Hamilton vs Department of Finance
| Jurisdiction | Northern Ireland |
| Judgment Date | 29 June 2009 |
| Respondent | Department of Finance |
| Docket Number | 00123/08IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 123/08
CLAIMANT: Elizabeth Hamilton
RESPONDENT: Department of Finance & Personnel
DECISION
The unanimous decision of the tribunal is that the respondent has established a genuine material factor defence for the purposes of the Equal Pay Act 1970 (as amended) and the claim for equal pay is therefore dismissed.
Constitution of Tribunal:
Vice President: Mrs Smyth
Members: Mr Killen
Ms Galloway
Appearances:
The claimant was represented by Mr M McEvoy, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.
The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by Department of Finance & Personnel.
- The claimant is a female security guard who has been paid on the SGB 2 pay band since she commenced employment as a security guard in the Northern Ireland Civil Service in September 1998. She compares herself with male security guards who are paid on the higher SGB 1 pay band. The respondent concedes that the claimant and her comparators do the same work and that the claimant is paid less. The issue for the tribunal to determine is:-
“Whether the respondent has established a genuine material factor defence for the purposes of Section 1(3) of the Equal Pay Act 1970.”
- The tribunal heard evidence from the claimant and from Mr Ryan Dobson, Ms Blathnaid Smyth, and Mr Chris McRoberts on behalf of the respondent. The tribunal also considered a bundle of agreed documents and bundles of authorities
- The tribunal found the following facts proved on a balance of probabilities:-
(3.1) In February 1998 there was a recognition that security guards who were paid at SGB 1 level (all of whom were male) had been incorrectly graded and an agreement was reached (hereinafter referred to as the ‘1998 Agreement’) between trade union and management sides that all security guards employed after February 1998 would be graded at the lower SGB 2 level. It was also agreed that the existing security guards would be ‘red-circled’ at SGB 1 level and continue to be paid at that grade. The claimant concedes that the decision to give those guards pay protection was motivated by the desire to preserve their contractual position and was not tainted by sex discrimination.
(3.2) The claimant was originally employed in the Northern Ireland Civil Service as a Civilian Search Officer at SGB 1 level until 27 January 1984 when she was retired on medical grounds.
(3.3) The claimant returned to work as a security guard in the Northern Ireland Civil Service on 21 September 1998 after sitting a medical assessment on 9 March 1998 when she was found to be fit to work, and attending an interview in July 1998.
(3.4) Documentation relating to the claimant’s application for reinstatement into the Northern Ireland Civil Service which predated the 1998 Agreement refers to the security guard post at SGB 1 level. However, all documentation which post-dated the Agreement, including the invitation to attend interview clearly refers to the post as SGB 2 level. The tribunal is satisfied that when the claimant accepted the offer of employment as a security guard she was aware that she would be paid at SGB 2 level.
(3.5) The claimant alleged in her witness statement that she had queried her pay banding with her line manager, Mr McRoberts, and was told that the other security guards were graded at SGB 1 following a red-circling exercise. However, in oral evidence, she corrected her statement and stated that she was told her post had been ‘downgraded’ and the term ‘red-circling’ had not been mentioned. Mr McRoberts accepted that the claimant had queried her grading, and that he had explained that security guards had been incorrectly graded at SGB 1 and a security guard employed post-February 1998 would be graded at SGB 2. The claimant further alleged that Mr McRoberts told her that her wages would eventually ‘catch up’ with the security guards who had pay protection. Mr McRoberts did not accept that he had made such an assertion and the tribunal is not satisfied that he did so in view of the clear evidence that the respondent never intended to reduce the differential in pay between the two grades.
(3.6) The tribunal accepts that after February 1998, all new security guard employees were graded at SGB 2, with the exception of Mr Topping, Mrs Burns, Mrs Whitley, Mr Mathieson and Mr McKee.
(3.7) The tribunal accepts Mr Dobson’s evidence that the reason Mr Topping was permitted to transfer from the post of messenger to the post of security guard at SGB 1 level in August 2000 was because Mr Topping had been off work on long-term absence following a complaint of sexual harassment against his line manager and an exception was made to facilitate Mr Topping’s return to work. Mr Topping’s substantive grade had been SGB 1 before the transfer.
(3.8) The tribunal also accepts Mr Dobson’s evidence that the reason Mrs Burns, Mrs Whitley, Mr Mathieson and Mr McKee were appointed security guards at SGB 1 grade after February 1998 was because each of them had applied for, and successfully obtained the post prior to the February 1998 agreement. However, they could not take up appointment until they were released from their own Departments. It was considered unfair in those circumstances to require them to take up the post at a lower grade from that which had been offered to them.
(3.9) The claimant was the first security guard appointed after the February 1998 Agreement and in accordance with the agreement she was graded SGB 2 level. She remained the only security guard at that grade until the next security guard was appointed on 6 August 2001. This guard was Mr Mahoney and it is significant that although he had held the grade of SGB 1 whilst a messenger, he was required to accept downgrading to SGB 2 level as a condition of transferring to the security guard discipline. Subsequently, Mr McMillen was also required to accept downgrading to SGB 2 level as a condition of transferring to this discipline.
(3.10) Since the claimant was appointed a security guard, all subsequent security guards have been male, with the exception of Ms Dunlop in 2004, and all have been appointed at SGB 2 level, apart from Mr Topping, Mrs Whitley, Mrs Burns, Mr McKee, and Mr Mathieson for the reasons already set out at Paragraphs (2.7) and (2.8) above.
(3.11) In October 2000, Central Personnel Group, which is a division of the respondent Department received a letter from Mary Donnelly from Establishment Branch of the Department of Education where the claimant was employed as a security guard. Mrs Donnelly queried the effect of the pay protection provided by the February 1998 Agreement in view of the fact that the claimant had raised the issue of equal pay. At that time the claimant was the only female security guard, and of the six security guards employed, four were graded at SGB 1, and two, including the claimant, were graded at SGB 2. In particular, Mrs Donnelly queried whether the intention of the agreement was that SGB 1 security guards would remain on that pay band indefinitely rather then move to SGB 2 pay band on a ‘mark time’ basis. Mrs Donnelly also queried whether an employee at SGB 1 grade in a different discipline who wished to transfer to the security guard discipline could do so at SGB 1 grade.
(3.12) In response, it was confirmed that the 1998 Agreement had the effect of ‘ring fencing’ the existing security guards who had been graded SGB 1 in error, so that they would be treated separately from all security guards employed thereafter. The response also confirmed that any employee who wished to transfer to the post of security guard would have to do so at SGB 2 level even if his/her substantive grade was SGB 1.
(3.13) The claimant raised a grievance regarding the differential in pay within the security guard discipline, stating her belief that her treatment amounted to unlawful discrimination and breach of the equal pay legislation. At the grievance hearing, Mr Dobson refused to discuss the equal pay case on the basis that it was ‘a legal matter’. An equal pay questionnaire had been sent out at this stage, although proceedings had not yet been lodged. Mr Dobson did however agree to deal with the grievance in terms of relevant Northern Ireland Civil Service procedures.
(3.14) On 9 January 2008, Mr Dobson responded in writing to the points made at the grievance hearing. He...
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