Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

CASE REF: 1147/15

 

 

CLAIMANT: Carol Bridget Veronica Molyneaux

 

 

RESPONDENTS: 1. Department of Agriculture, Environment and Rural Affairs

2. Department of Finance

 

 

Certificate of Correction

 

 

 

Please note the following corrections to the Decision issued on 26 October 2016:-

 

 

(i) Paragraph (iii) on page 28 should contain the sentence:

 

" The tribunal is therefore not satisfied, taking into account any additional relevant factors referred to in 6(2) above, that time should be extended on a just and equitable basis in either of these claims."

 

and not:-

 

" The tribunal is therefore not satisfied, taking into account any additional relevant factors referred to in 7(2) above, that time should be extended on a just and equitable basis in either of these claims."

 

 

(ii) Paragraph (vii) on page 29 should contain the sentence:

 

"Regarding the claimant's indirect discrimination claim, she has referred to the career break policy and a number of other policies referred to at 5(xix) above, to advance an argument that provisions, criteria or practices were such that there was a particular disadvantage for females when compared to men."

 

and not:-

 

"Regarding the claimant's indirect discrimination claim, she has referred to the career break policy and a number of other policies referred to at 5(xix) above, to advance an argument that provisions, criterian or practices were such that there was a particular disadvantage for females when compared to men."

 

Employment Judge:

 

Date decision recorded in register and issued to the parties on:

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1147/15

 

 

 

CLAIMANT: Carol Bridget Veronica Molyneaux

 

 

RESPONDENTS: 1. Department of Agriculture, Environment and Rural Affairs

2. Department of Finance

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant's claims of unlawful direct and indirect sex discrimination together with the claim for unlawful deductions from wages are dismissed as set out in paragraph 9 of this decision.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Crothers

Members: Mr A White

Mrs G Ferguson

 

Appearances:

 

The claimant represented herself.

 

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

 

 

BACKGROUND

 

1. Ten Case Management Discussions were held in this case together with a Pre-Hearing Review which gave leave to amend the claim to include a claim of direct sex discrimination against the first respondent ("DAERA"). Several other matters had to be addressed by the tribunal prior to the substantive hearing. It was evident to the tribunal from the outset that it was a complicated, confusing and unwieldy case. The reference to DAERA also includes reference to its predecessor, the Department of Environment ("DOE").

 

THE CLAIM

 

2. The claimant claimed that she had been directly discriminated against by DAERA on the ground of her sex. She also claimed indirect discrimination against DAERA and Department of Finance ("DF"), on the same ground. The claimant also made a claim for unlawful deductions from wages. The respondents denied her allegations in their entirety.

 

ISSUES BEFORE THE TRIBUNAL

 

3. (1) Whether or not the claimant has been subjected to indirect Sex Discrimination by both respondents, contrary to Article 3(1)(b) of the Sex Discrimination (Northern Ireland) Order 1976, as amended?

 

(a) Has the respondent imposed any provision, criterion or practice (PCP)?

 

(b) Do they put females at a particular disadvantage when compared with males?

 

(c) Do the PCPs disadvantage the claimant?

 

(d) Can the respondent show that the PCPs are proportionate to the aim that they are trying to achieve?

 

(2) Was the Claimant treated less favourably, by DAERA, than Andrew McGreevy on the ground of her sex (direct discrimination) by reason of the placement of Andrew McGreevy to the Marine Division in October 2012 contrary to Article 3(1)(b) of the Sex Discrimination (Northern Ireland) Order 1976, as amended?

 

(3) Whether or not the respondent failed to pay the claimant wages in contravention of Article 45 of the Employment Rights (NI) Order 1996?

 

(4) Are any of the claimant's claims out of time?

 

(a) If so, should time be extended? and;

 

(b) If so, which claims should have time extended?

 

SOURCES OF EVIDENCE

 

4. The tribunal heard evidence from the claimant and, on behalf of the respondents, from Christopher Wilson, retired Grade 7, Kerry Stanley, Staff Officer, Deborah Smith, Assistant Human Resources Business Partner, and John Cuthbert, Staff Officer. The tribunal also received a bundle of documentation.

 

FINDINGS OF FACT

 

5. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

 

(i) The claimant availed of a period of maternity leave from 1 April 2009 until 31 March 2010. She was granted a period of unpaid leave for a further 7½ months. At the beginning of November 2010, the claimant applied for a career break which was granted. This lasted from 15 November 2010 until 14 November 2012.

 

(ii) The claimant had read DAERA's policy regarding special leave and added her signature to a document acknowledging that she read and understood the relevant career breaks section of the handbook. The granting of a career break is a discretionary matter. According to paragraph 17.1 of the Special Leave section within the handbook:-

 

"The objectives of the career breaks scheme are to provide new job opportunities in the NICS and to facilitate you, if you wished, to take a break away from work".

 

The relevant policy also makes it clear that whilst on career break the individual remains subject to the normal rules applying to civil servants and, in particular, the conditions of service relating to conduct, financial affairs, political activities and outside appointments. Disciplinary action may be taken against anyone on career break. Paragraph 17.19 states that in a redundancy or early severance situation, the individual on a career break will be considered under the same terms as serving members of staff.

 

The career break policy including the following:-

 

"17.24 You will not normally be posted back to your former post/location, but to vacancies as and when they arise. This will usually be in your former department or the equivalent department following any restructuring or reorganisation. Every effort will be made to ensure that you return to a post within your substantive grade/pay range, although you may be required to serve in a lower grade post on a temporary basis until a suitable posting in the substantive grade can be found. Pay would relate to the substantive grade initially, but would be on a mark-time basis until a suitable vacancy in the substantive grade is available.

 

17.25 Departments will endeavour to reabsorb their own staff. If, exceptionally, this is not possible within a reasonable period of time, Departmental HR may negotiate with any departments that have vacancies.

 

17.26 Where a suitable post is not available you may, with the agreement of Departmental HR take up alternative salaried or wage earning employment within Northern Ireland, on a temporary basis, until a suitable post becomes available either in the substantive grade or the lower grade.

 

17.27 For details of salary assessment on return to work refer to the HR Handbook (see section 8.23 of the policy Pay on Return from Career Break).

 

17.28 A new posting on return to duty will be regarded as a voluntary transfer. Departments will normally only meet expenses incurred where you would have been redeployed or permanently transferred had you remained in work".

 

(iii) Kerry Stanley wrote to the claimant on 4 December 2012 in the following terms:-

 

"4 December 2012

 

Dear Carol

 

Re: Return from Career Break

 

I refer to your further correspondence to Chris Wilson dated 22 November 2012 in relation to returning to the Department from a Career Break, your letter has been passed to me for a response.

 

I will respond to each of the queries as you have raised them.

 

1.             In relation to your request for a written statement from the Department advising that your Career Break is being extended indefinitely. I can confirm that your Career Break has been extended until such time as a suitable post is identified in order to enable you to return from Career Break. I would want to assure you that the Department will continue to actively seek to identify a suitable post and will contact you whenever one becomes available.

 

2.             Turning to your query in relation to the section of the HR Handbook which states that the substantive or lower grade on return from career break must be the same discipline. As previously advised, following your original request to return from Career Break to a lower grade, the Department sought advice from Corporate HR and their advice was that in order to return from Career Break into a lower grade, this must be within the employee's own discipline. This in your case would be to the TG1 grade within the Planning discipline.

 

3.             The Department notes your request to apply for lateral transfer into a Scientific Officer or Mapping and Charting Officer post. In order to be considered for lateral transfer to another discipline you will need to be interviewed by an assessment panel and the Department is currently looking into this. In terms of a return to an Admin post, you have already been advised that the current Regrading Scheme does not permit P&T Planners to regrade at a lower grade to the general service EOII. However, if you wish to regrade to the general service grades you will need to apply for regarding opportunities at EOI grade which are circulated by the Department as opportunities arise.

 

4.             The Department also notes that you are willing to downgrade, in order to be able to return from Career Break. However, as you have already been made aware, there are currently no vacant TG1 posts within the Planning discipline for you to return to and as I have said above, the current Regrading scheme does not permit P&T Planners to regrade at a lower grade in the general service discipline.

 

5.             In terms of the fifth and sixth points you have raised, in terms of any benefits you may be entitled to, this would be a matter for you to raise with the Department of Social Development. However, as your employment with the NICS has not been terminated, you will not be issued with a P45. In addition, whilst you may find alternative employment on a temporary basis, the Department will still continue to actively seek to identify a suitable post to enable you to return to the NICS. I would also want to assure you that in the event of any kind of redundancy situation, staff on career break will not be treated any more detrimentally than their PTO colleagues.

 

I trust this clarifies the position.

 

Yours sincerely"

 

(iv) The tribunal reminded itself of the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision of Stephen William Nelson v Newry and Mourne District Council (2009) NICA 24. At paragraph 245 of his judgment he states:-

 

"This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v The Chief Constable (2009) NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination".

 

(v) In the period between 2002-2006 the Planning Service within the DOE was dealing with an unprecedented growth in the number of planning applications which generated substantial fee income. From 2007-2008 onwards the applications dramatically reduced from 36,000 to 18,000 per annum. However salaries for staff and overheads did not reduce and in fact kept rising. This led to a critical situation within the DOE. Christopher Wilson prepared a review as a matter of urgency into Planning Service operating costs. His report, produced in April 2010, states at paragraph 1.4:-

 

"The estimated shortfall of Planning Service funding based on current costs and staffing levels is £9.02m (including an estimated 2009 pay uplift) and includes a shortfall in planning receipts of £6.4m and funding required for planning reform/RPA of £1.4m. Allowing for partial achievement of the saving from the November 2009 review, this still leaves an estimated shortfall in 2010-2011 of c £8.27m".

 

(vi) Christopher Wilson's report also recommended urgent action to reduce staffing numbers in Planning Service by around 270 across the Professional and Administrative disciplines. This included 51 PTO grade staff. The claimant was employed as a Professional and Technical Officer in the Planning Service ("PTO"). During her career break her post had effectively disappeared. She was not in the head count of staff affected by the recommendations in Christopher Wilson's report and was therefore not considered as being included in the 51 PTO staff. The claimant had previously taken a career break in July 2006 and was familiar with the policy relevant to career break staff at that time. In 2007 she was facilitated in returning to a vacant post in Coleraine after that career break. It was also possible to facilitate the claimant's return to work in September 2008 following maternity leave. However the circumstances pertaining in 2012 were radically different.

 

(vii) By formal notice of intention dated 7 August 2012, the claimant sought an early return from her career break. Human Resources contacted her on 24 August 2012 stating that they could not accommodate her return as there was a PTO surplus and referred to the fact that her career break was due to end on 14 November 2012. The claimant was allowed to seek paid employment elsewhere outside the Northern Ireland Civil Service. She was also permitted to seek regrading under a special scheme devised for lateral movement of staff to analogous EO1 grades, pending a suitable post becoming available for her. The claimant ultimately found a post in DAERA's Marine Department working in Belfast two days per week and in Portrush three days per week. The tribunal does not accept the claimant's contention that her substantive PTO planning post is the same as an EO1 post, as the latter is designated by DAERA as an analogous grade. This is particularly important in the context of the regrading scheme in operation at the material time which enabled a PTO in Planning Service, such as the claimant, to laterally transfer to an analogous EO1 post. Furthermore, it was clear to the tribunal that a PTO such as the claimant, could not be downgraded to a lower post except within her own professional discipline. The claimant contended that she had passed the competencies test in relation to an application for a Higher Scientific Officer post and, this being the case, she ought to have been provided with a Scientific Officer's post. However, the plain fact is that the claimant achieved 249 marks in her application for the Higher Scientific Officer post, whereas the required mark was 252. This meant that she could not be considered for the Scientific Officer post in the way she envisaged.

 

(viii) During the claimant's time on the relevant career break DAERA had to continue to deal with the critical situation which had arisen. Staff were being loaned to other Departments and seconded in order to minimise the risk of any redundancies. They could also avail of the regrading scheme and other opportunities arising. Staff on a career break are considered as permanent employees. However, they were clearly not part of the headcount for in-year budgetary purposes and could only be offered a new post when a Department had a suitable funded vacancy. The tribunal again reminded itself of paragraph 17.24 of the career break policy which states:-

 

"You will not normally be posted back to your former post/location but to vacancies as and when they arise. This will usually be in your former Department or the equivalent Department following any restructuring or reorganisation. Every effort will be made to ensure that you return to a post within your substantive grade/pay range, although you may be required to serve in a lower grade post on a temporary basis until a suitable posting in the substantive grade can be found. Pay would relate to the substantive grade initially, but would be on a mark-time basis until a suitable vacancy in the substantive grade is available".

 

(ix) There is no satisfactory evidence before the tribunal to undergird the claimant's contention that she ought to have been facilitated in a suitable post within two to three months following the end of her career break.

 

(x) There is no evidence before the tribunal that male and female staff are not treated the same whilst on career break or that following their career break, policies are applied in a discriminatory way on the ground of sex. In the period between April 2008 and January 2016 there were 73 staff in DOE on career breaks - 42 female and 31 male. During this time, two male Administrative Officers, one male Higher Scientific Officer and a female Officer in Planning were unable to return to work when requested.

 

(xi) In relation to her indirect discrimination claim, the claimant referred to a number of individuals across various disciplines who had been on career breaks and suggested that 69% of these were female. Part of her case was that the concept of a "voluntary transfer" in paragraph 17.28 of the career break policy was indirectly discriminatory against females. However, the tribunal is not satisfied that the claimant has established a correct pool for comparison in relation to her indirect discrimination claim. It accepts that the submissions made on behalf of the respondents are correct in relation to the pool for comparison, ie, PTO staff within the Planning Department on career breaks, comprising two male members of staff who did not return to work, one female who did not return and two females who did return, one of whom was the claimant. This is a pool in which the specificity of the claimant's allegations of indirect sex discrimination can be realistically tested.

 

(xii) In the period from 8 October 2013 (when the claimant obtained a PTO post) and the date of presentation of her claim to the tribunal, on 11 June 2015, the claimant's indirect discrimination claim is solely in the context of her claim for excess fares allowances ("EFA") for which she also made a claim under Article 45ff of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order"), for unlawful deductions from wages.

 

(xiii) In the period before 8 October 2013 the claimant had also applied for an externally advertised post as a Mapping and Charting Officer. This was a fixed-term position for two years. However, under section 5.4 of the recruitment policy and procedure's manual, staff employed on permanent contracts within the Northern Ireland Civil Service are not eligible to apply for temporary posts for any grade within NICS. In any event should the claimant be permitted to apply for such a post, and be successful, she would have had to resign from her substantive PTO post. As it happened, the claimant and two male applicants were rejected for this post.

 

(xiv) In or about September 2014 the claimant made a claim for fare EFA as she was working two days in the Marine Division in Belfast and was living in Portstewart. This application was approved on 12 September 2014. However, on 22 October 2014, the claimant was informed by Colette Jones that she had no entitlement to EFA. The claimant explained her claim for EFA in an email to Colette Jones on 24 October 2014 as follows:-

 

"Colette

 

It was my understanding from our telephone conversation yesterday that you considered that I had not transferred to Marine Division and that I had instead taken up a new post. However, in the career break section of the handbook, section 17.28 states that 'A new posting on return to duty will be regarded as a voluntary transfer'. Upon reading this it is clear that I have been transferred.

 

Section 17.28 also states that Departments will normally only meet expenses incurred where you would have been redeployed or permanently transferred had you remained in work.

 

Other staff who remained in work were transferred to various posts in different business areas. At the time of reassigning these members of planning service staff, the staff were clearly informed that their transfers were compulsory to meet business needs. The Department sought volunteers to make these compulsory moves. Staff were clearly informed that although they were volunteering, their 'voluntary transfers' were being treated as compulsory. Excess fares would be paid, since the moves truly were compulsory in order to meet operational needs.

 

The post I transferred to in Marine Division was a new post at PTO level. At that time, the DOE had (i) a surplus of PTO staff in planning service posts and (ii) no other PTO Planners awaiting to return from career break.

 

I therefore consider that had I not been on career break, then the [sic] my new post would have been filled by means of staff transfer. I accordingly refer back to the second part of section 17.28 and ask you to reconsider my claim for expenses to be paid as had I not been on career break, my post would have been filled by transfer to meet operational need.

 

Given the requirement for equity in the treatment of staff, I feel I should be treated in the same manner as other staff who transferred to meet operational need:

 

1. I should be entitled to excess fares and

 

2. I should be regarded and treated in the same way as the other planners working within the Marine Plan team, when it comes to the SPS.

 

I shall appreciate your response.

 

Carol"

 

(xv) Paragraph 17.28 of the career break policy states that a new posting on return to duty will be regarded as a voluntary transfer and that Departments will normally only meet expenses incurred where staff would have been redeployed or permanently transferred had they remained in work. There was absolutely no evidence to suggest that the claimant would have been redeployed or permanently transferred had she remained in work. Indeed other PTO staff in the Coleraine Planning Office where the claimant worked prior to her career break were still in post during her career break. The tribunal is satisfied that her new posting commencing on 8 October 2013 was a voluntary transfer and that she was not entitled to EFA.

 

(xvi) The tribunal was aware that the claimant further challenged DAERA's refusal to pay EFA, and considered the relevant correspondence between September 2014 and the presentation of her claim to the tribunal, during which time the claimant also lodged a grievance, which was ultimately unsuccessful. Debbie Smith carried out a re-evaluation of her claim for EFA and emailed the claimant on 13 March 2015. The email includes the following:-

 

"I note that you have not contested that a new posting on return from career break will be regarded as a voluntary transfer, and so it is considered that your transfer to Marine Division was on a voluntary basis.

 

I have carefully considered, however, the sentence you have referred to, that Departments will normally only meet expenses incurred where you would have been redeployed or permanently transferred had you remained at work.

 

Unfortunately, there is no evidence to suggest that you would definitely have been redeployed or permanently transferred had you remained in work - this is because when you returned from career break, other PTOs who were in post during the time you took your career break were still in post, unless they opted to regrade.

 

You are therefore not entitled to payment of Excess Fares allowance for the period 8 October 2013 to 30 November 2014.

 

I will instruct HR Connect to continue to recover the amount over paid".

 

(xvii) In response to an email dated 24 March 2015 from Ina Heikkinen, Payroll, HR Connect, Debbie Smith replies:-

 

"Carol Molyneaux has again queried her entitlement to excess fare allowance.

 

However, she has been advised by DOE HR today that she is definitely not entitled to excess fare[s] allowance, and so please proceed to recover the amount of excess fares already paid".

 

The claimant agreed to the recovery of the EFA which had been paid. A recovery agreement form was forwarded to the claimant on 2 April 2015. An email from Ina Heikkinen of Payroll, HR Connect, to Debbie Smith on 20 April 2015 confirms that a recovery of the overpayment had been agreed with the claimant over a period of two months. These recovery amounts cannot be considered as unlawful deductions from wages under Article 45ff of the 1996 Order.

 

(xviii) The claimant lodged her grievance regarding her EFA claim on 28 April 2015 advising, according to paragraph 159 of her witness statement, that she believed the policy application and the policy itself to be discriminatory. She ends an email to Debbie Smith dated 28 April 2015 as follows:

 

"I therefore restate that my transfer was for operational business reasons and not voluntary and request that a full and complete consideration be given to this case. In addition, I feel that the particular policy being applied from the NICS handbook is unfair and indirectly discriminates against women as they make up the biggest proportion of career break returners. With regard to this, I am taking this matter further".

 

(xix) The claimant who is an intelligent individual holding a PhD in Geography, had evidently sought advice from NIPSA and the Equality Commission. However no satisfactory evidence regarding the precise nature of any such advice was placed by the claimant in her evidence before the tribunal. The claimant challenged parts of the career break policy, the redeployment policy, the EFA policy, the application of the vacancy management policy, the application of the recruitment policy, and the practice of permanently removing the permanent positions of career break staff in an effort to reduce the Department's pay bill and not reinstating these posts when a career breaker is due to return, as elements to be included in her indirect sex discrimination claim. She contended that the PCP she relied on put women at a disadvantage, as significantly more women avail of career breaks than men. She further contended that due to childcare responsibilities there is an increased likelihood that females will take career breaks and therefore also be disadvantaged by the detrimental outworking of the policies. The claimant went on to assert in her written submissions that given the gender breakdown of the workforce, 40% more females take career breaks than would be expected and 39% less males take career breaks than would be expected. She asserted that the advantaged group is the remainder of the DOE workforce (51% male; 49% female) and the disadvantaged group are those who took career breaks (31% male; 69% female). She contended that the various policies hampered the career breakers likelihood of obtaining paid work.

 

(xx) The claimant also relied on the case of Hendricks v The Metropolitan Police Commissioner (2003) IRLR 96 to contend that there was an ongoing situation or continuing state of affairs in which she was treated less favourably on the ground of sex. The respondents contended that the claimant could not show that the claimed acts of discrimination were ongoing up to 3 months prior to her submitting her claim on 11 June 2015. Furthermore, in relation to EFA, the respondents contended that the claimant's interpretation of the limitation point would mean that time would not actually begin to run until such time as she had received the EFA monies claimed, as she would continue to feel aggrieved until such time as this occurred. The respondents further contended that the claims were each distinct and not continuing acts in any event.

 

(xxi) The tribunal reiterates that it is not satisfied that the claimant has any foundation for claiming EFA in the first place. In these circumstances it is also not satisfied that this could constitute part of an ongoing situation or continuing state of affairs, even though the claimant claimed as late as
28 April 2015, that the relevant policy was itself indirectly discriminatory against females. However, significantly, she also agreed to the recovery of an amount paid to her by DAERA pursuant to her initial claim for EFA in September 2014. In any event the tribunal is further satisfied, in relation to her unlawful deduction of wages claim, that the last possible deduction was in November 2014. The claimant also confirmed to the tribunal that after 8 October 2013, the only element in her indirect discrimination claim related to the non-payment of EFA.

 

Direct discrimination claim

 

(xxii) As a result of a Pre-Hearing Review held on 12 February 2016, the claimant was given leave to amend her claim against DAERA to include a direct sex discrimination claim. Her comparator relied upon was Andrew McGreevy who, like the claimant, was a PTO (Planning) based in Coleraine but who, unlike the claimant, had not taken a career break. Indeed, it was the claimant's own choice to take a career break between 2010 and 2012. She was clearly aware of the career break policy and had availed of its relevant provisions on a previous occasion when she had been facilitated in a return to work. However, in this instance, with such critical circumstances pertaining in the Planning Department, there were no funded vacancies for her to return to. She had to wait until a suitable funded vacancy had been identified. To suggest or imply that DAERA must reinstate career break staff to its payroll in the knowledge that there was no work available for the individual and no funding available for the post in question, is, in the tribunal's view, an unreasonable stance to adopt.

 

(xxiii) The tribunal found Christopher Wilson to be a credible and straightforward witness whose evidence was clear and precise. Andrew McGreevy was in a salaried post as a PTO (Planning) in Coleraine where a surplus had been identified. In or about June 2012 a business need had arisen for a PTO (Planning) in the Marine Division in Belfast. Andrew McGreevy was studying for an MSC which was deemed a relevant and related subject for the Marine post in Belfast. Moving Andrew McGreevy would reduce the number of surplus PTO planning posts in the DOE without increasing costs. This was at a time when the DOE was still running at a very considerable deficit. His transfer from the Coleraine Planning Office to the Marine Division post in Belfast therefore meant that there was one less PTO post in the Coleraine Planning Office but no increase in operating costs. The post in Coleraine ceased to exist. The claimant contended that EU funding had been made available for Andrew McGreevy's post in Belfast. However, as Christopher Wilson explained, this funding went into the overall budget deficit pool. Andrew McGreevy took up his duties in the new post on 22 October 2012, at a time at which the claimant was still on her career break, although having requested an early return by formal notice of intention on 7 August 2012. It follows that the claimant was also on her career break when the decision to transfer Andrew McGreevy was made. The claimant contended that there was still funding for the Coleraine post and she should have been placed either there or in the post filled by Andrew McGreevy in the Marine Division. However, the tribunal is persuaded by Christopher Wilson's evidence in relation to the reasons for Andrew McGreevy's placement in the Marine Division in Belfast.

 

(xxiv) The claimant also contended that Andrew McGreevy was moved on a voluntary basis from Coleraine to Belfast and received EFA whereas she was considered as not being entitled to EFA when she moved from Coleraine to Belfast in October 2013, also on a voluntary basis. The tribunal was shown a copy of the excess fares - eligibility criteria (interim guidelines) which emerged from an Establishment Officer's meeting on 16 May 2012. Correspondence from Leonard Brown of Corporate HR to Establishment Officers dated 31 May 2012, states that:-

 

"In order to qualify for excess fares, the Officer must be compulsorily transferred. The definition for a compulsory transfer is found in paragraph 9.6 of Chapter 9.01 of the HR Handbook:

 

"A transfer of a member of staff at the initiation of the Department to a new permanent station".

 

The correspondence goes on to state:-

 

"Based on this definition and on a previous exercise where Departments were consulted on what they considered to be qualifying moves for excess fares, the following would be an acceptable approach going forward:

 

1. Officers in the following categories will not be eligible to apply for EFA reimbursement if they:

 

•          voluntarily initiated a transfer, ie, a transfer initiated by the Officer such as requesting a career development move, and elective transfer, or a change in working pattern which can be accommodated only by a location move; ... in terms of the process it is up to the Line Manager to assess the application and decide in line with the policy. This is then processed by HR Connect to verify if the application has been correctly authorised and was submitted on time".

 

(xxv) There is no satisfactory evidence before the tribunal that Andrew McGreevy's placement could be regarded as a voluntary transfer, nor, given the foregoing findings of fact, can the relevant circumstances in the claimant's case be considered as being "the same or not materially different", from those relating to Andrew McGreevy.

 

(xxvi) The claimant adopted her schedule of loss as part of her evidence before the tribunal. She also confirmed that there was no claim for unpaid wages for the 11 month period between her return from the career break and commencement of new employment on the 8 October 2013.

THE LAW

 

Out of time issues

 

6. (1) Article 76 of the Sex Discrimination (Northern Ireland) 1976 ("the 1976 Order") provides that a claim must be presented to the tribunal within three months of when the act complained of was done. Article 76(5) provides that the 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.

 

(2) Harvey on Industrial Relations and Employment Law ("Harvey") states at Division L830-833 as follows:-

"(2)      Just and equitable extension of time

 

[830]

 

The tribunal has a broad discretion to extend the time limit where it considers it 'just and equitable' so to do; EqA 2010 s 123(1)(b). (See PI [277].) This formula is much broader than the test for example in unfair dismissal claims where the relevant question is whether it was 'reasonably practicable' to have presented the claim within time, and the discrimination 'just and equitable test' allows consideration of circumstances which would not fall within the unfair dismissal test.

 

[831]

 

In claims before civil courts, s 33 of the Limitation Act 1980 provides that in considering whether to allow a claim which has been presented outside the primary limitation period to proceed, the court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular: (a) the length of and reasons for the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay; (c) the extent to which the party sued had co-operated with any requests for information; (d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and (e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action (see British Coal Corpn v Keeble [1997] IRLR 336, at para 8). In the context of the 'just and equitable' formula, the Court of Appeal in Southwark London Borough v Alfolabi [2003] IRLR 220, held that while these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case, 'provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion'

 

[832]

 

The following is a non-exhaustive list of factors which may prove helpful in assessing individual cases:

 

--    the presence or absence of any prejudice to the respondent if the claim is allowed to proceed (other than the prejudice involved in having to defend proceedings);

   

--    the presence or absence of any other remedy for the claimant if the claim is not allowed to proceed;

 

--    the conduct of the respondent subsequent to the act of which complaint is made, up to the date of the application;

 

--    the conduct of the claimant over the same period;

 

--    the length of time by which the application is out of time;

 

--   the medical condition of the claimant, taking into account, in particular, any reason why this should have prevented or inhibited the making of a claim;

 

--    the extent to which professional advice on making a claim was sought and, if it was sought, the content of any advice given.

 

Whichever factor is relevant to be taken into account, it must be responsible for causing the time limit to be missed, see for example, Hunwicks v Royal Mail [2007] All ER (D) 68 (Jun), a DDA 1995 case, in which it was held that incorrect legal advice was not a good reason for extending time because that advice had been received after the time limit had already expired and did not therefore cause it to be missed. (See also Wright v Wolverhampton City Council UKEAT/0117/08, [2009] All ER (D) 179 (Feb), EAT.)

 

[833]

 

There is no presumption that a tribunal should exercise its discretion to extend time, and the burden is on a claimant to persuade the tribunal to exercise its discretion in their favour. In Robertson v Bexley Community Centre [2003] IRLR 434, Auld LJ held that 'the exercise of discretion is the exception rather than the rule'. While this principle has been echoed in other cases (see Department of Constitutional Affairs v Jones [2008] IRLR 128, and also in Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298, [2010] IRLR 327) it must not be overstated. An employment tribunal in Pathan v South London Islamic Centre UKEAT/0312/13 (14 May 2014, unreported) suggested that the result of Robertson was that the discretion to extend time would only be exercised in 'exceptional circumstances'. The EAT held that such an interpretation of Robertson was erroneous. HHJ Shanks held that 'it does not require exceptional circumstances: what is required is that an extension of time should be just and equitable'."

 

(3) In relation to an unlawful deduction from wages claim under Article 45ff of the 1996 Order, the claimant has three months to present a claim in the following circumstances as set out in Article 55(2):-

"(2) Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with:-

 

(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

 

(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received

 

(3) Where a complaint is brought under this Article in respect of -

 

(a) a series of deductions or payments, or

 

(b) a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53(1) but received by the employer on different dates,

 

the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

 

(4) Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable".

 

(4) The tribunal also considered the cases referred to in both parties written submissions appended to this decision in relation to all the claims. Specifically in relation to the claim under the 1996 Order, the tribunal considered the leading case of Palmer and Saunders v The Southend-on-Sea Borough Council [1984] IRLR 119. In that case it was held that the words "reasonably practicable" lies somewhere between reasonable on the one hand and reasonably physically capable of being done on the other. It further held that best approach is to read "practicable" as the equivalent of "feasible" and ask, "was it reasonably feasible to present a complaint to the Employment Tribunal within the relevant three months?"

 

(5) The test of reasonable practicability is identical to the test relating to unfair dismissal as set out in Article 145 of the 1996 Order.

 

(6) The case of Riley v 1. Tesco Stores Ltd and 2. Greater London Citizens Advice Bureau Services Ltd [1980] IRLR 103 CA, held that where an employee who presents his complaint of unfair dismissal out of time alleges ignorance of his right or of how and when he should pursue it, or is under some mistaken belief about these matters, an Industrial Tribunal must look at the circumstances of his ignorance or belief and any explanation that he can give for them, including any advice he took, and then ask itself whether the ignorance or mistake is reasonable on his or his advisers part, or whether it was his or his adviser's fault. If either was at fault or unreasonable, it was reasonably practicable to present the complaint in time. When considering the effect of going to an adviser, the employee cannot necessarily prove that it was not reasonably practicable by saying that he took advice. The respondent's representative also referred the tribunal to the case of Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 CA, it was held that in deciding whether it was practicable for a complaint of unfair dismissal to be presented within the stipulated time period, the industrial tribunal should enquire into the circumstances and ask itself whether the claimant or his advisers were at fault in allowing the time period to pass by without presenting the complaint. If either were at fault, then it could not be said to have been impracticable for a complaint to have been presented in time.

 

(7) In the case of Robinson v Dr Bowskill and six others practising as Fairhill Medical Practice (UKEAT/0313/12/JOJ) His Honour Jeffrey Burke QC (referring inter alia to the case of Virdi v Commissioner of Police of the Metropolis and Central Police Training and Development Authority (Centrix), (UKEAT4373-06-1810), states at paragraph 49 of his judgment:-

 

"It is clear from Virdi and authorities before and since Virdi that where the case of a claimant who seeks an extension of time is that he or she put the claim into the hands of a solicitor or experienced representative, the claimant is putting forward an explanation which is capable of being a satisfactory explanation for delay in the presentation of the claim"

 

Direct and indirect discrimination on the ground of sex

 

(8) Article 3 of the Sex Discrimination (Northern Ireland) Order 1976 ("the Order") provides as follows:-

 

"(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".

 

Article 8 of the Order provides as follows:-

 

"8.―(1) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman―

 

(a) in the arrangements he makes for the purposes of determining who should be offered that employment, or

 

(b) in the terms on which he offers her that employment, or

 

(c) by refusing or deliberately omitting to offer her that employment.

 

(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".

 

BURDEN OF PROOF REGULATIONS

 

7. Article 63 A of the Order states:-

 

"(2) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that respondent -

 

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or

 

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act".

 

(i) In Igen Ltd (formerly Leeds Carers Guidance) and Others -v- Wong, Chamberlains Solicitors and Another -v- Emokpae; and Brunel University -v- Webster (2006) IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. This guidance is now set out at Annex to the judgment in the Igen case. The guidance is not reproduced but has been taken fully into account.

 

(ii) The tribunal also considered the following authorities, McDonagh and Others -v- Hamilton Thom Trading As The Royal Hotel, Dungannon (2007) NICA, Madarassy -v- Nomur International Plc (2007) IRLR 246 ("Madarassy"), Laing -v- Manchester City Council (2006) IRLR 748 and Mohmed -v- West Coast trains Ltd (2006) UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer's explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

 

"The Court in Igen -v- Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal "could conclude" that on the balance of probabilities the respondent had committed an unlawful act of discrimination.

 

"Could conclude" in S63A(2) must mean that "a reasonable Tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of inadequate explanation" at this stage......., the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complaint were of like with like as required by S5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment".

 

(iii) The tribunal received valuable assistance from Mr Justice Elias' judgement in the case of London Borough of Islington v Ladele & Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41, which read as follows:-

 

"Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

 

(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 - 'this is the crucial question'. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

 

(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.

 

(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:

 

'Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.'

 

If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.)

 

(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:

'it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.'

 

Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discrimination explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

 

(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

 

(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10.

 

(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ahsan [2008] IRLR 243, a case of direct race discrimination by the Labour Party. Lord Hoffmann summarised the position as follows (paragraphs 36-37):

 

'36. The discrimination ... is defined ... as treating someone on racial grounds "less favourably than he treats or would treat other persons". The meaning of these apparently simple words was considered by the House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:

 

(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the "statutory comparator") actual or hypothetical, who is not of the same sex or racial group, as the case may be.

 

(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant ...

 

(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the "evidential comparator") to those of the complainant and all the other evidence in the case.

 

37. It is probably uncommon to find a real person who qualifies ... as a statutory comparator. Lord Rodger's example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are "materially different" is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.'

 

The logic of Lord Hoffmann's analysis is that if the tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator. This chimes with Lord Nicholls' observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was. Accordingly:

 

'employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was' (paragraph 10).

This approach is also consistent with the proposition in point (5) above. The construction of the statutory comparator has to be identified at the first stage of the Igen principles. But it may not be necessary to engage with the first stage at all'".

 

(iv) The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

 

"This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination".

 

Again, at paragraph 28 he states in the context of the facts of that particular case, as follows:-

 

"The question in the present case however is not one to be determined by reference to the principles of Wednesbury unreasonabless but by reference to the question of whether one could properly infer that the Council was motivated by a sexually discriminatory intention.  Even if an employer could rationally reach the decision which it did in this case, it would nevertheless be liable for unlawful sex discrimination if it was truly motivated by a discriminatory intention.  However, having regard to the Council's margin of appreciation of the circumstances the fact that the decision-making could not be found to be irrational or perverse must be very relevant in deciding whether there was evidence from which it could properly be inferred that the decision making in this instance was motivated by an improper sexually discriminatory intent. The differences between the cases of Mr Nelson and Ms O'Donnell were such that the employer Council could rationally and sensibly have concluded that they were not in a comparable position demanding equality of disciplinary measures.  That is a strong factor tending to point away from a sexually discriminatory intent.  Once one recognises that there were sufficient differences between the two cases that could sensibly lead to a difference of treatment it is not possible to conclude in the absence of other evidence pointing to gender based decision-making that an inference or presumption of sexual discrimination should be drawn because of the disparate treatment of Ms O'Donnell and Mr Nelson".

 

(v) In relation to the comparator issue, the tribunal took into account the decision in Macdonald (Appellant) v Advocate General for Scotland (Respondent) Pearce (Appellant) v Governing Body of Mayfield Secondary School (Respondent) [2003] IRLR 512 HL, which held that the "relevant circumstances" for the purpose of the comparison are those which the alleged discriminator takes into account when deciding to treat the woman or the man as he does. If the relevant circumstances are to be "the same or not materially different", within the meaning of S5(3), all the characteristics of the complainant which are relevant to the way his case was dealt with must be found also in the comparator. They do not have to be precisely the same, but they must not be materially different. That is the basic rule, if one is to compare like with like. Characteristics that have no bearing on the way the woman was treated can be ignored, but those that do have a bearing on the way she was treated must be the same if one is to determine whether, but for her sex, she would have been treated differently.

 

(vi) In relation to the burden of proof in indirect discrimination cases, useful guidance is to be obtained from the case of Nelson -v- Carillion Services Ltd (2003) IRLR 428 CA, where Simon Brown LJ reviewed the state of the law in light of the changes made by the 2001 Regulations and concluded:

 

"It seems to me tolerably clear that the effect of S.63A was to codify rather than alter the pre-existing position established by the case law. The burden of proving indirect discrimination under the 1975 Act was ... always on the complainant, and there pursuant to S.63A it remains, the complainant still having to prove facts from which the Tribunal could conclude that he or she has been unlawfully discriminated against "in the absence of an adequate explanation from the employer". Unless and until the complainant establishes that the condition in question has had a disproportionate adverse impact upon his/her sex the Tribunal could not in my judgement, even without explanation from the employer, conclude that he or she has been unlawfully discriminated against".

 

However, there is little guidance from the authorities as to how precisely the burden of proof operates in indirect discrimination cases.

 

(vii) Harvey on Industrial Relations and Employment Law ("Harvey") comments in Volume 2 at L [193] as follows (in relation to the Nelson-v-Carillon Services Ltd case (Supra)):-

 

"That view of the limited impact to be accorded to S3A in relation to indirect discrimination contrasts with the much wider scope which the provision has been seen to have when it comes to the drawing of inferences of direct discrimination ... Whatever the precise scope of S63A, claimants remain under an obligation to bring to the tribunal some evidence in support of allegations of disproportionate impact, and this will usually involve both the use of statistics and the concept of a "pool" of affected individuals, real or hypothetical, to test the consequences of the provision, criterion or practice which is being subjected to scrutiny".

 

(viii) The tribunal considered the implications arising from the case of Rutherford & Another -v- Secretary of State for Trade and Industry (No. 2) (2006) UKHL19, [2006] IRLR 551 and in particular the judgement of Baroness Hale at paragraph 72 where she states:-

 

"It is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and the disadvantaged groups. So it is no answer to say that the rule applies equally to men and women, or to each racial or ethnic or national group, as the case may be. The question is whether it puts one group at a comparative disadvantage to the other. However, the fact that more women than men, or more whites than blacks, are affected by it is not enough. Suppose, for example, a rule requiring that trainee hairdressers be at least 25 years old. The fact that more women than men want to be hairdressers would not make such a rule discriminatory. It would have to be shown that the impact of such a rule worked to the comparative disadvantage of would-be female or male hairdressers as the case might be".

 

(ix) The tribunal carefully considered the relevant section in Harvey on indirect discrimination at L [171] ff. It also took into account Lord Justice Sedley's judgement in the case of Grundy -v- British Airways Plc [2007] EWCA Civ 1020, [2008] IRLR 74, where, in relation to establishing a pool, he states at paragraph 27:-

 

"The correct principle, in my judgement, is that the pool must be one which suitably tests the particular discrimination complained of: but this is not the same thing as the proposition that there is a single suitable pool for every case. In fact, one of the striking things about both the race and sex discrimination legislation is that, contrary to early expectations, three decades of litigation have failed to produce any universal formula for locating the correct pool, driving tribunals and courts alike to the conclusion that there is none".

 

He continues in paragraphs 30 and 31 to state:-

 

"The dilemma for fact-finding tribunals is that they can neither select a pool to give a desired result, nor be bound always to take the widest or narrowest available pool, yet have no principle which tells them what is a legally correct or defensible pool ... Rutherford (No.2) seems to me to be a striking illustration of Lord Nicholls' proposition that the assessment of disparate impact is a question of fact, limited like all questions of fact by the dictates of logic. In discrimination claims the key determinant of both elements is the issue which the claimant has elected to pose and which the tribunal is therefore required to evaluate by finding a pool in which the specificity of the allegation can be realistically tested. Provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen. We do not accept that Rutherford is authority for the routine selection of the widest possible pool; nor therefore that any question arises of "looking at" a smaller pool for some unspecified purpose short of determining the case".

 

(x) In relation to the aspect of justification, the tribunal considered the paragraphs in Harvey at L [207] to [214] and the relevant cases referred to therein beginning with the decision of the European Court of Justice in Bilka-Kaufhaus GmbH -v- Weber Von Hartz 170/84 [1986] IRLR 317. In relation to the issue of proportionality it considered the case of Hardys and Hansons Plc -v- Lax [2005] EWCA Civ 846, (2005) IRLR 726, CA. As Harvey comments at L 213:-

 

"The Court held that there was no scope, in discrimination law, for a test based on "the band of reasonable responses which a reasonable employer would adopt" - ie the test for culpable unfairness in the law of unfair dismissal. The test, emphasised the CA, is what is objectively justified. The principle of proportionality requires the tribunal to take account of the reasonable needs of the business, but at the end of the day it was for the tribunal to make its own judgement as to whether the rule imposed was "reasonably necessary". It is not enough that the view is one which a reasonable employer could take". Harvey then continues to comment that "while this decision was given on the basis of the "old" (ie pre October 2005) definition of indirect discrimination, the reference to the principle of proportionality fits very well with the "new" test of justification "a proportionate means of achieving a legitimate aim". Unless and until superior courts indicate the contrary, it is thought it thus offers a reliable guide to how the new wording should be read".

 

(xi) The tribunal also reminded itself of the need, in an indirect discrimination case, for the claimant to identify precisely what the alleged provision criterion and practice ("PCP") is and when it applied to the claimant. The claimant has to show that the PCP applied to others in the same group at the same time and that they also were put to a disadvantage. An assumption is therefore made that the PCP applies to all but adversely affects a particular group. Ascertaining when the PCP applies affects:-

 

(a) the group allegedly suffering the disadvantage as circumstances may fluctuate and therefore timing is crucial.

 

(b)           Whether the claimant actually suffered a disadvantage.

 

(c)           The time limits and in particular if it is alleged that there was a continuous act, when that act was done.

 

In both direct and indirect discrimination cases a comparison of the cases of persons of different sex must be such that the relevant circumstances in one case are the same, or not materially different in the other (Article 7 of the Order). Moreover, Elias J made clear in the case of Ladele (supra) that any defence raised by a respondent to show that the PCP is a proportionate means of achieving a legitimate end must be subjected to "careful and sophisticated analysis".

 

(xii) The Court of Appeal in the cases of Essop v Home Office (2015) IRLR 724, and in Naeem v The Secretary of State for Justice (2016) IRLR 118, have held (subject to the Supreme Court's consideration of the cases) that consideration of a "particular disadvantage" requires an analysis of why the disadvantage has been suffered.

 

(xiii) As Harvey states at L311:-

 

"Under the traditional formulation of indirect discrimination one has to identify a pool, whereas now that is permissible but not mandatory".

 

SUBMISSIONS

 

8. The tribunal carefully considered the written and brief oral submissions from both parties together with the authorities referred in the written submissions which are appended to this decision.

 

CONCLUSIONS

 

9. The tribunal, having carefully considered the evidence together with the submissions and having applied the principles of law to the findings of fact, concludes as follows:-

 

(i) As reflected in the findings of fact, the tribunal is satisfied that on a proper interpretation of the relevant policy, the claimant is not entitled to EFA. The tribunal is satisfied that the claimant's claim for EFA in the sum of £2,221.48 relates to a period ending on 30 November 2014. She presented her claim to the tribunal on 11 June 2015. Furthermore, there cannot be a deduction if an individual is not entitled to the payment ( Camden Primary Care Trust v Atchoe (2007) EWCA Civ 716 CA). In any event the tribunal is satisfied that it was reasonably practicable in the sense that it was reasonably feasible for the claimant to present a claim to the tribunal within the relevant three month period. She had access to advice and guidance from NIPSA from in or around the end of her career break until dates in April and May 2015. It also appears that the claimant obtained advice from the Equality Commission regarding lodging a claim. The fact that she submits that she did not have the support of her union, and did not have the resources, either financial, emotional or mental, at the material time, to present a case to the tribunal, does not mean, in the absence of supporting evidence, including medical evidence, (and, if relying on any argument that any advisers were at fault, the nature of any such advice), that it was not reasonably feasible to present an unlawful deduction of wages claim within three months from the end of November 2014. Moreover the fact that the claimant paid back an amount paid to her in respect of EFA also militates against any argument that she was entitled to EFA in the first place. At the oral submission stage the claimant, upon enquiry from the tribunal, confirmed that she was not pursuing a claim for unpaid wages in the 11 month period preceding 8 October 2013, and any such claim is therefore withdrawn from before the tribunal, and accordingly dismissed.

 

(ii) In relation to the direct and indirect discrimination claims on the ground of sex, the claimant relied of the Court of Appeal decision in Hendricks v Metropolitan Police Commission (2003) IRLR 96, in which Mummery LJ stated as follows:-

 

"(The claimant) is entitled to pursue her claim beyond the preliminary stage on the basis that the burden is on her to prove either by direct evidence or by inference from primary fact that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of an act extending over a period ... the question is whether there is an act extending over a period as distinct from a succession of unconnected and isolated specific acts for which time would begin to run from the date when each specific act was committed".

 

Harvey on Industrial Relations and Employment Law ("Harvey") at T para 118.01 states as follows:-

 

"The Court of Appeal has cautioned tribunals against applying the concepts of 'policy, rule, practice, scheme or regime' too literally, particularly in the context of an alleged continuing act consisting of numerous incidents occurring over a lengthy period ( Hendricks v Metropolitan Police Comr [2002] EWCA Civ 1686, [2003] IRLR 96 at para 51-52). According to Mummery LJ, these terms were mentioned in the above authorities as examples of when an act extends over a period, and 'should not be treated as a complete and constricting statement of the indicia' of such an act. In cases involving numerous allegations of discriminatory acts or omissions, it is not necessary for a claimant to establish the existence of some 'policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken'. Rather, what he has to prove, in order to establish a continuing act, is that (a) the incidents are linked to each other, and (b) that they are evidence of a 'continuing discriminatory state of affairs'. This will constitute 'an act extending over a period'.

 

 

(iii) The direct discrimination claim involving Andrew McGreevy's post ought to have been presented to the tribunal within three months from 22 October 2012 when he took up his duties in the Marine Division in Belfast. The claimant's career break ended on 14 November 2012. The tribunal is not satisfied in all the circumstances of the case, that time should be extended on a just and equitable basis to enable the claimant to present a direct sex discrimination claim to the tribunal. Furthermore, according to her evidence, the claimant's claim for indirect discrimination relates in part, to the period from 14 November 2012 until she obtained a suitable post on 8 October 2013. Similar to the direct discrimination claims involving Andrew McGreevy's post, the claimant has not shown any adequate reason or reasons as to why she was unable to comply with the time-limits for presenting such a claim to the tribunal. The tribunal reiterates that she has not produced any medical evidence or evidence regarding the nature of advice from NIPSA or the Equality Commission if she is seeking to rely upon the fault of any advisors. The tribunal is therefore not satisfied, taking into account any additional relevant factors referred to in 7(2) above, that time should be extended on a just and equitable basis in either of these claims.

 

(iv) The nature of the claimant's indirect discrimination claim changed in the period from 8 October 2013 until 30 November 2014 as it related to her claim for EFA. The tribunal has already found that there is no foundation for her claim for EFA, and that she agreed for the recovery of an amount paid in error pursuant to her application in September 2014 for EFA. As was held in the case of Barclay's Bank v Kapur (1995) IRLR 87 CA, an unjustified sense of grievance is not a detriment. The fact that the claimant alleged that the policy relating to the voluntary transfer of individuals on a career break was indirectly discriminatory against females, does not in the tribunal's view, in itself justify an extension of time to enable an indirect discrimination claim to be brought in relation to EFA, against the background of the foregoing findings of fact.

 

(v) In light of the above analysis, the tribunal is satisfied that the claimant cannot show that the alleged acts of discrimination were ongoing up to three months prior to presenting her claim on 11 June 2015. The direct discrimination claim, the indirect discrimination claim preceding 8 October 2013, and the indirect discrimination claim linked to a claim for EFA, are each distinct and not continuing acts. They are not evidence of a 'continuing discriminatory state of affairs'. It is not reasonable for the claimant to expect that time should continue to run to enable her to present an indirect discrimination claim until she actually received EFA monies claimed. She was clearly informed as far back as 22 October 2014 that her application for EFA was refused. The fact that she continued to challenge DAERA's position regarding her claim does not assist her in alleging a continuing act, particularly as she agreed to pay back sums actually paid pursuant to her initial claim for EFA.

 

(vi) Apart from out-of-time issues, the tribunal is satisfied that the claimant has not proved facts from which the tribunal could conclude in the absence of an adequate explanation that unlawful direct discrimination has occurred on the ground of sex. The tribunal took into account the whole context of the surrounding evidence regarding Andrew McGreevy's post in the Marine Division in Belfast and considered the allegations of unlawful discrimination in the whole relevant factual matrix and stood back and focussed on the issue of discrimination. The tribunal is aware that direct evidence of discrimination is rare and the tribunal frequently had to infer discrimination from all the material facts. However, at the material time, the claimant cannot be considered as being in the same or similar circumstances as Andrew McGreevy. Unlike the claimant, he was in post and receiving a salary. He was also in a PTO planning post where a surplus had been identified. There was clearly an identified business need for a PTO planning post in Belfast. Andrew McGreevy was studying for an MSC which was relevant to the post in the Marine Division. Furthermore, his post in Coleraine was not backfilled. His move therefore reduced the number of surplus PTO planning posts in the DOE without increasing costs. The claimant was still on her career break at the material time of the commencement of his employment on 22 October 2012. In effect, her career break was extended until she took up a post on 8 October 2013, having pursued various avenues previously. DAERA has demonstrated to the tribunal objective non-discriminatory reasons as to why Andrew McGreevy was appointed. There is therefore no foundation for the claimant's allegation that her non-appointment to Andrew McGreevy's post in Belfast or being given the post he left in Coleraine (which no longer exists), was on the ground of sex.

 

(vii) Regarding the claimant's indirect discrimination claim, she has referred to the career break policy and a number of other policies referred to at 5(xix) above, to advance an argument that provisions, criterian or practices were such that there was a particular disadvantage for females when compared to men. However, the career break policy applies equally to men and women. There was no satisfactory evidence before the tribunal that a higher proportion of women than men had taken a career break. Such a career break is a matter of individual choice. The claimant has not established that a considerably higher proportion of women than men cannot comply with a provision, criterion or practice. She relied on an analysis of statistics across a wide range of disciplines. The tribunal is satisfied that the narrower pool identified in its findings of fact is the appropriate pool to be considered. This pool in itself does not advance the claimant's case. She chose to rely on statistical evidence to establish a pool and no alternative approach was suggested by her. The tribunal reiterates that in an indirect discrimination case, the claimant has to identify precisely what the alleged provision, criterion and practice ("PCP") is and when it applied to the claimant. The claimant has to show that the PCP applied to others in the same group at the same time and that they were put to a disadvantage. An assumption is therefore made that the PCP applies to all but adversely affects a particular group. Ascertaining when the PCP applies affects:-

 

(a) The group allegedly suffering the disadvantage as circumstances may fluctuate and therefore timing is crucial.

 

(b) Whether the claimant actually suffered a disadvantage.

 

(c) The time-limits and in particular if it is alleged that there was a continuous act, when that act was done.

 

(viii) In both direct and indirect discrimination cases a comparison of the cases of persons of different sex must be such that the relevant circumstances in one case are the same, or not materially different in the other. Elias J made clear in the case of Ladele (Supra) that any defence raised by a respondent to show that the PCP is a proportionate means of achieving a legitimate end must be subjected to "careful and sophisticated analysis".

 

(ix) Furthermore, in the indirect discrimination case, no actual comparator was identified by the claimant. Christopher Wilson referred to a number of comparators (three males and one female), excluding the claimant, who were not able to be returned at the intended end of their career breaks. The claimant has not established that she is part of a disadvantaged group for gender based reasons. She cannot therefore establish the first two elements under Article 3(2)(b)(i) and (ii) of the 1976 Order and it is therefore unnecessary for the tribunal to consider a justification argument.

 

(x) A similar analysis pertains to the quite separate indirect discrimination claim linked to EFA. The claimant has not established the first two elements required by Article 3(2)(b)(i) and (ii) of the 1976 Order and therefore, apart from the out-of-time issues, her claims of direct and indirect discrimination on the ground of sex, together with her claim for EFA and the associated indirect discrimination claim must fail, and are therefore dismissed.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 12, 13, 14, 15 and 20 September 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: