Murphy vs Northern Ireland Assembly
| Jurisdiction | Northern Ireland |
| Judgment Date | 11 March 2009 |
| Respondent | Northern Ireland Assembly |
| Docket Number | 01504/07IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1504/07
CLAIMANT: Eleanor Murphy
RESPONDENT: Northern Ireland Assembly Commission
DECISION
The unanimous decision of the tribunal is that the claimant’s claims in respect of a breach of the Equal Pay Act (Northern Ireland) 1970 and unlawful sex discrimination be dismissed.
Constitution of Tribunal:
Chairman: Mr Buchanan
Members: Mr Archer
Ms Graham
Appearances:
The claimant was represented by Dr T McGleenan, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.
The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by Rosemary Connolly, Solicitors.
- The claimant is a Research Officer employed by the Northern Ireland Assembly Commission (NIAC). That body employs the support staff at the Northern Ireland Assembly
She alleges that an equality clause should be implied into her contract of employment in accordance with Section 1 of the Equal Pay Act (Northern Ireland) 1970. Her comparators are male employees of the Assembly Commission holding the same position as her, namely Dr Colhoun, Dr Doran, and Mr McVey.
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2. |
(i) |
At a Case Management Discussion before another Chairman of the Tribunals on 23 November 2007 the following were agreed as the legal issues to be determined by the tribunal:- |
(a) Did the respondent discriminate against the claimant on grounds of sex (within the meaning of the Equal Pay Act (Northern Ireland) 1970) with regard to the application to her of its policy in respect of starting salary and/or the setting of her starting salary?
(b) If the application of the respondent’s Starting Pay Policy to the claimant and/or the setting of her starting pay did discriminate against the claimant, has the respondent established the defence set out at Section 1(3) of the Equal Pay Act (Northern Ireland) 1970, by showing that any variation in the terms of the contract between the claimant and her comparators was genuinely due to a material factor which is not the difference of sex?
(c) Did the respondent contravene the provisions of the Equal Pay Act (Northern Ireland) 1970?
The claimant alleges that she had been subjected to direct and indirect discrimination in relation to pay.
She advances three arguments in favour of her claim of indirect pay discrimination:-
(i) by basing the pay structure on previous salary the respondent was perpetuating structural inequalities in pay because, put simply, the tribunal can take notice of the fact that female salaries are lower than male salaries;
(ii) by permitting male employees to negotiate their salaries on the basis of previous salary, rather than exceptionally relevant experience, in the 2000 exercise, inequalities in pay were maintained; and
(iii) by the respondent expressly stating to the female Research Officers in the 2002 exercise that there was no scope for negotiating on pay while at the same time permitted the successful male candidates to negotiate a higher salary based on previous experience.
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(ii) |
At the Case Management Discussion of 23 November 2007, to which reference has been made above, certain other matters were agreed between the parties. The respondent accepted that the claimant and her comparators are employed on like work within the meaning of Section 1(2)(a) of the 1970 Act. The respondent also accepted that the claimant is paid less than her male comparators. Both parties agreed that this was not an equal value claim. |
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(iii) |
With regard to the genuine material factor defence, the respondent, in its response to the claim presented on 14 September 2007 stated that the difference in pay is genuinely due to material factors, being the consistent, fair and equal application of the Commission’s Starting Pay Policy and length of service. |
3. In order to determine this matter, the tribunal heard evidence from Mr Evan Hobson, Head of Personnel with the Northern Ireland Assembly, and from the claimant, Ms Murphy. It also had regard to documentary evidence to which it was referred by the parties.
It finds the facts set out in the following paragraphs:-
4. The claimant started work with the respondent as a Research Officer on 16 September 2002. Her appointment to one of four posts followed a recruitment exercise earlier that year, in which she had been successful. There had been 32 applicants for the four posts, and 16 of these were deemed appointable. Prior to taking up her post she had worked with an agency, Research and Evaluation Services (‘RES’). It provided workers to the NIAC, and she had in fact worked as a Research Officer in the Assembly through RES from June 2000 onwards on a succession of three month contracts. When appointed to the staff of the NIAC, the claimant effectively continued to do the same job. When working for RES , the claimant had been paid a salary of £16,357 per annum by them. RES was paid a management fee of 13% of that salary by the Assembly.
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5. |
(i) |
The Assembly’s Starting Pay Policy with effect from 2001 (which was the policy applicable when the claimant was recruited) was based on a successful candidate’s prior salary. The policy was as follows:- |
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- Offer each successful candidate a starting salary, which equates to their current salary plus a % increase. The resultant starting salary should not be less than the minimum point or in excess of the maximum point on the relevant salary scale …
- Should a successful candidate continue to insist on a starting salary in excess of the maximums (sic) referred to above, they are required to submit their case to the Assembly Personnel Office for consideration.”
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The percentage increase referred to corresponded to the percentage increase applied to the Northern Ireland Civil Service (NICS) internal promotions and increased in line with it. |
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(ii) |
According to the respondent, this Starting Pay Policy, based on a higher than current salary, was needed to attract highly qualified staff to work in the Assembly, and who would be highly productive within a relatively short period of time. It was needed to ensure that the Assembly was supported by experienced staff against a background of researchers not having been in great demand in Northern Ireland before the Assembly was set up.
There was also ongoing uncertainty about the Assembly’s future, and in order to attract applicants to the positions, the salary needed to be attractive. |
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(iii) |
This evidence was given to the tribunal by Mr Hobson. He was not involved in the 2000 exercise. The official involved, a Mr Hoy, was unfortunately ill, and unable to give evidence. Some of the documentary evidence which would have been of assistance to the tribunal in assessing these matters was not provided, or else existed in unsatisfactory form.
Nonetheless, we are satisfied that Mr Hobson, by virtue of his position in the Assembly, has knowledge of these matters and is able to deal with them. |
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6. |
(i) |
The salary offered to the claimant was her starting salary with RES plus 6.5% (the then applicable percentage increase, which became 7.5% in September 2002) added on... |
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