THE INDUSTRIAL TRIBUNALS

CASE REF:	657/12

CLAIMANT:			Janeen Machonachie

RESPONDENT:	Northern Health & Social Care Trust

DECISION ON A PRE HEARING REVIEW
The claimant’s claim for equal pay is struck out for the following reasons:-
	(i)	it has been presented outside the statutory time limit; and
(ii)	the claimant and her comparators were not in the same employment and a “single source” responsible for and capable of remedying a pay disparity between the claimant and her comparators has not been established.

Constitution of Tribunal:
President (sitting alone):	 Miss E McBride

Appearances:
The claimant appeared in person. 

The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by Ms C Tiffney, Solicitor, of the Directorate of Legal Services.

Reasons

1.	The claimant retired from her employment with the respondent on 7 October 2011, having been employed in the post of Assistant Director of Social Care Governance and Workforce Development, at band 8C of the Agenda for Change payscale since 1 April 2010 and before that in the post of Assistant Director, Education and Training, at the lower band 8B of the Agenda for Change payscale.  On 5 April 2012 the claimant presented a claim for equal pay against the respondent in relation to the period April 2006-April 2010, when she was employed in the post of Assistant Director, Education and Training (at the lower pay band 8B).  The claimant identified two male Assistant Directors, Education and Training, one of whom had been employed by the Eastern Board and one of whom had been employed by the Southern Board at the relevant time, as her comparators.  

2.	On 11 June 2012 the respondent presented a response in which they indicated that they intended to resist the claimant’s claim.  The respondent also raised two jurisdictional points.  The first point was that the claimant’s claim was out of time as she had ceased to be employed by the respondent in the post of Assistant Director, Education and Training on 31 March 2010 and her claim which was presented to the tribunal on 5 April 2012 was outside the six month statutory time limit.  The second point was that the male comparators identified by the claimant were not appropriate comparators because they had not been employed in the same employment as the claimant and because there was no single entity or source responsible for the different rate of pay between the claimant and her comparators.   

3.	This Pre Hearing Review was therefore arranged to determine the following issues:-

(1)	whether the claimant’s contract with the respondent was terminated on 31 March 2010 with a new contract being entered into on 1 April 2010 when the claimant moved from the post of Assistant Director, Education and Training to Assistant Director of Social Care Governance and Workforce Development;

(2)	if the claimant’s claim is in time, whether the claimant was in the same employment as her comparators:-

(i)	David Vance who was employed by the Eastern Board as Assistant Director, Education and Training; and

(ii)	Ian Montgomery who was employed by the Southern Board as Assistant Director, Education and Training.

Sources of Evidence

4.	The tribunal received evidence (direct evidence by way of witness statements) from the claimant on her own behalf and from Mr Cecil Worthington who is currently Director of Social Work/Children’s Community Services in the Belfast Health and Social Care Trust and who was Director of Social Work/Children’s Services in the respondent Trust from May 2009 to August 2012 and from Mr Trevor McIlroy, Senior Human Resources Manager in the respondent Trust since April 2007.  The tribunal was provided with a bundle of documents and a bundle containing:-

Textbooks:

1.	Harvey on Industrial Relations and Employment Law, Division K (Equal Pay), paragraphs 351-420; and 655-675

Statute:

2.	Equal Pay Act (Northern Ireland) 1970 (Particularly section 1(7); and section 2ZA)

2. (a)	The Northern Health and Social Services Trust (Establishment) Order (Northern Ireland) 2006

2. (b)	The Health and Personal Social Services (Northern Ireland) Order 1991

Case Law

3.	Preston and ors –v- Wolverhampton Healthcare NHS Trust and others (No.3) [2004] ICR 993

4.	McMaster –v- Perth and Kinross Council [2008] UKEATS/0026/08 (unreported)

5.	Cumbria County Council –v- Dow and others (no.2) [2008] IRLR 109

6.	Slack and others –v- Cumbria County Council [2009] ICR 1217

7.	Potter –v- North Cumbria Acute Hospitals NHS Trust (No.2) [2009] IRLR 900

8.	North Cumbria University NHS Hospitals trust –v- Fox [2010] IRLR 804

9.	Lawrence and others –v- Regent Office Care Limited [2002] IRLR 822

10.	Robertson and others –v- DEFRA [2005] IRLR 363

11.	Armstrong and others –v- Newcastle Upon Tyne NHS Hospital Trust [2005] EWCA Civ 1608

12.	North and others –v- Drumfries and Galloway Council [2013] UKSC 45

Relevant Facts

5.	Having considered the oral and documentary evidence of the claimant and the respondent’s witnesses together with the submissions of the claimant and Mr Wolfe, the tribunal found the following relevant facts.

5.1	From 2006 to 2010, which is the period in which the claimant has made a claim for equal pay, she was employed by the respondent in the post of Assistant Director, Education and Training and was paid at salary band 8B of the Agenda for Change payscale.

5.2	In May 2009, Mr Cecil Worthington was appointed by the respondent to the post of Director of Social Work/Children’s Services and became the claimant’s line manager.  

5.3	Upon taking up this post Mr Worthington was very surprised and concerned that the respondent did not have a specific senior officer in place to take responsibility for and to take the lead in Social Care Governance which he considered was necessary to comply with the scheme for the discharge of statutory functions.

5.4	Mr Worthington decided that it was necessary to carry out an internal review and to restructure the Social Services Education and Training Department to ensure that a specific or dedicated senior officer would have overall responsibility for and would take the lead in all aspects of Social Care Governance and that the dedicated officer would have appropriate support.  He therefore looked at the relevant job descriptions in other Trusts and discovered that the majority had combined the lead roles of governance and social work training.  Mr Worthington then created the post of Assistant Director of Social Care Governance and Workforce Development and, with the assistance of the claimant, prepared a job description for that post.  

5.5	The job description contained new duties and responsibilities in relation to Social Care Governance.  It also contained duties and responsibilities in respect of workforce development which were part of the claimant’s post of Assistant Director, Education and Training, and which were to be subsumed into the new post.  The duties and responsibilities are set out in the job description for the post which was provided to the tribunal and the tribunal does not therefore intend to list them.  On the basis of that job description, the post of Assistant Director of Social Care Governance and Workforce Development was evaluated by the respondent’s job evaluation leads at band 8C (which was higher than band 8B) on the Agenda for Change payscale.  The commissioning duties and responsibilities of the post of Assistant Director, Education and Training, were transferred to the Regional Board.  The remaining duties of the Assistant Director, Education and Training post were to be delegated down to the next level, band 8B, once the governance infrastructure to support the new post of Assistant Director of Social Care Governance and Workforce Development was in place.  

5.6	Mr Worthington sought advice from Human Resources as to how the new post of Assistant Director of Social Care Governance and Workforce Development should be filled.  The advice he received was that as the post was being created as part of an internal review and as the claimant was the only member of staff qualified to be offered the post, it was appropriate to offer it to her.

5.7	The claimant was then offered the post of Assistant Director of Social Care Governance and Workforce Development.  She was made aware that she was not obliged to accept it but that if she did, it was subject to a six month probationary period.  The respondent had decided that if the claimant had declined the offer, they would have had to consider other arrangements including an external recruitment exercise to fill the post.  In those circumstances the claimant would have remained in a band 8B post under the new structure and her duties would have been varied to take account of the restructuring.

5.8	The claimant accepted the offer of the post of Assistant Director of Social Care Governance and Workforce Development and started on 1 April 2010.  Apart from the duties and responsibilities of the ‘new’ post and the higher salary, the claimant’s terms and conditions of employment in matters such as holidays, sickness and notice remained the same.  

5.9	The restructuring of the Education and Training Department was not implemented as quickly as was planned, primarily due to the fact that a number of staff in the Department were in dispute over their Agenda for Change grades.  Both Mr Worthington and the claimant felt that these matters needed to be resolved before proceeding with the restructuring.  This meant that the claimant still had to carry out a number of duties of her ‘old’ post of Assistant Director, Education and Training, with occasional assistance from a Principal Social Worker, until the newly created post of Head of Social Services Training and Development (band 8b), to which those duties were to be transferred, had been filled.  The claimant continued to carry out those duties until her retirement on 7 October 2011, as the newly created post of Head of Social Services Training and Development was not filled until 1 April 2012.  

5.10	The claimant was issued with a job description and a contract of employment in respect of the post of Assistant Director of Social Care Governance and Workforce Development, band 8C, on 16 May 2011.  The contract of employment was signed on behalf of the respondent by the Director of Human Resources.  The claimant signed the contract of employment and returned it to the respondent on 1 June 2011.  

The Relevant Statutory Provisions

6.	The Equal Pay Act (Northern Ireland) 1970 provides:-

1	Requirement of equal treatment for men and women in the same employment. 

(1	If the terms of a contract under which a woman is employed at an establishment in Northern Ireland do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.

(2)	An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the “woman's contract”), and has the effect that— 

(a)	where the woman is employed on like work with a man in the same employment— 

(i)	if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and

(ii)	if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term; 
(7)

… men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Northern Ireland which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes.

2	Disputes as to, and enforcement of, requirement of equal treatment.

(1)	Any claim in respect of the contravention of a term modified or included by virtue of an equality clause, including a claim for arrears of remuneration or damages in respect of the contravention, may be presented by way of a complaint to an industrial tribunal.  

		(1A) 	….

		(2)	….   

		(3)	….

(4)	A determination shall not be made by an industrial tribunal in the following proceedings, that is to say –

				(a)	on a complaint under subsection (1), 

				(b)	…

				(c)	…

	unless the proceedings are instituted on or before the qualifying date (determined in accordance with Section 2ZA).  

	2ZA	“Qualifying date” under section 2(4)

(1)	This section applies for the purpose of determining the qualifying date, in relation to proceedings in respect of a woman’s employment, for the purposes of Section 2(4).

	(2)	In this section –

		“concealment case” means a case where -

			….

			“disability case” means a case where …

“stable employment case” means a case where the proceedings relate to a period during which a stable employment relationship subsists between the woman and the employer, notwithstanding that the period includes any time after the ending of a contract of employment when no further contract of employment is in force; 

“standard case” means a case which is not— 

(a)	a stable employment case, 

(b)	a concealment case,
 
(c)	a disability case, or
 
(d)	both a concealment and a disability case.

(3)	In a standard case, the qualifying date is the date falling six months after the last day on which the woman was employed in the employment. 

(4)	In a case which is a stable employment case (but not also a concealment or a disability case or both), the qualifying date is the date falling six months after the day on which the stable employment relationship ended. 

	(5)	…

	(6)	…

	(7)	…

Issue 1

Whether the claimant’s contract with the respondent was terminated on 31 March 2010 with a new contract being entered into on 1 April 2010 when the claimant moved from the post of Assistant Director, Education and Training to Assistant Director of Social Care Governance and Workforce Development.

7.	The claimant contended that:-

(i)	her case was a “stable employment case”;

(ii)	that the stable employment relationship carried on after her post of Assistant Director, Education and Training ended until 7 October 2011, when she retired;

(iii)	that the six month time limit (qualifying date) therefore ran from 7 October 2011 and her claim which was presented on 5 April 2012 was therefore in time.  

8.	The respondent disputed that the claimant’s case was a “stable employment case” and contended that:-

(i)	it was a “standard case” and that the six month time limit (qualifying date) therefore ran from 31 March 2010 which was the date of termination of the contract, as Assistant Director, Education and Training, which the claimant alleged contained the equality clause and in respect of which she had made her equal pay claim; and

(ii)	as her claim was not presented until 5 April 2012, it was outside the statutory six month time limit.

9.	The claimant did not contend that her case was a “concealment case” or a “disability case” or both.  It is therefore clear from Section 2ZA(2) (set out at paragraph 6 above) that unless the claimant can establish, on the balance of probabilities, that her case is a “stable employment case”, her case is a “standard case” i.e. for time limit (qualifying date) purposes.  

The legal principles

10.	In Slack & Others –v- Cumbria County Council (Equality and Human Rights Commission Intervening) (2009) ICR1217, the Court of Appeal confirmed that the six month time limit to bring an equal pay claim in a “standard case” runs from the end of the particular contract alleged to contain the equality clause in respect of which the equal pay claim has been made and not from the end of the employment relationship.  

11.	In the Slack case there were three claimants.  The first two claimants did the same work for the respondent over many years under a succession of contracts, without any break in the work they did or in the succession of contracts.  The only change in the new contract of employment they signed in 2000 was the reduction of their working hours.  The Court of Appeal held that those facts established a stable employment relationship between the claimants and their employer.  In making that decision the Court of Appeal made it clear that the concept of a stable employment relationship was not limited to cases where there was a succession of contracts with breaks between the contracts, as had been the position in the Preston case.  The Court of Appeal made it clear that the concept of a stable employment relationship could also apply where there was a succession of contracts with no breaks in between.  

12.	The third claimant in the Slack case had been working as a relief home carer for the respondent.  She signed a new contract of employment on her appointment as a permanent home carer in 2001.  Although the only change in the new contract of employment she signed was that she acquired the right to sick pay and holiday pay, the Court of Appeal was not satisfied that those facts were clear enough to enable it to categorise it as a stable employment case.  

13.	In North Cumbria University Hospital’s NHS Trust –v- Fox & Others (2010) IRLR 805 the claimants were nurses who had brought equal pay claims against their employer following the introduction of the Agenda for Change system, in respect of a period when the previous Whitley Council system had been in place.  The employment tribunal concluded that the Agenda for Change had brought about a rescission of the original contracts of employment and had replaced them with new contracts under the Agenda for Change terms.  The EAT reversed the decision of the employment tribunal.  The Court of Appeal upheld the decision of the EAT on different grounds.  At paragraph 25 Carnwath LJ stated:-

	“On the facts found of the tribunal in this case these were “stable employment relationships”.  As in Slack, the nurses in the present case continued to do the same work for the Trust, without any break in either the work itself or the succession of contracts.  Although the tribunal found that there was a “fundamental” change, that judgment was based entirely on the differences in the terms of employment, most notably the introduction of the KSF requirement (Knowledge and Skills Framework).  There was no suggestion that the nature of their jobs as nurses changed materially, nor that there was any other practical break in the employment relationships.”

	At paragraph 32 Carnwath LJ stated:-

“In particular, as I understand it, the word “employment” in this phrase (i.e. in the phrase stable employment relationship) was intended to refer to the nature of the work, rather than the legal terms under which it is carried out.  Thus, in stipulating that a “succession of contracts” must be in respect of “the same employment”, the Court cannot have intended to use the word “employment” in the legal sense of a contract of employment since that would make nonsense of the sentence.  The natural alternative is a reference to the type of work or “job”.  

14.	As Mr Wolfe pointed out in his written submission, the editors of Harvey on Industrial Relations and Employment Law, in their analysis of the decision of the Court of Appeal in the Fox case stated:-

	“In future cases of this nature the degree of difference between ‘old’ and ‘new’ jobs is likely to be looked at very carefully to see whether the “job” really has changed, or is essentially the same employment relationship, albeit with a few differences of detail.  The fact that the changes in question may give rise to the issuing of new particulars of employment (or even a new contract of employment) will be a factor, but not in itself conclusive of how the situation is to be categorised.”

	At paragraph 669 the editors continued:-

	“In a situation where an employee continues to work for the same employer, but in a situation where she has signed a new contract and under which she works different hours or enjoys different conditions of service, she may be seen as being in a “stable employment relationship” with the result that the six month limit runs from the ending of the stable relationship, not from the date of entering into the new contract.  The essential question is whether her “job” (as opposed to her contract, or the terms of her contract) continues in being.”  

At paragraph 675 the editors stated that in light of the analysis of the Court of Appeal in the Fox case a “stable employment relationship” may be established “if it can be said that the work itself remains the same, irrespective of the terms on which it is done.”  

Conclusion on the First Issue

15.	The tribunal applied the legal principles relating to a “stable employment relationship” to the facts found by the tribunal.  

On the one hand:-

(i)	the claimant’s terms and conditions in matters such as holidays, sickness and notice were the same under the contract for the ‘old’ post of Assistant Director, Education and Training, which ended on 31 March 2010 and the ‘new’ post of Assistant Director of Social Care Governance and Workforce Development which commenced on 1 April 2010;

(ii)	some of the duties of the ‘old’ post were subsumed into the new post;

(iii)	the claimant continued to carry out other duties of the ‘new’ post; and

(iv)	the claimant was not required to apply for the ‘new’ post or to compete for it as part of an external recruitment exercise.  

On the other hand:-

(i)	the creation of the ‘new’ post of Assistant Director of Social Care Governance and Workforce Development came about as a result of a genuine internal review and restructuring of the Training Department;

(ii)	the ‘new’ post was created to ensure that the respondent was complying with the scheme for the discharge of statutory functions and was not a sham;

(iii)	notwithstanding that some of the duties of the ‘old’ post of Assistant Director, Education and Training, were subsumed into the ‘new’ post of Assistant Director of Social Care Governance and Workforce Development, the additional duties of the ‘new’ post in the area of Social Care Governance were such that, using the claimant’s own words in her claim form, her “job changed significantly”.  The claimant also conceded under cross-examination that the feature of Social Care Governance made the ‘new’ post fundamentally different from the ‘old’ post.  The claimant conceded under further cross-examination that the responsibility for Social Care Governance which is set out in the ‘new’ job description reflected a fundamental difference between the ’old’ job and the ‘new’ job.  

(iv)	the other duties of the ‘old’ post which the claimant had to continue to carry out were not duties of the ‘new’ post.  They were duties which were to be transferred the new post of Head of Social Services Training and Development and they were only being carried out by the claimant, with occasional assistance of a Principal Social Worker, pending the filling of that post.  Although the newly created post of Head of Social Services Training and Development was not filled until shortly after the claimant’s retirement, that did not turn those duties into duties of the ‘new’ post;

(v)	the ‘new’ post of Assistant Director of Social Care Governance and Workforce Development was evaluated at the higher salary pay band 8C;

(vi)	although the claimant was not required to apply or compete in an external recruitment exercise, she was offered the ‘new’ post subject to a six month probationary period, and she was made aware that she was not obliged to accept it;

(vii)	if the claimant had not accepted the ‘new’ post, it would still have had to be filled and the claimant would have remained in a band 8B post under the new structure; 

(viii)	the claimant was provided with a new job description and a new contract for the ‘new’ post.

16.	Having considered and balanced the above matters, the tribunal concludes that the post and the work of Assistant Director of Social Care Governance and Workforce Development, which the claimant commenced on 1 April 2010, were fundamentally, significantly and distinctly different from the post of Assistant Director, Education and Training, which ended on 31 March 2010 and were not therefore “the same job with a few differences of detail”.  In those circumstances the tribunal is not satisfied that the claimant’s situation can be categorised as a “stable employment case”.  In accordance with section 2ZA(2) the claimant’s case is therefore a “standard case”.  The six month time limit (qualifying date) therefore runs from 31 March 2010, which was the end of the contract which the claimant alleged contained the equality clause and in respect of which she has made this equal pay claim.  As her claim was not received until 5 April 2012, it has been presented outside the six month statutory time limit which the tribunal has no power to extend.  The tribunal has therefore no jurisdiction to consider and determine the claimant’s claim in respect of equal pay and it must therefore be dismissed whether or not the claimant can establish that she was employed in the same employment as her comparators or that there is a single source responsible for and capable of remedying a pay disparity between the claimant and her comparators which is the subject of the second issue.

Issue 2

If the claimant’s claim is in time, whether the claimant was in the same employment as her comparators:-

(i)	David Vance who was employed by the Eastern Board as Assistant Director, Education and Training; and

(ii)	Ian Montgomery who was employed by the Southern Board as Assistant Director, Education and Training.

The Equal Pay Act (Northern Ireland) 1970

17.	In light of the claimant’s acceptance that, at all relevant times, she and each of her male comparators were employed by different employers:-

	the claimant by the respondent i.e. the Northern Health & Social Care Trust;

	Mr Vance by the Eastern Board; and

	Mr Montgomery by the Southern Health & Social Services Board and subsequently by the Southern Trust;

	the tribunal is not satisfied that the claimant and her male comparators were in the same employment and her claim cannot therefore succeed under the Equal Pay Act (Northern Ireland) 1970 in light of Section 1(2)(a) and (7) (set out at paragraph 6 above), which requires the claimant and her male comparators to be in the “same employment”.  

European Law

18.	However, as pointed out by Mr Wolfe in his written and oral submissions and by the editors of Harvey, as summarised at paragraph 351:-

	“European Law (Article 157 TFEU) takes a different (and wider) approach to comparability, and allows comparisons to be made in circumstances where, despite not being in the same employment, the difference in pay between a woman and her comparator is attributable to a “single source” and that source has the power to rectify the difference.”

19.	The claimant did not proceed with her “single source” contention in relation to Agenda for Change in her closing submission.  However, the claimant did proceed with her contention that the difference in pay between her and her two comparators was attributable to a “single source” namely the Department of Health & Social Services and that the said Department had the power to rectify the difference.  In support of that contention the claimant pointed out that:-

(i)	the Department of Health & Social Services determined the personal social services training strategy for all four Trusts, including the three Trusts which employed the claimant and her comparators;

(ii)	none of the individual Trusts could vary the strategy;

(iii)	the funding for implementing the strategy came from the Department of Health & Social Services; and

(iv)	the claimant and her comparators were responsible to the Department of Health & Social Services as well as their individual Trust employers for ensuring that the strategy was implemented.

20.	The tribunal is not satisfied that this contention establishes that the difference in the pay of the claimant and her comparators was attributable to the Department of Health & Social Services and that the said Department had the power to rectify the difference.  That is particularly so, in light of Article 16 of Schedule 3 to the Health & Personal Social Services Order (Northern Ireland) 1991, to which Mr Wolfe referred the tribunal, and which makes it clear that each individual Trust has the power to employ and to pay its staff “such remuneration” “as it thinks fit”.  

21.	The tribunal therefore concludes that even if the claimant had established that her claim had been presented within the statutory time limit, her claim would still have failed because:-

(i)	the claimant and her comparators were not in the same employment; and

(ii)	the claimant has not established, on balance, that the difference in her pay and that of her comparators was 

attributable to a “single source” and that that single source had the power to rectify the difference.  

______________________________________
E McBride CBE
President

Date and place of hearing:  11 and 12 December 2013, Belfast		

Date decision recorded in register and issued to parties: