Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

CASE REF: 8504/17

 

CLAIMANT: Janet Love

 

RESPONDENTS: 1. Principal & Board of Governors of Devenish College

2. The Education Authority

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant suffered an unlawful deduction from wages and that she is entitled to be paid a sum equivalent to one Teacher's Allowance from September 2017 to date and thereafter until December 2020.

 

 

CONSTITUTION OF TRIBUNAL

 

Employment Judge (sitting alone): Employment Judge Orr

 

APPEARANCES:

 

The claimant was represented by Mr R Fee, Barrister-at-Law, instructed by Murnaghan Fee Solicitors.

 

The respondents were represented by Mr T Warnock, Barrister-at-Law, instructed by the Education Authority's Solicitors.

 

 

Issues

 

1.             This claim is in respect of unauthorised deduction from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.

 

2.             The claimant asserts that she is entitled to a 'Reorganisation Allowance' under Collective Agreement TNC 2007/3 as a result of a reorganisation which took place between the period of January 2016 to December 2016.

 

3.             The respondents contend that the decision not to award the claimant a 'Reorganisation Allowance', was taken by the Department of Education and they are bound by the Department's decision.

 

Evidence

 

4.             The representatives informed the tribunal that there were no factual disputes in this case and the evidence contained in the witness statements was agreed, accordingly cross-examination of witnesses was not required.

 

5. The tribunal was provided with a written witness statement from the claimant on her own behalf.

 

6. Mr Eugene McDermott (Employee Relations Advisor of Education Authority) and Mr Simon Mowbray (Principal of Devenish College) - provided witness statements on behalf of the respondent.

 

Relevant Facts

 

7.             The facts in this case were not in dispute.

 

8.             The claimant was at all material times and remains a teacher at what is now Devenish College. She commenced employment in September 1982 in the former Duke of Westminster High School in Enniskillen.

 

9.             The claimant was in receipt of two teaching allowances ("TA's") from 2000 onwards, one for Head of PE and one for Head of Language.

 

10.          The Duke of Westminster High School and Enniskillen High School amalgamated in 2004 to establish the former Devenish College and the claimant transferred to the new school on 1 September 2004.

 

11.          Collective Agreement TNC 2007/3 forms part of the claimant's contract of employment and provides at paragraph 3.10:-

 

"3.10.1 Teachers who held permanent posts of responsibility in the schools undergoing reorganisation shall apply for posts of responsibility in the new school which are at least equivalent to the level of posts they held.

 

3.10.2 Where such teachers are not appointed to a post of responsibility their job descriptions will be reviewed in accordance with the provisions of paragraph 3.9.1.

 

3.10.3 Such teachers in the new school who suffer a reduction in salary as a result of the reorganisation will be eligible to apply for a Reorganisation Allowance under the terms of the determination set out in DENI's Circular No 1996/1.

 

3.10.4 If at any time following the date of rationalisation, a teacher in receipt of a reorganisation allowance is offered but unreasonably refuses to accept an alternative position within the new structure, the reorganisation allowance may cease to be payable unless the Department decides otherwise".

 

12.          In 2005 a management restructuring exercise was undertaken as a result of the amalgamation referred to above. The claimant, as part of this restructure, applied for the post for Head of PE and was unsuccessful. Consequently the claimant applied to the Department of Education for a reorganisation allowance which was

 

 

granted and her salary was protected at the level of two TA's effective from 1 September 2005. Under the terms of the Collective Agreement TNC 2007/3 existing at this time, a reorganisation allowance was not timebound.

 

13.          From 2013 the claimant was the Teacher in Charge of the BTEC Hospitality, a position of responsibility which the respondents accept carried two TA's. The claimant had been requested by the former Principal to undertake this role. There was no evidence before the tribunal, documentary or otherwise that this was anything other than a permanent position.

 

14.          The Department of Education issued Circular 2013/17 in July 2013 which superseded Circular 1996/1 and specifically provides at paragraph 19:

 

"A Reorganisation Allowance shall cease to be payable on the fourth anniversary of the appropriate date".

 

15.          The claimant was written to by the Department of Education by letter dated 10 July 2013 as follows;

 

" Reorganisational Allowances

 

The Department of Education (DE) has made a Determination which gives effect in law to new arrangements for payment of Reorganisation Allowances.

 

A Reorgnisation Allowance will now be payable in all redeployment scenarios but will be timebound for four years with effect from 1 September 2013. Therefore, if you are in receipt of an Reorganisation Allowance on 1 September 2013, it shall cease to be payable by 1 September 2017. All other conditions continue to apply. The Determination (DE Circular 2013/17) has been published on the Department's website.

 

Any queries regarding payment of the Reorganisation Allowance should be addressed too".

 

16.          On 26 June 2013, the Education Minister approved the closure of Lisnaskea High School and the former Devenish College to form a new amalgamated Post-Primary School in Enniskillen to be known as Devenish College. The claimant's employment transferred to the new Devenish College with effect from September 2013 and this is where she is currently employed.

 

17.          A management restructuring exercise arose from this amalgamation. In
January 2015 there was a proposed new management structure. The claimant received notification of selection for redundancy in April 2015 which she successfully appealed.

 

18.          The respondents accept that a reorganisation took place over the period January 2016 to December 2016 which resulted in the claimant losing the post of Teacher in Charge of Hospitality BTEC which carried two TA's.

 

19.          The respondents accept that the appropriate date for the purposes of the Reorganisation Allowance is December 2016.

 

20.          The Reorganisation Allowance DE Circular 2013/17, so far as is relevant to these proceedings, provides as follows:

 

"2. For the purpose of this determination:-

 

"actual salary" means, where a teacher is employed on a full-time or part-time basis as a permanent teacher in a grant aided school or as a permanent peripatetic teacher, the rates of salary and allowances payable to that teacher as determined by the Department.

 

"allowance" means an allowance payable as determined by the Department in accordance with the provisions of Article 69(1) and (6) of the Education and Libraries (Northern Ireland) Order 1986 which includes:-

 

-               Teaching Allowance - payable to a teacher assuming additional responsibilities;

-               Recruitment & Retention Allowance - payable to a teacher who is employed to teach subjects in which there is a shortage of teachers or in a post which is difficult to fill; and

-               Temporary or Acting Allowance - payable to a teacher on a temporary or fixed-term basis assuming additional responsibilities which are not permanent.

 

"Department" means the Department of Education;

 

"emoluments" means salary and allowances;

 

3. Where a teacher suffers a reduction in the rate of his emoluments and the Department is satisfied that such reduction has been directly caused by reorganisation he shall, while he continues to be employed as a permanent teacher in a grant aided school as a permanent peripatetic teacher, and subject to and in accordance with this determination be paid an allowance to be known as a reorganisation allowance.

 

4. A teacher who suffers a reduction in the rate of his emoluments may, within one year from the appropriate date as defined in paragraph 5 or within such longer period as the Department may determine, apply to the Department for a reorganisation allowance.

 

5. Where on application being made to it in accordance with paragraph 4 the Department is satisfied that a teacher has suffered a reduction in the rate of his emoluments as a direct result of reorganisation it shall determine the date (in this determination referred to as "the date of reorganisation") on which such reorganisation took place and the date ("the appropriate date") on which the reduction in the rate of the emoluments of that teacher took place.

 

...

 

21.          A reorganisation allowance payable to a teacher shall cease to be payable if his actual salary shall at any time be equal to or exceed his notional salary, and unless the Department decides otherwise shall not thereafter again become payable by reason of the fact that his actual salary is not equal to or does not exceed his notional salary.

 

22.          A reorganisation allowance payable to a teacher in any post shall, unless the Department decides otherwise, cease to be payable if at any time the teacher is offered but refuses to accept an alternative post in respect of which the rate of emoluments payable would be not less than his notional salary.

 

23.          Where a teacher is in receipt of a reorganisation allowance, the relevant body must review the teacher's assigned duties and through consultation allocate such additional duties to the teacher as it considers appropriate and commensurate with the sum of the re-organisation allowance, for as long as the teacher continues to be paid the reorganisation allowance. Unless the Department decides otherwise a teacher must not be paid the reorganisation allowance if the teacher refuses to carry out such additional duties.

 

...

 

19. In the case of a teacher who was in receipt of a reorganisation allowance on 1 September 2013, the reorganisation allowance shall cease to be payable on 1 September 2017".

 

 

21.          It is the respondents' position that the decision not to award the claimant a Reorganisation Allowance has been taken by the Department of Education and they are bound by its decision. The rationale for the Department's decision was provided to the tribunal and is dated 8 January 2019. It is relevant for the purposes of these proceedings to set out the rationale in full.

 

"Re-organisation Allowance Application - Mrs J Love TR73997

 

Decision

 

Mrs Love is not eligible for a re-organisation allowance under the conditions set out in DE Circular 2013/17.

 

Basis for decision

 

This decision has been reached based on the information currently available to the Department and taking into consideration the following:

 

The overarching basis for the approval and payment of a re-organisation allowance by the Department is that the teacher has suffered a reduction in their emoluments (salary and allowances) as a result of the closure or amalgamation of schools (paragraph 3 of DE Circular 2013/17 refers). A re-organisation allowance covers the amount of emoluments which has been lost by the teacher.

 

In Mrs Love's case, she has suffered a reduction in her emoluments, not due to the amalgamation of Devenish College in 2013-2016, but rather as a consequence of the determination set out in DE Circular 2013/17 where it states in paragraph 19 "In the case of a teacher who was in receipt of a reorganisation allowance on 1 September 2013, the reorganisation allowance shall cease to be payable on 1 September 2017".

 

Regardless of the amalgamation of Devenish College in 2013/16, Mrs Love's re-organisation allowance would have ceased to be payable from 1 September 2017.

 

According to payroll paperwork received by the Department from Devenish College, she only become into receipt of a teaching allowance (T/A 1) from 1 September 2017, which is after the stated date of re-organisation within the application.

 

No payment of Teaching Allowances were made to Mrs Love from the commencement of her Reorganisation Allowance in 2005 (due to a previous amalgamation) until 1 September 2017.

 

While her employer in paragraphs 5 and 15 of their response (attached) to Mrs Love's tribunal submission refer to assigned additional duties circa 2012/13 and the successful application to a post of responsibility in 2016, no paperwork was issued by the employer/Devenish College, or received by the Department to advise that Mrs Love was entitled to a Teaching Allowance point/s for these additional duties or post which subsequently may have of led [sic] to a reconsideration of her then current re-organisation allowance eligibility.

 

Mrs Love's position is different than that of reorganisation allowances approved as a result of a Tribunal Case taken by [________________] (redacted) which resulted in the approval of reorganisation allowances for five teachers within Devenish College. In these examples, the respective party were [sic] in receipt of Teaching Allowances before the determined date which were reduced due to the restructure of Devenish College.

 

Taking the above into consideration, at the date of reorganisation stated in Mrs Love's application, 1 December 2016, Mrs Love did not suffer a reduction in her emoluments. Therefore, she is not eligible for a Reorganisation Allowance".

 

22.          No witnesses were called from the Department of Education to give evidence in relation to this document or the rationale for the Department's decision.

 

23.          The accepted evidence of Mr Mowbray is that the claimant, at the time of the re-organisation, was the "Teacher in Charge of BTEC Hospitality Course" - a role which he confirmed was commensurate with two TAs.

 

24.          The reorganisation resulted in the claimant losing this post and having to interview for roles. The claimant was successful in her application for the BTEC Co-Ordinator post in October 2016 which carried one Teaching Allowance and she has been in receipt of one TA from September 2017.

 

25.          The respondents accept that all other teachers whose emoluments were reduced by reason of the amalgamation and subsequent reorganisation in 2016 received the 'reorganisation allowance' for four years from December 2016.

 

26. The respondents' representative properly accepted the factual reality that the claimant suffered a reduction in her emoluments as a result of the amalgamation and subsequent reorganisation in 2016.

 

27. Notwithstanding this, the respondents' position remains that it is bound by the decision of the Department of Education.

 

Conclusion

 

28.          The Department's rationale document states that the claimant's reduction in emoluments arose from the application of DE Circular 2013/17, in that her entitlement to the reorganisation allowance expired by reason of the four year limit imposed by Circular 2013/17 and notified to the claimant by letter dated 10 July 2013. The tribunal does not accept this rationale.

 

29. The Department's rationale disregards the fact that the claimant, at the time of the reorganisation in 2016, was carrying out the role of Teacher in Charge of BTEC Hospitality which the respondents accept carried two TAs. This was the claimant's permanent and substantive role at the relevant time. A role which the respondents accept was reorganised as part of the amalgamation and reorganisation resulting in loss of emoluments for the claimant.

 

30. In the rationale, the Department states " no paperwork was issued by the employer/ Devenish College or received by the Department to advise that Mrs Love was entitled to a Teaching Allowance points for these additional duties" (sic), however this does not alter the fact that the claimant was employed in the permanent role of Head of BTEC Hospitality which attached 2 TAs. She was then displaced from this permanent role as a result of the amalgamation and subsequent reorganisation in 2016.

 

31. Under the terms of the Reorganisation Circular - as set out at paragraph 20 above - it is clear that the entitlement to 'Reorganisational Allowances' is based on a reduction in the rate of emoluments " directly caused by reorganisation". (tribunal emphasis)

 

32. Accordingly the tribunal determines, based on the unchallenged evidence of all the parties, that the claimant is entitled to a 'Reorganisational Allowance' arising from the restructure based on the following:

 

(i) The clear wording in paragraph 3 of the Reorganisation Allowance Circular 2013/17 (as set out at paragraph 20 above) - "where a teacher suffers a reduction in the rate of his emoluments and the Department is satisfied that such reduction has been directly caused by reorganisation".

 

(ii)           The accepted position of the respondents that the claimant suffered a reduction in the rate of her emoluments directly caused by reorganisation.

 

(iii)          At the time of the reorganisation, the claimant was "Head of BTEC Hospitality" on a permanent basis - a role which attracted two TAs.

 

(iv)          The claimant's colleagues received a "Reorganisation Allowance" arising from the 2016 reorganisation, the Department of Education having recognised and accepted that the reorganisation resulted from the 2013 amalgamation.

 

(v)           The definition of "allowance" under Circular DE 2013/17 includes a number of examples of allowances and there is no suggestion that these are exhaustive; furthermore, the Circular notably does not exclude a 'Reorganisation Allowance'.

 

(vi)          There is nothing in the wording of the Collective Agreement or Circular which precludes teachers from being entitled to a further 'Reorganisational Allowance' in the event that a teacher is subjected to a further reorganisation.

 

(vii)         Paragraphs 21 and 22 of the Collective Agreement provides specific provision of when a 'Reorganisational Allowance' shall cease and again, notably this does not include the situation the claimant finds herself in, namely being in receipt of a 'Reorganisational Allowance' and being subject to a further reorganisation.

 

33.          As of December 2016 the claimant was subject to a reorganisation which is not disputed by the respondent. At this date the claimant was also in receipt of a reorganisation allowance in relation to a previous reorganisation. The respondents accept that at this time she was employed in the role of Head of BTEC Hospitality which, quite apart from the reorganisation allowance entitled her to, two TAs. Accordingly, the tribunal finds that as per the terms of the Collective Agreement 2007/3 and DE Circular 2013/17 the claimant is entitled to be paid a reorganisation allowance.

 

34.          The tribunal therefore concludes that the claimant is contractually entitled to a reorganisation allowance of two Teaching Allowances from December 2016 until December 2020. The unlawful deduction from wages commenced in September 2017 when one Teaching Allowance was withheld, consequently the tribunal determines that the claimant has suffered an unlawful deduction from wages in relation to one Teaching Allowance from December 2017 until the date of hearing. In accordance with the terms of DE Circular 2013/7 the claimant will remain entitled to receive the reorganisation allowance of two TAs until December 2020.

 

35.          This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

Employment Judge:

 

Date and place of hearing: 5 March 2019 Belfast.

 

Date decision recorded in register and issued to parties: