McPolin vs Department of Finance
| Jurisdiction | Northern Ireland |
| Judgment Date | 01 February 2012 |
| Respondent | Department of Finance |
| Docket Number | 00215/09IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 215/09
1210/10
CLAIMANT: Laura McPolin
RESPONDENT: Department of Finance & Personnel
DECISION
The unanimous decision of the tribunal is that:-
(i) the claimant is performing like work with her male comparators;
(ii) the claimant is receiving less basic pay than her male comparators;
(iii) the reason for the pay disparity is the length of service criterion within the respondent’s incremental pay scale;
(iv) the claimant has established that the length of service criterion is tainted with indirect sex discrimination;
(v) the claimant has failed to provide evidence capable of raising serious doubts over the link between experience and performance;
(vi) alternatively the respondent has established objective justification for the disparity caused by the length of service criterion within the respondent’s incremental pay scale;
and the claimant’s claim for equal pay is therefore dismissed.
Constitution of Tribunal:
President: Miss E McBride
Members: Mr B Hanna
Mrs E Kennedy
Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Russell Jones & Walker, Solicitors.
The respondent was represented by Ms N McGrenera, Queen’s Counsel, and
Mr M Wolfe, Barrister-at-Law instructed by the Departmental Solicitor’s Office.
Background
1. The claimant passed her A level exams in 1981. She went to university in 1989 having spent the intervening 8 year period bearing and rearing her children until both had started school. She graduated from Queen’s University in 1993 with a first class Honours Degree in Law and from the Institute of Professional Legal Studies in 1994, having come top of her year and having won all the available prizes. She was called to the Northern Ireland Bar in September 1994 and practiced there for approximately 2 years until 1996 when she commenced employment with the Northern Ireland Court Service as a legal officer. She worked there for 7 years until she commenced employment with the respondent (which the tribunal is satisfied is a separate employer from the Northern Ireland Court Service) in September 2003 as Assistant Director in the Office of Law Reform. Her post was the equivalent of a Grade 6 Senior Legal Assistant (SLA) and she was paid a Grade 6 salary.
2. On 3 January 2006, following a review of legal grades within the respondent, the claimant became a Senior Principal Legal Officer (SPLO) Grade 6, as did all Grade 6 SLAs who applied for the regraded Grade 6 SPLO posts. They were all assimilated on to the ‘new’ Grade 6 pay scale on the basis of their service as Grade 6 SLAs. Whether this was by way of regrading or appointment following regrading, the tribunal is satisfied that the respondent was justified in taking the previous service of all the Grade 6 SPLOs, as SLAs, or, in the claimant’s case, as Assistant Director of Law Reform, into account when assimilating them onto the Grade 6 pay scale, following the review of legal grades. That is because their previous service/experience had also been at Grade 6 level and there was no evidence that the competences had changed between what Mr Potter referred to as the ‘old’ and the ‘new’ Grade 6.
3. In April 2007 the Office of Law Reform closed and its work was subsumed partly within the Northern Ireland Law Commission and partly within the Departmental Solicitor’s Office. The claimant’s work as a SPLO, Grade 6, in the area of Law Reform continued within the Civil Law Reform Department of the Departmental Solicitor’s Office where she is still employed.
4. The claimant has consistently received the highest rating (box 1) for performance in her annual appraisals and has been assessed as fully suited for promotion to Grade 5 which is within the Senior Civil Service.
The Claims
5. The total pay of a SPLO is made up of basic pay and may also include a non consolidated bonus, a responsibility allowance, a special bonus and other allowances, as set out and governed by the Northern Ireland Civil Service Handbook. The claimant brought 2 claims for equal pay against the respondent in respect of basic pay, bonuses and responsibility allowance. The parties were able to resolve the claimant’s claims in respect of bonus payments and responsibility allowance and the tribunal was asked to determine the claimant’s claim for equal pay in respect of basic pay only.
6. The claimant’s first claim was presented on 9 January 2009 and was brought under the Equal Pay Act (Northern Ireland) 1970. The claimant’s second claim was presented on 30 April 2010 and added further or alternative claims under the Equal Pay Directive (75/117/EEC), the Equal Treatment Directive (76/207/EEC) now the Recast Directive (2006/54) and/or Article 141 of the European Union Treaty.
7. In both claims, the claimant contends that she is performing like work, work rated as equivalent or work of equal value with 9 male Grade 6 lawyers (7 SPLOs and 2 SLAs) working within the Departmental Solicitor’s Office but at the date of her first claim (9 January 2009) was being paid between £1,800 and £10,550 less annual basic pay than they. The claimant contends that the basic pay disparity is presumed to be due to the difference of sex and that in those circumstances she is entitled to:-
(a) a declaration that the equality clause which is deemed to be included in her contract of employment by virtue of Section 1(1) of the Equal Pay Act (Northern Ireland) 1970 shall operate by virtue of Section 1(2) to modify the term of her contract of employment relating to basic pay so that it is not less favourable than the comparable term in the contract of her male comparators, thereby entitling her to the same basic pay as her highest earning comparator; and
(b) six years arrears of the difference in basic pay.
That is, unless the respondent can rebut the presumption of sex discrimination by establishing the defence provided by Section 1(3) that the basic pay disparity is genuinely due to a material factor that is not itself the difference of sex. If the respondent establishes that defence, then, by virtue of Section 1(3), even if the claimant is performing like work and receiving less basic pay, the equality clause shall not operate so as to entitle her to the same basic pay as her comparators. The reason for that is that the Equal Pay Act (Northern Ireland) 1970 is not concerned with fair wages. It is only concerned with sex-related pay discrimination. Strathclyde Regional Council & Others –v- Wallace & Others (1998) IRLR146 HL.
The respondent’s defence
8. The respondent accepted that for basic pay purposes the claimant performs like work with her 9 male comparators and that in January 2009 she was paid between £1,800 and £10,550 less annual basic pay than they were. However, the respondent did raise a defence under Section 1(3) of the Equal Pay Act (Northern Ireland) 1970 and contended that the equality clause should not operate in the claimant’s contract of employment in relation to basic pay because the variation in basic pay is genuinely due to a material factor which is not the difference of sex and which is a material difference between her case and that of her comparators. The respondent contended that that is because basic pay is determined by reference to a progressive or incremental pay scale which has been agreed with the claimant’s trade union. Under that incremental pay scale, employees progress upwards along the pay scale, not because of their sex, but as their length of service increases up to a maximum point, provided that their annual performance is satisfactory or better. The respondent contended that the claimant’s comparators all receive higher rates of basic pay because they have longer service and have therefore progressed further up the incremental pay scale. The respondent contended that pay scales are frequently used in the public sector to reflect and reward length of service and experience and that it was entirely appropriate to do so. The respondent contended that the differences in the lengths of service of the claimant and her comparators explained and justified the variations in basic pay and denied that the incremental pay scale was in any sense tainted by any factor which could be regarded as discriminatory on the ground of sex.
The Issue
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