Muldrew vs Board of Governors of Larne
| Jurisdiction | Northern Ireland |
| Judgment Date | 16 February 2012 |
| Respondent | Board of Governors of Larne |
| Docket Number | 01443/11IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1443/11
CLAIMANT: Julie Muldrew
RESPONDENT: Board of Governors of Larne Grammar School
DECISION
The unanimous decision of the tribunal is that the claimant was unlawfully and indirectly discriminated against by the respondent on the ground of her gender by the requirement that a Head of Year post could only be held by a full-time teacher. The claimant is awarded £5,000.00 as compensation for injury to feelings. Interest on that sum calculated at £185.20 is also payable. She should also be paid a sum equivalent to the Teachers Allowance she was required to relinquish from September 2011 to the end of that academic year, net of income tax and statutory contributions.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Dr C Ackah
Mr D Walls
Appearances:
The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by The Equality Commission for Northern Ireland.
The respondent was represented by Mr B McKee, Barrister-at-Law, instructed by O’Reilly Stewart, Solicitors.
Background
1. The claimant was at all material times, and remains, a teacher in Larne Grammar School. She commenced that employment in 1995. It is common case that she is a competent and experienced teacher.
2. The respondent is the Board of Governors of Larne Grammar School, a voluntary grammar school. The respondent is the claimant’s employer.
3. After a restructuring of management posts within the respondent school, the claimant was appointed Year Head in 2008.
4. In 2008/2009 and in 2009/2010, the claimant applied for and was granted temporary variation in her employment contract, which reduced her working week from five days to four days. The variation was sought to facilitate childcare.
5. During that two year period, the claimant was required to relinquish her Year Head post, and the associated salary supplement, as part of the temporary contract variation.
6. The claimant returned to her normal contractual terms and worked full-time from September 2010 for a one year period. During that period, she resumed her responsibilities as Year Head and received the related salary supplement.
7. In September 2011, the claimant again reduced her working week from five days to four days as a temporary contractual variation for the purposes of childcare. The claimant was again required to relinquish her Year Head post and the associated salary supplement while she worked part-time.
8. The claimant lodged a claim (‘the first claim’) on 24 June 2011. That claim raised several matters, most of which had been resolved between the parties and no longer required determination by the tribunal. The first claim also raised an allegation of indirect sex discrimination in relation to the temporary variations in contract from full-time to part-time in 2008/2009 and 2009/2010 and in relation to the further temporary variation in contract which was due to commence from September 2011. The first claim, and indeed the second claim referred to below, did not specifically refer to part-time worker discrimination. However, they made it plain that the focus of the claims was the exclusion of part-time teachers from Year Head posts. The respondent did not object to part-time worker discrimination being included as an issue to be determined.
9. The claimant lodged a further claim (‘the second claim’) on 27 January 2012 raising the same issues. The respondent lodged a response to the second claim on the first day of the hearing. Both parties consented to the second claim and response being accepted by the tribunal and being consolidated with the first claim for hearing.
The issues
10. Counsel for both parties, and their instructing solicitors, have to be commended for the constructive approach that they have adopted in this case to both narrow the issues, and to further the overriding objective, as set out in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
11. It was common case that:-
(i) The requirement that Year Heads be full-time teachers (‘the PCP') had an adverse and disproportionate impact on female teachers.
(ii) The PCP had had an adverse impact, amounting to a detriment, on the claimant.
(iii) That PCP had been put in place for a legitimate purpose.
(iv) That legitimate purpose was securing pastoral care for pupils at the respondent school.
12. Other matters had been resolved between the parties before the commencement of the hearing and the only issues which remained for determination by the tribunal were:-
(i) Did the tribunal have jurisdiction to determine the first or second claim? Specifically had the claimant complied with the statutory grievance procedure as set out in the Employment (Northern Ireland) Order 2003 and were the claims within time?
(ii) If the tribunal had jurisdiction for the purposes of a claim of indirect sex discrimination under the Sex Discrimination (Northern Ireland) Order 1976 and/or a claim of part-time worker discrimination under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, was the PCP a proportionate means of securing the legitimate objective, and therefore, was the PCP objectively justified?
(iii) If the PCP was not objectively justified, what was the appropriate remedy in relation to either the first or second claim in terms of injury to feelings, loss of salary supplement and pension loss?
The hearing
13. The evidence was heard over three days from 30 January 2012 – 1 February 2012. The witness statement procedure was used, with one minor exception. Each witness, with that one exception, adopted their statement(s) as their evidence-in-chief and moved directly to cross-examination and re-examination.
14. The tribunal heard evidence from the claimant and, on her behalf:-
(i) Mr Mark Langhammer, Director of the Association of Teachers & Lecturers (‘ATL’);
(ii) Reverend Dr Paul Irwin Reid, a member of the Board of Trustees and of the Board of Governors of the Head of Year; and
(iii) Mr Darwin Workman, a recently retired Year Head in the respondent school.
15. The tribunal also heard from the following witnesses, called on behalf of the respondent:-
(i) Mr John Wilson, the Principal of the respondent school;
(ii) Ms Lynn Hunter, one of two Vice Principals of the respondent school;
(iii) Reverend Dr Colin David McClure, Chair of the Board of Governors of the respondent school; and
(iv) Mr Richard McGeagh, Year Head and Teacher Governor of the respondent school.
16. Issues arose in the course of the hearing and, with the consent of the claimant, Ms Hunter gave limited oral evidence-in-chief to deal with those matters and to ensure that as complete a picture as possible was presented to the tribunal.
17. At the close of the evidence, the parties agreed to lodge written submissions dealing with the remaining issues, by 5.00 pm on 3 February 2012. Those written submissions are annexed to this decision.
Findings of fact
18. The respondent school employs approximately 49 teaching staff headed by the Principal, Mr Wilson.
19. There are two Vice Principals. Ms Hunter is responsible for pastoral care issues. The other Vice Principal takes the lead on academic issues.
20. The respondent school has seven year groups, from Year 8 to Year 14. Each year has a Year Head. Each Year Head receives a salary supplement known as a Teaching Allowance. Each Year Head is required to be a full-time teacher. Year Heads have pastoral care responsibilities.
21. There are several Departments in the respondent school, eg Modern Languages. Each Department has a Head of Department. Heads of Department have responsibility for academic issues.
22. Apart from the Principal, the Vice Principals, certain members of senior management, the Year Heads, those teachers engaged in a mentoring...
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