set out the particulars in relation to these matters in more detail below.
1.3 The claimant also alleged that she had been discriminated against on grounds of her part-time status in that she believed she had been treated less favourably than Mr McGlinchey, who was her full-time comparator.
2.0 THE FACTS
2.1 We received witness statements and heard evidence in relation to these issues from the claimant and from Mr Philip Clarke (Director of Development with the respondent) on her behalf. We also received witness statements and heard evidence from a number of employees of the respondent as follows:-
· Brendan Currie (Head of Human Resources)
· Nigel Hill (Tourism and Parks Manager)
· Geraldine Dyson (Human Resources Officer)
· Ken Barrett (Leisure Services Manager)
2.2 We also had a number of documents opened to us in the course of the hearing. On the basis of the evidence received we make the following findings of relevant facts.
2.3 The claimant was employed by the respondent as a part-time caretaker and cleaner. She commenced employment in 1992 and at that stage her hours were 20 hours per week, with her duties divided into seven hours cleaning the ground floor public conveniences at Moy Public Service Building and 13 hours caretaking. Her caretaking duties were divided between the library premises in Moy, consisting of the first floor of the Moy Public Service Building and six hours caretaking the conference room on the second floor. From in or around 2003, the claimant worked 30 hours per week of which 23 hours were caretaking duties and seven hours cleaning as before. In or about 2012, the library closed in Moy and first floor of Moy Public Service Building became used as offices by the respondent. The claimant then became responsible for cleaning the offices. The Community Hall facility moved to the Methodist Church Hall which had been leased to the respondent from Monday to Friday and the remainder of the claimant’s hours were spent in caretaking that building.
2.4 The claimant’s duties were set out in her job description, which had been completed and signed by her in June 2005. There were in fact two job descriptions provided to the claimant at that time: One was in relation to her duties as “Public Convenience Attendant” in which she reported to the cleansing supervisor and that was signed by her on 13 June 2005. On 14 June 2005, she signed her job description as a Caretaker (Part-Time) reporting to the Parks and Countryside Manager and that job description included the main elements of her cleaning duties as well as her caretaking duties.
2.5 Mr McGlinchey commenced work as a full-time caretaker for the respondent in 2004 and his job description includes details of his job title as a Caretaker and his grade as “Scale 2”. Unlike the claimant, he covered a number of different locations in Dungannon, namely the Bank Building Market Square (subsequently renamed Ranfurly House), Sunnyside House, the Community Arts Studio and the Animate Office. Both the claimants and Mr McGlinchey’s job descriptions included the same wording for the main purpose of their job, i.e.:-
“To undertake general cleaning duties including basic maintenance, responsibility for security (key holder) and porterage as and when required.”
2.6 While there was some difference in the wording of the exact duties, and the claimant’s job description included more detail in relation to the cleaning duties of the public conveniences, Mr McGlinchey’s job description did include “The cleaning of the building and general precincts including public areas, office, stairs, lift, toilets, foyer, porch, outbuildings, yard, using where necessary the appropriate powered equipment”. Both of them also had a stipulation that they would act as key holder in case of emergency. It was agreed by a number of the respondent’s witnesses including Mr Barrett and Mr Clarke that the duties of the two caretakers were broadly similar.
2.7 In August 2005, a job evaluation scheme was carried out in relation to posts within the respondent. All posts were evaluated using the GLPC Scheme and the evaluation was carried out by BIS who were independent consultants.
2.8 The process involved an agreed job description being submitted and each individual was then interviewed by the consultants before they completed their assessment. The assessment resulted in the claimant’s overall job being graded at 1C. This grading was somewhere between the grading for a public convenience attendant (which is paid at cleaning rates (Grade 1B) somewhat below the claimant’s overall pay) and a Caretaker Grade 2 rate which was the grading given to Mr McGlinchey and was higher than that paid to the claimant. The claimant’s rate of pay was £7.7127 per hour, whereas Mr McGlinchey was paid £8.08 per hour.
2.9 The claimant appealed two factors in relation to her job evaluation. The first was work demands and the second was work context. She was partially successful in her appeal in that her work context was upgraded and she was awarded an extra 12 points which brought her up to 298 points, one point below the level at which she would have moved to Grade 2.
2.10 In relation to the job evaluation, the main difference between the scores given to the post held by the claimant and the post held by Mr McGlinchey was that Mr McGlinchey’s post was given a level two in relation to the “consequences factor”, whereas the claimant was given a level one mark, which scored twelve points less.
2.11 We were referred to the criteria for each level in relation to the consequences factor set out in the GLPC Scheme, which are as follows:-
“Level One - Decisions which have a limited and short-term effect on employees beyond immediate colleagues or on the public. Effect of decisions will be quickly known and readily amended if necessary.
Level Two - Decisions which have a material effect on the internal operations of the post’s own or other departments or on the individual or on the provision of services to the public.”
2.12 The claimant did not appeal the level one awarded to the consequences factor for her job. She did not suggest that this element of her job should have been graded higher, indeed the claimant’s representative made it clear that they were not attacking the job evaluation scheme as such. They were however, asserting that the work done by the claimant was “like work” or broadly similar to that carried out by Mr McGlinchey and that there was therefore a presumption of inequality in pay on that basis.
2.13 Regarding the job evaluation scheme it was Mr Currie’s evidence that the purpose of the job evaluation scheme was to evaluate individual posts. He indicated that there was no generic caretaker post or job evaluation. He stated that within each post it was immaterial how many duties were contained within the job description, it was the level of responsibility which determined the factor level awarded. He indicated that different levels of responsibility were reflected in the factor levels awarded by the independent evaluation. When it was put to him that the actual work done by the claimant and Mr McGlinchey was “like work” as evidenced by their job descriptions, he indicated that while the main purpose of the job may be similar, the way in which a job may be done may vary widely and this would vary according to the buildings which were involved.
2.14 All employees were given an opportunity in October/November 2012 to have their posts re-evaluated if they considered a significant and substantial change had taken place to their duties. The claimant did not make such an application, although by this stage, the first floor library at the Moy Public Service Building had closed and been converted to offices and a local Church Hall was being used for community-based meetings which she was caretaking. The claimant did not explain why she had not applied for the re-evaluation at that time.
2.15 In or about November 2011, the claimant’s then line manager (Philip Clarke) sent an e-mail to Geraldine Dyson (the Human Resources Officer), and Brendan Currie (the Head of Human Resources of the respondent), seeking clarification in relation to the future of on-call duties covered by Mr McGlinchey, for budget purposes. He raised the issue that Mr McGlinchey in his role as caretaker was on Scale 2, whereas the claimant was on Scale 1. He asked whether she should be entitled to an on-call allowance due to the cover she provided for the Moy Building and saying, “Should there not be parity in pay scale when people are carrying out the same duties”. He went on to suggest that this had direct implications for Ranfurly House when it reopened after a major refurbishment in July 2012 as it would require a new full-time caretaker and he required to know the scale payable for budgetary purposes. Ms Dyson responded to his e-mail a few days later, pointing out that the two caretakers’ posts had different duties and had been evaluated differently on the job evaluation and appeal. She noted however that the main purpose of each job was identical including responsibilities for security (key holder). She asked Mr Currie to discuss with Mr Clarke the on-call allowance for the Moy Building. It appeared that this was never followed up.
2.16 In relation to security duties, it was the claimant’s evidence that she had been on the on-call list for the security company over many years, when the library was functioning. The evidence from the respondent’s witnesses was that the claimant only became a contact for an alarm operated by them in 2013, when a new alarm was installed on behalf of the respondent. The explanation for this appears to be that when the first floor of the premises was occupied by the Southern Education and Library Board, for library purposes, SELB had installed an alarm and the claimant was one of three key holders who could be telephoned in the case of an emergency by the security company. She was however, third on the list, after the library staff. So although key holder responsibilities were clearly set out in her job description, the respondent did not have any record of the claimant having been called out in response to the alarm, because the alarm at this stage was not theirs. However, the claimant clearly did have responsibility for opening and closing the public convenience premises and for securing the second floor premises after community events, while the premises were functioning in that regard. The claimant’s uncontradicted evidence was that she recalled two specific incidents when she had been called out. She was able to say that one event had occurred “a few years back” but was not clear as to when the other incident had happened.
When the respondent arranged for a new ADT alarm system to be installed in the premises in 2013, the claimant was named as a contact and key holder along with Mr Clarke. There had been one attempt to call her out since the new system had been installed in or around April 2013 but the claimant had not reached her phone in time and the security company then rang someone else on the list. It was the respondent’s case that there were a number of different key holders for different council premises. Of these, the vast majority were men (out of 20 employees, 16 were male and 4 were female). It was agreed by the respondent’s witnesses (principally, Mr Currie and Mr Barrett) that key holders were not to be expected to be constantly available in the event of a call-out, in that the alarm company if unsuccessful in reaching one person would then go on to the next person on the list. None of these was paid a separate on-call allowance except for Mr McGlinchey.
2.17 The evidence given by the respondent was that Mr McGlinchey’s situation was different and justified him receiving a call-out payment of £115.00 per week. Mr Currie’s unchallenged evidence was the previous cleansing supervisor (Mr Nimmons) retired in 2009 and had previously been available “on call” to deal with emergencies at the Council Offices. The Senior Management Team of the respondent (which did not include either Mr Clarke or Ms Dyson) had been discussing the matter of answering call-outs for the Council Offices on Circular Road, Dungannon, Ranfurly House, Northland Row and the Art Studio. Mr Currie’s evidence (which was not disputed by the claimant) was that the Council Offices on Circular Road were the main council building where most staff worked and where most departments had their headquarters. He indicated that a great deal of equipment and records were stored there and it was therefore essential that appropriate standby cover was available for alarm company call-outs. He clarified that “standby” meant that someone would be available to respond in the event of a call from the alarm company without any need to go to a second name on the list. The person appointed was required to be available at any time to respond in the event of an emergency. The minutes of a Senior Management Team meeting on 27 January 2010 showed that this matter had been under discussion for some time. In the interim, alarm calls had been dealt with by “the Ranfurly House/Northland Row caretaker”, namely Mr McGlinchey. The minutes recorded that agreement had now been reached with all concerned that the caretaker - Ranfurly House/Northland Row would continue to act in his current call-out capacity on a rota basis with a second nominee to be appointed from within the existing workforce. In fact, a second nominee was never appointed, according to Mr Currie’s evidence. From November 2012 until the end of 2013, the alarm company records showed that Mr McGlinchey had been called out six times. The minutes also record that remuneration would be based on the current call-out arrangement for the dog warden, licensing officer(s) and other appropriate officers as agreed in November 2006. The minutes of that meeting were also opened to us. While a specific amount is not recorded in the minutes, the on-call and standby allowance provided to the dog warden and other appropriate officers was in accordance with a scheme currently used by other councils and the Southern Group Environmental Health Committee for emergency on-call arrangements regarding food safety and pollution incidents. It was Mr Currie’s evidence that this allowance was £115.00 per week. Mr McGlinchey was not the caretaker for the main council offices, although he was at that stage the caretaker for Ranfurly House and Northland Row. Mr Currie noted that when Mr McGlinchey was initially appointed, he had not had responsibility for the Northland Row premises as they had only been acquired by the council in 2006 or 2007, so there had been some change in the premises Mr McGlinchey looked after as caretaker.
2.18 On 3 May 2012, the
claimant, through her Union representative (Angela Mullan) raised a
grievance in relation to the disparity in her pay scale between the
claimant and Mr McGlinchey and the call-out allowance paid to
Mr McGlinchey. There was a request to proceed to Stage Two of the
Grievance Procedure. A grievance meeting was held on 24 May 2012
attended by the claimant, her Union representative, Ken Barrett and
Brendan Currie. At that meeting, there was a discussion of both pay
grades and the call-out arrangements. The claimant clarified that she was
on-call for Moy Public Services Building, but not for the Church hall
premises. Mr Barrett was subsequently asked to prepare a report in
relation to this matter. Mr Barrett produced a report dated
27 July 2012, which noted that in 2006 the claimant’s combined post
had been evaluated at scale 1C. He also noted, “From 2006 it has been
established in Council that the role of caretaker is Scale 2 with Public Convenience
Attendants being paid scale 1B”. His conclusion however was that the
claimant was not being unfairly treated. He continued “The current combined
payment reflects a role both as a public service attendant and as a caretaker.
It would seem that in 2006 an effort was made to simplify payments, thus the
grading of scale 1C. It may appear to Margaret on seeing recent adverts for
caretakers she is being underpaid.” He went on to suggest that the
situation should be clarified and explained to the claimant and he went on to
say “The alternative is to pay both positions separately, i.e., public
convenience attendant’s salary scale 1B and caretaker’s salary
scale 2”.
2.19 In relation to the issue of key holder and call-out function, he noted that there were a number of different responsibilities and that the situation was “somewhat clouded”. He went on to suggest that in relation to the claimant’s situation:-
“There is no evidence to suggest that call-outs were an integral part of the job description nor is there any indication of any recompense for doing so. Other mechanisms, in other sites, appear to be in place but certainly not to the degree that this decision (to pay out a call-out allowance to the existing caretaker) has provided for”.
His main suggestion was that
the senior management team should find a resolution to this situation so that
employees with key holder responsibilities who responded to
call-outs or emergency situations “are acknowledged and recompensed
accordingly, equally and fairly”. His recommendation was that the claimant
“should be recompensed in an appropriate fashion”. In his evidence, he
said that he was not making a specific recommendation that the claimant should
be paid the same as Mr McGlinchey, but that she should receive an “appropriate”
payment. He confirmed that his staff in the leisure centre who were
key holders and attended a call-out were paid in accordance with a
recognised scheme which paid them at £15.00 an hour for a minimum of
two hours plus their travel.
2.20 Mr Barrett’s report was not passed on to the claimant or her Union representative. In October 2012, Ms Mullan e-mailed Mr Frazer who was a Director within the respondent, asking for a response to the grievance, but did not receive a detailed response. The claimant did not receive Mr Barrett’s report until the document was disclosed as part of the preparation for this case and she was understandably concerned that this had not been disclosed to her.
2.21 It was Mr Currie’s evidence that he had had meetings with the claimant and with Mr Dawson of GMB (as her Union representative). Mr Currie indicated that there could be far reaching consequences for the respondent if they made a decision to pay the claimant the standby allowance as consideration would have to be given to making similar payments to all key holders. He took the view that the Local Government Auditor would query such payments. He indicated that in his discussions with Mr Dawson, they both “appreciated the difficulties faced”. He subsequently received statutory equal pay questionnaire from the claimant in January 2013. At that stage, he telephoned Mr Dawson and asked what was happening. Mr Dawson indicated that the GMB would no longer be involved if a third party was now acting for the claimant. Mr Currie, on the basis of this telephone conversation, took it that the grievance was not going ahead. He indicated that he would not approach the claimant directly as the statutory questionnaire had been received and it was clear that he had not sought any instructions from the claimant as to whether or not she wished to pursue her grievance. He also confirmed in his evidence that he appreciated the distinction between the grievance and these proceedings.
3.0 THE RELEVANT LAW
3.1 The relevant law in relation to the equal pay issues raised by the claimant are to be found in the Equal Pay Act (Northern Ireland) 1970 as follows and in particular the provisions of Section 1 of that act which provide as follows:-
“1. (1) If the terms of a contract under which a woman is employed at an establishment in Northern Ireland do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include them.
(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) or a contract under which a woman is employed (“the woman’s contract”), and has the effect that -
(a) where the woman is employed on like work with a man in the same employment -
(i) if (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified so as not to be less favourable; and
(ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man including in the contract under which he is employed, the woman’s contract shall be treated as including such a term...
(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 (a) in the case of an equality clause falling within
sub-section (2)(a) or (b) must be a material difference between the
woman’s case and the man’s; and
(b) in
the case of an equality clause falling within
sub-section (2)(c) may be such a material difference...
(5) A woman is to be regarded as employed on like work with men if, but only if, her work and theirs is the same or of 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.”
3.2 In a claim where the woman claims that she has been doing work of equal value with that of a man, the fact that a job evaluation study has been carried out will be an indicator that there should be “no reasonable grounds for determining that the work of a woman is of equal value” (see Section 2A(2) of the Equal Pay Act (1970)). However, in a claim of “like work” the situation is different. In British Leyland Ltd v Powell [1978] IRLR 37 it was found that the job evaluation study may be of assistance in deciding whether there are any relevant differences between the work done by the man and the woman and whether these are of practical importance. However, the question of whether or not the differences are such as would put the two posts into different job evaluation study categories is not the only relevant guide to whether the work is “like work” or “broadly similar” nor indeed is it the “acid test” (Powell and McKimm v Down District Council (1229/05 IT)).
3.3 In his book “Equal Pay Law and Practice (Jordans) (2009), Michael Duggan -asserts -
“But in considering whether the work is the same or broadly similar, it is necessary to consider the whole job so that the parts of the work cannot be separated out and equality argued in relation to the duties that are similar.( Maidment and Hardacre v Cooper & Co. ( Birmingham) Ltd. [1978] IRLR 462 )”
3.4 Having decided whether there is broadly similar work, the tribunal must then consider whether there are differences of practical importance. In Capper Pass Ltd v Lawton [1977] 2 All ER 11, the Employment Appeal Tribunal indicated:-
“... trivial differences or differences not likely in the real world to be reflected in the terms and conditions of employment, ought to be disregarded. In other words, once it is determined that work is of a broadly similar nature it should be regarded as being “like work” unless the differences are plainly of a kind which the industrial tribunal in its experience would expect to find reflected in the terms and conditions of employment. This last point requires to be emphasised... The only differences which will prevent work which is of a broadly similar nature from being “like work” are differences which in practice will be reflected in the terms and conditions of employment.”
3.5 Duggan helpfully sets out a number of factors which may align to differences of practical importance, such as additional duties, experience and skill, flexibility, physical effort, responsibility, seniority, skill, time of work, vocational training and work environment.
3.6 If the claimant succeeds in showing that she has been engaged on like work and that there are no practical differences between her work and that of a man, there is a rebuttable presumption that the equality clause applies to afford her equal pay. Unless the material factor defence is established by the respondent, she is then entitled to equal pay with her male comparator.
3.7 It is for the employer to demonstrate that any variation in pay is genuinely due to a material factor which is not the difference of sex (see above, Section 1(3) of the Equal Pay Act). Duggan notes that it is at the defence stage that the tribunal will expressly consider whether the pay differentials are due to any reason of sex.
The process by which discrimination must be proven in equal pay cases was set out by Lord Nichols in the House of Lords decision in Glasgow City Council v Marshall [2000] 1 WLR 333 as follows:-
“The scheme of the Act is that a rebuttable presumption of sex discrimination arises once the gender-based comparison shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man. The variation between her contract and the man’s contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex. In order to discharge this burden, the employer must satisfy the tribunal on several matters. First, that the proffered explanation, or reason, is genuine and not a sham or pretence. Secondly, that the less favourable treatment is due to this reason. The factor relied on must be the cause of the disparity. In this regard, and in this sense, the factor must be a “material” factor, that is a significant and a relevant factor. Third, that the reason is not “the difference of sex”. This phrase is apt to embrace any form of sex discrimination, whether direct or indirect. Fourth, that the factor relied upon is or, in a case within section 1(2)(c) may be a “material” difference, that is, a significant and relevant difference within the woman’s case and the man’s case.
When Section 1 is thus analysed, it is apparent that any employer who satisfies the third of these requirements is under no obligation to prove a “good” reason for the pay disparity. In order to fulfil the third requirement, he must prove the absence of sex discrimination direct or indirect. If there is any evidence of sex discrimination such as evidence that the difference in pay has a disparately adverse impact on women, the employer will be called upon to satisfy the tribunal that the difference in pay is objectively justified. But if the employer proves the absence of sex discrimination he is not obliged to justify the pay disparity.”
3.8 The law was summarised in Armstrong v Newcastle Upon Tyne NHS Hospitals Trust [2006] IRLR 124 by Arden LJ as follows:-
“I have set
out in paragraph 17 above the well-known passage from the speech of
Lord Nichols in the Marshall case (the remainder of the House agreed with
the speech). That passage sets out a
step-by-step guide to proving a genuine material factor defence. For the
purposes of this appeal the steps can be summarised as follows:-
(1) The complainant must produce a gender-based comparison showing that women doing like work, or work rated as equivalent or work of equal value to that of men, are being paid or treated less favourably than men. If the complainant can produce a gender-based comparison of this kind, a rebuttable presumption of sex discrimination arises.
(2) The employer must then show that the variation between the woman’s contract and the man’s contract is not tainted with sex, that is that it is genuinely due to a material factor which is not the difference of sex. To do this, the employer must show each of the following matters:
(a) that the explanation for the variation is genuine;
(b) that the more favourable treatment of the man is due to that reason; and
(c) that the difference is not the difference of sex.
(3) If, but only if, the employer cannot show that the reason was not due to the difference of sex he must show objective justification for the disparity between the woman’s contract and the man’s contract.”
3.9 In Nelson v Carillion Services Ltd [2003] IRLR 428 the Court of Appeal in England and Wales stated that the burden of proving that there is disproportionate adverse impact falls upon the claimant. Once the claimant has established a prima facie case the burden shifts to the employer to prove that the difference in pay is not objectively justified. In that case, the Court of Appeal stated that the tribunal had been correct in holding that the claimant had to prove that the material factor defence was tainted by discrimination and rejected the argument that once she had raised a credible suggestion of indirect discrimination the burden then moved. The burden of proving sex discrimination lies initially on the employee. A prima facie case must be established to shift that burden (see Duggan, paragraphs 10.7 and following).
3.10 Failure to complete the grievance procedure
The legislation in relation to failure to follow the grievance procedure is set out in the Employment Act (Northern Ireland) 2011 which amends and partially repeals the provisions of the Employment (Northern Ireland) Order 2003. S.4 of the 2011 Act inserts Article 90AA in the Industrial Relations (Northern Ireland) Order 1992 to provide as follows:-
“Effective failure to comply with code; adjustment of awards.
90AA (1) This Article applies to proceedings before -
(a) An industrial tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 4A;...
(2) If, in the case of proceedings to which this article applies, it appears to the tribunal that -
(a) the claim to which the proceedings relate concerns a matter -
(i) to which a relevant code of practice applies; and
(ii) to which a statutory dispute resolution procedure does not apply;
(b) the employer has failed to comply with that code in relation to that matter; and
(c) that failure was unreasonable.
(3) The tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 50%.”
3.11 Schedule 4A includes amongst its jurisdictions S.2 of the Equal Pay Act (Northern Ireland) 1970 (Equality Clauses).
Discrimination On The Basis Of Part-Time Work
3.12 The legislation in relation to less favourable treatment of part-time workers is to be found in the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (as amended). The relevant parts of the legislation are as follows.
3.13 Regulation 5 provides:-
“(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker -
(a) as regards to the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2) The right conferred by paragraph (1) applies only if -
(a) the treatment is on the ground that the worker is a part-time worker; and
(b) the treatment is not justified on objective grounds.
(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.”
3.14 Regulation 2 provides:-
“(1) A worker is a full-time worker for the purposes of these regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is identifiable as a full-time worker.
(2) A worker is a part-time worker for the purpose of these regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom in practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is not identifiable as a full-time worker...
(4) A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to 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 working or based at that
establishment who satisfies the requirements of
sub-paragraph (a) works or is based at a different establishment and
satisfies those requirements.”
3.15 No case law was opened to us by Ms Bradley in relation to the claimant’s arguments under this legislation.
4 REASONS AND DECISION
4.1 The first question the tribunal has to consider is whether the work carried out by the claimant in her role as a part-time caretaker was “like work” or broadly similar work to the work carried out by Mr McGlinchey and whether any differences in that work were not of practical importance in relation to the terms and conditions of employment.
4.2 Ms Bradley indicated in her submissions that there were two elements to this claim. The first was in relation to the grading of the claimant’s post at grade 1C rather than Grade 2 as Mr McGlinchey’s post was graded, and the second related to the allowance paid to Mr McGlinchey in relation to his stand-by duties which was not paid to the claimant.
4.3 We are conscious of case law which indicates that we must take the entirety of the responsibilities in the job into consideration in considering whether or not the claimant and Mr McGlinchey are engaged on “like work”.
4.4 In considering whether the claimant and Mr McGlinchey were engaged on “like work” or “broadly similar” “work” in relation to their caretaking duties, it was clear that the main purpose of the job is defined in exactly the same words in both job descriptions. It is also clear that a number of the responsibilities are comparable. It was explained, and we accept, that slightly under 25% of the claimant’s work was cleaning the public conveniences at Moy and for this reason the details of those responsibilities were spelt out. Mr McGlinchey’s responsibilities covered four buildings rather than the one building the claimant initially worked at, with a second building subsequently being added in relation to caretaking duties only. The claimant herself did not give detailed evidence of how her duties were the same as Mr McGlinchey’s but Mr Clarke agreed that the duties were broadly similar as did Mr Barrett. She asserted that they both carried out the role of caretaker and that there were similarities in the job description. She conceded however that it was clear from the job description that Mr McGlinchey had responsibility for four buildings whereas she had responsibility for one and latterly two. The notes of her grievance meeting in 2012 indicated that she did not have “call out” duties in relation to the Church hall premises which were leased to the respondent at a community centre, but only caretaking duties.
We accept the claimant’s evidence that she was on the list of contacts for Moy Public Services Building prior to April 2013. However, that was for the benefit, not just of her employer but also of the Southern Education and Library Board, who had placed the alarm in that part of the building which was leased by them from the council. It was not clear that the respondent had any knowledge of the fact that the claimant had been placed on that list. The claimant was clear that she was third on the list, after the library staff and she could only indicate two examples of when she had been called out between 1992 when her employment started and 2013, so this does not seem to us to have been a particularly onerous responsibility. Other employees of the respondent , including Mr McGlinchey, had call-out or keyholder responsibilities in relation to buildings where they worked. We return to this issue below.
4.5 The respondent relied to a large extent on the job evaluation scheme which had been carried out in 2005. We have approached the job evaluation scheme with some caution, given that it was nine years old at the date of hearing. We note that job evaluation scheme was appealed by the claimant and some of her responsibilities were given additional points as a result of her appeal in 2009. The remaining difference identified between her post and Mr McGlinchey’s related to the issue of the “consequences factor”. The claimant’s work was graded at level one, while Mr McGlinchey’s was graded at level two, resulting in a difference of 12 points between them. The respondent’s witnesses noted that they had not carried out the job evaluation, it had been carried out by independent consultants, on the basis not just of the job descriptions but also of interviews with the post holder as to the actual work done. It was also noted that there was no generic grading for a caretaker’s post. Mr Currie agreed that posts advertised in or about 2011 for Ranfurly House and the Hill of O’Neill premises (formerly the Bank Building), after the premises had been refurbished, had probably carried at least a grade two but he indicated that that post carried considerably more responsibilities than other caretaking posts.
4.6 Ms Bradley argued that the fact that Mrs McFarland’s post was only one point short of the grading required to take her to scale two was significant and that the difference of 12 points between the claimant and Mr McGlinchey was not significant in the context of an overall score in the region of 300 points. Nevertheless, the difference between them was sufficient to place them at different grades as a result of the job evaluation scheme. No evidence was adduced by the claimant to indicate that she should have been graded at level two for the consequences factor and indeed she did not appeal this. Nor did she seek a re-evaluation of her post in 2012, when all Council staff could have applied for a re-evaluation. The first time this appears to have been raised was when the claimant raised her grievance in May 2012.
4.7 We are conscious from the evidence given by Mr Currie, Mr Barrett and Mr Clarke, as well as by the claimant, but the caretaking duties of the claimant and Mr McGlinchey were broadly similar. Mr Barrett agreed looking at the job descriptions that the main purpose of the job descriptions was the same and that the summary of the responsibilities was broadly similar. Mr Clarke pointed out that although a specific part of the claimant’s caretaking duties related to her duties cleaning the proper conveniences, Mr McGlinchey also had toilet cleaning duties as part of his overall responsibilities.
4.8 Another issue to consider in weighing the value to be given to the job evaluation scheme is whether the claimant’s post or Mr McGlinchey’s had changed since the job evaluation scheme was done. When it was put to Ms Dyson that there had been differences in the claimant’s work since the job evaluation in 2006, she agreed that this was the case, but pointed out that Mr McGlinchey had previously had four locations to look after as caretaker and that these locations had changed for him as well. No evidence was given to show exactly how his work had changed.
4.9 Mr Clarke, who was giving evidence for the claimant, indicated that he would not make any distinction between the claimant’s work as a public convenience attendant and a caretaker. In his words it was “dancing on the head of a pin” as they were the same functions. When he was asked by Ms Bradley in his direct evidence whether the claimant’s job in 2013 was the same as that which had been evaluated in 2005 his answer was “more or less the same, there were nuances due to the changes in the place of work”. The only evidence which we can see in relation to the differences of practical importance between the claimant’s caretaking role and that of Mr McGlinchey dated from the Job Evaluation Scheme and the rating of the “consequences factor” of their respective jobs at different levels. The claimant gave evidence that she often felt forgotten about in Moy, and that was left to get on with her work, which she did. The respondent relied on the historic job evaluation and did not seem to acknowledge Mr Barrett’s report that the role of caretaker was graded as Grade 2 from 2006. While it is relevant to note that just under 25% of the claimant’s time was spent cleaning the toilets, no evidence was adduced by the respondent to show what proportion of Mr McGlinchey’s work was spent on the different elements of his job. In relation therefore to the claimant’s caretaking duties and her duties as a public convenience attendant, we are satisfied that these duties consisted of like work or broadly similar work to that carried out by Mr McGlinchey as a caretaker. We must then go on to consider whether any differences in their work were “of practical importance”.
4.10 The main area of difference between the claimant’s work and Mr McGlinchey’s was the issue of call-out and/or stand-by duties and the difference if any between the two. The claimant’s case was that she had responsibilities as a key holder to be available for “call out”. Mr McGlinchey and a number of other staff members of the respondent had similar responsibilities written into their contract. This involved them being available to take a call from the alarm company as a named contact if the alarm at their place of work went off. However, there was no indication that they must be available at all times. At least two contacts had to be given for each building and if the alarm company was not able to reach one of the contacts they would then go on to the next person on the list. The respondent had no record of the claimant being a named contact for the Moy Public Service Building prior to April 2013, because the alarm had previously been under the auspices of the Southern Education and Library Board. The respondent was not in a position to dispute the claimant’s evidence that she had been called out on a couple of occasions and it was agreed she was a keyholder for the Moy PSB as a whole. However, from the date when the council’s records commenced, in 2013, one attempt had been made to contact the claimant and she had not responded to the telephone call, so the alarm company had gone on to the next person on the list.
4.11 While Mr McGlinchey was in a similar situation in relation to the premises for which he was caretaker, in addition, he had agreed to undertake standby duty in relation to the main council offices (where he was not caretaker) for which the council required him to be on standby 24 hours a day, 7 days a week while on duty. This meant that he must be available to respond to any call from the alarm company in consideration of that availability. Mr McGlinchey was paid £115.00 per week, in common with other council officers who were required to undertake such standby duty such as dog wardens. In light of these facts, we find that the role carried out by Mr McGlinchey on standby duty for the main council offices was a significant additional part of his duties. We also note that the “stand by duties” were assumed by Mr McGlinchey in 2009/2010 after negotiation with the respondent and were not initially part of his responsibility and were not within his initial job description as caretaker. According to the alarm records which were supplied by the respondent, Mr McGlinchey had been called out on approximately six occasions from November 2012 until the end of 2013, so it was not a non-existent responsibility. In our view, the difference between being on standby duty, requiring what was described as “24/7 availability” and being one of a number of people on a call-out list is a difference of practical importance, and we find that in this respect the claimant and Mr McGlinchey were not engaged on “like work” or broadly similar work. While it would have been helpful for the standby duties to be reflected in contractual documentation, we accept that the standby allowance was paid to Mr McGlinchey in respect of additional duties which he carried out for the Council and that accordingly, this payment to him is not discriminatory. As we must take the duties of the post as a whole and it is not possible to “hive off” part of the post to find that there is “like work”, we find that the claimant’s duties as a whole are not like work with that done by Mr McGlinchey. Given this finding, we do not need to go on to consider the issue of the genuine material factor defence and the claimant’s “like work” equal pay claim is dismissed. The equal value aspect of the claim will now be listed for hearing as soon as convenient.
Part-Time Workers’ Status
4.12 As an alternative, the
claimant claimed that she received less favourable treatment on the grounds of
her part-time workers’ status. The claimant is a
part-time worker in that she works currently 30 hours per week.
Mr McGlinchey was full-time but we were advised that latterly he had changed
to part-time hours as caretaker.
4.13 The legislation in relation to part-time workers requires the claimant to show an actual comparator who is working on a full-time basis whereas the claimant is working on a part-time basis. This is clearly the case in this situation as for the majority of the period concerned, the claimant was working part-time hours when Mr McGlinchey was working full-time. However, Regulation 5(2) makes it clear that the right to not be treated less favourably applies only if the treatment complained of is on the ground that the worker is a part-time worker and the treatment is not justified on objective grounds.
4.14 We heard little evidence in
relation to this matter in relation to the part-time status of the claimant,
except that she indicated in her statement that she believed she had been
discriminated against by the Council under both the Equal Pay Act and the
Part-Time Workers (Prevention of Less Favourable Treatment) Regulations
(Northern Ireland) 2000 compared with Mr McGlinchey. She did not adduce
any evidence to show that the difference in treatment was on the basis of her
part-time status nor does she show any differences in her contract which
related to her
part-time status. Ms Bradley made it clear in her submissions that the
claimant was relying on the same factual background in relation to the claim of
less favourable treatment of grounds of part-time status as for the Equal Pay
claim. Unfortunately there has been no evidence adduced before us to show that
the claimant was less favourably treated on grounds of her part-time status,
and therefore she has not established a prima facie case to show that she
has been less favourably treated. It is well established by the case law in
relation to unlawful discrimination, including the well known case of Madarassy
that a difference in status is not sufficient to ground a claim of unlawful
discrimination. The claimant must show not only a difference in status but
also detrimental treatment on grounds of the prohibited characteristic in order
to establish a prima facie case. The claimant has failed in this respect
and so we must dismiss her claim.
Failure to deal with the claimant’s grievance
4.15 In relation to the failure of the respondent to deal with the claimant’s grievance, it is clear to us from the evidence given that the Council did fail in this regard. We can see no good reason for this, given that dealing with the grievance might well have dealt with the entirety of the claimant’s case and might have resolved the entirety of this case. Rather therefore than having a case running over a number of days in an industrial tribunal, it might have been resolved satisfactorily at an early stage and at considerably less cost. The Council therefore should take note of this and consider how it may address this issue in the future. However, given that the remedy for failure to comply with the grievance procedure is an uplift on any award given in relation to another, successful, claim, we are unable to make any award in relation to failure to complete the grievance procedure, because the claimant has been unsuccessful in her other claims.
Employment Judge:
Date and place of hearing: 6,7,8 May 2014, Belfast.
Date decision recorded in register and issued to parties: