Brownlie,Duncan,Collins,Keegan,Gilpin vs Ministry of Justice,Department of Justice
| Jurisdiction | Northern Ireland |
| Judgment Date | 05 June 2017 |
| Docket Number | 00518/14IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Ministry of Justice,Department of Justice |
THE INDUSTRIAL TRIBUNALS
CASE REFS: 1910/12
518/14
1214/12
540/12
1953/12
CLAIMANTS: Hilary Keegan
Isobel Margaret Brownlie
Ruth Collins
William Kenneth Duncan
Philip Nigel Gilpin
RESPONDENTS: 1. Ministry of Justice
2. Department of Justice
DECISION
The unanimous decision of the tribunal is that the claimants have been unlawfully discriminated against by the respondents contrary to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (NI) 2000 and the Part-time Workers Directive 97/81 EC. Remedy will be determined at a separate remedy hearing.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Dr C Ackah
Ms F Cummins
Appearances:
The claimants were represented by Mr R Allen, Queen’s Counsel, and Mr A Colmer, Barrister-at-Law, instructed by O’Reilly Stewart, Solicitors.
The respondents were represented by Mr C Bourne, Queen’s Counsel, and Mr B Mulqueen, Barrister-at-Law, instructed by the Crown Solicitor’s Office.
Background
1. At the relevant times, the five claimants were salaried (not fee-paid) District Judges. They were appointed for open-ended terms.
2. At the relevant times, each of the claimants were also Deputy County Court Judges. They were appointed for fixed terms of three or five years which were renewed periodically.
3. Each of the claimants, while salaried District Judges, sat from time to time as a Deputy County Court Judge assisting the salaried County Court Judges in the conduct of County Court work.
4. While sitting as Deputy County Court Judges, each claimant continued to receive a salary as a District Judge. They did not receive any additional salary or payment in respect of the days when, for part of the day or for the whole day, they sat as Deputy County Court Judges.
5. Pension entitlement has accrued in respect of those days spent sitting as Deputy County Court Judges by reference only to the claimants’ District Judge salaries and not by reference to the higher salary payable to a County Court Judge or by reference to any daily fee calculated on the basis of that higher salary.
6. The claimants allege that the respondents have unlawfully discriminated against them, in respect of both salary and pension, accrual contrary to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (the 2000 Regulations) and the Part-time Workers Directive 97/81EC (the Directive).
7. The claimants have no current claims under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 or the Fixed Term Workers Directive 99/70/EC.
8. The only claim before this tribunal is the claim outlined in paragraph 6 above..
9. It has been agreed that this hearing shall proceed in relation to liability only.
10. The case-management process identified that there were four agreed legal issues to be determined by the tribunal. The first agreed legal issue was:-
“Whether or not the claimants were part-time workers within the meaning of Regulation 2(2) of the 2000 Regulations in their capacities as Deputy County Court Judges?”
11. The second agreed legal issue was:-
“Whether a salaried County Court Judge is a comparable worker in relation to a Deputy County Court Judge for the purposes of Regulation 2(4) of the 2000 Regulations?”
12. The third agreed legal issue was:-
“Whether the claimants have been subject to less favourable treatment when sitting as Deputy County Court Judges for the purposes of Regulation 5(1) of the 2000 Regulations?”
13. The fourth agreed legal issue was:-
“Whether, if there has been such less favourable treatment, the less favourable treatment has been on the ground that the claimants are part-time workers, for the purposes of Regulation 5(2)(a) of the 2000 Regulations?”
14. If the legal issues were to be resolved in favour of the claimants, the respondents did not wish to argue that any relevant treatment of the claimants had been objectively justified for the purposes of Regulation 5(2)(b) of the 2000 Regulations.
Procedure
15. Before the substantive hearing, the respondents conceded the third agreed legal issue. They accepted, if the first, second and fourth agreed issues were decided in favour of the claimants, that the claimants had been subjected to less favourable treatment for the purposes of Regulation 5(2)(a).
16. The witness statement procedure had been directed in the course of the case management discussions. The parties had therefore exchanged witness statements in advance of the hearing. Those witness statements were to take the place of oral evidence-in-chief. The intention was that each witness would swear or affirm to tell the truth, adopt their witness statement as their entire evidence-in-chief, and move immediately into cross-examination and brief re-examination.
17. Each of the claimants had provided a witness statement. On behalf of the respondents, Mr Peter Luney, Acting Chief Executive of the Northern Ireland Courts and Tribunal Service, and Mr Alistair Cook, Head of the Judicial Pay Team in the Ministry of Justice, had provided witness statements. Those witness statements had been exchanged with the claimants in accordance with directions.
18. On 27 March 2017 Judge Brownlie had exchanged an additional witness statement in response to the witness statements provided by the respondents.
19. In the substantive hearing, each of the claimants was cross-examined and re-examined.
20. Mr Peter Luney and Mr Alistair Cook were cross-examined and re-examined.
21. His Honour Judge McFarland also gave evidence and had provided a witness statement shortly in advance of the hearing. However, his evidence was not advanced on behalf of either the claimants or the respondents. His witness statement had been provided after the exchange of the parties’ witness statements and after the provision of the additional witness statement by Judge Brownlie. Those witness statements had been provided to him before he prepared his own witness statement.
22. Since Judge Brownlie had provided an additional witness statement and since His Honour Judge McFarland has provided a witness statement, both parties were permitted to adduce additional oral evidence in chief. In the event, only Judge Brownlie and Judge Gilpin gave additional oral evidence in chief.
23. The parties provided skeleton arguments before the hearing. Copies are annexed to this decision.
24. The evidence was heard on 26 – 27 April 2017.
25. The parties exchanged and provided to the tribunal written submissions by 8 May 2017. Copies are annexed to this decision. In their written submission, the respondents conceded the second agreed legal issue. They accepted that a Deputy County Court Judge does work that is broadly similar to that of a County Court Judge and that a County Court Judge was a proper comparator. That left only the first and the fourth agreed legal issues to be determined by the tribunal.
26. The tribunal heard oral submissions on 19 May 2017.
27. On 30 May 2017, counsel for the claimants alerted the tribunal to the...
To continue reading
Request your trial