THE INDUSTRIAL TRIBUNALS

CASE REF:  79/06

CLAIMANT:			Eamon Davidson

RESPONDENT:		Department For Employment and Learning

DECISION
The unanimous decision of the tribunal is:-

 1.	The respondent’s pay structure did not either directly or indirectly discriminate against the claimant in circumstances where he received a lower salary, upon promotion to the post of  Senior Instructional Officer, than officers employed at the lower grade of Higher Instructional Officer.

 2.	Even if the tribunal is wrong in the above decision; the respondent has established the defence set out at Section 1 (3) of the Equal Pay Act (Northern Ireland) 1970 (hereinafter referred to as “the Act”),  by showing that any disparity of treatment in pay was due to a genuine material factor which is not related to sex.

 3.	The respondent did not contravene the provisions of the Act .

Constitution of Tribunal:

Chairman:		Mr P Cross

Members:		Mrs McReynolds
			Mr O’Hea 

Appearances:

The claimant represented himself and was accompanied by a friend Mr Ivan Gamble.

The respondent was represented by Mr M Wolfe, Barrister at law, instructed by the Departmental Solicitor’s Office.

THE ISSUES

 1.	The claimant was promoted from Instructional Officer to the grade of Senior Instructional Officer.  At the time of his promotion there were three relevant grades, which, in ascending order of seniority were as follows:-

Instructional Officer;

Higher Instructional Officer; and

Senior Instructional Officer.

	Before his promotion the claimant had been working on a temporary promotion at the higher grade of Higher Instructional Officer.  On his promotion to Senior Instructional Officer the claimant found that his salary was less than a female comparator who was working in the middle grade of Higher Instructional Officer, in which grade he had been working on his temporary promotion.  This he contended was in breach of the provisions of the Act.  

THE EVIDENCE

 2.	The tribunal heard evidence from the claimant and on behalf of the respondent from Mr Terry Park and Mr Keith Jagelman.

FINDINGS OF FACT

 3.	The claimant was promoted from the grade of Instructional Officer to the grade of Senior Instructional Officer in or about February 1998.  At about this time the respondent and the trade union concerned reached agreement that the grade of Higher Instructional Officer, the middle grade, would become obsolescent and that there would be no further promotions or appointments into that grade.  Consequently Instructional Officers could apply for promotion to the Senior Instructional Officer grade, thus by-passing the obsolete middle grade.  

 4.	The claimant had worked for approximately three years and eight months before his promotion, on a temporary promotion to the grade of Higher Instructional Officer.

 5.	At the time of the claimant’s promotion the following pay bands were applicable:-

(a)	Instructional Officer                       minimum 145 – maximum 164.

(b)	Higher Instructional Officer           minimum 159 – maximum 180.

	(c)	Senior Instructional Officer           minimum 169 – maximum 188.

	As can be seen there were overlaps between the pay bands applicable to the different grades.

 6.	The reasons for these overlaps in pay scales is to recognise the value to an organisation, of a skilled and experienced person at one grade, which value could possibly equal or exceed the value provided to the organisation by a colleague newly promoted to the higher grade.  These overlaps are common throughout the Civil Service in Northern Ireland and have been accepted for these reasons by employers and unions in pay negotiations.  

 7.	When an officer of the respondent is promoted to a higher grade and that officer has been previously working on temporary promotion, in the same way as the claimant had been doing then in calculating his pay on promotion the respondent based the officer’s existing salary at his substantive grade and not at his acting-up grade.  This is to ensure fairness, as if two people were promoted together and one happened,  for some reason,  to have been on temporary acting-up pay,  that would be unfair to the other promoted person who might not have had the benefit of acting-up and would consequently receive less pay than his or her colleague who had had the advantage of acting-up.

 8	The tribunal heard no evidence to indicate that more women than men were being promoted from the acting up grade, as enjoyed by the claimant, to the Senior grade. In fact the evidence established that the opposite was the case and that indeed more men than women benefited from this arrangement.

 9.	In the case of the claimant, upon his promotion, his starting pay at his newly appointed grade would have been less than his acting-up pay before that date.  In these circumstances, the respondent allowed the claimant to continue at his previous temporary promotion scale, on what is known as a “mark time” arrangement. This means that the claimant remained on this previous higher salary until his pay progression at the new grade exceeded the salary at the time of his promotion.  He would then continue to progress through the pay scale for Senior Instructional Officer, the grade to which he had been promoted.

 10.	The comparator introduced by the claimant was a Ms Scott, who, when the claimant was promoted to the senior post, remained at the middle post of Higher Instructional Officer.  Ms Scott became a Higher Instructional Officer in July 1990 and progressed through the pay scale for this grade.  At the time of the claimant’s promotion in February 1998 Ms Scott was earning £21,932.  This increased on 1 April 1998 to £22,613.  On the claimant’s promotion in February 1998 he went to the minimum Senior Instructional Officer point on the scale of 169 which would have given him a salary of £19,611.  However, because of his acting-up his salary increased to £21,932 on the mark time basis, whilst Ms Scott was moving up the lower scale to the figure of £22,613.

11.	Ms Scott was one of a number of Higher Instructional grade employees, including several men, who like Ms Scott also earned more than the claimant although employed at the less senior grade.

12.	Another female employee, a Mrs Armstrong, was promoted from the grade of Instructional Officer to the grade of Senior Instructional Officer in the same way and at about the same time as the claimant. She also, prior to the promotion, had been acting-up in the middle grade, again in the same way as the claimant. Her salary was treated in the same way as the claimant’s salary.

THE LAW

13.	It was common case that the claimant was employed on like work with Ms Scott.  
The onus is therefore on the employer to prove that the variations in the terms of the contract between the claimant and Ms Scott were genuinely due to a material factor which is not the difference of sex.  If the respondent is successful in discharging this onus of proof then the claimant will not succeed in a claim for direct sex discrimination under the Act.

14.  	Where, in a case brought by a male claiming equal pay with a female comparator, any factor relied upon to support the claim of unequal pay between men and 
women is a factor which benefits a considerably higher proportion of women than men, then this is prima facia  a case of indirect discrimination of the male claimant. To counter this claim it is necessary for the employer to show, that not only is the factor complained of not tainted with any gender considerations, which would of themselves be discriminatory, but that the factor complained of is objectively justified and that the employer is pursuing measures that address a real need and are appropriate and necessary to enable the employer to meet that need.

FINDINGS

15.    Insofar as the claimant’s claim was for direct discrimination, in that the respondent paid a higher salary to Ms Scott than to the claimant, the tribunal find that the decision to pay the claimant on his promotion a lesser sum than was being paid to Ms Scott was not tainted by gender considerations.  The pay grading scales between the three grades were overlapping and that was a deliberate and agreed state of affairs to encourage the employees in a lower grade to provide a strong service for the respondent at that grade, even if they were not promoted.  The overlaps gave versatility to the employer in arranging promotions at appropriate times and keeping personnel, who are not promoted, content at their lower grade.  Again these overlaps in the pay scales were in no way tainted by gender.  

16.	The fact that when the claimant was promoted to the higher level, he did not carry with him the actual salary that he was being paid on acting-up, but reverted to his substantive grade, was a fair and proper procedure.  Indeed if any other procedure had been adopted by the respondent it could have run the risk of being discriminatory and unfair, in that it would have given advantage to somebody who was acting-up at the time of promotion, over somebody who had not had that opportunity of acting-up and was therefore still on a substantive salary.  Again this matter was not gender related.

17.	So far as the indirect discrimination claim is concerned the tribunal find that there is no substance in this claim, as the tribunal find that  the number of men affected by and who benefited from this promotion procedure, was very much greater than the number of women involved and consequently there can be no question of indirect discrimination. The employer in these circumstances does not have to show objective justification for its procedures, as this is only required where the factor to be relied upon is one which affects a considerably higher proportion of, in this case, women than men, so as to be indirectly discriminatory of men and thus tainted by sex discrimination unless objectively justified.  See Tyldesley -v- TML Plastics Ltd [ICR 1996] 356.

18.	The tribunal therefore find that there is no case of indirect discrimination in this case.

19.	The claimant’s case for equal pay is therefore dismissed.

Chairman:

Date and place of hearing:	15-17 October 2007, Belfast

Date decision recorded in register and issued to parties: