McLaughlin vs University of Ulster
| Jurisdiction | Northern Ireland |
| Judgment Date | 01 February 2011 |
| Docket Number | 04767/09IT |
| Court | Industrial Tribunal (NI) |
| Respondent | University of Ulster |
THE INDUSTRIAL TRIBUNALS
CASE REF: 4767/09
CLAIMANT: Rose Marie McLaughlin
RESPONDENT: University of Ulster
DECISION
The unanimous decision of the tribunal is that the equal pay claim under Section 1(2)(b) and (6) of the Equal Pay Act (Northern Ireland) 1970 (the rated as equivalent claim) is dismissed.
Constitution of Tribunal:
Vice President: Mr Noel Kelly
Members: Mr Norman Wilkinson
Mrs Theresa Madden
Appearances:
The claimant was represented by Mr Michael Potter, Barrister-at-Law, instructed by Thompsons Solicitors.
The respondent was represented by Mr John O’Hara, Queen’s Counsel, and Mr B Mulqueen, Barrister-at-Law, instructed by the University of Ulster Legal Service.
THE ISSUES
1. This is an equal pay claim in which the claimant alleges that she is doing work which has been rated as equivalent with that of her comparators and that she is doing work of equal value with that of her comparators. The respondent denies each claim and in the alternative argues that it has a genuine material factor defence for the purposes of the Equal Pay (Northern Ireland) Act 1970 (‘the Act’).
In the course of Case Management Discussions, it was decided that the rated as equivalent claim together with the genuine material factor defence to that claim should be heard first and this decision relates only to those issues. The issues for determination in this decision are therefore:-
(i) whether a document which was ‘leaked’ to Unite and which purports to show the scores awarded for certain bench marked posts under the HERA methodology, including the score awarded for the claimant’s post and for her comparators’ posts, should be admitted in evidence?
(ii) if so, whether on the basis of that leaked document the claimant should be regarded for the purposes of Section 1(6) of the Act as having been employed on work rated as equivalent to that of her male comparators?
(iii) if so, whether the respondent has established a genuine material factor defence to the rated as equivalent claim for the purposes of Section 1(3) of the 1970 Act?
THE HEARING
2. Over four days, the tribunal heard evidence from the claimant, Mr Richard Fox, the Chair of Unite in the UUJ, Mr James Shaw, a Unite shop steward who participated in the bench mark scoring exercise, Mr Ronnie Magee, the respondent’s Director of Human Resources, Ms Roisin Cowan, the respondent’s Human Resources Systems Manager and Mr Philip Perlan, an independent consultant who had been engaged by the respondent in relation to pay and grading. The tribunal was also taken through two lever arch folders comprising some 1,800 pages of documentation. The claimant and the respondent lodged written submissions. Copies of those submissions are appended to this decision. A panel meeting considered those submissions on 7 January 2011.
GENERAL BACKGROUND
3. There was no significant dispute between the parties as to the basic facts underlying this claim.
4. The respondent is a Higher Education Institution which at all relevant times employed both the claimant and the comparators who were named by the claimant for the purposes of her equal pay claim.
5. The claimant has been employed by the respondent since 19 November 2001. Her substantive post, at all relevant times, was Nursery Assistant. In November 2008 the claimant was temporarily promoted to Room Leader, the next highest post in the line management chain.
6. The comparators named by the claimant were security guards.
7. The relevant trade union during the build up to this claim was Amicus. Amicus later merged with another union to form Unite the Union and, for ease of reference, the trade union will be referred to as Unite throughout this decision.
8. Before April 2006, the respondent, like other Higher Educational Institutions in the UK, had a variety of separate grades which were each subject to separate national pay bargaining structures.
9. A National Framework Agreement (‘NFA’) had been negotiated between management and several trade unions, including Unite. It was published in July 2003. The NFA was intended to modernise pay arrangements throughout the Higher Educational Sector in the United Kingdom, and to achieve various aims, including ensuring equal pay for equal value.
10. The NFA proposed a single pay spine to cover all staff (with limited exceptions which are not relevant to this decision) previously covered by separate national pay bargaining structures.
11. The Framework Agreement provided that ‘every Institution covered by this agreement will adopt pay and grading structures which’ apply principles which inter alia , were described in the following manner:-
“Have been developed in partnership with the recognised trade unions, working to reach negotiated agreements on a timely basis.
Link with the nationally determined pay spine in a clearly defined rational and orderly manner.
Support the achievement of equal pay for work of equal value, with the application of pay points to staff being transparent, consistent and fair.
Base the allocation of staff to grades on the outcomes of job evaluation/role analysis arrangements which enable equitable, consistent and transparent judgements to be made about the relevant value or size of jobs, apply institution wide, covering all groups of staff, reflect the JNCHES guidance on job evaluation/role analysis, have been administered in consultation with the recognised unions, provide access to appropriate review procedures in the event of disputes about creating outcomes.
Have regard to the resources likely to be available to the institution.”
12. The proposed new national pay scale comprised 51 points. It was agreed between management and all the trade unions, including Unite, that this 51 point pay scale should be divided into nine separate grades.
13. The next issue to be agreed was the positions of the grade boundaries on that 51 point scale, ie the top and bottom points for each of the nine grades. In accordance with the NFA, the respondent decided to conduct a bench marking exercise in relation to certain posts. It was agreed between the respondent and all the trade unions that the bench mark posts would be placed on a pay spine in accordance with the bench mark scores awarded during the job evaluation exercise and that the non bench mark scores would then be matched with the bench mark posts and assimilated on to the new pay spine accordingly.
14. Two hundred and twenty-three representative posts including the claimant’s post and the posts of her comparators, were bench marked using the HERA methodology. That methodology will be described later in this decision.
15. When the results of the bench marking exercise started to come through, in the course of May 2006, the respondent was concerned that they did not demonstrate sufficient ‘grade clustering’. In other words the results emerging from the bench marking exercise demonstrated that different post holders, who were at that point on the same pay scales, were receiving significantly different scores when their posts were bench marked. The existing grading structure did not seem to reflect relative job weights to any significant degree and the respondent concluded that there was a significant risk of a large number of staff being red circled.
16. ‘Red circling’ would occur when points scores for particular posts justified a pay point on the new scale which was lower than the current rate of pay. The pay of those post holders would then be protected over a four year period. Those post holders would be ‘red circled’.
17. The bench mark results for three separate groups of staff, the academic related staff, the clerical/secretarial staff and the technical staff showed a potential for 30% of the posts to be red circled.
18. The respondent identified two different ways of dealing with the problem:-
(i) To apply the bench marked outcomes as previously agreed, ie to move the bench marked posts on to the new pay spine as indicated by the HERA scores; to red circle...
To continue reading
Request your trial