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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kennedy v Equality Commission for Northe... [2015] NIIT 548_14IT (04 February 2015) URL: http://www.bailii.org/nie/cases/NIIT/2015/548_14IT.html Cite as: [2015] NIIT 548_14IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 548/14
CLAIMANT: Elizabeth Kennedy
RESPONDENT: Equality Commission for Northern Ireland
DECISION
The unanimous decision of the tribunal is that:-
(i) the respondent did indirectly and unlawfully discriminate against the claimant contrary to the Sex Discrimination (Northern Ireland) Order 1976;
(ii) the unlawful deductions from earnings claim is dismissed;
(iii) the redundancy claim is dismissed;
(iv) compensation is awarded as follows:-
Injury to feelings £7,500.00
Interest £ 637.80
Total £8,137.80
(v) a declaration and a recommendation are made as set out in this decision.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Ms E Gilmartin
Mr R Hanna
Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.
The respondent was represented by Mr G Grainger, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.
Background
1. The claimant was first employed by the respondent as a Legal Officer (Staff Officer equivalent) from 4 September 2000 on a temporary contract. The claimant’s post was made permanent on 1 December 2001.
2. The respondent operates a career break policy.
3. The claimant had a one year career break in 2002/2003 to qualify as a solicitor.
4. The claimant commenced a second career break on 12 January 2009 for childcare reasons. This break was extended on four successive occasions to the maximum of five years permitted under the policy. The career break was therefore due to end on or about 12 January 2014.
5. The claimant was not permitted to return on 12 January 2014 to her original post or to any alternative post within the respondent organisation. From that point she received no wages and was given no work while remaining an employee of the respondent. There was and is no realistic prospect of her ever receiving either wages or work. Funding for the respondent organisation had been significantly reduced during the claimant’s career break and continues to be further reduced. Her post in a small office had in any event been filled on a permanent basis some two to three months after she had commenced her career break.
6. The respondent argues that there has been no termination of employment or compulsory redundancy situation. It argues that in accepting a career break, the claimant has accepted a contractual variation allowing her to be retained indefinitely without work, pay or redundancy compensation. It also argues that the career break policy was not interpreted or operated in a discriminatory manner.
7. The claimant alleges that:-
(i) The operation of the career break policy, leaving her without work or pay and indeed without any hope of either work or pay, and without access to compulsory redundancy compensation, amounted to unlawful indirect sex discrimination.
(ii) The career break policy had been incorrectly interpreted by the respondent and that she had been contractually entitled to pay for the period from 12 January 2014 onwards.
(iii) In the alternative, the claimant had effectively been made redundant on 12 January 2014 and was therefore entitled to a contractual compulsory redundancy payment calculated by reference to the provisions at that time.
8. The respondent is the statutory body set up to police and supervise the area of equality of opportunity and, in particular, its impact in the field of employment. This statutory remit includes the area of sex discrimination. The claimant is a lawyer employed by the respondent to assist in that policing operation. Quis custodiet ipsos custodes?
The hearing
9. Much of the factual background to this case was not in contention and it was directed that the case would proceed by way of oral evidence, supplemented by an agreed background statement of facts.
10. The tribunal heard evidence from the claimant and, on the behalf of the respondent, from Mr W McAlorum, the HR Manager, Mr D McKinstry, Director of Policy & Research, and Mr K Brown, the Head of Corporate Services.
11. At the conclusion of the evidence, counsel for both parties gave oral and written submissions. These were extremely thorough and well prepared. The tribunal is grateful for the industry shown by both counsel and by their instructing solicitors.
12. The hearing was over four days, from Tuesday 25 November 2014 to Friday 28 November 2014.
13. The parties were allowed to lodge further written submissions by 5.00 pm on 12 December 2014 (having first exchanged those submissions).
14. The original written submissions as supplemented are attached to this document.
15. The panel met on 16 December 2014 and again on 9 January 2015 to consider the evidence and submissions to reach a decision. This document is that decision.
Relevant findings of fact
16. The claimant has been employed as a Legal Officer by the respondent from 4 September 2000 to date. Her employment subsisted during her two career breaks in accordance with the policy. The respondent took the view that it continued after the end of the most recent career break and that it is still in existence. The claimant’s primary argument accepts that employment has subsisted to date after the ending of the second career break. The tribunal therefore concludes that the claimant and the respondent are still parties to an employment contract.
17. The respondent operates a career break policy. It has been in place since 2001. It was initially requested by NIPSA, the recognised trade union. Following that request, it was negotiated with and agreed by that trade union. The tribunal accepts the evidence of the respondent’s witnesses that it was based on, but was not a copy of, the NICS career break policy.
18. Career break policies are simply contractual terms which can contain a variety of different provisions. There is no industry standard or statutory template which prescribes certain provisions within any such policy. Each such policy is a matter for negotiation between the employer and the employees (or the trade union) and has to be interpreted individually as it stands. The correct interpretation of a career break policy is therefore a matter to be approached in the same way as the interpretation of any other contractual provision.
19. The respondent’s policy, at Paragraph 1.1, provides that:-
“The objective of the Equality Commission’s (‘the Commission’) career break policy is to facilitate staff who wish to take an extended break from work. It is also the aim of the policy to contribute to the provision of equality of opportunity. The decision whether to grant a career break or not will be at the discretion of the Commission.”
20. Career breaks are for specific periods of between one year and five years. There can be extensions of not less than one year on each occasion up to a maximum of a total career break of five years.
21. Paragraph 3.3 provides:-
“A request to return from a career break before the due date will be considered if the circumstances giving rise to the request did not exist or could not have been known at the time of the original application.”
22. Paragraph 4.4 provides:-
“A staff member who is refused early return from a career break may take up alternative salary/wage earning employment in Northern Ireland for the duration of, but not beyond, the career break. If, however, there is a delay in placing staff at the end of a career break a staff member may remain in employment until a vacancy is identified.”
23. While these two contractual provisions refer specifically to career breakers who want to return earlier than the due date and who are therefore not directly relevant to this case, the clear presumption is that it is anticipated that while there may be a delay, career breakers will be permitted to return at or at some point after the expiry of the fixed career break. The provisions specify that if an individual wants to return early from a career break but is refused, he or she may take up alternative wage earning employment up to, but not beyond the duration of the career break. It is only if, for some reason, there is a delay in the return of the career breaker to the organisation that further alternative wage earning employment may be considered. There is nothing in any of this which suggests any possibility of a career breaker, who wishes to return after the expiry of the career break, simply not being reinstated for an indefinite period or possibly for ever.
24. During the existence of any career break, the career breaker remains an employee of the respondent. Paragraph 5.1, for example, provides:-
“During a career break, staff members will be subject to the Commission’s regulations. Clearly some of these will be inapplicable, but others, particularly those relating to conduct or the acceptance of outside appointments must and will be borne in mind. Disciplinary action, where appropriate, may be taken.”
Career breakers have also been included in voluntary severance schemes. According to the respondent’s evidence it is also anticipated that a compulsory redundancy exercise in 2015 or 2016 will include those employees whose career breaks have ended but who have not been permitted to return. That would include the claimant.
25. Career breakers are on special leave without pay during the career break. That period of special leave does not count towards superannuation and annual leave entitlement.
26. Paragraph 9.1 provides:-
“In accordance with the Commission’s recruitment and selection procedure, given the duration involved (ie more than 12 months), vacancies that arise when staff take career breaks will normally be filled on a permanent basis by external competition.”
The document contains no explanation of that part of the policy. Furthermore, on the plain wording of paragraph 9.1, it applies only where a vacancy lasts for more than 12 months. In the present case the claimant’s post was filled on a permanent basis by a Mr Conor McBride some two to three months after her career break commenced. At that point, the career break was for 12 months only; not for more than 12 months. In any event, a policy of permanently filling posts left temporarily vacant by career breaks, either before or after a 12 month period, would have had a significant impact on the viability of a career break policy and on the eventual reinstatement of any career breaker, particularly given the small size of the legal office and indeed of the Commission staff in total. The situation would obviously be different with a larger employer such as the Northern Ireland Civil Service which would have had greater flexibility in redeployment and reinstatement.
27. The respondent’s evidence was consistently that they regarded the filling of posts on a temporary basis as impracticable and unfair. That evidence is difficult to understand. It is clear that the claimant herself was originally recruited on a temporary basis and it also seems clear that there were at least six other temporary appointments within the Equality Commission in recent years. Furthermore, the filling of legal posts in the public sector on a temporary basis or on a fixed term basis is relatively common place. No evidence was produced of unsuccessful competitions to fill posts on a temporary basis or on a fixed term basis. No evidence was produced of unsuccessful attempts to use agency staff, eg from Blueprint or Grafton.
28. Paragraph 10.1 of the respondent’s scheme provides:-
“It will not always be possible to assign staff returning from a career break to their former positions. If this situation occurs staff will be assigned to vacancies as and when they arise in their grade and department or the equivalent grade or department following any restructuring or re-organisation arrangements.”
29. That paragraph does not say that staff ‘will be assigned to vacancies only if they arise etc’. There is again a presumption that there will be a return even if that is a delayed return. It does not contemplate an indefinite or a permanent delay in that return. The paragraph must be interpreted rationally and reasonably having regard to what was in the mind of both contracting parties.
30. Paragraph 10.2 of the respondent’s policy provides:-
“If there is a delay in placing staff at the end of a career break staff may take up alternative salary/wage earning employment in Northern Ireland until a vacancy is identified.”
Again there is a presumption that a vacancy will indeed be identified. The paragraph says ‘until a vacancy is identified’. It does not say ‘until or indeed if’ a vacancy is identified’.
31. Paragraph 10.3 of the policy provides:-
“If a staff member was working in a part-time or job sharing arrangement before the commencement of a career break every effort will be made to allow the staff member to return to work on that basis. However there is no guarantee that this will always be possible.”
This is a clear and specific warning to the effect that a career breaker who has previously been on a particular flexible working arrangement will not be guaranteed that that flexible working arrangement can be replicated on their return to work. However there is again no warning that the career breaker may in fact not be permitted to return at all or that he may not be permitted to return for an indefinite period. If the policy gives a warning in relation to the availability of flexible working arrangements, it is extraordinary that it did not take this opportunity to give a warning as to a possible failure to reinstate at all, if such an outcome is indeed part of the policy and therefore part of any contractual variation put in place by the policy.
32. Paragraph 10.4 of the policy provides:-
“Staff on a career break must contact the Commission three months before they are due to return to:
- confirm that they intend to return on the agreed date; or
- apply for an extension of their career break; or
- indicate that they wish to resign.”
33. Paragraph 10.5 of the policy provides:-
“In addition staff who take career breaks of more than one year’s duration must contact the Commission at the end of each 12 month period to confirm their intention to resume work at the Commission.”
34. Paragraph 10.6 of the policy provides:-
“Staff who are unable to resume work on the due date because of illness will be required to produce a medical statement.”
35. All these provisions are again on the clear assumption that there will be a return to work after the career break. It is after all a career ‘break’; not a career ‘termination’ or a career ‘indefinite suspension’. They go into some detail, including, for example, specifically requiring staff who are unable to resume work on the due date, because of illness, to provide a medical statement. It is simply inexplicable, if there had been a clear agreement that a career break did not guarantee a return, even if it were agreed that that return to employment could be delayed, that the opportunity was not taken in Paragraph 10 to make that plain and indeed to include a health warning in block capitals. The tribunal accepts the clear evidence of the respondent in cross-examination that “no one anticipated this scenario”. It is therefore clear that no one in 2001 turned their mind to, and therefore they did not agree to, the proposition that an application for a career break could be a resignation, albeit a protracted one.
36. The NICS career break policy, on which the respondent’s policy is based, is as you would expect, similar in purpose and in terms, although it is a longer document than the respondent’s policy. It also anticipates a career break being a break in employment and not a termination of employment. It is again based on the assumption of a return to paid employment. For example, Paragraph 17.10 deals with a situation where a career break immediately follows a period of maternity leave. It provides for a penalty, ie the repayment of maternity pay, where an individual fails to return at the end of the career break period.
In Paragraph 17.17 it points out that special leave without pay does not count as reckonable service towards pay progression, pension or annual leave. However, it points out that accumulated benefits will be preserved and built upon when ‘you return to paid employment’. It does not say ‘if you return to paid employment’.
Again, in Paragraph 17.19 it provides that a person on a career break will be considered under the same terms as serving members of staff where there is a redundancy or early severance situation. It does not provide that an individual on a career break should simply be left without work and pay indefinitely or indeed permanently rather than being considered, as part of an appropriate pool of employees, within contractual terms relating to a compulsory redundancy.
It is perhaps notable that the respondent’s career break policy contains no similar provision.
37. At Paragraph 17.24 of the NICS policy provides:-
“You will not normally be posted back to your former post/location, but to vacancies as and when they arise. This will usually be in your former department or the equivalent department following any restructuring or organisation. Every effort will be made to ensure that you return to a post within your substantive grade/pay range, although you may be required to serve in a lower grade on a temporary basis until a suitable posting in a substantive grade can be found. [tribunal’s emphasis] Pay would relate to the substantive grade initially, but would be on a mark time basis until a suitable vacancy in the substantive grade is available.”
Paragraph 17.25 of the policy provides:-
“Departments will endeavour to re-absorb their own staff. If, exceptionally, this is not possible within a reasonable period of time, [tribunal’s emphasis] Departmental HR may negotiate with any departments that have vacancies.”
Paragraph 17.26 of the policy provides:-
“Where a suitable post is not available you may, with the agreement of Departmental HR take up alternative salaried or wage earning employment within Northern Ireland, on a temporary basis, until a suitable post becomes available [tribunal’s emphasis] either in the substantive grade or the lower grade.”
38. All of this indicates that in the NICS policy there is also a clear assumption of a return to work and that there has been no contemplation of a situation where a return to work can simply be deferred indefinitely by management; effectively converting a career break into a protracted and involuntary resignation or into a long goodbye.
39. The use of the words ‘following any restructuring or re-organisation’ in the second sentence of Paragraph 17.24 helps resolve the protracted dispute in this case about the correct interpretation to be applied to the final sentence of Paragraph 10.1 of the respondent’s policy. It tends to suggest that the interpretation advanced by the respondent is correct. The use in the NICS policy of these words makes it relatively clear that those words should be read with the preceding words, ie ‘or the equivalent grade or department following any restructuring arrangements’. It is simply a clarification of ‘equivalent grade or department’. There is therefore no specific or express requirement that restructuring or re-organisation should take place in any particular circumstances and, in particular, where a career breaker does not return on the due date.
40. Mr McAlorum in his cross-examination was asked whether there was a general understanding that a career break would allow for a return to work. He appeared reluctant to accept that this was the case but eventually accepted that this was the general understanding of the term “career break”.
Again in his cross-examination, he stated that the career break policy spelt out clearly “what would happen on their return to work”. The tribunal concludes that this was clearly incorrect.
41. The respondent is a statutory body with an annual budget which is fixed from time to time by the Executive. In common with all other parts of the public sector, the respondent organisation has been subject to successive cuts in its budget. That budget had previously gone up and down according to needs and resources. However in the period between 2010 to 2014, there were successive cuts spread over four years, amounting to a reduction of approximately 10% in total or, in cash terms, £700,000. Approximately two thirds of the respondent’s annual budget is spent on staff costs.
42. The respondent’s budget was then cut by a further 4% in the current financial year. It has also been asked to plan for a 15% cut in the next financial year. That projected cut may well exceed the actual cuts over the preceding four years.
43. The respondent has 146 staff. 50% are on part-time or flexible working arrangements and the workforce amounts to 110 full-time equivalent (FTE) staff.
The workforce is currently 2/3 female and 1/3 male.
44. Since 2001 when the career break policy came into force there have been 31 career breaks. Two members of staff have each taken two separate career breaks. There have therefore been 29 career breakers. The gender breakdown of career breakers is approximately 80% female and 20% male.
45. Of the 31 career breaks from 2001 to date, 15 breaks were either wholly or partly for domestic responsibility (14 female and 1 male). The other 16 career breaks were for reasons ranging from living abroad, taking up a post outside the jurisdiction, starting a business and further education/training.
46. At 15 August 2014, nine career breakers had not been permitted to return. The gender breakdown is eight female and one male.
Of those nine career breakers, one has resigned, one has taken flexible early severance and one has taken flexible early retirement. The remaining six consist of five females and one male. They had been without work, pay or a compulsory redundancy payment for periods of between seven months to sixty-four months, at 15 August 2014.
Three of these six employees have now agreed to take a voluntary severance payment. Three, including the claimant, have not.
47. In 2002 the claimant applied for, and was granted, a one year career break to enable her to complete her professional qualifications, ie to complete the second year of her training contract. On that occasion the respondent agreed to fill her post with a temporary placement. That was presented to the claimant as a special concession. She was told in an e-mail dated 15 August 2002 from Barry Fitzpatrick that:-
“ ... we have managed to interpret the career break policy to allow you to finish on 7 September, take a 12 months carer [sic] break and have your post filled by a temporary replacement.”
That e-mail was in response to e-mails from the claimant. In one of those e-mails on 14 August she stated:-
“ ... it would make practical sense to fill the resulting vacancy on a temporary basis.”
It is entirely unclear why the respondent’s career break policy needed any particular or strained interpretation to achieve this result. The statement in Paragraph 9.1 of that policy to the effect that vacant posts would normally be filled on a permanent basis is expressly limited to vacancies lasting more than 12 months. That did not apply to the claimant’s first career break in 2002, which at that stage was for only 12 months. Even if paragraph 9.1 had properly applied to the claimant in 2002, it would only have indicated that, for some reason, her post would normally be filled permanently.
48. In late 2008, the claimant was due to return from maternity leave but there were health concerns about her child. Between 5 November 2008 and 13 November 2008 there was an exchange of e-mails in which the use of special leave, annual leave or a career break was considered. It is clear that it was made plain to the claimant that, in the case of a career break there was no guarantee of a return to the same post in the legal office. However there was no warning that the claimant might not be permitted to return at all or not permitted to return for an indefinite period.
On 5 January 2009 the claimant applied for a career break. Her maternity leave had finished on 30 November 2008 and annual leave had been used thereafter, taking her up to 8 January 2009.
The respondent did not insist on the normal three month notice period and the career break was granted, to commence on Monday 12 January 2009.
49. The respondent confirmed this in a letter of 20 January 2009 and stated that the career break ‘has been approved to care for your daughter’. The claimant was advised that ‘during this time, your substantive post may be filled on a permanent basis, this is in line with the Commission’s Career Break Policy’.
That particular statement was not in accordance with the policy, since Paragraph 9.1 referred to absences of more than one year and at this stage the career break was for one year only.
In any event, the claimant’s post was filled on a permanent basis by the appointment of Mr Conor McBride some two to three months after the commencement of the career break. The claimant was not informed until December 2013 that this had happened.
50. The claimant was not advised that, at the end of her career break, she could be indefinitely refused reinstatement, pay or work or that compulsory redundancy could be deferred indefinitely at the respondent’s option.
51. The career break was subsequently extended on four occasions up to the maximum five year period.
52. In an e-mail of 19 November 2012 the respondent approved the final extension of the career break. It stated “Please note that this is the final extension to your career break”.
It also referred the claimant to the career break policy, which was enclosed, and to “Section 10, which outlines the return to work provisions”.
Nothing in this letter indicated that a return to work could be deferred permanently or indefinitely solely at the respondents’ option.
53. On 11 September 2013, a few months before the claimant’s career break was due to end, the respondent wrote to all staff, including the claimant, inviting an expression of interest in flexible early severance (below age 50) or flexible early retirement (age 50-60). It stated:-
“The Commission is not seeking large scale change in the staffing levels and structure and it is anticipated that only a small number of staff will be interested in availing of this opportunity.”
54. On 23 September 2013, the claimant confirmed her intention to return to work. She also expressed interest in voluntary severance or a reduction in working hours. There was no reply from the respondent to that letter telling her that she would not in fact be returning to work. However, it seems clear from the respondent’s evidence, particularly that relating to other career breakers who had not been permitted to return, that the respondent would have known at that stage that the claimant was not going to be permitted to return to work as indicated by her, or indeed at all. It seems extraordinary, as a matter of basic fairness, that this was not made plain to the claimant even at this late stage. Again as a matter of basic fairness, any employee was entitled to know at that stage, and indeed much earlier, that her planned return in accordance with the respondent’s policy, was merely illusory.
55. The claimant telephoned the respondent on 30 September 2013 to discuss voluntary early severance. She was again not told that she would not be permitted to return to work. The respondent’s note of the call states only:-
“Career break – request to return has been received. Will be considered but it is likely to be some weeks before you hear from the Commission.”
There was no evidence of what, if anything, was being ‘considered’ by the respondent over the next nine weeks. This seems to have been a remarkably casual way to treat an employee.
56. The claimant telephoned again on 2 December 2013 to explain that she had heard nothing further about her return to work. The respondent phoned her back later that day and left a voicemail. The respondent’s note of this voicemail was:-
“Apologies for delay
Could you poss. ring me
Would like to meet this Friday afternoon if possible to update you on
- (i) flexible early sev. E of I (early severance expression of
interest]
- (ii) return to work request”
The claimant was again not told that she would not be permitted to return to work as indicated by her or indeed at all. The voicemail was confirmed in writing and in similar terms. The arranged meeting was for an ‘update’ on her return to work in accordance with the respondent’s scheme; the claimant was not warned that the ‘update’ would be a refusal to allow a return.
57. The claimant returned the call on 4 December 2013 and spoke again on 9 December 2013 to arrange a meeting on 10 December 2013. The claimant was again not advised in either call that she would not be permitted to return to work. However it is clear that the respondent would have been aware that that would be the case.
The tribunal is satisfied that the claimant had had very little contact with her colleagues during her career break. She lived in Hillsborough and had family responsibilities. She had occasionally bumped into Sinead Eastwood whose holiday home was near hers. However there was no evidence that the operation of the career break policy had ever been discussed on those occasions. She had on one occasion come across a Ms Rachel Spallen who had told her that she had not been permitted to return from a career break but Ms Spallen could not discuss or explain the issue because it had been covered by a compromise agreement. The tribunal notes the total failure on the part of the respondent to notify the claimant of its interpretation and operation of the policy at any stage and in particular once the claimant had notified her proposed return. In the absence of any indication to the contrary, the claimant had been entitled to assume that she was going to be returned to work and pay in January 2014, with the possibility of a delay.
58. Preparatory notes were prepared by the respondent for the meeting on 10 December 2014. Those notes indicated that there was only one Staff Officer vacancy which had been recommended for internal redeployment and there were three other Staff Officers who had been on career break and who wished to return. Those notes or the substance of those notes were not communicated to the claimant in advance of the meeting.
59. In the meeting on 10 December between the claimant and Mr McAlorum, the respondent’s notes indicate that the claimant was told:-
“It is unlikely that a vacancy, cld (sic) be identified or funded to enable her return.”
The use of the word ‘unlikely’ is puzzling. It was perfectly clear to the respondent at that point that, short of an employee, or rather several employees being simultaneously run over by a bus, there was no prospect of a post being ‘identified’. Equally, there was no rational basis on which the respondent might have anticipated a sudden increase in funding from the Executive. Mr Brown, in cross-examination, accepted that since 2010, the Commission had found it increasingly difficult to guarantee a return to any type of work. He also accepted that in late 2014, there was no realistic prospect of any post for the remaining three career breakers (including the claimant) “unless someone left”. In fact, several would have had to leave over and above those whose departure would simply have been absorbed in the reductions in funding.
The claimant expressed the view at that point that she was being made redundant.
60. The claimant wrote to Mr McAlorum on 16 December 2013 asking for details of a compulsory redundancy settlement. The claimant wrote again in similar terms on 20 January 2014.
61. The respondent replied on 21 January 2014 stating:-
- “it is likely there will be a delay in placing you back in the Commission”
- “it is not the Commission’s view that you or your post has been made redundant as you have stated”
Given the respondent’s evidence to the tribunal it is unclear how the Commission concluded in January 2014 there would be a delay in the claimant’s return. As indicated above the position was there was at that point no realistic prospect of her ever returning. There were no vacancies; no vacancies were anticipated; funding was severely restricted and there were three other Staff Officers ahead of her in the queue.
62. A further meeting was arranged for 30 January 2014 between the claimant and Mr McAlorum. The respondent’s preparatory notes stated:-
“It is likely that there will be a delay in placing you back in the Commission.”
“It is not the Commission’s view that you or your post has been made redundant ... “
Again the prospect of a return was held out to the claimant when there was no real prospect of such a return with several people ahead of her in the queue, with no vacancies and with severe funding restrictions. This was grossly unfair.
63. At the meeting on 30 January 2014, the claimant stated that she regarded this as a redundancy situation, that she was due wages and that the career break policy was discriminatory. She stated that because she had no post this was not a situation of voluntary severance; this was a situation where the compulsory redundancy terms applied.
64. In a follow up meeting on 31 January 2014, it was agreed that her complaints could be addressed through the grievance procedure.
65. On the same day the respondent sent the claimant indicative figures for voluntary early severance. They amounted to £6,150.00.
In the same letter, some six weeks after the claimant requested these figures, the respondent set out compulsory severance terms. They amounted to £21,500.00.
The difference between the voluntary severance offered by the respondent and the compulsory redundancy sought by the claimant was £15,350.00.
66. A grievance meeting was held on 27 February 2014. The claimant reiterated her complaints. The claimant complained that her request to work for less than four days per week had not been dealt with. She complained that she had not been given an opportunity of applying for a Research Officer post (SO). She also complained that she had not been allowed to apply for an Assistant Research and Policy Officer post (EOI).
67. The respondent set out its answer to the grievances in a letter dated 28 March 2014:-
(i) The respondent did not accept that she had been made redundant and that the compulsory redundancy terms applied. It stated that:-
“The career break provisions may enable a return to a Staff Officer post in the Commission and resolve this element of Elizabeth’s grievance.”
Given the evidence of the respondent at the hearing and the fact that three other career breakers had already been denied a return, over lengthy periods, the basis for this belief is unclear. In the context of declining funding, the belief was at best absurdly optimistic.
(ii) The respondent did not accept that pay was contractually due from 12 January 2014; ie from the end of the career break.
(iii) The respondent did not accept that the career break policy was either illegal or discriminatory in its application.
(iii) It said of 29 career breaks, 23 (79%) were female and six male (21%). The general workforce varied from 65% to 75% female.
Of the eight current career breakers, five (62.6%) were female and three (37.5%) male.
(iv) A voluntary reduction in hours had not been considered because her expression of interest in voluntary severance was currently being considered.
(v) The Research Officer post was during her career break and publically advertised. The letter did not say as the respondent has argued in this tribunal that this was a specialist post for which the claimant had been unsuited.
(vi) The EO1 post was at a lower grade.
(vii) The claimant was not in a compulsory severance position. No analogy was drawn with paragraph 17.24 of the NICS scheme and the letter did not say as the respondent said for the first time to this tribunal that the claimant would be included in a compulsory redundancy exercise at some indeterminate point in the future.
68. The claimant did not appeal her grievance. Any such appeal would have been heard by Mr Brown. The claimant’s evidence was that she had believed the interpretation of the career break policy would not have changed. Having heard the evidence of Mr Brown to this tribunal, the claimant’s view was correct. The position would not have altered.
That said, the claimant should have gone through the motions of an appeal and the claimant accepts that she should have done so. It is however clear that any such appeal would have changed nothing.
69. The redundancy procedure, including the compulsory redundancy terms indicated to the claimant was published in June 2010. A later policy appears to have been put in place with reduced benefits but this was not discussed in detail.
CONTENTIONS OF THE PARTIES
70. The contentions of the parties are as set out in the attached written submissions and additional written submissions.
FORMAT OF DECISION
71. Ordinarily, the relevant law is set out separately in any decision. However, the present case involves several separate legal issues. The decision will therefore deal separately with each of those legal issues, setting out the relevant law at the appropriate point; under the general heading of ‘Decision’.
DECISION
Construction of the Contract
72. The correct construction of the employment contract in relation to career breaks needs to be considered first; before the claims of indirect sex discrimination, unauthorised deductions or redundancy can be addressed.
73. A career break policy falls to be construed like any other provision in a contract. There is no industry standard or general template which requires that certain provisions automatically have to be included in such a policy, or automatically have to be implied in such a policy.
74. The respondent argues that the claimant has accepted a variation to her contract by taking a career break. It argues that this variation either expressly or impliedly permits the respondent to indefinitely delay the return of the claimant, as it has in this case, and not to provide work or pay while it does so. The claimant argues that there was no such variation and that she was entitled to be returned to work on 12 January 2014, or at least paid from that date.
75. This is yet another of those cases where two contracting parties, who really should have known better, have negotiated a contract and have left an important issue unclear. In this case, those contracting parties are the Equality Commission and NIPSA.
Anyone contemplating a career break, often, as in this case, because of family circumstances, is entitled to know what they are applying for and, if successful, what they have been granted. However it is clear from the respondent’s evidence, and from the documentation, that the implications of general funding cuts and of staff reductions on the operation of the policy were not considered in the negotiations and were not dealt with in that policy.
76. The respondent’s career break policy has already been discussed in some detail earlier in this decision. It is clear that the policy was written on the basis that a ‘career break’ meant what it said on the tin, ie a break with a departure and a return. It was not written on the basis that the acceptance of a career break was in fact a resignation with no more than a limited form of preferential reinstatement if a suitable vacancy were ever to arise at some indeterminate point in the future.
77. There was no clear notification to any applicant for a career break that he or she was effectively signing a resignation; effectively giving up any right of return, and effectively giving up accumulated employment rights.
78. The terms of the policy and the evidence of the respondent make it clear that a career break was not granted as of right. It had to be applied for by the employee and could be refused by the respondent. The same position applied to any extensions of a career break. At no point was it made clear to the claimant, either in relation to her initial application for a career break, or in relation to her subsequent applications for extensions of that career break, that she was putting her continued employment with the respondent at significant risk.
If, as has been conceded by Mr Brown, it had became difficult from 2010 to guarantee a return to any type of work, the respondent should either have refused career breaks and extensions or should have clearly and unambiguously explained the implications. It did neither. Mr Brown’s response in cross-examination was that “the unions would have said it is a person’s contractual right to go on a career break – the first time someone was turned down”. This is nonsense. There was no such contractual right. Career breaks were discretionary. In any event, no one, even the hypothetical “unions” could have objected if the implications of a career break or an extension had been spelt out clearly.
79. That said, it is clear that the policy did contemplate that there might be a delay in a return to work. Paragraph 10.2 allowed a career breaker to take up alternative salaried employment in Northern Ireland in such circumstances.
However the policy did not contemplate, or warn an applicant about, any indefinite or permanent delay in a return. It did not, as in the NICS policy, flag up the possibility of compulsory severance being available to all employees, whether on a career break or not.
80. The NICS policy, like the respondent’s policy, was written on that basis that there would be a return to work, even if there was a delay. However it provides at Paragraph 17.19:-
“In a redundancy or early severance situation, if you are on a career break you will be considered under the same terms of serving members of staff.” [tribunal’s emphasis]
There is no such reference in the respondent’s policy, apart from a vague statement in Paragraph 5.1, that:-
“During a career break staff members will be subject to the Commission’s regulations. Clearly some of these will be inapplicable ... .”
81. There is no statement in either policy that where there have been funding cuts and/or overstaffing, career breakers will be retained indefinitely or permanently without work or pay and without any compulsory redundancy entitlement, either to afford preferential treatment to those actually at work by deferring the need for a redundancy scheme, or for any other reason.
82. It is clear from the chart shown at Page 57 of the bundle that a female career breaker had been refused a return from a career break for a period of some 64 months at 15 August 2014. That means that she had been refused a return on or about 15 June 2009. That was shortly after the granting of the claimant’s first career break in January 2009 and very shortly after the permanent filling of the claimant’s post some two to three months later. These dates were in a document forward by the respondent in preparation for this hearing. They were not altered or corrected before the hearing or at any point apart from one point in Mr Brown’s cross-examination. They were not altered subsequently and it can be presumed that they had been prepared carefully and checked.
In that part of his cross-examination, Mr Brown (for the first and only time) thought the 64 months was wrong but had no precise alternative. He eventually posited “between four and five years” but then immediately went on to say that the proposed return for that employee had been April 2009 rather than February 2009. This does not seem consistent with his earlier answer which to be fair was apparently without checking any documents and was spontaneous. He also accepted that the respondent, given the requirement for three months’ notice of return, would have been considering her return from January 2009.
It does not seem possible that the respondent when it granted the claimant’s first career break would have been unaware of the pending funding cuts and of the implications which its interpretation of the career break policy would have had on the claimant. Yet no such warning was given, either then or even at the time of the first extension application, when one career breaker had already been refused a return to work and had been placed indefinitely on no pay.
83. Without, at this stage, going into the legal implications, the respondent’s actions seem at best grossly unfair. An employee in such circumstances was entitled to be given a proper explanation of her circumstances so that she could at least seek alternative employment. For an employer that holds itself out as an exemplar of fairness, this was extraordinary behaviour.
84. Leaving aside the question of any specific provision in the policy or the contractual variation, permitting an indefinite or permanent suspension, because there clearly was none, the tribunal has to turn to the question of an implied variation, which on the respondent’s argument, would permit such a result.
85. The law in relation to the construction of implied contractual terms is well settled and appears repeatedly in EAT decisions; proof if nothing else of the proposition that employment contracts should be properly and specifically drafted in the first instance.
The most recent reference, on 10 November 2014, is Goldwater v Sellafield Ltd [UKEAT/0178/14]. In that case the EAT had to determine whether a contractual requirement to pay a certain level of pay, within six weeks of an event, referred to just basic pay or whether it included shift supplements and certain bonuses. As in the present case, the negotiating parties to the policy had not managed to make the position clear.
86. The EAT set out the law in Paragraph 8 of its decision:-
“There is no dispute that the relevant law as to the construction of a contractual term like this ‘six week rule’ contained in the Employee Handbook is set out in the speech of Lord Hoffman in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 ALL ER 98, and in particular the five principles he identifies at pp 114/15. Adapting Lord Hoffman’s words somewhat, the task is to ascertain the meaning which the words of the rule would convey to a reasonable person with all the relevant background knowledge available at the time it was introduced. The relevant background includes absolutely everything that would have affected the way in which the language of the rule would have been understood by a reasonable man, excluding previous negotiations and declarations of subjective intent. The fifth principle identified by Lord Hoffman is this:
‘The rule that words should be given their ordinary and natural meaning reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had.’.”
87. In Lamey v QUB – employment tribunalsni.gov.uk, the tribunal referred to the decision of the Court of Appeal in Napier Park European Credit Opportunities Fund Ltd v Harbour Master etc [2014] EWHC 1083 CH. The broad principles of statutory interpretation were expressed as:-
88. Both decisions say the same thing. The tribunal should disregard prior negotiation and look at what a reasonable person with all the background knowledge available to the negotiating parties could have taken the policy to mean. The plain wording of the policy is always the starting point and will not easily be set aside.
89. It is clear that the policy was to provide, on a discretionary basis, career breaks. It was not a policy to invite involuntary resignations or to invite an indefinite or permanent exclusion from the workplace. It was not a policy designed to allow the respondent to avoid or to delay a compulsory redundancy situation by suspending former career breakers indefinitely or permanently. The plain wording throughout the policy provided for a return, albeit in certain circumstances with a delay. If the policy had been one providing for an effective resignation with no more than a right of preferential reinstatement, and then only where possible, it would have said so. It did not. No one reasonably looking at the wording of the policy in 2001, with the knowledge available at the time, could have concluded that such a provision should be implied into the policy, contrary to the plain wording of the document.
90. The tribunal therefore concludes that the contractual variation permitted only a delay in a return to work, not an indefinite delay or a permanent delay, with no work, no pay and no compulsory redundancy entitlement until the respondent deemed the time was right for it to address the matter.
91. The tribunal also concludes that the policy provides that during any such temporary delay there was no right to pay under the policy. While again there is no specific provision to this effect, as one might have expected in a document drafted between a trade union and the Equality Commission, it would be right to imply such a provision. The right in Paragraph 4.4 to undertake alternative salaried employment in Northern Ireland during such a temporary delay can support no other conclusion. If there had been a right to pay during a temporary delay, why would the policy have permitted alternative salaried employment for a period?
92. The tribunal therefore concludes that the respondent acted in breach of the claimant’s contract, as varied, when it refused, indefinitely or permanently, to take the claimant back to work, or to pay her following a temporary delay. The respondent, given the number of career breakers already refused entry at that stage by January 2014, knew that there was not merely going to be a temporary delay. The claimant was, in reality, not going to return for an indefinite and probably permanent period.
93. Unsurprisingly, the respondent’s contractual redundancy policy does not provide that a permitted measure to avoid or to minimise redundancies is to refuse to take back career breakers.
There is no definition of the word ‘redundancy’ in this policy. However it must attract its ordinary meaning. It clearly applies where there is no work and no funding for an employee or employees.
The redundancy policy provides for objective selection criteria to be set in a compulsory redundancy situation. It does not specifically address the situation of career breakers and therefore the position must be that in such a situation, the objective selection criteria should apply equally to career breakers, to person in ‘limbo’ following a career break, and to employees actually at work.
There is therefore no clear answer as to whether the claimant would have been selected for compulsory redundancy if the respondent had invoked the redundancy policy at any point since 2009, rather than indefinitely or permanently suspending employees whose career breaks had ended.
94. As if there were not uncertainty enough, there is yet another uncertainty. The claimant, if she was permitted to return, wanted to work reduced hours. The respondent had not considered that possibility. It was clear that she wanted to work for less than her standard four days a week. It is also possible, given the history of the claimant’s employment, that that reduction in hours would have been allowed. The claimant however could not say what reduction in hours she would have wanted:
“I couldn’t say what – but wouldn’t have been two days”.
Quantification of the alleged loss of earnings, after an undetermined ‘delay’ and subject to unknown prospects of redundancy selection, is therefore even more problematic.
APPLICATION OF THE CAREER BREAK POLICY
95. As indicated above, the negotiated career break policy was based on the premise that, if an applicant were afforded a career break by the respondent, that employee would return to employment with the respondent, if necessary after a delay, to a suitable post.
96. The respondent, for reasons which were not made clear in the course of this hearing, operated a policy of filling the posts of career breakers on a permanent basis rather than on a temporary, fixed term, or agency basis. It did not use locum staff for this purpose. The respondent’s evidence was that to do otherwise would have been ‘unfair’ and that it would have annoyed the trade union. No evidence has been produced to support the latter assertion. It seems to this tribunal highly unlikely that a trade union would have objected to filling the posts of those employees, who were absent from work on a temporary or fixed term basis, in a similar way, ie on a temporary or fixed term basis. Such an approach would have fulfilled the respondent’s commitment in Paragraph 1.1 of its redundancy policy where it stated:-
“The Equality Commission for Northern Ireland (‘the Commission’), believes that it is vital for good employee relations, productivity, and morale to, so far as is practicable, establish and maintain high levels of job security for its employees.”
To state the obvious, permanently filling posts which are temporarily vacant in a small organisation does not promote ‘high levels of job security’. It does not recognise the essential nature of a career break ie that it is a temporary break and not a permanent or indefinite break.
97. Mr McAlorum was the respondent’s HR manager and can therefore be presumed to be fully familiar with the operation and basis of the career break policy. He confirmed that it had been the policy of the respondent to permanently fill those posts left temporarily vacant by career breakers. He could not explain why that was the case. He stated that in the present case senior managers in the legal department had asked that the claimant’s post should be filled on a permanent basis. He stated:-
“I am sorry. I do not know why.”
“My view would be look at what senior managers requested.”
Mr McAlorum confirmed that he had not considered filling the claimant’s post on a temporary or fixed term basis.
If there was a considered and objective justification for the respondent’s interpretation of the career break policy, and in particular for filling temporarily vacant posts on a permanent basis, it is surprising that it did not come from the HR manager.
98. Mr McKinstry, the Director of Policy and Research, had nothing to say about the operation or interpretation of the career break policy other than to say that he hadn’t understood that the respondent’s argument was that the former career breakers had agreed to a contractual variation which allowed for them to be put ‘in limbo’.
He put forward a convoluted argument on disparate impact which seemed to be different from everyone else’s. That will be dealt with later in the decision.
99. Mr Brown confirmed in cross-examination that there was a presumption that the respondent would externally recruit posts. That of course does not say why such external recruitment, if there has to be external recruitment, has to be on a permanent rather than on a temporary or fixed-term basis.
He stated that the predecessor bodies to the current respondent had got into trouble with temporary contracts. There was no specific evidence as to how, why or when such “trouble” occurred. However it is clear that any such temporary recruitment occurred some time ago in different labour market conditions. He did not satisfactorily explain why the claimant’s post, which was temporarily vacant, had been permanently filled some two to three months after the commencement of her career break.
100. The suggestion that filling temporary vacant posts on a temporary basis is somehow ‘unfair’ does not stand up to any critical scrutiny. The same suggestion is not made where posts are temporarily vacant because of maternity leave or sick leave. It also disregards the use of temporary appointments elsewhere in the public sector and indeed the claimant’s own initial and temporary appointment.
101. In the document entitled ‘Justification Defence’, the respondent did not suggest that filling posts on a temporary or fixed term basis would be either unfair or that it would annoy the trade union. The respondent instead argued at that point that temporary posts attracted fewer applicants and that it therefore needed to fill posts permanently ‘for effective business planning’. It did not explain how such “effective business planning” was assisted by leaving career breakers with significantly reduced prospects of a return. It also argued in that document that temporary appointees were more likely to leave early and to breach continuity. No evidence was produced to effectively support either proposition in the period from 2009, when many lawyers were unemployed in this jurisdiction and when temporary or fixed term contracts for public sector lawyers were not unknown.
102. The respondent therefore seems somewhat confused as to its reasons for filling temporarily vacant posts on a permanent basis. It has not provided any convincing or even any arguable reason for its decision to permanently fill those posts left temporary vacant by career breakers.
103. In any event, the respondent is a relatively small employer, with limited flexibility. It currently numbers 110 FTE staff. Numbers are declining and have been declining for some years. It is clear that the respondent knew that staff leaving on a career break since 2008/09 would have had only limited prospects of any return; their prospects were then made much worse when their vacant posts were filled permanently.
104. The respondent should have made its interpretation of the policy clear to those employees who applied for a career break since 2008/09. Those employees were effectively resigning and were being misled about their position.
105. There is no claim for constructive unfair dismissal relying on an alleged repudiatory breach of contract occurring on or about 12 January 2014. It is submitted instead by the claimant that there was such a contractual breach in failing to allow the claimant to return at that point in that the respondent:-
(i) failed to instigate a restructuring policy;
(ii) failed to treat her as redundant, triggering the contractual redundancy scheme;
(iii) failed to pay her wages; and
(iv) indirectly discriminated against the claimant on grounds of gender.
That latter point (iv) will be dealt with shortly in this decision. It is the primary argument of the claimant.
As the further submission has stated in Paragraph 48, the redundancy argument is advanced in the alternative, ie if the tribunal determines that there was no indirect sex discrimination. The claimant’s primary argument is that she remains an employee in a peculiar situation with no work, pay and contractual redundancy payment (as yet).
106. The first argument (i), that the respondent was contractually obliged to undertake a restructuring exercise, is rejected. The wording of Paragraph 10.1 of the respondent’s career break policy, properly understood and informed by the wording of Paragraph 17.24 of the NICS policy, does not create such a contractual obligation. It merely points out that the equivalency of grade or department will be judged in the light of any restructuring or re-organisation that might have occurred.
107. The second (ii) and third (iii) arguments are more problematic. First of all, the redundancy argument (ii), at least, is advanced in the alternative. The claimant asserts and the respondent accepts that the claimant remains an employee.
108. It is clear that the core of an employment contract is a contractual obligation to pay an employee if that employee is available for work, whether or not work is actually performed. In the present case, the contract had been varied by the application of the career break policy. However the variation did not extend so far as to permit the respondent, at its election, to suspend an employee indefinitely and, in reality, permanently, leaving an employee without work, pay or redundancy compensation.
109. The contractual variation, agreed to by the claimant, allowed for a temporary delay in a return. It did not allow for a permanent ‘delay’. That is not what the claimant signed up for. It is also clearly not what had been agreed by the negotiating parties in 2001 when the policy had been settled.
110. The obvious issues are the jurisdiction of the tribunal and determination of any remedy for the respondent’s breach of contract.
The claimant’s primary argument is that she is still employed by the respondent. A tribunal only has general jurisdiction to determine a breach of contract, and then only up to a financial limit, if the employment has been terminated by the date of claim under the Industrial Tribunals Extension of Jurisdiction Order (NI) 1994. The claimant has not therefore relied on that Order. It is mentioned in this decision solely for completeness.
The claimant has made a claim in respect of an unauthorised deduction of wages contrary to the 1996 Order. The UDW claim requires a breach of contract leading to a shortfall in wages.
111. In summary, the tribunal’s findings in relation to the contract of employment are:
(i) There is no requirement, contrary to the claimant’s argument, for a specific restructuring or organisation exercise when a career breaker wishes to return and when there is no vacancy.
(ii) The claimant’s contract of employment has not been varied by agreement, either expressly or implicitly, to permit a period of either indefinite or permanent suspension from work with no pay and no redundancy selection exercise.
(iii) There has been an implied contractual variation permitting a delay in a career breakers return. The purpose of any such delay is to identify a suitable post, or if one is not available to invoke the redundancy selection procedure. The length of any such permissible delay is not defined as it perhaps should have been. However any such delay cannot be indefinite or permanent.
(iv) The respondent is in breach of an implied term in the employment contract to invoke the redundancy selection procedure where there is a clear surplus of staff and/or a shortage of funding. It cannot leave staff with no work, no pay and no contractual redundancy on an indefinite or permanent basis. This has arguably been the case since 2009.
(v) Following the end of an undetermined period of permitted delay, and if the claimant were not to have been selected for compulsory redundancy before January 2014, the respondent would be in breach of contract in failing to pay the claimant wages.
(vi) It is impossible to establish the appropriate length of a permitted delay in the return to work, either generally or in the circumstances of the claimant’s case. Any attempt by the tribunal to assess the permitted delay would be pure guess work and based on no evidence.
(vii) It is also impossible to assess the outcome of any redundancy selection process or indeed to determine when or how often such processes should have taken place since 2009. Any attempt by the tribunal to assess the outcome would again be pure guess work and based on no evidence.
112. The permitted length of any delay in returning a career breaker to work would have to have been determined rationally and in good faith by the respondent. The Court of Appeal (GB) in relation to a different problem in Horkulak v Cantor/Fitzgerald International [2004] IRLR 943 examined the relevant case law and determined that a discretion provided for in an employment contact which is prima facie of an unlimited nature will be regarded as subject to an implied term that it will be exercised genuinely and rationally. The Court in that case determined that the High Court had been correct to calculate and award a sum under a discretionary bonus scheme.
In the present case the length of a permitted delay is not specified. However the respondent must be wrong to argue that this means that a delay can be extended indefinitely. That result would be contrary to the intention of the career break policy and contrary to much of its wording. Unlike Horkulak, there is no evidence on which any decision could be made in this case as to the exercise of the discretion i.e. the length of any permitted delay.
113. The potential outcome of, and the dates on which redundancy selection exercises should have taken place, are similarly devoid of any evidence. As with the question of delay, that is not a criticism of either party. It is simply an area of pure speculation where there is no evidence available upon which to reach a finding. Relevant redundancy selection criteria have not been settled between the respondent and the trade union. Even if such criteria had been settled the tribunal knows nothing about the particular circumstances of the claimant or of her fellow employees and therefore the likelihood of selection under such criteria could not be assessed.
114. Tribunals often have to assess compensation in difficult circumstances with limited evidence. Assessing injury to feelings is one such exercise. Vento makes it plain that this can be a difficult exercise. The Horkulak decision is an example of another problem area; discretionary bonus schemes. Reaching findings on limited evidence is one thing. Reaching findings by pure guess work is quite another. Where there is no evidence on which the length of a permitted delay, the length of any varied working week and the chances of redundancy selection can be assessed, a tribunal cannot do so. The alleged financial loss in relation to either wages or redundancy is simply unquantifiable.
115. The tribunal has considered listing the case for a separate remedy hearing but it would appear highly unlikely that any helpful evidence would emerge at any such hearing and the tribunal has decided not to do so.
116. There is therefore simply a finding that because of a contractual breach there has been an unauthorised deduction from wages for an indeterminate period. Without the ability to fix the length of a permitted delay in returning a career breaker, the length of any varied working week and the ability to assess the likelihood and timing of any redundancy selection, remedy cannot be properly determined.
117. The jurisdiction of the tribunal is crucial. It is a statutory tribunal with no inherent jurisdiction. If it has no statutory jurisdiction, it has no jurisdiction at all.
118. The claimant accepts that she remains in employment. She does not argue that her contract of employment has been determined. The most that she can argue is that a redundancy selection process or processes should have been invoked at unknown times and with unknown results. In those circumstances, where employment is continuing the tribunal has no jurisdiction to determine any freestanding claim under the 1994 Order and such a claim is not made by the claimant.
119. Furthermore any claim for unauthorised deductions from wages would not be quantifiable; because the length of any permitted delay in a return, the hours to be worked by the claimant in any varied working pattern and the chances of redundancy selection are not capable of determination. There can therefore be no claim for unauthorised deductions from wages under the 1996 Order. In Coors Brewery v Adcock [2007] ICR 983, the claim concerned a discretionary bonus. The claim was that the claimant had suffered an unquantified loss and the claimant required the tribunal to quantify it. The Court of Appeal held that this was properly a claim for breach of contract under the GB equivalent of the 1994 Order and not a UDW claim. In the present case it is not merely that the loss of wages or redundancy compensation is difficult to quantify – see Lucy v BA UKEAT/0038/08 – it is impossible to quantify.
120. The UDW claim must therefore fail. The claim is not quantifiable. The ‘fall back’ argument for a contractual redundancy claim must also fail. The claimant is still in employment and in any event the tribunal is not able to determine when or if the claimant would have been selected for redundancy.
INDIRECT SEX DISCRIMINATION
121. Article 3(2) of the Sex Discrimination (Northern Ireland) Order 1976 provides that indirect sex discrimination occurs where an employer in relation to an employee:-
“Applies to her a provision, criterion or practice which he applies or would apply equally to a man, but:-
(i) which puts or would put women at a particular disadvantage when compared to men;
(ii) which puts her at a disadvantage; and
(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.”
122. The proper approach to assessing disparate impact has been examined many times in reported case law. One recent example is the decision of HHJ McMullen QC in Faulkner v Chief Constable of Hampshire Constabulary [UKEAT/0505/05]. In that decision, the EAT stated:-
“20. The legal principles to be applied in this case appear to us to be as follows. The four elements of this form of statutory indirect discrimination can be extracted from the wording of SDA s.1(2)(b) namely:
a. The application of a “provision” which the discriminator “applies or would apply equally to a man”;
b. Which is such that it “would be to the detriment of a considerably larger proportion of women than of men” [ss.1(2)(b)(i)] (“disparate impact”);
c. Which the discriminator cannot show to be justifiable irrespective of the sex of the person to whom it is applied [ss.1(2)(b)(iii)];
d. Which is to her “detriment” [ss.1(2)(b)(iii)].”
21. The latest and most authoritative ruling on this matter is in Rutherford above where the speech of Baroness Hale contains the following statement of the law:-
71. BARONESS HALE OF RICHMOND: The essence of indirect discrimination is that an apparently neutral requirement or condition (under the old formulation) or provision, criterion or practice (under the new) in reality has a disproportionate adverse impact upon a particular group. It looks beyond the formal equality achieved by the prohibition of direct discrimination towards the more substantive equality of results. A smaller proportion of one group can comply with the requirement, condition or criterion or a larger proportion of them are adversely affected by the rule or practice. This is meant to be a simple objective enquiry Once disproportionate adverse impact is demonstrated by the figures, the question is whether the rule or requirement can objectively be justified.
72. it is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and the disadvantaged groups. So it is no answer to say that the rule applies equally to men and women, or to each racial or ethnic or national group, as the case may be. The question is whether it puts one group at a comparative disadvantage to the other. However, the fact that more women than men, or more whites than blacks, are affected by it is not enough. Suppose, for example, a rule requiring that trainee hairdressers be at least 25 years old. The fact that more women than men want to be hairdressers would not make such a rule discriminatory It would have to be shown that the impact of such a rule worked to the comparative disadvantage of would-be female or male hairdressers as the case might be.
73. But the notion of comparative disadvantage or advantage is not straightforward. It involves defining the right groups for comparison. The twists and turns of the domestic case law on indirect discrimination show that this is no easy matter. But some points stand out. First, the concept is normally applied to a rule or requirement which selects people for a particular advantage or disadvantage. Second, the rule or requirement is applied to a group of people who want something. The disparate impact complained of is that they can not have what they want because of the rule or requirement, whereas others can.
78. This approach, defining advantage and disadvantage by reference to what people want, chimes with the definition of discrimination given by McIntyre J in the seminal Canadian case of Andrews v British Columbia [1989] 1 SCR 143:
‘…discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society’ (emphasis supplied).
It also chimes with Sandra Fredman’s observation, in Discrimination Law (Clarendon Law Series, 2002, p.115), that ‘A disparate impact is not itself discriminatory. Unequal results are legitimate if no exclusionary barrier can be identified…’ The sorts of cases where indirect discrimination can be established confirm this.
82. The common feature is that all these people are in the pool who want the benefit - or not to suffer the disadvantage - and they are differentially affected by a criterion applicable to that benefit or disadvantage. Indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question. If it were, one might well wish to ask whether the fact that they were not interested was itself the product of direct or indirect discrimination in the past.
That reflects earlier jurisprudence including London Underground Ltd v Edwards [1999] ICR 494 CA where this was said by Potter LJ:-
22. I accept the submissions of Mr. Allen. In my view there is a dual statutory purpose underlying the provisions of section 1(1)(b)of the Act of 1975 and in particular the necessity under sub-paragraph (i) to show that the proportion of women who can comply with a given requirement or condition is “considerably smaller” than the proportion of men who can comply with it. The first is to prescribe as the threshold for intervention a situation in which there exists a substantial and not merely marginal discriminatory effect (disparate impact) as between men and women, so that it can be clearly demonstrated that a prima facie case of (indirect) discrimination exists, sufficient to require the employer to justify the application of the condition or requirement in question: see sub-paragraph (ii). The second is to ensure that a tribunal charged with deciding whether or not the requirement is discriminatory may be confident that its disparate impact is inherent in the application of the requirement or condition and is not simply the product of unreliable statistics or fortuitous circumstance. Since the disparate impact question will require to be resolved in an infinite number of different employment situations, well but by no means comprehensively exemplified in the arguments of Mr. Allen, an area of flexibility (or margin of appreciation), is necessarily applicable to the question of whether a particular percentage is to be regarded as “substantially smaller” in any given case.
23. The first or preliminary matter to be considered by the tribunal is the identification of the appropriate pool within which the exercise of comparison is to be performed. Selection of the wrong pool will invalidate the exercise, see for instance Edwards No. 1 [1995] I.C.R. 574 and University of Manchester v Jones [1993] I.C.R. 474, and cf. the judgment of Stephenson L.J. in Perera v Civil Service Commission (No. 2) [1983] I.C.R. 428, 437 in the context of racial discrimination. The identity of the appropriate pool will depend upon identifying that sector of the relevant workforce which is affected or potentially affected by the application of the particular requirement or condition in question and the context or circumstances in which it is sought to be applied. In this case, the pool was all those members of the employer’s workforce, namely train operators, to whom the new rostering arrangements were to be applied (see paragraph 3 above). It did not include all the employer’s employees. Nor did the pool extend to include the wider field of potential new applicants to the employer for a job as a train operator. That is because the discrimination complained of was the requirement for existing employees to enter into a new contract embodying the rostering arrangement; it was not a complaint brought by an applicant from outside complaining about the terms of the job applied for. There has been no dispute between the parties to this appeal on that score. However, Mr. Bean has placed emphasis on the restricted nature of the pool when asserting that the industrial tribunal were not entitled to look outside it in any respect. Thus he submitted they should not have taken into account, as they apparently did, their own knowledge and experience, or the broad national “statistic” that the ratio of single parents having care of a child is some 10:1 as between women and men.
25. Equally, I consider that the industrial tribunal was entitled to have regard to the large discrepancy in numbers between male and female operators making up the pool for its consideration. Not one of the male component of just over 2,000 men was unable to comply with the rostering arrangements. On the other hand, one woman could not comply out of the female component of only 21. It seems to me that the comparatively small size of the female component indicated, again without the need for specific evidence, both that it was either difficult or unattractive for women to work as train operators in any event and that the figure of 95.2 per cent of women unable to comply was likely to be a minimum rather than a maximum figure. Further, if for any reason, fortuitous error was present or comprehensive evidence lacking, an unallowed for increase of no more than one in the women unable to comply would produce an effective figure of some 10 per cent as against the nil figure in respect of men; on the other hand, one male employee unable to comply would scarcely alter the proportional difference at all. Again, I consider Mr. Allen is right to point out in relation to Mrs. Quinlan that, albeit the industrial tribunal lacked the evidence to find as a fact that she could not comply, the reference to her indicates that they had her uncertain position in mind when assessing the firmness of the figure of only 4.8 per cent as the basis for a finding of prima facie discrimination.
And the following is said by Simon Brown LJ at page 510:-
“I can state my conclusions really quite shortly. Given that this legislation is concerned essentially to contrast the impact of a given requirement or condition as between men and women rather than as between the women in the group, it would seem to me wrong to ignore entirely the striking fact here that not a single man was disadvantaged by this requirement despite the vast preponderance of men within the group. Looked at in the round, this requirement clearly bore disproportionately as between men and women, even though only one woman was affected by it. Had there been an equal number of women drivers to male drivers and the same 5 per cent proportion of them been affected, i.e. 100, Mr. Bean’s argument would remain the same, namely that too large a proportion of women were able to comply with the requirement to leave room for a finding that such proportion was “considerably smaller” than the proportion of men who could comply. It is not an argument I am ultimately prepared to accept. The approach to section 1(1)(b)(i) must, I conclude, be more flexible than this argument allows. Parliament has not, be it noted, chosen to stipulate, as it could, just what difference in proportions would be sufficient. Once, then, one departs from the purely mechanistic approach contended for by the employer, and has regard to other facts besides merely a comparison between 95 per cent and 100 per cent., the applicant’s argument becomes compelling: no other fact could be more relevant than that, whereas 5 per cent of the women were disadvantaged, not one of the 2,023 men was. That further consideration, in my judgment, supports the industrial tribunal’s finding here.”
22. As to the comparison between the advantaged and disadvantaged groups the judgment of myself and Dr Fitzgerald sitting with Ms Switzer in British Airways v Grundy (UKEAT/0676/04) is relevant. The parties asked for full legal reasoning, albeit not strictly necessary for our judgment on all of the points, advanced by leading Counsel. In that case we summarised the law as we saw it up to but not including Rutherford in the House of Lords and we came to this conclusion:-
“51. … the correct approach is to focus on the advantaged group and not the disadvantaged group. It is not incorrect to look at other proportions and other numbers before finally focusing on the advantaged group. The only authority relied upon by the Claimants before the Tribunals to support the proposition that the focus was to be a small disadvantaged group was the judgment of Lord Nicholls in Barry v Midland Bank Plc [1997] ICR 319. In that case the majority of the House dismissed the appeal on the ground that there was no difference in the treatment afforded to either men or women. A dissenting view was taken by Lord Nicholls at paragraph 36, albeit that he concurred in the result on the basis that the difference was justified. He accepted that, following Seymour-Smith in the ECJ,
“a comparison must be made between, on the one hand, the respective proportions of men... who are not disadvantaged and, on the other hand, the like proportions regarding women in the workforce”.
Lord Nicholls went on to suggest (without being prescriptive) that “a better guide" would often be found “in expressing the proportions in the disadvantaged group as a ratio of each other”. However, in our judgment this approach was not endorsed by the majority, it does not address the note of caution struck by the Divisional Court in Seymour-Smith and is with respect out of step with the prevailing (and subsequent) case-law and was not repeated by Lord Nicholls when giving the leading speech of the majority in Seymour-Smith.
23. Although permission to appeal was given in one of those cases on the basis that this matter might be the subject to further treatment in Rutherford by the House of Lords the closest it got in Rutherford is in the speech of Lord Walker, which is this:-
67. I do not express the view that some element of disadvantage-led analysis may not be appropriate in some cases. But it must be recognised that there is a difficulty here: the more extreme the majority of the advantaged in both pools, the more difficult it is, with any intellectual consistency, to pay much attention to the result of a disadvantage-led approach. However I can imagine some (perhaps improbable) cases in which a disadvantage-led approach would serve as an alert to the likelihood of objectionable discrimination. If (in a pool of one thousand persons) the advantaged 95% were split equally between men and women, but the disadvantaged 5% were all women, the very strong disparity of disadvantage would, I think, make it a special case, and the fact that the percentages of the advantaged were not greatly different (100% men and 90.5% women) would not be decisive.
Thus the position remains that the analysis has to pay attention to the advantaged group. If Lord Walker’s approach is to be preferred, and as a matter of precedent we hold that it is not binding on us, there may occasionally be some softening of that line, yet it would yield no different result in this appeal.
24. As to justification, the legal principles are as follows:-
“43. The domestic law has been developed from the principles articulated in the ECJ case law, in particular the “tripartite” test at para 36 in the well known decision of the ECJ in Bilka – Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317, namely:
a. the measure (ie the provision) must correspond to a real need of the employer/undertaking;
b. it must appropriate with a view to achieving that objective;
c. and necessary to that end;
and the need for national court to apply the principle of proportionality in considering justification [Enderby v Frenchay Health Authority [1993] IRLR 591].
44. The latter was explained by Lord Nicholls in Barry at pp. 587:
“…In other words, the ground relied upon as justification must be of sufficient importance for the national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women or men, as the case may be, the more cogent must be the objective justification…”
45. See also the judgment of Sedley LJ in Allonby at paras 23-25, 27 and 29. As Sedley LJ put it, criticising the approach of the Employment Tribunal in Allonby:
“…Once a finding of a condition having a disparate and adverse impact on women had been made, what was required was at the minimum a critical evaluation of whether the college’s reasons demonstrated a real need to dismiss the applicant; if there was such a need, consideration of the seriousness of the impact of the dismissal on women including the applicant; and an evaluation of whether the former were sufficient to outweigh the latter…”
That is a reference to the judgment in Allonby v Accrington and Rossendale College [2001] IRLR 364.
Conclusions
25. With those principles in mind, we have decided to accept the arguments of the Respondent on most of the points and that the appeal should be dismissed. We will take an analytic approach to the Act based upon its basic elements.”
123. In R on the application of Wilson (No 2) v Lord Chancellor [2014] EWHC 4198, the imposition of various fees for employment tribunals cases was challenged. LJ Elias stated:-
“Indirect discrimination
66. Although the argument is addressed via different non-discrimination principles, it is in my view only necessary to focus on the domestic law which gives effect to EU law. It was not suggested that Convention jurisprudence would provide any fuller protection in the context of this case or yield any different result.
67. Indirect discrimination under section 19 of the Equality Act is defined as follows:
‘(1) A person (A) discriminates against another (B) if A applies to B a ‘provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
68. Ms Monaghan sought to establish indirect discrimination by putting her case in three different ways. The first was that those subject to the fee B regime compared with those paying fee A were disproportionately female. The statistics bear this out. However, it seems to me that the logic of this argument is not that fees cannot be charged or that the scheme should be quashed, which is the relief sought; rather it is that women being indirectly discriminated against for level B claims should not have to pay more than level A fees.
69. The issue here is whether the difference in the fee is justified rather than whether any fee is justified. The rationale for the distinction between category A and B cases is that those subject to level A fees are in general likely to take less time than claims falling within category B and therefore use fewer resources. Ms Monaghan submitted that there is no direct evidence of this and that the court should not simply accept counsel's assertion to that effect. I do not accept that. In a document produced by HM Courts and Tribunals Service giving information about the fees it is expressly stated that ‘Type A claims tend to be more straightforward for the Tribunal to deal with, and so have lower fees’. Moreover, there is clearly some rationale for the different funding arrangements for groups A and B, and in my view the explanation given is consistent both with the reason for imposing the fees in the first place and with the nature of the claims falling within the two groups. In my judgment, it is legitimate to fix the fees by reference to the service - in the sense of court resources - provided. It is true that the scheme adopts bright line rules; some level A claims will take longer than some level B claims and vice versa. But it is legitimate in circumstances like this to regulate by reference to the cost of the service in standard cases. I would therefore reject this ground.
71. But I do not think that to select a sub-group of cases within category B is a legitimate way to seek to establish indirect discrimination. It is necessary to test any potentially adverse effect of the provision, criterion or practice (PCP) by focusing on all those who are subject to it, the overall pool to whom the PCP is applied. It is not legitimate to take a self-selected group. That simply distorts the true effect of the PCP. Moreover, it yields bizarre results. If there is an adverse impact on women for discrimination claims, there must be a corresponding adverse impact on men for all non-discrimination claims (and apparently there is for unfair dismissal cases, for example). Ms Monaghan's riposte is to say that there may well be indirect discrimination against men in those cases, and that this would need to be justified too. But on that analysis, even if the PCP operated to advantage one sex overall, by a judicious selection of a particular subgroup where the claimants were predominantly of the other sex, it could be shown that the rule indirectly disadvantaged the group predominantly advantaged by the PCP as a whole. By choosing a subgroup which is in practice predominantly of one sex - say nurses or building workers - or by selecting claims typically made by one sex rather than the other, as has been done here, it would be possible to show that there was in fact indirect discrimination being practised in a whole variety of ways and each distinct type would have to be justified. I do not accept that the concept of indirect discrimination has such unacceptable and arbitrary consequences.
72. The Lord Chancellor relied upon two decisions of the Court of Appeal to demonstrate the error of this approach. The first was University of Manchester v Jones [1993] ICR 474. In that case the University placed an advertisement for a careers adviser who would be ‘a graduate, preferably age 27-35 years’. The claimant was age 46 and claimed indirect sex discrimination. The tribunal had regarded the relevant pool as mature graduates only, from which it elicited the respective proportions of men and women who could comply with the condition of being age 27 - 35. The Court of Appeal held that this was the wrong approach. Evans LJ said (p. 501):
‘ … the statutory concept, in my judgment, is that of a 'pool' or 'relevant population,' meaning those persons, male and female, who satisfy all the relevant criteria, apart from the requirement in question.’
73. The relevant pool in that case therefore was all graduates with the relevant experience. The tribunal had erred by subdividing the relevant pool into a smaller group of 'mature graduates'. This gave a distorted result of the impact of the provision in question.
74. The second case was London Underground v Edwards (No 1) [1995] ICR 574. This was a case where a female tube driver argued that putting tube drivers on rostered hours indirectly discriminated against women because they were more likely to be single parents. The Tribunal had considered a pool of only single parent tube drivers to see how many women out of that pool could comply with the roster. Mummery J giving judgment in the EAT, applied University of Manchester v Jones and held (p. 582) that the Tribunal had:
‘erred in law in having regard to a ‘pool’ which consisted of only those train operators who were single parents, a subdivision not warranted by the statutory provisions. The pool consisted of train operators, male and female, to whom the new rostering arrangements were applied.’
Lord Justice Potter adopted a similar analysis in the Court of Appeal in that case ([1999] ICR 494, 505):
‘The identity of the appropriate pool will depend upon identifying that sector of the relevant workforce which is affected or potentially affected by the application of the particular requirement or condition in question and the context or circumstances in which it is sought to be applied.’
75. In Rutherford v Secretary of State for Trade and Industry (No. 2) [2006] IRLR 551, para. 82 Baroness Hale observed that:
‘Indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question.’
“It must equally follow that it cannot be shown by excluding those who are disadvantaged by the rule in question. The pool must be all those who have to pay category B fees in order to be allowed to bring their claims. Accordingly I would reject this argument.”
124. It is primarily for the claimant to identify the PCP complained of. The claimant argues that the PCP for the purposes of this case is the interpretation of and implementation of the career break policy by the respondent which leaves career breakers at the end of their break ‘in limbo’ with no work, no pay and no compulsory redundancy compensation. This interpretation applied to all those employees seeking to return from career breaks since 2009.
125. The next issue is to determine is the pool for comparison with the disadvantaged group to provide evidence of any comparative disadvantage for the purposes of Article 3(2)(b)(i).
126. The claimant states and it seems common case that the workforce of the respondent since 2001 (when the career break policy came into being) is approximately 2/3 female and 1/3 male – 156 (65.59%) female and 82 (34.45%) male. In 2009, the proportions were 65.2% female and 34.8% male. In 2014, the proportions were almost identical: 65.4% female and 34.6% male. It is therefore clear that the proportions of female and male employees in the workforce has remained relatively constant between 2009 and the present day. Of those employees, 29 have taken career breaks. These break down to approximately 4/5 female and 1/5 male – 23 (79.31%) female and 6 (20.68%) male. Of those 29 employees, 10 employees have been refused re-entry to work and have been placed ‘in limbo’. Those comprise 4/5 female and 1/5 male – 8 (80%) female and 2 (20%) male.
127. The claimant therefore argues that there has been disadvantage against females. Starting from the pool of all the employees to whom the scheme applied, or potentially applied, and then looking at either the pool of all those employees who were given career breaks since 2001 or the pool who were placed ‘in limbo’ since 2009, the proportion of females increased significantly from 65.54% to either 79.31% or 80%. There has therefore been a significant disparate impact, in that the potential or real disadvantage to females increased by 14% approximately.
128. The respondent argues that the appropriate pool is limited to those members of staff seeking to return from a career break since 2009 when the PCP applied. Before 2009 all staff whose career breaks had ended were permitted to return (one resigned). It argues that since 2009, 14 career breaks have ended: 5/7 female and 2/7 male – 10 (71.42%) female and 4 (28.57%) male. Some resigned. It argues that those proportions are comparable with the disadvantaged group, ie the group who have been refused a return. Eight female and two male, ie 4/5 (80%) female and 1/5 (20%) male.
129. Mr McKinstry, as indicated above, put forward his own statistical argument in evidence in chief. He argued that the first pool should comprise all those career breakers since 2001 who wanted to return, whether or not they were allowed (pre 2009) to return or (post 2009) not allowed to return. It would exclude those who did not want to return. That first pool would comprise 22 employees, 19 females and 3 males i.e. 86% female. The second pool would be the 10 people who were (post 2009) not allowed to return. There were 8 females and 2 males i.e. 80% females.
Mr McKinstry’s analysis meant that women were less impacted by the impugned PCP.
That seems incorrect because, however ingenious, it incorporates an historically different situation between 2001 and 2009 when the practical application of the policy, if not the policy, changed.
130. The tribunal hopes that no one will take offence if it notes that the phrase which resonates at this point is “Lies, damned lies and statistics”. Anyone can pick their pools and play with the numbers. The three versions presented to the tribunal add to the confusion.
131. The determination of the correct pool is a matter for the tribunal using its experience and commonsense – London Underground Ltd v Edwards (No 2) [1998] IRLR 364 (1).
132. It is also clear, from the case law cited above, that the correct approach in a case such as the present case, is to focus on those employees who were advantaged (or potentially advantaged) by the impugned PCP. The identification of the advantaged (or potentially advantaged) employees is therefore critical. As LJ Elias stated recently in the Wilson (No 2) decision above (the Court of Appeal decision on tribunal fees):-
“71. ... It is necessary to test any potentially adverse effect of the provision, criterion or practice (PCP) by focusing on all those who are subject to it, the overall pool to whom the PCP is applied. It is not legitimate to take a self-selected group.”
133. LJ Elias also referred to the decision in University of Manchester v Jones (above) where it was determined that the decision at first instance to focus only on a sub-group of graduates gave the wrong impression. The focus should have been on all graduates with the requisite experience. Similarly, he also referred to the Edwards (No 1) decision (above) where the tribunal had considered whether rostering arrangements indirectly discriminated against women who were more likely to be single parents. The tribunal had wrongly focused on single parent train operators, when they should have focused on all the train operators to whom the rostering arrangements applied.
134. In the present case, it is clear that the respondent refused a return to work to all those career breakers who wished to return since 2009. They were retained as employees but with no work, pay and no compulsory redundancy compensation. They could apply for the considerably cheaper option of voluntary severance/retirement and some did. It does not really matter whether the respondent always had believed that it could act in this way or whether, as has been argued by the claimant, this was only a later cost-saving measure adopted in 2009. The question is whether any group of employees was advantaged by this PCP?
It is clear that the non-return of career breakers, and the non-payment of wages or of compulsory redundancy compensation, avoided the need for a compulsory redundancy scheme affecting other employees. The evidence before the tribunal is that such a scheme is now envisaged in 2015/2016 and that it would affect all employees. It therefore appears to this tribunal that the employees who were advantaged by the PCP were those employees actually at work, getting paid and avoiding a redundancy selection process for the time being.
135. The advantaged or potentially advantaged group is not those career breakers whose breaks ended before 2009 and who were permitted to return to work (although one resigned). That group is not relevant to the PCP which applied first in June 2009 and which continues to date.
136. The advantaged group (the first pool) must be the entire workforce of the respondent from 2009 to date, ie:-
(i) the group of employees to whom career breaks were a potential benefit from 2009 to date; or
(ii) the group of employees who were advantaged by the cost savings achieved by the imposition of the PCP and the deferral of the need for a compulsory redundancy selection until 2015, 2016 or some indeterminate future date.
137. The legal position in relation to the assessment of disparate impact is complex and it becomes more difficult with the publication of each successive decision on this point. No tribunal or appellate court appears able to resist the temptation to add further legal elucidation to the clear words of the statute. This tribunal is of course no different.
The simple facts of the present case is that the respondent has always had a predominantly female workforce – approximately 65.54% female. The career break policy was open to all those employees. The impugned PCP was applied since June 2009 and those employees whose career breaks ended thereafter were not permitted to return, with no wages or compulsory redundancy compensation. The respondent knew at least since 2009 that employees or career breakers would not be permitted to return. The respondent in cross-examination indicated that a redundancy selection procedure for all staff is now anticipated in 2015 or 2016. That planned exercise is not referred to in the pleadings and seems imprecise. The respondent could not commit to further details. There was reference to the need for a ‘business case’ but it appears no such business case has been made. The claimant has now been ‘in limbo’ for one year.
The persons to whom the PCP applied (the disadvantaged pool) were 80% female. The difference in the percentage of females from 65.54% in the advantaged group to 80% in the disadvantaged group is significant. There has therefore been significant disparate impact against females.
138. The tribunal concludes that the claimant has clearly been disadvantaged personally by the application of the PCP.
139. No objective justification has been shown. The use of the PCP, in breach of the employment contract, to indefinitely deny the right to either work or pay, or to potential contractual redundancy compensation would be difficult to justify. Using the Bilka – Kaufhaus test (see above) there is no evidence that the PCP corresponded to a real need of the undertaking. It was doubtless convenient in that it saved some money and deferred the need to use ‘the R word’ (to use the respondent’s phrase). However it cannot be described as a real need. Furthermore, it was neither appropriate or necessary. Temporarily vacant posts could and should have been filled on a similar basis. Once it became clear that funding restrictions meant staff cuts, contractual redundancy schemes should have been implemented. Once it became clear that funding and staffing was going to be restricted, career breaks should not have been permitted or extended, or only extended on explicit terms.
The tribunal therefore concludes that there was unlawful indirect sex discrimination.
Remedies
Indirect Sex Discrimination
140. Compensation can now be awarded for unintentional indirect sex discrimination contrary to the 1976 Order. The Sex Discrimination (Amendment) Regulations (Northern Ireland) 1996 provide for an amendment to Article 65. They state at Regulation 2:
“(2) After Article 65(1) there is inserted –
“1A In applying Article 66 for the purposes of Paragraph (1)(b), no account shall be taken of paragraph (3) of that Article.
1B As respects an unlawful act of discrimination falling within Article 3(1)(b) or Article 5(1)(b), if the respondent proves that the requirement or condition in question was not applied with the intention of treating the complainant unfavourably on the ground of his sex or marital status as the case may be, an Order may be made under paragraph (1)(b) only if the Industrial Tribunal –
(a) makes such order under paragraph (1)(a) and such recommendation under paragraph (1)(c) (if any) as it would have made if it had no power to make an order under paragraph (1)(b); and
(b) (where it makes an order under paragraph (1)(a) or a recommendation under paragraph (1)(c) or both) considers that it is just and equitable to make an Order under paragraph (1)(b) as well.”
141. The legislation as amended requires therefore that the tribunal should not jump immediately to an award of compensation under Article 65(1)(b). Compensation is not necessarily the primary remedy. An award of compensation may only be made in the case of unintentional indirect sex discrimination where a declaration (Article 65(1)(a)) and/or a recommendation (Article 65(1)(c)) are considered as if there were no power to award compensation, and then where either a declaration or a recommendation is made, if it is just and equitable to also award compensation.
142. The tribunal has concluded that the evidence of the respondent establishes that it did not intentionally apply the PCP to indirectly discriminate on grounds of gender. It seems clear that the management of the respondent organisation positively believed that, on their interpretation of the statistics and on their selection of an appropriate pool, it was not an act of indirect discrimination. In the circumstances of this case, with this particular respondent, it would have required some significant evidence to establish that this respondent either intentionally or knowingly discriminated in contravention of the 1976 Order. That evidence does not exist and in fact the clear evidence from the respondent establishes that their actions were unintentional. Furthermore, the claimant does not argue that any indirect discrimination was intentional.
143. Apart from the provisions of the amended Article 65, it is clear that even where there is a finding of unlawful direct discrimination (where the provision relating to remedies is slightly different), a tribunal has the option of awarding no compensation at all. In Chief Constable of Manchester v Hope [1999] ICR 338, the majority (the lay members) and the minority (Clark J), accepted that in a case of direct race discrimination, it had been open to the tribunal at first instance to consider whether it had been just and equitable to award compensation at all. The dispute between the majority and the dissenting minority in the EAT was whether the tribunal had in fact considered this power or whether they had simply ruled out the option of no compensation.
144. In O’Neill v St Thomas Moore School [1997] ICR 33 at page 48, Mummery J stated:
“Under Section 66, a claim for race discrimination is to be treated in a like manner as any other claim in tort, for which it is expressly provided that damages may include compensation for injury to feelings; Section 66(4). It is for the Industrial Tribunal to decide, having regard to all the circumstances, whether it is just and equitable to award to the applicant in this case, the remedies specified in Section 65”.
145. The objective in compensation for unlawful discrimination is to put the claimant, so far as possible, in the position that she would have been if an unlawful act had not occurred. Compensation must be “adequate and full” – Marshall v South West Hampshire Area Health Authority [1993] IRLR 445.
Injury to Feelings
146. In Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102, the Court of Appeal stated;
“It is self-evident the assessment of compensation for an injury or loss, which is neither physical nor financial, presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedence. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anxiety, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise.”
“Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The Court and Tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available on the calculation of financial loss or compensation for bodily injury”.
147. Awards for injury to feelings are compensatory only. They should not be used as a method of punishing an alleged offender. While an award should not be unduly low in order to avoid diminishing respect for anti discrimination legislation, they should be restrained and should bear some broad general similarity to the range of awards in personal injury cases.
148. The Vento case set out three bands which have now been increased to take account of inflation. The top band is normally within £18,000 and £30,000 and is restricted to the most serious cases, for example where there has been a lengthy period of discriminatory harassment. The middle band which is now generally £6,000 to £18,000 is for less serious cases and the lowest band, now between £500 and £6,000 is for even less serious cases including where an act of discrimination is an isolated or one off occurrence.
149. This case is extremely problematic in terms of assessing an appropriate remedy. The tribunal has concluded that there was an act of unintentional indirect sex discrimination in applying the PCP from 2009 and thereby preventing the return of the claimant, and others, to the workforce. It has also concluded that there was a breach of contract in that the employment contract as varied by the career break policy provided only for a delay in the return and not for a permanent or indefinite delay.
150. As set out earlier in relation to the UDW claim, it is impossible to assess on the evidence before us whether the claimant would indeed have been selected for compulsory redundancy compensation. That would require the assessment of not just the claimant but the assessment of other employees about whom the tribunal knows nothing against objective criteria which have not yet been settled. Trying to assess the outcome of any such redundancy selection exercise at any particular point in time either before or after the claimant intended to return in early 2014 would be highly artificial to the point of absurdity.
151. The tribunal is also entirely unable on the evidence before to assess the appropriate period for a permitted “delay” in the return of the claimant from her career break. That could be determined by a range of factors about which the tribunal has heard nothing. The tribunal is similarly unable to assess monetary loss when a variation of the working week downwards would have been probable but where neither party knows what that variation would have been.
152. The tribunal therefore concludes that it would not be just or equitable to attempt to award monetary compensation in this case where it would appear that the unlawful indirect sex discrimination is entirely unintentional and where the breach of contract is incapable of any monetary quantification. It is impossible to put the claimant in the position she would have been if the indirect sex discrimination had not taken place (Marshall above).
153. In terms of the overriding objective the appropriate course of action for this tribunal appears to be to instead make an appropriate declaration and recommendation.
154. The tribunal therefore declares for the purposes of Article 65(1)(a) in the following terms:-
“The tribunal declares that the respondent has unlawfully and indirectly (albeit unintentionally) discriminated against the claimant contrary to Article 3(2) of the Sex Discrimination (Northern Ireland) Order 1976.”
155. The tribunal therefore recommends for the purposes of Article 65(1)(c) that:-
“(1) The respondent shall immediately review the operation and wording of its career break policy;
(2) the respondent shall immediately review the operation and wording of its contractual redundancy policy; and
(3) the respondent shall immediately determine the implications of the proper application of both the career break policy and the contractual redundancy policy for the claimant.”
156. The tribunal has no evidence on which it can properly award any other remedy.
157. The tribunal concludes that the claimant must have suffered some injury to feelings in this matter. She entered into a clear agreement with the respondent which allowed for a break and a return to work. That agreement allowed only for a delay. As indicated above, that provision must be interpreted rationally. It did not allow for an indefinite or permanent suspension. The respondent repeatedly failed to make the position clear to the claimant and did not tell her or even hint to her that she would not be permitted to return until 10 December 2014.
The claimant appears to have had little contact with the respondent’s workforce during her career break although it is clear that she latterly met once with an employee whose return had been delayed. She had not been able to discuss that case with her colleague or to determine if she would be likely to be similarly affected. She would have been entitled to expect that the respondent would have alerted her to any difficulty and, in the absence of any such warning, to take it that she would be returning as she had notified.
The tribunal therefore concludes that the injury to feelings was significant. There was no medical evidence of any particular mental injury but the tribunal has concluded that it would not be appropriate to assess the injury in the lower Vento band. While this is always an imprecise exercise, having heard the evidence of the claimant in respect of the injury to her feelings, the tribunal assesses the injury as at the lower end of the middle band and awards £7,500.
158. The claimant had not pursued an appeal against the decision to reject her grievance. However the approach taken by the respondent was clearly based on their interpretation of the policy. The claimant had been entirely correct to assume that the respondent’s position would not change on appeal and that any appeal would be a waste of time. The respondent’s position was as a result of a settled interpretation of its policy which had already been challenged at the grievance meeting.
159. In those circumstances the tribunal has to determine whether the claimant had unreasonably failed to invoke an appeal in accordance with the LRA Code and therefore to determine whether compensation should be reduced.
160. For the reasons set out above the tribunal determines that it would not be reasonable to reduce compensation for injury to feelings, particularly since that injury to feelings had crystallised before the grievance meeting and long before any grievance appeal might have been heard. Even a successful appeal (itself highly unlikely) would not have ameliorated that injury to feelings which had already occurred.
161. The tribunal is obliged to consider whether to include interest on an award for injury to feelings – the Industrial Tribunals (Interest on Award in Sex Discrimination and Disability Discrimination Cases) Regulations (Northern Ireland) 1996.
Interest at the rate of 8% per annum from the date of the act of discrimination is potentially payable. The EAT stated in Derby Specialist Fabrications Ltd –v- Burton [2001] IRLR 69:
“It is clear that Parliament intended that, unlike interest on other awards where the midpoint was to be taken, interest on an award for injury to feelings should normally be from the date of the discriminatory act.”
There is no indication that serious injustice would be caused by calculating interest over this period.
Interest at 8% is therefore awarded from 12 January 2014 to 4 February 2015:
12 January 2014 to 11 January 2015 £600.00
12 January 2015 to 4 February 2015 (23 days):
23
365 x 8% x £7,500 = £ 37.80
Total interest £637.80
Vice President:
Date and place of hearing: 25 – 28 November 2014, Belfast
Date decision recorded in register and issued to parties:
