Ennis,O'Gorman vs Northern Ireland Civil Service,Department of Finance,Office of the First Minister,Department of Justice
| Jurisdiction | Northern Ireland |
| Judgment Date | 14 December 2011 |
| Respondent | Northern Ireland Civil Service,Department of Justice,Office of the First Minister,Department of Finance |
| Docket Number | 01936/10IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1936/10
1992/10
CLAIMANTS: Lorraine Lynn Ennis
Fionnuala O’Gorman
RESPONDENTS: 1. Northern Ireland Civil Service
2. Department of Finance and Personnel
3. Office of the First Minister and the Deputy First Minister
4. Department of Justice
DECISION
The decision of the tribunal (Chairman Sitting Alone) is that the claimants’ terms and conditions of employment were not varied in breach of Regulation 4 of the Transfer of Undertakings (Protection of Employment) 2006 Regulations and the claimants did not suffer unauthorised deductions from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.
Constitution of Tribunal:
Chairman (Sitting Alone) : Ms J Knight
Appearances:
The claimants were represented by Mr Joe Kennedy, Barrister-at-Law, instructed by O’Reilly Stewart Solicitors
The respondents were represented by Mr Aidan Sands, Barrister-at-Law, instructed by the Departmental Solicitors Office.
Issues to be determined by the Tribunal:-
1. (a) Whether the respondent unlawfully varied the terms and conditions of the claimants’ employment contracts in breach of Regulation 4 of the Transfer of Undertakings (Protection of Employment) 2006 Regulations in removing the Information Officers’ Allowance and associated benefits and allowances.
(b) Whether there was an unlawful deduction from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.
Evidence
2. The tribunal heard the oral evidence of the claimants, Ms Lorraine Ennis and Ms Fionnuala O’Gorman, and witnesses for the respondent Mr Dennis Godfrey, Director of Communications NIO, Mr Colm Shannon, Deputy Director, Executive Information Service and Mrs Blaithnaid Smyth, Deputy Principal, Pay and Grade Unit, Corporate Human Resources. The Chairman also considered those documents to which she was referred during the course of the hearing. There was an agreed Schedule of Loss in respect of each claimant, subject to liability.
Reasons for Decision
3. The claimants are both grade B2 Information Officers (IOs) employed by the Office of the First Minister and Deputy First Minister (OFMDFM) in the Executive Information Services (EIS). Prior to the 12 April 2010, the claimants were both employees of the Department of Finance and Personnel (DFP) and were seconded to the Northern Ireland Office (NIO) to work in the Northern Ireland Information Service (NIIS).
4. The claimants took part in an out of hours rota with other IOs and Grade 1 Senior Information Officers (SIOs) in the NIIS. This involved working late shifts (from 11.00 am until 7.00 pm in the office and being on call on a pager until 9.00 am the next morning) and early shifts 8.00 am until 4.00 pm once or twice a week; working weekends (Saturday or Sunday 9 to 12 and being on call until 9.00 am the following morning) and the preparation of the Early Morning Digest (“EMD”) once or twice a month. Participants in the rota also worked two bank holidays per annum. The claimants received an out of hours allowance calculated at 17.5% of their gross salary (known variously as the “Press Officers Allowance”/”Information Officers Allowance”) together with a premium for weekend work. A breakfast allowance of £3.00 was payable on those occasions when preparing the EMD. Mrs Ennis also received a monthly allowance of £20 as a contribution towards the cost of her internet broadband which was installed when she became an IO for both work and personal use.
5. Historically only SIOs, a non overtime grade, were permitted to work on the rota and received the Information Officers’ allowance. IOs could claim an overtime payment for hours worked outside their “conditioned” or contractual hours. However in 2002, the three IOs then employed in the NIIS were included in the rota as insufficient numbers of SIOs remained in the NIO to operate the NIIS rota. It was agreed that they would be paid the 17.5% information officers’ allowance and would no longer be able to claim any other overtime or on call allowances.
6. Around this time the EIS set up its own separate rota to provide information services to the new devolved departments in the Northern Ireland Executive. In the EIS only SIO grades and above were permitted to work on the rota. They received the Information Officers’ allowance. There is a waiting list of SIOs waiting to get on the rota. The EIS and NIIS cooperated together to produce the EMD. The EIS had administrative responsibility for drawing up the EMD rota which included SIOs and IOs from NIIS and SIOs from the EIS.
7. On 12 April 2010, powers relating to policing and justice were transferred from the Northern Ireland Office to the Northern Ireland Executive at second stage devolution. In the run up to devolution all affected employees were informed that employees who transferred to a devolved department would not suffer detriment in their terms and conditions of employment. This was a protected transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE 2006”). Representations were made to the respondent by and on behalf of SIOs and IOs that they should be permitted to retain the Information Officers’ allowance after the transfer of their employment.
8. The employment of the claimants and other IOs and SIOs in the NIIS transferred from DFP to the Office of the First Minister and the Deputy First Minister (the “OFMDFM”) into the Executive Information Service (the “EIS”) from 12 April 2010. The claimants and other IOs were not included on the EIS rota. This was in line with EIS policy that only SIOs are permitted to work on its rota. The Information Officers’ allowance ceased to be paid to the claimants as of 1 May 2010. This has caused a significant reduction to the claimants’ income from their employment.
9. The claimants raised grievances that they had not been permitted after the transfer of their employment to remain on the out of hours rota, about the removal of the Information Officers’ allowance and associated allowances and that there had been a failure properly to consult with them individually about the impact of the transfer on their employment. The respondent rejected the claimants’ grievances at the initial stage and on appeal. The claimant’s lodged their originating complaints with the industrial tribunal alleging unlawful deduction from wages and breach of TUPE 2006. The claimants received information and documentation from the named respondents in response to requests made under the Freedom of Information Act.
10. The parties prepared a statement in advance of the Hearing showing those facts agreed and in dispute between the parties. The agreed facts between the parties are shown as follows in italics and copies of the documents referred to were contained in the Hearing bundle:
“Establishment of the Information Officer’s Allowance
1. On 3 July 1989 Dermott Thompson, Personnel Services Division in the NIO wrote to Mr A Heasley, Assistant Secretary of the trade union NI Public Service Alliance (NIPSA) formally confirming that an increased gratuity of 17.5% was to be paid to Deputy Principal Information Officers (Senior Information Officers) in the NIO with effect from 1 January 1989. The letter advised, “These payments are in recognition of those elements of these officers’ duties performed outside normal conditioned hours. That includes the rotas to cover early morning digest, on-call duties, work carried out at home or on return to the office outside normal hours. These are defined in more detail in the attached Appendix”. [ the Appendix referred to in this letter was not included in the Hearing Bundle].
- Several redacted e-mails refer to the genesis of the allowance one, dated the 7 August 2001, states that the allowance started in the early seventies because of the long hours and heavy workload faced by staff at the time. A further e-mail, dated the 31 August 2001, relates the payment of the allowance to the early/late hours associated with working in the press office
- On 6 December 2001, Dennis Godfrey, Deputy Director of Communications wrote to Dermot...
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