McGrath vs Department of Justice,Department of Finance
| Jurisdiction | Northern Ireland |
| Judgment Date | 25 July 2019 |
| Docket Number | 06490/17IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Department of Justice,Department of Finance |
THE INDUSTRIAL TRIBUNALS
CASE REF: 6490/17
CLAIMANT: Teresa Marie McGrath
RESPONDENTS: 1. Department of Justice
2. Department of Finance
DECISION
The unanimous decision of the tribunal is that
1. The claimant’s claim, pursuant to the Employment Equality (Age) Regulations (Northern Ireland) 2006, is dismissed.
2. The claimant was not directly discriminated against on the grounds of sex, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and the said claim is dismissed.
3. (i) The claimant has been engaged by the first respondent in like work with her comparators, MK and NMcS from on or about 7 October 2011, pursuant to Section 1(2)(a) and 1(5) of the Equal Pay Act (Northern Ireland) 1970, as amended.
(ii) The first respondent has not proved that the variation between the claimant’s contract and those of her said comparators, is genuinely due to a material factor which is not the difference of sex under Section 1(3)(a) of the Equal Pay Act (Northern Ireland) 1970, as amended.
(iii) The claimant’s claim against the second respondent, pursuant to the Equal Pay Act (Northern Ireland) 1970 is dismissed.
4. The first respondent is therefore in breach of the Equal Pay Act (Northern Ireland) 1970, as amended, and the claimant is entitled to equal pay. A Remedies Hearing will be arranged to consider any remedy to which the claimant would be entitled on foot of the said decision on liability for breach of the Equal Pay Act (Northern Ireland) 1970, as amended by the first respondent.
CONSTITUTION OF TRIBUNAL
Employment Judge: Employment Judge Drennan QC
Members: Mr D Walls
Mrs C Stewart
APPEARANCES:
The claimant was represented by Mr P. Lyttle, Queen’s Counsel and Ms S. Bradley, Barrister-at-Law, instructed by Worthingtons Solicitors.
The respondents were represented by Ms J. Simpson, Queen’s Counsel, and Mr M. McEvoy, instructed by the Departmental Solicitor’s Office.
REASONS
1.1 The claimant presented a claim to the tribunal on 5 October 2017, in which she made claims, against the respondents, pursuant to the Equal Pay Act (Northern Ireland) 1970, as amended, the Sex Discrimination (Northern Ireland) Order 1976 as amended, and the Employment Equality (Age) Regulations (Northern Ireland) 2006. The respondents presented a response to the tribunal denying liability of the said claims on 21 November 2017.
1.2 In the course of the tribunal’s normal Case Management procedures, the parties agreed a statement of legal and main factual issues (see later). However, at the conclusion of the substantive hearing, it was agreed by the representatives of the parties the claimant’s claims to be determined by the tribunal were as follows:-
(a) a claim for equal pay, pursuant to the Equal Pay Act (Northern Ireland) 1970, as amended;
(b) direct discrimination on the grounds of sex, pursuant to the Sex Discrimination (Northern Ireland) 1976, as amended.
The claimant, having not pursued at the hearing her claim of age discrimination, pursuant to the Employment Equality (Age) Regulations (Northern Ireland) 2006, the said claim is therefore dismissed.
It was further confirmed by the representatives of the claimant, during the course of the hearing, that the claimant’s claim was a claim of direct sex discrimination, pursuant to the sex discrimination (Northern Ireland) Order 1976, as amended and it was not a claim for indirect sex discrimination under the said Order.
1.3 At the commencement of the substantive hearing, it was agreed, and the tribunal so directed, that the tribunal should firstly consider the liability of the respondents in relation to the said claims of the claimant and, if necessary and appropriate, in light of the tribunal’s decision on liability, the matter would be relisted to consider any remedy to which the claimant would be entitled, on foot of the said decision.
1.4 It was not disputed by the representatives of the respondents that the respondents were vicariously liable for the actions of the employees of the respondents, the subject matter of these proceedings.
1.5 The tribunal heard oral evidence, on behalf of the claimant, from the claimant and Ms Brendan Donnelly; and, on behalf of the respondents, Ms Amanda Allaway.
2. THE RELEVANT LAW
A Equal Pay Act (Northern Ireland) 1970, as amended (1970 Act)
1. Requirement of equal treatment for men and women in same employment.
(1) If the terms of a contract under which a woman is employed at an establishment in Northern Ireland do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.
(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) the contract under which a woman is employed (“the woman’s contract”), and has the effect that –
(a) where the woman is employed on like work with a man in the same employment –
(i) if (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term with the woman’s contract shall be treated as so modified as not to be less favourable, and
(ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefitting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term.
(b) where the woman is employed on work rated as equivalent with that of a man in the same employment –
(i) if (apart from the equality clause) any term of the woman’s contract determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and
(ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefitting that man included in the contract under which he is employed and determined by the rating of the work, the woman’s contract shall be treated as including such a term.
(c) where a woman is employed on work which, not being work in relation to which paragraphs (a) or (b) applies is, in terms of the demands made on her (for instance under such headings as effort, skills and decision), of equal value to that of a man in the same employment –
(i) if, (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable and
(ii) if, (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefitting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term.
(d) where –
(i) any term of the woman’s contract regulating maternity-related pay provides for any of her maternity-related pay to be calculated by reference to her pay at a particular time,
(ii) after that time (but before the end of the statutory maternity leave period) her pay is increased or would have increased had she not been on statutory maternity leave, and
(iii) maternity-related pay is neither what her pay would have been had she not been on statutory maternity leave nor the difference between what her pay would have been had she not been on statutory maternity leave and any statutory maternity pay to which she is entitled.
if (apart from the equality clause) the terms of the woman’s contract do not provide for the increase to be taken into account for the purpose of calculating the maternity-related pay, the term mentioned in sub-paragraph (i) above shall be...
To continue reading
Request your trial