FAIR EMPLOYMENT TRIBUNAL

CASE REF:  1254/11
842/12
47/12FET

CLAIMANT:			Ciara Reilly

RESPONDENTS:		1.  Public Prosecution Service of Northern Ireland
				2.  Department of Finance & Personnel

DECISION
(1)	The unanimous decision of the Tribunal is that the claimant’s claims in respect of equal pay and indirect sex, age and religious belief discrimination are upheld.  

(2)	The Tribunal orders that the relevant term in the claimant’s contract in respect of salary, including employer pension contributions, shall be treated as modified from 26 May 2011 (the date of the claimant’s first claim) so as not to be less favourable than that of her comparators who were paid at NICS Grade 6.

(3)	The Tribunal orders that the claimant is entitled to arrears in respect of the difference in pay back to 1 February 2006.

(4)	The Tribunal directs the parties to liaise in an attempt to agree the differences in pay, including employer pension contributions, between 1 February 2006 and 18 March 2014 and any interest due for any part of that period.  If they are unable to agree those figures, a further Hearing will be arranged to assess the amount of the arrears.

(5)	The Tribunal orders the respondents to pay the claimant £12,000 for injury to feelings in respect of the indirect sex, age and religious belief discrimination and £3,780 interest, totalling £15,780.

(6)	The Tribunal makes no order in respect of aggravated or exemplary damages.

(7)	The Tribunal orders that a further Hearing will be arranged to consider the claimant’s costs application.  

Constitution of Tribunal:

President:		Miss E McBride
Members:		Mr R Hanna
			Mr J Boyd

Appearances:
The claimant was represented by Mr P Little, Queen’s Counsel, and Ms S Bradley, Barrister-at-Law, instructed by Worthingtons Solicitors.
The respondents were represented by Ms N McGrenera, Queen’s Counsel, and Mr P Coll, Barrister-at-Law, instructed by the Departmental Solicitor’s Office

1.	The claimant is one of 15 Senior Public Prosecutors working in the Public Prosecution Service who have brought claims in respect of equal pay and indirect discrimination on grounds of sex and age against the respondents.  Their claims arise out of their transfer from Grade A of the Northern Ireland Office pay scale to Grade 7 of the Northern Ireland Civil Service pay scale and the transfer of their comparators, with whom they are performing equal work, to the higher paid Grade 6, upon devolution of policing and justice powers to the Northern Ireland administration on 12 April 2010.  At that time the Grade 6 salary was:-
(i)	£6,866 higher than the Grade 7 salary at their minimum points;

(ii)	£7,099 higher than the Grade 7 salary at the claimant’s pay point; and

(iii)	£11,661 higher than the Grade 7 salary at their maximum points.

The claimant has also brought a claim of indirect discrimination on the ground of religious belief.  The parties have agreed that the claimant’s claims should be heard by the Fair Employment Tribunal as the lead case.  The respondents have resisted the claims.      

Abbreviations

2.	The Tribunal has adopted the abbreviations used by the parties and will use the following abbreviations throughout the decision.
PPS	Public Prosecution Service of Northern Ireland (first respondent)	
DFP	Department of Finance and Personnel (second respondent)	
CA 	Compensation Agency	
CHR	Corporate Human Resources	
CSO 	Crown Solicitors Office	
DOJ 	Department of Justice	
DPP	Department of Public Prosecutions	
DSO	Departmental Solicitors Office	
EQIA	Equality Impact Assessment	
FDA  	First Division Association – Trade Union	
LA grade 	Legal Assistant grade	
MS 	Management Side	
NICS 	Northern Ireland Civil Service	
NICtS	Northern Ireland Court Service	
NIO 	Northern Ireland Office	
NIPSA 	Northern Ireland Public Services Alliance – Trade Union	
PANI	Police Authority for Northern Ireland	
PSNI 	Police Service of Northern Ireland	
SLA grade 	Senior Legal Assistant grade	
TUS 	Trade Union Side	

Issues

3.	Following a number of Case Management Discussions:-

(i)	the respondents have confirmed that there is no dispute that the claimant has been performing like work or work of equal value with her comparators and that she is being paid less;

(ii)	the claimant has conceded that the difference in pay and grade is genuinely due to the application of the Interface Arrangements (the “material factor” in the equal pay claim and the “provision criterion or practice” in the indirect discrimination claims);

(iii)	the respondents have conceded that the application of the Interface Arrangements is tainted with indirect discrimination in terms of gender, age and religious belief due to disparate adverse impact (equal pay) and particular disadvantage (indirect discrimination) which would amount to indirect discrimination if not objectively justified;

(iv)	the parties have agreed that the sole issue for the Tribunal to determine is, therefore, whether the respondents can objectively justify the application of the Interface arrangements (indirect discrimination claims) and the difference in pay caused by the application of the Interface arrangements (equal pay claim).  

Sources of Evidence

4.	The Tribunal received evidence (direct evidence by way of witness statement) from:-

(i)	Mrs Grace Nesbitt, Head of Civil Service Pensions (Grade 5) in DFP’s CHR;

(ii)	Mr Ian Hearst, who has been acting up from the post of Assistant Director (Grade 5) Finance & Resources to the post of Senior Assistant Director (Grade 3) Finance & Resources in the PPS from April 2010; and

(iii)	Mr Peter Black, Staff Officer in DFP’s CHR;

on behalf of the respondents.

The Tribunal received evidence (direct evidence by way of witness statement) from the claimant on her own behalf.  

The Tribunal was provided with an agreed bundle of documents and an agreed bundle of witness statements and additional documents during the Hearing.  Those documents included a number in respect of which the respondents had waived legal professional privilege.  Mr Little QC contended that privilege had been waived in respect of those documents because they had been provided to the claimant’s representatives by mistake.  Miss McGrenera QC asked the Tribunal to note that the respondents had waived legal professional privilege to try to make their thinking as transparent as possible to the Tribunal.  There were also a number of documents in respect of which the respondents had not waived legal professional privilege and those documents were either not provided or had been redacted to remove references to legal advice.  Under cross-examination, Mrs Nesbitt stated that the respondents were not being totally transparent in that not every privileged document had been disclosed.  She stated that ‘put simply’ there were some documents the respondents felt were ‘acceptable’ to disclose and others that were ‘deemed’ not to be acceptable to disclose.     

The Tribunal received written and oral submissions from the parties on liability and written submissions on remedy.  The Tribunal was provided with the following authorities and publications in relation to liability and remedy:-

	Lynch –v- Ministry of Defence [1983] NI 216

Briggs –v- North Eastern Education & Library Board (1990) IRLR 181 (NICA)

	Cadman –v- Health & Safety Executive (2004) IRLR 971 (CA)

	Cross –v- British Airways Plc (2005) IRLR 423, UKEAT/10572/04/TM

Hardys & Hansons PLC –v- Mrs Lisa Lax (2005) EWCA CIV 846 (CA), (2005) IRLR 726

	Chief Constable of West Yorkshire Police & Others –v- Homer, Appeal Number UK EAT/0191/08/RN (2008) 

	Fearnon –v- Smurfit Corrugated Cases (Lurgan) Limited (2009) IRLR 132 (NICA)

Seldon –v- Clarkson, Wright & Jakes (2012) UK SC16

	McPolin –v- Department of Finance & Personnel 215/09, 1210/10

		Woodcock –v- Cumbria Primary Care Trust (2012) EWCA Civ330 (CA), (2011) IRLR 119

HM Land Registry –v- Benson & Others UK EAT/0197/11/RN (EAT) 10 February 2012

	Homer –v- Chief Constable of West Yorkshire Police (2012) IRLR 601 (SC)

			Seldon –v- Clarkson Wright & Jakes (2012) UK SC 16

			Haq & Others –v- Audit Commission (2013) IRLR 206 (CA)

	O’Brien –v- Ministry of Justice (2013) IRLR 315 (2013) UKSC 6

Equal Opportunities Review Issue 232 – 14/12/2012 

	Harvey on Industrial Relations & Employment Law, Division L, paragraphs 337-367, 871-910 and 1199-1215.

Background to the claimant’s claims

5.	Having considered the evidence, oral and documentary, and having considered the submissions, the Tribunal found the following relevant background facts.

5.1	Following the establishment of the NIO in the early 1970s, the majority of its staff members were NICS staff members who were employed by DFP and then seconded by DFP to work in the various offices within the NIO.  

5.2	Prior to 1 April 1998 all NICS staff members were graded and paid according to the NICS pay scale whether they worked in any of the Northern Ireland departments of the NICS (hereinafter referred to as the NICS) or in any of the offices of the NIO, on secondment by DFP to the NIO, including the then DPP, the CA and the CSO.

5.3	That uniformity of pay changed from 1 April 1998 when the NIO introduced its own pay system, having been granted delegated power by DFP for pay and grading.  The NIO had sought delegated responsibility from DFP for pay and grading following the implementation of the Civil Service (Management Functions) (Northern Ireland) Order 1994 which gave DFP power to delegate responsibility for certain functions, including grading and pay, to departments and agencies.  The purpose of delegation was to enable those departments to devise pay and grading systems which were most appropriate for their individual business needs and to deliver efficient and more cost effective services.  

5.4	DFP had a number of concerns about the impact of such delegation.  The reasons for their concerns are set out at paragraph 4 of a memo dated 17 November 1995 from the then Permanent Secretary, Mr Gowdy, to Sir David Fell as follows:-

		“The NICS staff in NIO are in legal terms employed by DFP and any problems which arise fall to this Department to handle rather than NIO.  Thus, if the NIO pay rates were to fall behind NICS rates, we could be faced with substantial claims for an offsetting allowance to bridge the gap or requests for transfer to NI Departments.  On the other hand, if the NIO pay higher rates than the NICS, the likelihood is that NIPSA will use this as a lever in NICS pay negotiations.  There are also potential equal opportunities problems.  The NIO/PANI has a higher female staff profile and a substantially lower Catholic staff profile than the NI Departments.  This provides a basis for both equal pay, equal value cases under the Sex Discrimination Order and religious discrimination cases under the Fair Employment Act ….”

5.5  	Notwithstanding those concerns DFP delegated power for pay, grading and terms and conditions to the NIO in 1996 but required the NIO to exercise that power within the parameters set by DFP in its delegation framework document.  The purpose of the delegation framework document was to ensure that, in the exercise of delegation, the NIO, inter alia, acted within the law, with regard to the reputation of the NICS for good, fair and equitable employment practices and with regard to ensuring proper protection of public funds.  As Mrs Nesbitt explained to the Tribunal the operation of delegation had to take place within sensible parameters balancing the need to ensure no detriment to staff in contractual terms against the need to ensure effective management of the Northern Ireland block grant (the money Northern Ireland receives annually from the Treasury) and Departmental Running Costs (DRC) for the NICS.  The purpose of the delegation framework document was also to ensure that “Departments and Agencies making changes to terms and conditions of service must have regard to the possible implications for other employers within the NICS and must be prepared to work with DFP and the other Departments and Agencies to deal with any adverse consequences or interface problems which may arise.”

5.6	Prior to 1 April 1998, the NIO undertook a review of its existing pay and grading structures and with effect from 1 April 1998 introduced a new pay and grading structure with fewer grades and fewer pay bands than the NICS.  Three of the four NIO pay bands incorporated a number of NICS grades with different rates of pay.  The new NIO Grade A pay band with which this case is primarily concerned incorporated NICS unified Grades 6 and 7 for non legal officers and the NICS SLA grade for legal officers.   There were no legal posts in the NICS at NICS Grade 6 or indeed at NICS Grade 7 until August 2006.  Before that date, the applicable grades for legal posts in the NICS were the NICS SLA and LA grades.  From August 2006, following a review of legal posts in the NICS, legal posts at NICS grade SLA were deemed equivalent to the NICS Grade 6 and were regraded as such.  There were no legal posts in the NIO at NICS Grade 6 or 7 at any time.  Before 1 April 1998, the applicable grades for legal posts in the NIO were NICS SLA grade and NICS LA grade.  After 1 April 1998 the grades for legal posts in the NIO were renamed NIO Grades A and B1.  As Mr Hearst accepted in cross-examination, the majority of legal staff in the NIO who had been at NICS SLA grade before 1 April 1998 had been seconded to the NIO at the NICS LA grade and had been promoted to the NICS SLA grade from within the NIO. 

5.7	At the time of its introduction on 1 April 1998, the new NIO Grade A pay band and the NICS Grades 6, SLA and 7 pay bands were as follows:-

	NIO Grade A	NICS Grade 6	NICS SLA grade	NICS Grade 7	
Minimum	£26,939	£29,844	£26,743	£26,154	
Maximum	£47,248	£50,360	£47,248	£40,990	

	Thus, in 1998 the NICS Grade 6 salary was:

(i)	just over £3,000 higher than the NICS SLA grade salary at their minimum and maximum points; and

(ii)	£3,690 higher than the NICS Grade 7 salary at their minimum points and £9,370 higher at their maximum points.  

The NICS SLA grade salary was £589 higher than the NICS Grade 7 salary at their minimum points and £6,258 higher at their maximum points.  

The new NIO Grade A salary was:

(i)	virtually the same as the NICS SLA grade salary at their minimum and maximum points;

(ii)	approximately £3,000 lower than the NICS Grade 6 salary at their minimum and maximum points; and 

(iii)	£785 higher than the NICS Grade 7 salary at their minimum points and £6,258 higher at their maximum points.  

5.8	The respondents needed to ensure that the mobility of staff between departments could be maintained and were worried that the different pay systems could affect that mobility.  Interface arrangements were therefore established in November 1999 by DFP and the NIO, in agreement with TUS, for transfers of staff between the NIO and the NICS.  They were then incorporated into the NICS Employee Terms and Conditions Handbook.  As stated in the handbook, the Interface arrangements were designed to ensure that changes to grading structures introduced by the NIO under delegated pay and grading arrangements did not of themselves act as a barrier to voluntary and compulsory interdepartmental transfers.  Annex 1 of the Interface arrangements provided guidance on how level transfers should operate between the NIO and NI departments.  In relation to a transfer from NIO Grade A, the guidance was that the equivalent NICS grade was Unified Grade 7 except for NIO Grade A staff formerly in Grade 6 and the Senior Legal Assistant Grade for whom the equivalent NICS grade was Unified Grade 6.

5.9	The claimant commenced employment with DFP on 4 October 2004 as a Legal Assistant, at NICS LA grade.  She was then immediately seconded by DFP to work as a Legal Assistant in the then DPP at NIO Grade B1.  Prior 1 April 1998 all legal officers at NICS LA and SLA grades were called Legal Assistants and Senior Legal Assistants, whether they were working in the NICS or in the NIO, on secondment by DFP.  Although the grades of Legal Officers working in the DPP at NICS LA and SLA Grades were changed to NIO Grades B1 and A with effect from 1 April 1998, they were still called Legal Assistants and Senior Legal Assistants, the same as Legal Officers working in the NICS at the NICS LA and SLA grades, until 2005.  Their titles then became Public Prosecutors and Senior Public Prosecutors after the DPP was replaced with the PPS.  Legal Officers working in the NICS at NICS LA and SLA grades continued to be called Legal Assistants and Senior Legal Assistants until August 2006 when they became Principal Legal Officers and Senior Principal Legal Officers, following a review of legal posts within the NICS which deemed the NICS LA and SLA grades to be equivalent to the NICS Grades 7 and 6 respectively.  

5.10	On 1 February 2006 the claimant was promoted to the post of Senior Public Prosecutor within the PPS, at NIO Grade A.   
 
5.11	Prior to the implementation of the new NIO pay scale on 1 April 1998, Mr Blackwell, the then Principal Establishment & Finance Officer in the NIO issued a Personnel Services Notice to all NIO staff on 13 October 1997.  In relation to pay he stated:-  

		“I have guaranteed that your pay award this year will be worth at least as much as DFPs, and that pay and conditions for staff in NIO will be no less favourable than those for whom DFP negotiates.”

5.12	Notwithstanding that guarantee the NIO Grade A salary fell below the NICS SLA grade salary and the NICS Grade 6 salary.  It even fell below the NICS Grade 7 salary at the lower pay points.  By August 2002 when the NICS SLA grade salary was paid in accordance with the NICS Grade 6 pay scale (following the implementation of the 2002 NICS Single Pay Agreement), the NIO Grade A salary was £5,232 lower than the NICS SLA grade salary and the NICS Grade 6 salary at their maximum points.  By 2010, following the regrading of the NICS SLA grade to NICS Grade 6 in 2006, the NIO Grade A salary was just over £7,500 lower than the NICS Grade 6 salary at their minimum and maximum points.  

5.13	On 28 April 2009 the review of legal posts within the NIO, which had commenced in 2008 was completed.  The findings of the review were that the 10 Senior Public Prosecutor posts in the PPS (37 in total) which had been evaluated, fell into the mid to high end of the NICS Grade 7 scoring range.  The claimant’s post received the second highest score.    

5.14	On 29 March 2010, Mr Ian Hearst, who was then Assistant Director of Finance & Resources PPS NI and Mr Gerry Cosgrave, Director of Human Resources DFP, wrote to all NICS staff in the PPS, including the claimant, to inform them that devolution of policing and justice would take place on 12 April 2010.  Mr Hearst and Mr Cosgrave also informed them that their secondments from DFP to NIO would end at midnight on 11 April 2010 and that they would be employees of the PPS and would remain Northern Ireland civil servants.  They were further informed that discussions with TUS (which had commenced in 2008) were continuing on terms and conditions and TUPE protections and that those matters would be covered in a follow up letter.  In addition they were informed that they would have two options to consider on pay after devolution which were either to remain on their current NIO pay scale which would be frozen at the 2009 rate; or to adopt the NICS pay scale relevant to their grade. 
         
5.15	On receipt of that letter, the claimant wrote to Mrs Grace Nesbitt, on 9 April 2010, seeking confirmation that she would be transferred to NICS Grade 6 in accordance with the Interface Arrangements set out in the HR Handbook.  She also asked if an EQIA had been carried out in compliance with Section 75 of the Northern Ireland Act 1998.

5.16	On 10 May 2010, Ms McGurk, a Grade 7 in DFP’s CHR, replied to the claimant, on behalf of Mrs Nesbitt, in the following terms:-  

	“Thank you for your letter of 9 April 2010 to Grace Nesbitt.  Thirteen of your colleagues have written to her in similar vein and my response on her behalf is the same for all.  

		I have considered your case that, following the devolution of justice functions on 12 April 2010, your grade on transfer should be Grade 6.  You were in fact appointed to Grade A, the SLA Grade having ceased to exist in NIO/PPS in 1998, and you were paid on the Grade A pay scale, not the SLA/Grade 6 pay scale; you are Grade A or analogous, notwithstanding the label which was put on your grade.  Words used to describe a grade cannot turn that grade into one that had ceased to exist in your organisation in 1998.  As your grade is Grade A, your equivalent grade in the NICS is Grade 7.”  

5.17		On 28 May 2010, Mr Derek Baker who was then Director of DFP CHR, (Grade 3), issued an update to staff, including the claimant, on the “options exercise for assimilating onto the NICS terms and conditions, including pay and to update them on their continuing discussions with trade union side”.  He indicated that MS remained in discussion with TUS about pay and protections and that further meetings specifically on pay issues had been scheduled well into June 2010, that it was likely that further meetings would be required and that a further update would be provided as soon as it was possible to do so.

5.18	On that same date, 28 May 2010, Mr Hearst sent all Senior Public Prosecutors and Public Prosecutors in PPS a summary of the outcome of the NIO legal posts review which had been completed in April 2009.  As set out at paragraph 5.13 above, the findings of the review were that the sample of the NIO Grade A Senior Public Prosecutor posts were equivalent to NICS Grade 7.  

5.19	On 15 June 2010 the claimant wrote to Mrs Nesbitt again, pointing out that she was aware that “the arrangements for the transfer of PPS staff to the NICS post-devolution are currently under negotiation between management and union side and have not yet been determined” and seeking “an immediate and unambiguous retraction of your statement that my equivalent grade in the NICS is Grade 7.”  

5.20	On 6 July 2010 Ms McGurk replied to the claimant in the following terms:- 

		“While consultations with TUS are underway our current position remains that you are currently a Grade A and will become a Grade 7 if you transfer to the NICS pay scale.

		You will receive a formal notification once the consultation process is over and Management Side has reached agreement or otherwise with TUS.”

5.21		On 27 August 2010, Mr Hearst sent a further letter to all PPS staff, including the claimant.  He informed the claimant that if she exercised her option to be assimilated to the NICS pay scale, her equivalent NICS grade had been confirmed as Grade 7.  He also informed the claimant that it was important that she knew how her NICS grade had been arrived at.  He further informed her that 43 NIO Grade A legal staff members had been designated as NICS Grade 6 and that they were made up of three groups, namely:-

(i)	those (known as the Pre Anderson Group) who had been Grade 6 prior to the former NIO’s pay and grading delegation, which took effect from 1 April 1998; 

(ii)	those known as the Anderson Group, who had rights flowing from the settlement of their court case initiated in 1998; and 

(iii)	several others known as the Anderson Consequentials Group who had acquired rights after the Anderson settlement.  

	Although not stated in the letter, the breakdown of those 43 NIO Grade A legal staff members was:-

			1 in the CA;
			15 in the CSO;
			6 in the DSO;
			19 in the PPS;
			1 in the PSNI; and
			1 on a career break.

	In addition he informed the claimant that the corollary of this was that the remaining (47) Grade A lawyers, ie those recruited to or promoted to Grade A after 1 April 1998 (which included the claimant) had been designated as Grade 7s from 12 April 2010 on the ground that they “could not demonstrate a right to Grade 6”.  Although not stated in the letter, the breakdown of those 47 NIO Grade A Legal Officers was:-

3 in the CA;
6 in the CSO;
1 in the DSO; and
37 in the PPS.

Mr Hearst concluded the letter by informing the claimant that he would write to her again to enable her to exercise her option on whether to remain on her NIO pay scale or move to the NICS pay scale relevant to her grade.

5.22	On 15 September 2010, Mr Baker issued a note “to update all staff who will be affected by the options exercise for assimilating to NICS terms and conditions, including pay, with effect from 12 April 2010.”  In relation to Grade A legal staff, he explained that TUS continued to make representations on the NICS grade they would assimilate to if they chose to move to the NICS pay scale.  He assured staff that “Management and the Trade Union Side are working constructively together on this Project to ensure that all outstanding issues are resolved and the outcomes are shared with staff to enable you to exercise your options on assimilation.” 

5.23	On 24 September 2010 the claimant lodged a grievance on the ground that she believed that her transfer to NICS Grade 7 may amount to unlawful discrimination on the grounds of age, sex and religion and may contravene equal pay legislation.   On 3 October 2010 the claimant served statutory questionnaires on the respondents under the Equal Pay Act (Northern Ireland) 1970, the Employment Equality (Age) Regulations (Northern Ireland) 2006, the Sex Discrimination (Northern Ireland) Order 1976 and the Fair Employment and Treatment (Northern Ireland) Order 1998.

5.24	On 8 November 2010, Mr Kitson, then Acting Deputy Director of the PPS sent a note to all PPS legal staff to provide them with an update on the legal grading review.  He informed them that the review did not address devolution assimilation issues which were being considered by DFP and an Ad Hoc Committee, comprising DFP, DOJ, PPS, NICTS and the CSO.  In addition, he acknowledged that the outcome of the review would have been disappointing and that an option available as a next step would be the drafting of updated job descriptions.   

5.25		On 16 December 2010, Mr Hearst sent the claimant a letter with an options reply slip and asked her to indicate whether she wished to move to the equivalent NICS grade and pay scale or to retain her former NIO grade and pay scale by 21 January 2011.  In terms of salary Mr Hearst informed the claimant that if she opted to move to the NICS pay scale:-

(i)	her salary would be £43,228 (point 2 on the NICS Grade 7 pay scale);

(ii)	the NICS Grade 7 salary maximum was £50,796; and

(iii)	the NICS Grade 7 salary pay points could be increased.

Alternatively if she opted to remain on the NIO pay scale:-

(a)	her salary would remain at £41,967 (point 2 on the NIO Grade A pay scale);

(b)	the NIO Grade A salary maximum was £54,838; and

(c)	the NIO Grade A salary pay points would not be increased.

5.26	On 17 January 2011 the claimant returned the pay slip indicating that she wished to move to the NICS grade and pay scale “without prejudice, inter alia, to any grievance, equal pay or discrimination claim, or to any other legal proceedings, …”. The effect of her move to the NICS Grade 7 pay scale was that her immediate salary would be £1,261 more than it would have been if she had opted to remain on the NIO pay scale.  However, depending on the extent of any increase to the NICS Grade 7 pay band, her salary on the NICS Grade 7 pay scale could be just over £4,000 less than the NIO Grade A pay scale when the claimant reached the maximum point.   

5.27	On 7 March 2011 the claimant was informed that her grievance could only be investigated insofar as it related to the correct application of the assimilation policy, not the appropriateness or fairness of the policy itself.  

5.28	On 26 May 2011 the claimant presented her first claim to the industrial tribunal in respect of equal pay, sex discrimination and age discrimination.  Her claim was that she was performing like work, work of equal value or work rated as equivalent with her comparators, who were members of the Pre Anderson, Anderson and Anderson Consequentials Groups but had been transferred to the NICS pay scale at the lower Grade 7 while her comparators had been transferred at the higher Grade 6.  Her equal pay claim related to contractual pay.  The claimant clarified at a Case Management Discussion on 24 February 2012 that her indirect sex discrimination claim related to the fact that she had not been transferred from NIO Grade A to NICS Grade 6 which she contended would affect promotion.   

5.29	On 6 July 2011 the claimant was notified that her grievance had not been upheld because Ms Cleland, the decision maker, was satisfied that the PPS had “applied the Policy that was endorsed by the “Devolution of Justice Functions Ad Hoc Committee” at a meeting on 27 July 2010 and could find no evidence that the claimant should be included in one of the three groups who were assimilated from NIO Grade A to NICS Grade 6 namely:-

(i)	NIO Grade A legal staff who were “previously NICS Grade 6 level prior to 1 April 1998”;

(ii)	NIO legal staff “in the Anderson Group who successfully litigated in 1998 and were reviewed by Grade 6 board as part of the settlement”; and

(iii)	NIO Grade A legal staff “in the Anderson Consequentials Group who did not litigate but gained the benefit of the litigation and were reviewed by a Grade 6 board”.        

	As part of her decision Ms Cleland stated that “the NIO/PPS/NICS all adhere to equal opportunities legislation.  Whilst I note the concerns of the Group it is not for me to determine if the equal opportunities legislation was implemented fairly.”

	She further explained that “a distinction must be drawn between those who have previously served at the grade of Senior Legal Assistant and those who have served at Grade A with the job title (but not the grade) of Senior Legal Assistant” and that “Grade A staff appointed after April 1998 could not meet the condition in the Interface arrangements which would entitle them to transfer to the NICS Grade 6.”

5.30	On 7 July 2011 the respondents presented a response to the claimant’s first claim.  The response was silent as to whether they accepted or disputed that the claimant was performing like work, work of equal value or work rated as equivalent with her comparators or that she was being paid less.  In the penultimate paragraph of their grounds for resisting the claimant’s claim they stated:-

“Various details of the transfer of staff from Northern Ireland Office grades to Northern Ireland Civil Service grades have been the subject of consultation and negotiation with the trade unions.  These consultations are now complete and all staff may exercise the option either to retain their Northern Ireland Office pay scale or transfer to the appropriate Northern Ireland Civil Service pay scale.”

In the last paragraph of their grounds for resisting the claimant’s claim they stated:-

“It is not accepted that there is, between the claimant’s group and the comparator group, such a statistical imbalance in terms of age or gender as to indicate indirect discrimination or an equal pay claim.  If there is such an imbalance, which is denied, then there is by reason of the contractual entitlement of those who will be offered the option to appoint at Grade 6, a genuine material factor or a justification for the difference in treatment”.  

5.31	On 8 July 2011 the claimant lodged an appeal against the grievance decision.  On 17 August 2011 the claimant was informed that Mr Kitson had been appointed as the Grievance Appeal Officer.  An appeal meeting took place on 29 September 2011 and on 26 October 2011 the claimant was informed that her appeal was on hold.  

5.32	On 7 September 2011 a Case Management Discussion took place to consider the way forward in the claimant’s case and in two other cases that had been lodged.  It became clear that the main issues in these cases were disparate impact and justification.  However, the Tribunal was informed that further claims were to be lodged and it was decided that further progress could not be made until they had been.  

5.33	On 28 November 2011 the claimant was informed that her grievance appeal remained on hold pending further instructions from the Department.   

5.34	Further Case Management Discussions took place on 29 November and 2 December 2011.  At the latter Case Management Discussion the respondents conceded that the claimant was performing like work with her Grade 6 comparators and was being paid less.  It was also recorded that the respondents were in the process of carrying out a review to enable them to assess whether there was disparate impact and, if so, whether justification existed for such disparate impact.

5.35	On 27 January 2012 the claimant was notified that her grievance appeal continued to be stayed pending the review of the Ad Hoc Committee and that DFP “apologised for the delay in responding but as this is a complex area the Ad Hoc Committee is still considering all the relevant information before they will be in a position to make a decision on any changes to the current policy.” 

5.36	A further Case Management Discussion took place on 24 February 2012 at which the respondents conceded that the application of the Interface arrangements was tainted with indirect discrimination as between the claimant’s group and her comparator group on the grounds of sex and age and they were ordered to provide details of their objective justification defence to the claimants’ representatives by 27 March 2012.  
 
5.37	On 23 April 2012 the claimant was informed by Mr Hearst that the respondents had ended the grievance process for the following reasons:-

	“Your grievance was stayed pending a review.  Management has now decided that a comparison of your treatment with that of others does indicate a disparity of treatment which would be unlawful if not justified.  It is Management’s decision that your treatment does appear to be justified.  The legality of the situation is a matter best decided by an industrial tribunal panel rather than by an officer of PPS.  Since the Industrial Tribunal decision in the Group action known as Cardwell & Others –v- PPS & DFP (the claimant’s case is part of that group) will decide all of the matters raised by you in your grievance it is considered appropriate to now close your grievance and await that decision.”

5.38	A further Case Management Discussion took place on 27 April 2012 by which date the respondents had provided details of the ‘costs/plus’ objective justification relied upon by them.  

5.39	On 10 May 2012 the claimant presented a claim to the Fair Employment Tribunal in respect of discrimination on the ground of religious belief.  She also made further claims to the industrial tribunal in respect of equal pay and discrimination on the grounds of gender and age in identical terms to the first claim.    

5.40	On 21 June 2012 the respondents presented a response to the claimant’s second claim.  They accepted that the claimant was carrying out work of equal value to male colleagues employed on the Grade 6 pay scale and who were therefore paid more than she was.  However the respondents contended that there was “a genuine material factor in the Interface Arrangements under which staff transfers from NIO pay scales to NICS pay scales have been dealt with since 1999.  Under these arrangements the claimant is required to transfer to the NICS as a Grade 7 because she had not been employed as a Senior Legal Assistant prior to 1998.”  They also stated that while a statistical analysis of the claimant’s group and the comparator group did disclose a disparity, it was nevertheless justified for the reasons already proposed in the claimant’s first claim.  In relation to the claimant’s additional claim of discrimination on the ground of religious belief the respondents contended that if a disparity was disclosed it was justified in light of the Interface arrangements.  On 10 January 2013, the respondents accepted that the application of the Interface arrangements was also tainted with indirect discrimination on the ground of religious belief as between the claimant’s group and her comparator group and stated that they were relying on the same objective justification defence in relation to that claim.  

The relevant statutory provisions

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

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

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

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

(i)	if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and
 
(ii)	if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term; 

(b)	...

(c)	where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment— 

(i)	if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and
 
(ii)	if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term.

(3)	An equality clause falling within subsection (2)(a), (b) or (c) shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor— 

(a)	in the case of an equality clause falling within subsection (2)(a) or (b)	must be a material difference between the woman's case and the man's; and 

(b)	in the case of an equality clause falling within subsection (2)(c), may be such a material difference. 

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

	Although the Equal Pay Act (Northern Ireland) 1970 does not contain a specific reference to the requirement for justification where it is established that a genuine material factor is tainted with indirect discrimination, it was made clear by the House of Lords in Glasgow City Council -v- Marshall (2000) IRLR272 that, “the employer will be called upon to satisfy the tribunal that the difference in pay is objectively justifiable”, in those circumstances.

	6B	Questioning of employer

			(1)	...
			(2)	...
			(3)	...
(4)	If in any proceedings under section 2(1) or 6A(3) it appears to the industrial tribunal that the complainant has questioned the respondent ....and that— 
(a)	the respondent deliberately and without reasonable excuse omitted to reply within the period of eight weeks starting on the day that a question was duly served; or
(b)	the respondent's reply is evasive or equivocal, 
it may draw any inference which it considers it just and equitable to draw, including an inference that the respondent has contravened a term modified or included by virtue of the complainant's equality clause or corresponding term of service. 

7.	Indirect sex discrimination in the employment field is defined at Article 3(2)(b) of 	The Sex Discrimination (Northern Ireland) Order 1976 in the following terms:-

			“A person (indirectly) discriminates against a woman if – 

(b)	he 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 with men, 

(ii)	which puts or would put her at that disadvantage, and 

(iii)	which he cannot show to be a proportionate means of achieving a legitimate aim.”

   	Article 7(a) provides:

“A comparison of the cases of persons of different sex under Article 3(2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”  

	Article 8(2) provides:-

	“It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her— 
(a)	in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or 

(b)	by dismissing her, or subjecting her to any other detriment.” 

	Article 8(6) provides:-

	“Paragraph (2) does not apply to benefits consisting of the payment of money when the provision of those benefits is regulated by the woman's contract of employment.” 

8.	Indirect age discrimination in the employment field is defined at Article 3(1)(b) of the Employment Equality (Age) Regulations (Northern Ireland) 2006 and Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 in similar terms.  Article 74 of the Sex Discrimination (Northern Ireland) Order 1976, Regulation 46 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 and Article 44 of the Fair Employment and Treatment (Northern Ireland) Order 1998 contain similar provisions with regard to Statutory Questionnaires as Section 6B of the Equal Pay Act (Northern Ireland) 1970.  

9.	As set out at paragraph 3 above, the respondents have accepted that the claimant has been performing like work or work of equal value with her comparators and that she is being paid less because she was transferred to NICS Grade 7 while they were transferred to NICS Grade 6.  The equality clause that is deemed to be included in the claimant’s contract by virtue of section 1 of the Equal Pay Act (Northern Ireland) 1970 shall therefore operate unless the respondents establish that the difference in pay is genuinely due to a material factor which is not the difference of sex.  The claimant has accepted that the difference in pay and grade is genuinely due to the respondents’ application of the Interface arrangements to determine the equivalent NICS grades for staff transferring from the NIO pay scale to the NICS pay scale, upon devolution of justice on 12 April 2010.  In accordance with section 1(3) of the Equal Pay Act (Northern Ireland) 1970, the equality clause shall not therefore operate in relation to the variation in pay unless the claimant establishes that the genuine material factor is tainted with direct or indirect sex discrimination.  The respondents have accepted that the application of the Interface arrangements is tainted with indirect sex discrimination and indirect age and religious belief discrimination, as between the claimant’s group and her comparator group.  The parties have therefore agreed that the sole issue for the Tribunal to determine is whether the respondents can objectively justify the application of the Interface arrangements (indirect discrimination claims) and the difference in pay caused by the application of the Interface arrangements (equal pay claim).

Background to the Respondents Objective Justification Defence

10.	On 12 April 2010 policing and justice functions were devolved to the Northern Ireland Assembly.  It was considered important from a policy point of view, in keeping with the political context of devolution, for those working in the newly created DOJ and the PPS (which became a Non Ministerial NICS Department upon devolution) to be seen as part of the NICS and its terms and arrangements.  

10.1	In preparation for devolution, which was originally anticipated to take place in May 2008, a Devolution of Justice Functions Ad Hoc Committee, made up of MS and TUS (hereinafter referred to as the Ad Hoc Committee) was established under the aegis of the Central Whitley Council.  The role of the Ad Hoc Committee was to manage the transfer of policing and justice functions to the NICS and to take account of the different terms and conditions of the transferring employees.  The role included agreeing the assimilation terms for NICtS and NIO staff.

10.2	The first meeting of the Ad Hoc Committee took place on 27 March 2008.  It was agreed: that “the new department’s grading and terms of conditions should be assimilated to those in the NICS as quickly as possible and the transition should be without detriment”.  It was also recorded that “the issue of inter-service transfers needed to be clarified and TUS were content to use existing arrangements if that were possible”.  The minutes of the meeting of 3 July 2008 recorded that at that stage a political decision had not been made on the future of the PPS and the DSO but if PPS were to be part of the new DOJ, then staffing issues would be handled by the Ad Hoc Committee.  The minutes also recorded that FDA’s position was that people who were Grade 6 prior to 1998 should return to the NICS at the point where they would have been on the Grade 6 scale, if they had not left the NICS and that that should also apply to people joining the NIO post 1998.  The minutes further recorded that MS responded that they were working through the issues to arrive at proposals.  

10.3	On 2 June 2009, before the Ad Hoc Group had made any decision in relation to the NIO Grade A legal officers, Mr Jonathan Phillips, the then Permanent Secretary, notified all NIO staff, inter alia, that Grade A staff, including those in the Legal Grades who had formerly been assessed as a substantive Grade 6, would automatically revert to the Grade 6 on devolution.  Although this note appeared to be consistent with the guidance in Annex 1 of the Interface arrangements, which had been established in November 1999, MS appeared to be very concerned about it because they had recently received the report on the review of NIO legal grades which evaluated the PPS Grade A legal posts and other NIO Grade A legal posts at NICS Grade 7.  That meant that there were 90 NIO Grade A Legal Officers and very few Grade 6 posts.  MS therefore held a ‘formal’ meeting with their solicitors on 16 March 2010 to discuss the “practicalities” of giving effect to Jonathan Phillip’s “commitment”.  It was decided that senior Counsel’s opinion should be sought on the matter as there were insufficient Grade 6 legal posts and because they were aware by that stage of a risk of a legal challenge from the Anderson and Anderson Consequentials groups who had been informed that they would transfer to the NICS at Grade 7.  

The Anderson Group

10.4	In 1996, 15 Legal Assistants at NICS LA grade, (known as the Anderson Group) who were working in the CSO, on secondment by DFP, brought claims against NIO, CSO and DFP complaining that they had been excluded from being considered for promotion to the NICS SLA grade (the applicable grade in the NIO in 1996) because they were women.  A settlement was reached between the parties on 5 October 1998, by way of a written “consent” which provided that the Legal Assistants were to be:-

(i)	invited to appear before a Review Board to be considered for promotion to the “rank of Senior Legal Assistant (Grade A)”; and

(ii)	if they were all successful in gaining promotion, in consequence of appearing before the Board, they were to be promoted to the “grade of Senior Legal Assistant (Grade A) with effect from 1 October 1998”.  

They were all successful in gaining promotion and were promoted accordingly with effect from 1 October 1998.  On 14 October 1998 Personnel Services wrote to each of them to confirm their “promotion to Senior Legal Assistant with effect from 1 October 1998”.  On 16 October 1998 Personnel Services pay section wrote to each of them to confirm that their salaries would be adjusted on their “Promotion to Grade A on 1st October 1998”.  If there was any doubt on the part of the respondents in June/July 2010 (which the Tribunal will refer to later), as to the meaning of the written terms of the settlement they had entered into with the 15 Legal Assistants on 5 October 1998, the Tribunal is satisfied that their letters of 16 and 18 October 1998, made it clear that as far as the respondents were concerned they had agreed to promote the 15 Legal Assistants to the post of Senior Legal Assistant at NIO Grade A, not NICS Grade 6 nor NICS SLA grade (which was deemed equivalent to NICS Grade 6 from August 2006).  Those letters also made it clear that the settlement reached on 5 October 1998 backdated their promotions to NIO Grade A to 1 October 1998.  Although the 15 Legal Assistants had brought their claims in 1996, when the applicable grade for Senior Legal Assistants in the NIO and the NICS was the NICS SLA grade, the settlement did not provide for their promotions to be backdated to the date of their claims in 1996 or to any date between 1996 and 1 April 1998, when the NIO introduced its new pay and grading system.   

The Anderson Consequentials Group

10.5	There were a number of other Legal Assistants working in the CSO at the same time (known as the Anderson Consequentials Group) who were in a similar position to the Anderson Group, but who did not issue tribunal proceedings.  The Anderson Group settlement was applied to them and they were also promoted to the post of Senior Legal Assistant at NIO Grade A with effect from 1 October 1998, following appearances before the Review Board.

The Gray Group

10.6	In March 2010 a number of NIO Grade A Legal Officers (known as the Gray Group) who had been part of the Anderson or Anderson Consequentials Groups brought further claims of unlawful discrimination.  Their claims were that although they had been promoted to the rank/post of Senior Legal Assistant, NIO Grade A, with effect from 1 October 1998, they had been informed prior to March 2010 that they were ineligible to apply for Senior Principal Legal Officer (NICS Grade 6) posts in the NICS because they would be transferring to the NICS Grade 7, upon devolution of policing and justice.  That was because they had not been formerly at NICS SLA grade before 1 April 1998.

10.7	Following receipt of the opinion of a Senior Counsel a further meeting of MS and their solicitors took place on 24 May 2010, chaired by Ms McGurk, to discuss the “handling of Grade 6 Legals” in light of Mr Phillips’ ‘commitment’ and the Gray Group proceedings.  Although the respondents were not prepared to be transparent with the legal advice they received from the senior Counsel, it is clear that as a result of that advice they decided that the Anderson Group and the Anderson Consequentials Group should be transferred to the NICS Grade 6 with the Pre Anderson Group.  

Paragraph 11 of the redacted minutes of the meeting of MS and their solicitors on 24 May 2010 recorded that:-

		“The meeting discussed what an accommodation might look like, subject to understanding the issues in more detail.  There was a potential model for this, in the ring-fencing of SLAs in DSO.  Accepting that there would not be sufficient grade 6 work or posts in CSO and PPS, the accommodation might be along these lines:-

•	Any grade 6 posts which might be identified/created would be open to those who had been formerly assessed as a substantive grade 6;

•	The eligibility focus should be on “assessed as grade 6” and not the rank of SLA/(Grade A); and DSO staff would in the main not be eligible (Mr Conn and Mr Paulin would discuss);

•	...

•	Those who are, under the terms of the 2 June 2009 note, entitled to grade 6, probably including the Anderson group, might be ring-fenced as grade 6s and there would be progression for a period of time to be negotiated, provided that progression formed part of future NICS pay settlements.  However, detailed consideration of how this might be worked through could be taken forward in a smaller group;

They decided that a ‘small group’ representing CHR, DoJ, PPS and DSO should be established to urgently bring the policy considerations to a conclusion, with the policy to be taken to the existing ad hoc Whitley machinery.  

10.8	Following the above meeting of 24 May 2010, Ms McGurk of DFP CHR, sent Mr Derek Baker, (then Director of DFP CHR (Grade 3)) an e-mail on 1 June 2010 enclosing the unredacted minutes of that meeting as he had not been present at it.  In her e-mail, Ms McGurk stated:-

“You will see from this that further work needs to be done but it is likely that this will result in approximately 50 plus Grade 6s (39 of these will be PPS staff) coming back into the NICS where very few Grade 6 posts exist.  At the 	meeting it was suggested that some other factors including costs etc should be considered further by a smaller group which would be represented by CHR/DOJ/DSO and PPS.  I am not sure to what extent Stephen Peover is aware of this possible influx of G6s to NICS and in particular DFP, given the very stretched financial situation we are in at the moment.

Are you content that CHR progresses this in the way in which Karen and the group had suggested.”

On that same date Mr Baker replied to Ms McGurk:-

“I am content to progress this along the lines suggested.  Presumably the main financial liability will fall to DOJ/PPS where the bulk of the “returning” legals work.  How many would fall to DFP’s salary budget?”  

10.9	The ‘small’ MS group, which had been established following the 24 May 2010 meeting, met on 15 June 2010.  The minutes of the 15 June 2010 meeting confirmed MS’s proposal that the Pre Anderson Group, the Anderson Group and the Anderson Consequentials Group (which included the members of the Gray Group) would transfer to NICS at Grade 6.  The minutes also recorded, inter alia, that for the purposes of this proposal, the McCann Group, to whom the Tribunal will refer at a later stage of this decision, would be ignored.  

	The minutes also recorded, inter alia, that the “practical out-working of this proposal would be a substantial number of Grade 6 lawyers blocking grade 7 posts.  This situation will have to be managed by the NICS.  There are a number of options e.g. ring-fencing this group of staff in these posts, pre-redundancy measures or early retirement, if appropriate.  CHR will work through the detail of possible options once the proposed approach for assimilation of relevant legal officers to NICS pay scales has been formally agreed.”

Finally it was recorded that “a paper would be prepared for submission to the devolution of Justice Functions Ad Hoc Committee on 24 June.”  

10.10	Following the above meeting of the ‘small’ MS group on 15 June 2010, Mr Black, a Staff Officer in DFP CHR, prepared a first draft of the “position” paper on 16 June 2010 on the basis of information that had been provided to him.  On the direction of his line manager, Ms McGurk, he e-mailed the draft to Mr Baker, Mr Hearst and other members of MS and their legal advisers on 17 June 2010 for comment.  

10.11	A pre-meeting of MS, chaired by Mr Baker, took place on 21 June 2010 to consider their proposals set out in the “position” paper.  It was decided to cancel the Ad Hoc Committee meeting which had been arranged for 24 June 2010, to allow MS more time to consider their proposals before taking them to TUS.  

10.12	A further meeting of MS and their solicitors took place on 29 June 2010.  The respondents were not prepared to be transparent with the legal advice provided at that meeting and the minutes which were provided to the Tribunal had 5 of the 8 paragraphs redacted.  The remaining paragraphs recorded that the purpose of the meeting had been “to discuss the way forward following the last minute postponement of the Devolution of Justice Functions Ad Hoc Committee meeting which was to engage TUS on proposals to the reversion or re-grading of certain former NIO legal staff to NICS Grade 6 and their assimilation on to the Grade 6 scale at the same or next highest point.”  

The minutes confirmed that MS’s proposal was that the Pre Anderson Group, the Anderson Group and the Anderson Consequentials Group would transfer to NICS Grade 6 and recorded that there “was some discussion on the negative repercussions on the NICS and CSO of the proposals on reversion and re-grading.  A large number of the 43 lawyers involved would be Grade 6s, blocking Grade 7 posts and this position was likely to last for many years, even with the application of the limited surplus measures at the NICS’s disposal.  There would also be a lot of aggrieved Grade A lawyers who would be deemed Grade 7 equivalents.”  

10.13	The cancelled Ad Hoc Committee meeting to consider MS’s proposals in the ‘position’ paper was rearranged for and took place on 27 July 2010.  Paragraph 1 of the paper stated that the purpose of the meeting was to invite the Ad Hoc Committee to agree the proposals for the treatment of certain legal staff after the devolution of policing and justice on 12 April 2010 i.e. the Pre Anderson Group, the Anderson Group and the Anderson Consequentials Group and the remaining NIO Grade A lawyers.  However, it was clear from Mr Black’s evidence that the proposals in the position paper had already been discussed and agreed by MS, led by Mr Baker, and that the purpose of the meeting was therefore to invite TUS to agree MS’s proposals.

10.14	Paragraph 2 of the position paper stated:-

“A number of legal staff were at this grade (Grade 6) prior to the former NIO’s pay and grading delegation, which took effect from 1 April 1998.   Some legal staff, known as the Anderson Group, have rights which flow from the settlement of their court case in 1998; and it has been accepted some other legal staff have also acquired rights after the Anderson settlement and can be referred to as the Anderson Consequentials Group.  Former Grade 6 legal staff, the Anderson Group and the Anderson Consequentials Group, 43 in number, therefore claim an entitlement to be regraded as Grade 6 in the NICS on devolution.  The paper proposes an agreed uniform approach by the affected business areas, namely PPS, CSO, DSO and DHR in DFP.”

The reference to a number of legal staff i.e. the Pre Anderson Group having been at NICS Grade 6 prior to 1 April 1998 was factually incorrect and misleading because, as set out at paragraph 5.6 above, there was no legal staff in the NIO or the NICS at NICS Grade 6 level prior to 1 April 1998.  The applicable grade was the NICS SLA grade and, in accordance with the Interface arrangements, NIO Grade A staff who had been at the NICS SLA grade before 1 April 1998, even though it was paid at a lower rate than the NICS Grade 6 until August 2002, were entitled to transfer to the NICS at Grade 6.  Under cross-examination Mr Hearst stated that it was inexplicable how he missed this error in the position paper.  He also failed to notice that this same error was in his letter of 27 August 2010 to all PPS staff, informing them which NICS grade they would transfer to and why.      

10.15	Paragraph 3 of the position paper stated:-

“The Anderson Group is comprised of those who actually litigated successfully at the time; 15 Legal Assistants (LAs) in the CSO each brought Tribunal proceedings against DFP, CSO and the former NIO alleging that they had been subjected to sex discrimination because they were not promoted to the position of Grade 6 when they became eligible for promotion (with two exceptions) between 1992 and 1994 (the exceptions became eligible in 1991 and 1997 respectively) under the terms issued by the DFP, which then governed promotion progress procedures for legal grades in the NICS.  As part of the settlement they were allowed to be reviewed by a board for Grade 6.”  

	The references to the Anderson Group having brought Tribunal proceedings alleging sex discrimination because they had not been promoted to the ‘position of Grade 6’ when they became eligible for promotion and having been ‘allowed to be reviewed by a board for Grade 6’ as part of the settlement of their claims was inconsistent with the written terms of the Anderson Group settlement and the respondents’ correspondence following the settlement.  Although Mr Black, who drew up the position paper on the basis of instructions provided to him, had never seen the written terms of settlement, he told the Tribunal that he understood MS had access to them.  As set out at paragraph 10.4 above, the Anderson Group brought Tribunal proceedings alleging sex discrimination in 1996 against the NIO, CSO and DFP because they had been excluded from being considered for promotion to the NICS SLA grade, not the higher paid NICS Grade 6.  Under the written terms of settlement dated 5 October 1998, they were all given the opportunity to appear before a review board to be considered for promotion to the “rank of Senior Legal Assistant (Grade A)” following which they were all promoted to the “grade of Senior Legal Assistant (Grade A)” with effect from 1 October 1998 which postdated 1 April 1998, when the NIO introduced its own pay system.  If there was any doubt as to whether the Anderson Group was promoted to NICS Grade 6, NICS SLA grade or to the NIO Grade A, with the job title (but not the grade) of Senior Legal Assistant (using the terminology of the grievance decision maker, as set out at paragraph 5.29 above) the respondents’ letters of 16 and 18 October 1998 to the members of the Anderson Group made it clear that their promotion was to the NIO Grade A with the job title (but not the grade) of Senior Legal Assistant in the NIO.

	Mrs Nesbitt accepted under cross-examination that the references in paragraph 3 to the Anderson Group having been reviewed by a Grade 6 board and promoted to Grade 6 were factually incorrect.  However, she did not accept that those references misrepresented the terms of the Anderson Group settlement because the outcome was going to be that they were eligible to transfer to NICS Grade 6 on devolution as the NICS SLA grade had ceased to exist.  The Tribunal considers that Mrs Nesbitt’s evidence:-

(i)	overlooked the fact that under the written terms of the settlement, the Anderson Group were promoted to the NIO Grade A, not the NICS SLA Grade, from 1 October 1998, the NICS SLA Grade having ceased to exist in the NIO from 1 April 1998;

(ii)	was at odds with Ms McGurk’s unequivocal statement to the claimant in her letter of 10 May 2010 that ‘words used to describe a grade cannot turn that grade into one that ceased to exist’ in the NIO from 1 April 1998.  As set out at paragraph 5.16 above, Ms McGurk was responding, on behalf of Mrs Nesbitt, to the claimant’s letter of 9 April 2010 seeking confirmation that she would be transferred to NICS Grade 6 in accordance with the Interface arrangements;

(iii)	was at odds with the grievance decision maker’s explanation to the claimant on 6 July 2011 that ‘Grade A staff appointed after April 1998 could not meet the condition in the Interface arrangements which would entitle them to transfer to the NICS Grade 6’;

(iv)	overlooked the fact that prior to receiving advice from a senior Counsel in May 2010, MS had informed the Anderson Group that they would transfer to NICS at Grade 7 because they had not been at NICS SLA grade before 1 April 1998; and 

(v)	overlooked the fact that the purpose of paragraph 3 of the position paper was to provide TUS with ‘background’ information on the Anderson Group before inviting them to agree MS’s proposal to transfer the Anderson Group to NICS Grade 6.  

	Mr Hearst stated, under cross-examination, that paragraph 3 was loosely written, but at the time he would have understood it to mean that the Anderson Group were allowed to be treated as NICS Grade 6.  Under further cross-examination Mr Hearst accepted that the information in paragraph 3 was totally wrong and he simply didn’t know how he missed it.  

10.16	The Tribunal noted that in accordance with one of the decisions taken at the meeting of the ‘small’ MS group on 15 June 2010, the McCann Group (to which the Tribunal will refer at a later stage of this decision) was ignored for the purpose of MS’s proposal and no reference was made in the position paper to the fact that they had been promoted from NIO Grade B1 to NIO Grade A “(formerly known as Senior Legal Assistant)” with effect from 30 January 2008, by way of settlement of their second and third sets of Tribunal proceedings, which had been brought in 2004 and 2007.  Mrs Nesbitt accepted during cross-examination that even though MS’s view, at that stage, was that the McCann Group would transfer at NICS Grade 7, the fact of and the outcome of their equal pay proceedings was relevant information which should have been provided to TUS in the position paper.

10.17	 Paragraph 4 of the position paper stated:-
  
“The Anderson Consequentials Group is comprised of those who did not litigate but gained the benefit of the litigation; they too were reviewed by the Board.”

	In so far as this paragraph suggested that the Anderson Consequentials Group had also been reviewed by a board for Grade 6, that is incorrect and misleading.

10.18	Paragraph 5 of the position paper set out MS’s proposal as follows:-
 
“The proposal is that from devolution those legal staff who were employed in NICS legal posts at Grade 6 level prior to 1 April 1998 will revert to that grade; in common with these staff, the Anderson Group will be treated as Grade 6 from devolution as will the Anderson Consequentials Group.  The corollary of this is that the remaining Grade A lawyers, i.e. those recruited to or promoted to Grade A after 1 April 1998 will be treated from devolution as Grade 7s.  There is nothing in this proposal which confers retrospective rights prior to 12 April 2010.  Why this conclusion was reached and what it will mean in practice is described below.”

10.19	Paragraphs 6-9 of the position paper set out the Material Factors Underpinning the Proposal:-

“6.	Under the former interface arrangements, it has always been the practice that staff returning from the former NIO to a NICS Department, who were formerly in a NICS grade which did not exist in the former NIO, had the right to revert to their former NICS grade.  To do otherwise would entail a demotion and could not be justified.

 7.	With regard to the litigation by the Anderson Group in 1998, management is bound by the terms of the settlement which included an assessment exercise.  It is accepted that if the purpose of that was to make staff Grade A, then it was redundant as that would have happened to the group anyway.  The only rational explanation is that its purpose and effect was to assess the Anderson Group as Grade 6.  

 8.	On the basis of this settlement, it is accepted that there was a cadre of staff who, although not part of the Anderson Group, would have to be treated as though they were part it (the Anderson Consequentials Group, some of whom are no longer NICS staff).  ... 

 9.	Grade As recruited post 1 April 1998 will not become Grade 6 after devolution on the ground that they can demonstrate no right to that grade.  That right only attaches to those who at some point were Grade 6 (i.e. those appointed or recruited to Grade 6 before its abolition in April 1998 or assessed under the Anderson settlement).”

10.20	In relation to the last two sentences of paragraph 7 which stated:-

	“It is accepted that if the purpose of that (i.e. the Anderson Group settlement of 5 October 1998) was to make staff (i.e. the Anderson Group) Grade A, then it was redundant as that would have happened to the group anyway.  The only rational explanation is that its purpose and effect was to assess the Anderson Group as Grade 6”,

	Mrs Nesbitt stated, under cross-examination, that she did not know what the first of those two sentences meant.  However, she stated that the last sentence was referring to the fact that the Anderson Group had been promoted to NICS SLA grade (from 1 October 1998) and that in keeping with the Interface arrangements they would return to the NICS at Grade 6.  When Mr Little read the terms of the Anderson Group settlement of 5 October 1998 to Mrs Nesbitt, she then accepted that the last sentence did not make sense.  Neither Mr Hearst nor Mr Black could explain what the last two sentences of paragraph 7 meant and Mr Black could not recall if those sentences had been in his first draft of the position paper or if they had been added at the request of a member of MS to whom the first draft had been sent for comment.  

No other member of MS who had been involved in settling the policy, including Mr Baker who had led on the policy and who was available to give evidence (according to Mrs Nesbitt and Mr Black), was called to explain:

(i)	why the Pre Anderson Group had been incorrectly described as having been at NICS Grade 6 prior to 1 April 1998 when they had been at the NICS SLA grade prior to 1 April 1998;

(ii)	why the Anderson Group had been incorrectly described as having been reviewed by a Board for NICS Grade 6 when they had been reviewed by a Board for the NIO Grade A; and

(iii)	what the last two sentences of paragraph 7 meant.

It was submitted on behalf of the claimant that the position paper was “deliberately misleading because it conducts the ‘sleight of hand’ of changing Grade A (formerly SLA) to Grade 6 (see paragraphs 3 and 7) when there never was a Grade 6 within the NIO.  This wrongful and misleading assertion by the respondent formed the basis for their operation of the Interface arrangements.”  It was further submitted that this was “not a question of interpretation and the meaning is clear, particularly when the Anderson settlement terms are considered.  The settlement terms are clear and unambiguous and under no circumstances could give rise to the misleading assertions contained at paragraphs 3 and 7 of the position paper.  There is deliberate obfuscation by the Respondent so as to reduce the number of legal staff entitled to transfer across from NIO Grade A to Grade 6 NICS.  The respondent is seeking to mis interpret the Interface Arrangements and the 1998 Anderson settlement terms in order to reduce their financial liability in respect of legal staff costs.”

It was submitted on behalf of the respondents that this was not the case and that it was a measure of the respondents’ honesty and in particular the honesty of Mrs Nesbitt that they did not try to “wriggle out of” the wording of these paragraphs.  It was also submitted that paragraph 7 is one sentence in the document and its importance has been blown out of proportion.  It was further submitted that it remains the case that in terms of the claimant, she never was a Senior Legal Assistant prior to 1 April 1998 and the Anderson claims related to those who were denied promotion to that grade.

In the absence of evidence from Mr Baker or any other member of MS to explain why:

(i)	the Pre Anderson Group was incorrectly described as having been at NICS Grade 6 prior to 1 April 1998 rather than the NICS SLA grade;

(ii)	the Anderson Group was incorrectly described as having brought proceedings because they had not been promoted to the position of Grade 6 and had then been reviewed by a board for Grade 6;

(iii)	why the Anderson Consequentials Group was incorrectly described as having been reviewed by the same Grade 6 Board; and

(iv)	why the accuracy of the terms of the Anderson Group settlement was challenged at paragraph 7 of the position paper; 

the Tribunal considers that while it cannot speculate what their evidence might have been, it may and does infer, in light of the decision in Lynch –v- Ministry of Defence (1983) NI 216, that their evidence would not have helped the respondents to explain why the position paper, which set out MS’s proposal to transfer the Pre Anderson, the Anderson and the Anderson Consequentials Groups to NICS Grade 6 and all other NIO Grade A Legal Officers to NICS Grade 7 and which TUS was being invited to agree, contained this incorrect and misleading information.  The Tribunal agrees with the claimant that the only logical conclusion is that the respondents were deliberately misrepresenting the grading of the Pre Anderson Group prior to 1 April 1998 and were deliberately misinterpreting the Anderson Group settlement to restrict the application of the Interface arrangements to the Pre Anderson, the Anderson and the Anderson Consequential Groups to reduce their financial liability in respect of legal staff costs.  

10.21	The main implications of MS’s proposal were set out at paragraphs 10-13 of the position paper. 

“10.	The main implication of the proposal is that there will not be sufficient Grade 6 legal work or posts in the NICS and CSO and that a substantial number of Grade 6 legal staff will be employed in Grade 7 legal posts.  This is the situation which the NICS/CSO will have to manage.  

 11.	It will fall to the relevant Departments in consultation with CHR to consider options on the way forward, once the staff have been regraded to NICS Grade 6.  As a first step it might be necessary to ring fence the staff as already happened with a number of Grade 6 legal staff in DSO, but without freezing and capping progression on the Grade 6 pay scale.  …

 12.	There are a range of other options which might include re-deployment to other Grade 6 posts.  Under the re-deployment arrangements this cadre of staff cannot be forced into another discipline.  Redundancy is an option but would not be viable at this time.  Other options such as organisational restructuring and enhancement of Grade 7 legal posts, partial retirement and early retirement should be considered by management.

13.	There will also be implications for the filling of any future Grade 6 posts, which are created or become vacant.  Under the current vacancy management policy, Grade 6s in Grade 7 posts are surplus and could be placed on the priority surplus list.  Where vacancies in the legal discipline arise at Grade 6 level one option open to management is to issue an interest circular to all Grade 6 legal staff and backfill with Grade 7 legal staff.  Further consideration will be given to other options.”  

10.22	The minutes of the Ad Hoc Committee on 27 July 2010 at which the above position paper was considered, recorded that TUS asked for more time to consider the MS’s proposals.  At a subsequent meeting of the Ad Hoc Committee, on 17 August 2010, TUS agreed with MS’s proposal that those in the Pre Anderson Group, the Anderson Group and the Anderson Consequentials Group (43 in number) and one non-legal officer would be designated Grade 6 from 12 April 2010.  

The minutes of that subsequent meeting of 17 August 2010 also recorded that:-

(i)	MS’s position was that the remaining 47 Grade A legal staff would be treated as Grade 7 and they asked TUS to clarify their position in light of the ongoing High Court case involving some of these staff, known as the Anderson (2) Group;

(ii)	MS and TUS both agreed that any decision taken in respect of the remaining 47 Grade A legal staff would be without prejudice to any future rulings of a Court; and 

(iii)	TUS noted that in the meantime MS intended to consider the group of 47 as Grade 7s for the purpose of assimilation;

Paragraph 5 of the minutes recorded that MS agreed to TUS’ request to allow discussion to continue at working group level on any groups of staff where assimilation was not straightforward but did not agree to include NIO Grade A staff who would be assimilated to the Grade 6 scale in any such discussion as they would need to take advice on whether such discussions could prejudice ongoing litigation.  

10.23	It was following that meeting that Mr Hearst issued the 27 August 2010 letter, referred to at paragraph 5.21 above, to all PPS staff including the claimant and informed her that if she exercised her option to be assimilated on to the NICS pay scale, her equivalent NICS grade had been confirmed as Grade 7 on the ground that she could not demonstrate a right to Grade 6.  

10.24	On 15 September 2010 Mr Baker issued the note, referred to at paragraph 5.22 above, to all PPS staff in which he explained that TUS was still making representations on the NICS grade NIO Grade A staff would transfer to, if they exercised their option to be assimilated on to the NICS pay scale.

10.25	A further meeting of the Ad Hoc Committee took place on 15 December 2010.  Paragraph 2 of the minutes recorded that TUS agreed the minutes of 17 August 2010 meeting with the exception of paragraph 5, referred to at paragraph 10.22 above.  That was because they were of the opinion that Grade A legal staff who were transferring to the NICS pay scale were to be subject to further discussion at working group level on assimilation arrangements.  The minutes recorded that MS disagreed “stating that, while TUS had wanted to discuss the Grade A assimilation, it had been made clear that Management Side had to take advice on whether this would impact upon legal proceedings, so there had been no commitment on Management Side to do so” and MS and TUS both agreed that the minutes would record their disagreement to the minutes of the 17 August 2010 meeting.

10.26	Mr Hearst’s letter of 27 August 2010 led to the claimant lodging a grievance on 24 September 2010 and to six NIO Grade A Legal Officers (known as the McCann Group) lodging equal pay claims against DFP at the beginning of 2011.  

The McCann Group

10.27	In 2000 five Legal Assistants at NIO Grade B1 (known as the McCann Group) who were on fixed term contracts brought proceedings against the NIO and DFP alleging that they had been excluded from applying for Senior Legal Assistant posts because of their fixed term status.  In 2002 their claims were settled by DFP who acknowledged that the eligibility restriction for applying for Senior Legal Assistant posts operated indirectly to their detriment.  The settlement confirmed that they had been eligible to apply for Senior Legal Assistant posts from March 2002 and their fixed term status at NIO Grade B1 was converted to permanent status.  

10.28	In 2004 and 2007 the McCann Group brought further proceedings in respect of discrimination and equal pay against the NIO and DFP.  Those claims were settled on 30 January 2008 with the claimants being promoted from NIO Grade B1 to NIO Grade A “(formerly known until 1st October 1998 as Senior Legal Assistant)”with effect from 30 January 2008.  

10.29	At the beginning of 2011 the McCann Group (and one additional NIO Grade A Legal Officer) brought further equal pay claims against DFP, having been informed, like the claimant and initially the Gray Group, that they were to be assimilated from NIO Grade A to NICS Grade7 on devolution.  In October 2011 their claims were settled with DFP agreeing to modify each of their contracts by inserting an equality clause to ensure that their contracts were and would continue to be no less favourable than those of each of the members of the pre-Anderson Group, the Anderson Group and the Anderson Consequentials Group.  The settlement also provided that the “modification will operate to re-grade the claimants to SPLO (Senior Principal Legal Officer) (analogous to Grade 6) and/or Grade 6 (Crown Solicitor’s Officer) with retrospective effect from 12 April 2010.”  The claimants were also each paid (i) a lump sum, (ii) an ex gratia payment of £4,000 “in full and final settlement of all claims to date, including any claim for arrears of pay and pension contributions arising from the fact that they have not previously been paid at Grade 6 and at parity with each of the following groups:-

•	The pre-Anderson Group
•	The Anderson Group
•	The Anderson Consequentials Group”.

10.30	On 26 May 2011 the claimant presented her first claim in respect of equal pay, sex discrimination and age discrimination.

10.31	Following the settlement of the McCann Group’s 2011 proceedings an Ad Hoc Legal Group, made up of MS and their solicitors, was established to consider the  implications of the McCann proceedings and Counsel’s advice to settle them.  The first meeting took place on 12 October 2011.  The Tribunal was provided with a note of the points which were made at the meeting.  In particular it was noted that:-

(i)	equality statistics had not been recognised as important;

(ii)	no EQIA had been carried out;

(iii)	too much weight had been attached to the fact that the McCann group had not been assessed as Grade 6;

	(iv)	there had been no coherent GMF defence;

(v)	the settlement would affect the Anderson (No 2) case in the High Court;

(vi)	the settlement will add to the surplus of Grade 6 lawyers and the question of redundancies may loom;

(vii)	there was an urgent need to determine the knock-on effect on other groups litigating or taking grievances (a McCann Consequentials Group);

(viii)	the track record of loosing these cases would damage the department’s reputation;

(ix)	a revised policy would have to be brought to an Ad Hoc committee meeting.

10.32	A further meeting of the Ad Hoc Legal Group took place on 24 October 2011 to discuss the impact of the McCann settlement on the policy on the assimilation of former NIO Grade A lawyers to the NICS and the lessons to be learned for the future.

	Paragraph 2 of the minutes recorded that the Ad Hoc Legal Group concluded that the McCann settlement might be relevant to former NIO Grade A lawyers, who were deemed to be NICS Grade 7, and that the formulation of the policy to assimilate the legal cadre to the NICS following the devolution of policing and justice should be revisited and that it should be equality screened. 

The Anderson No 2 Group

10.33	In April 2004, 53 NIO Grade A legal officers (including PPS staff) 48 who had been at NICS SLA grade before becoming NIO Grade A, with effect from 1 April 1998, and 5 who, like the claimant, had been appointed as NIO Grade A legal officers after 1 April 1998, instituted High Court proceedings against DFP and NIO alleging that correspondence from Sir David Fell gave them enforceable rights in relation to NICS SLA (Grade 6) pay which exceeded the NIO Grade A pay scale considerably from 2002/03 when the Single Pay Agreement was introduced by DFP.  The effect of the introduction of the Single Pay Agreement was that the salary of legal staff at NICS SLA grade was increased to the salary of NICS Grade 6 for non legal staff.  At the time of the Ad Hoc Legal Group meeting on 24 October 2011 those proceedings were still outstanding.  They were settled in November/December 2011.  Under the settlement the former NIO Grade A Legal Officers were each to be provided with the option of transferring to NICS Grade 6 with effect from 12 April 2010 (the date of devolution), whether they had been at the NICS SLA Grade before the NIO implemented its separate pay structure from 1 April 1998 or whether they had been promoted to the NIO Grade A after 1 April 1998, as the claimant had been.  In addition, those former NIO Grade A Legal Officers, who were still in the respondents’ employment, were to be given a back payment of 70% net of tax of the difference (if any) between the actual remuneration and the remuneration that each would have received if they had been placed on the applicable NICS DFP SCS or Grade 6 pay scale during the period between 1 October 1998 and 11 April 2010.   

10.34	Following the settlement of the Anderson (2) proceedings a further meeting of the Ad Hoc Legal Group took place on 19 December 2011 to consider the potential consequences of the McCann and Anderson (2) settlements.  The respondents waived legal professional privilege in respect of the documents relating to and minutes of this meeting.

A diagram and notes to explain the diagram were prepared for the meeting.  The notes listed the implications of those settlements as follows:

		“The Anderson (2) settlement:

•	Pre-Anderson and Anderson (1) groups – including DFP SPLOs/SLAs – may seek recalculation of pay for the time spent in NIO.

•	The McCann group may seek to have NICS pay terms applied to them from 1998 if applied to the Anderson (1) group.

•	If former NIO SLAs receive restitution of NICS pay terms then former Admin Grade As with Grade 6 status may seek equity of treatment for any time spent in NIO.

•	PPS Grade As with Grade 7 status may seek Grade 6 status and pay in common with Anderson (2) plaintiffs.

•	If PPS Grade As are regraded to Grade 6, PLOS and other Grade A lawyers (eg CSO) could seek equity of treatment (Equal Pay/equal value).

•	If Grade As/PLOs are regraded to Grade 6/SPLO then Admin Grade 7 may seek equity of treatment on equal pay/work of equal value basis.”   

The McCann and consequential Group Settlement:

•	Grade As within CSO may seek to compare themselves with McCann (and hence Anderson (1) and (2)) on an equal value/like work basis;

•	A number of Grade As in PPS also claim similar career history to McCann Group – ie Fixed Term appointments converted to permanency around 2002/3

•	As the McCann group includes Mitchell who was regraded from B1 to Grade A following JEGS exercise, B1s may seek regrading to Grade A as per McCann and then equity of treatment to Anderson (1) and (2) – there is already a grievance in relation to the B1/Grade A issue.”   

10.35	The notes of the Ad Hoc Legal Group meeting of 19 December 2011 also listed the potential consequences if the claimant’s claim and those in her group were successful as follows:-

		“
•	If PPS Grade A claimants succeed in obtaining Grade 6 status then other Grade A lawyers (PPS and CSO) may seek equity of treatment on like work/equal value basis;

•	If Grade A lawyers succeed in obtaining Grade 6 status then PLOs in DFP may seek equity of treatment on equal value basis.

•	If Grade As/PLOs achieve Grade 6 status then former NIO Admin Grade As and NICS Grade 7s may seek equity of treatment on equal value basis.

•	If all of the above achieve Grade 6 status then they may seek NICS pay terms to be applied from 1998 in common with Anderson (2).”  

10.36	In light of those potential consequences the Ad Hoc Legal Group decided at the meeting of 19 December 2011 that “as a first step, DSO would analyse the age, gender and community background status of all Grade 7 lawyers in the system and circulate the findings.  DSO would also have a first attempt at assigning all Grade 7s into groups on the basis of similar circumstances to enable an informed decision to be taken on potential policy options.”

10.37	In light of those potential consequences the Ad Hoc Legal Group also looked at policy options.  They considered that there were two high level options which were not mutually exclusive.  The first option was to accept that all NIO Grade A Lawyers should be considered as NICS Grade 6.  The second option was to “marshal a defence” to this claim and the others in this Cardwell Group “to limit the settlement of the McCann and Anderson (2) to those co-joined in the actions”.  

10.38	In relation to the first option of accepting that all NIO Grade A lawyers should be considered as NICS Grade 6, the Ad Hoc Legal Group considered that on the one hand the consequences would be that large numbers of formal surpluses would probably have to be declared as there were insufficient Grade 6 legal posts in the system and that it might also lead Grade A administrative staff to consider their position.  On the other hand they considered that this option might mitigate the risk of facing and losing further challenges.  However it could lead to a large number of formally declared surplus staff which would have to be managed.  

10.39	In relation to the second option of marshalling a defence to limit the settlement of the McCann and Anderson (2) cases the Ad Hoc Legal Group considered that, for that to have any prospect of success, legal advisers would have to address three imponderables namely:-

1.	Could the wider system be protected from the McCann settlement?

2.	Would it be possible to differentiate between the Anderson (2) plaintiffs and those in the wider system?

3.	Was there a GMF (genuine material factor defence) to use in respect of the claimant’s case and the others in the Cardwell Group claiming equal pay for equal work?

10.40	The respondents considered that if those three questions could not be satisfactorily addressed by legal advisers, the first option might gain credence even though it was more expensive and managerially difficult and that Departments would need time to make in year financial provisions for the cost of such a settlement.

10.41	A further meeting of the Ad Hoc Legal Group took place on 8 February 2012, by which stage a statistical analysis had been carried out of the claimant’s pool and the comparators which demonstrated disparate adverse impact.  The minutes recorded that the Ad Hoc Legal Group agreed that there “were very significant issues involved in this case in terms of potentially massive disruption to efficient business organisation, management dysfunctionality and cost on which a justification argument might be based” and that the Cardwell cases should be contested on that basis.  This was 18 months after the decision was made (August 2010) to transfer the claimant to NICS Grade 7.  They also agreed that at “the appropriate time, a letter of concession on the statistical data might be sent to the Tribunal and copied to the plaintiff’s representative”, that a “Tribunal ruling on the issue would provide clarity for the future on this very important issue, regardless of whether the case was won or lost” and that “the review of the assimilation policy would not be completed until the tribunal had reached its conclusions on the Cardwell case.”

10.42	Under the heading CHR STRATEGY FOR MANAGING SURPLUS GRADE 6 LEGAL OFFICERS the minutes of the meeting of 8 February 2012 recorded:-

“Resourcing divisions draft strategy for managing surplus Grade 6 Legal Officers had been circulated to the Group.  This was still very much work in hand, but the issue of redundancy as a potential outcome would have to be woven into the justification argument for the Cardwell case.  This was a very real threat facing the NICS if it found itself in a position of having large numbers of surplus Grade 6 staff with no prospect of Grade 6 posts or Grade 6 level work for them to carry out.  The Group considered the position of PPS, which had already declared a surplus of Grade 6 lawyers, and recommended that PPS should proceed to take their actions to the next stage of the process, if they were ready to do so.”

10.43	At the Case Management Discussion on 24 February 2012 the respondents conceded that the application of the Interface arrangements was tainted with indirect discrimination on the grounds of sex and age in relation to the claimant’s group and the comparator group and on 10 January 2013 they made a similar concession in relation to religious belief.  The respondents therefore accepted that the onus was on them to objectively justify the application of the Interface arrangements (indirect discrimination claim) and the difference in pay caused by the application of the Interface arrangements (equal pay claim).   

10.44	On 27 April 2012 the respondents provided details of their retrospective costs/plus objective justification defence, which they had identified at the meeting of the Ad Hoc Legal Group on 8 February 2012, in a document entitled Legitimate Aim of the Respondents and Proportionality.  

The test of objective justification

11.	As set out at paragraph 7 above, indirect sex discrimination occurs if a person applies a provision criterion or practice to a woman which he applies or would apply equally to a man, but – 

(i)	which puts or would put women at a particular disadvantage when compared with men, 

(ii)	which puts or would put her at that disadvantage, and 

(iii)	which he cannot show to be a proportionate means of achieving a legitimate aim.
   
	The test of indirect discrimination in the Age Discrimination and Fair Employment Statutory Provisions is set out in similar terms.  

11.1	In Homer –v- Chief Constable of West Yorkshire Police (2012) IRLR 601, Lady Hale stated:-

“Although the regulations (the Age Discrimination Regulations in that case) refers only to a ‘proportionate means of achieving a legitimate aim’; this has to be read in the light of the Directive which it implements:  To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.  Some measures may simply be inappropriate to the aim in question ....”

11.2	This is effectively the same test as that laid down by the European Court of Justice in Bilka-Kaufhaus GMBH –v- Weber Von Hartz (1986) IRLR317 for objectively justifying a material factor defence in an equal pay claim which is tainted by indirect discrimination.  In the Bilka case, the European Court of Justice held that an employer could justify a pay practice or system if he could establish:-

(i)	that it corresponds to a real need (legitimate aim) on the part of the employer’s business;

(ii)	it is appropriate with a view to achieving the objectives pursued; and

(iii)	it is (reasonably) necessary to achieve those objectives.  

That test was confirmed as the appropriate test for objective justification in an equal pay case by the House of Lords in Rainey –v- Greater Glasgow Health Board (1987) ICR129 as modified by the Court of Appeal in Hardys & Hansons Plc –v- Lax (2005) IRLR726 by inserting the word “reasonably” before the word “necessary” to reflect the principle of proportionality.  It was also approved by the Supreme Court in O’Brien –v- Ministry of Justice (2013) IRLR 315 which agreed with Advocate General Kokolt’s explanation that ‘the unequal treatment of different classes of employees must be justified by the existence of precise, concrete factors, characterising the employment conditions concerned in its specific context and on the basis of objective and transparent criteria’.  

11.3	The time at which the justification for the treatment which is said to be discriminatory must be examined is when the difference of treatment is applied to the person who brings the complaint.  (Seldon –v- Clarkson Wright and Jakes 2012 UKSC16).  However, the aim being pursued need not have been articulated or even realised by the employer at the time when the measure or policy was first adopted.  It can be retrospective i.e. an ex post facto rationalisation.  An employer is not precluded from advancing a different and better justification at the Hearing (than at the time the measure was adopted), for maintaining the measure or policy. (O’Brien). 

11.4	However in O’Brien the Supreme Court held that in this as in any other human rights context, a court or tribunal is likely to treat with greater respect a justification for a policy which was carefully thought through by reference to the relevant principles at the time when it was adopted and that it would be difficult for an employer to justify the proportionality of the means chosen to carry out its aims if it did not conduct the exercise of examining the alternatives or gather the necessary evidence to inform the choice at that time.  

11.5	Cost including budgetary considerations can amount to a legitimate aim provided that it is not the only aim or objective:  Cross –v- British Airways (2005) IRLR 423, Woodcock –v- Cumbria PCT (2011) IRLR 119 and O’Brien.  However an employer cannot establish cost or unaffordability by mere assertion.  The employer is required to provide the tribunal with sufficient detail of the costs and the relevant financial context.  The Supreme Court made it clear in O’Brien that “Sound management of the public finances may be a legitimate aim, but that is very different from deliberately discriminating against part-time workers (in that case) in order to save money.”  

11.6	The fact that a particular aim is capable of being a legitimate aim under the Directive, and therefore the domestic legislation, is only the beginning of the story (Seldon).  It is necessary for the Tribunal to consider whether the measure used is appropriate in the particular circumstances of the employment concerned to achieve the legitimate aim(s) relied upon.

11.7	The test of proportionality is objective.  It is not enough that a reasonable employer might think that a measure is justified.  The tribunal itself has to weigh the real needs of the undertaking, against the discriminatory effects of the measure. (Homer).  It requires the tribunal to take into account the reasonable needs of the business.  The Tribunal has to then make its own judgement, upon a fair and detailed analysis and critical evaluation of the working practices and business considerations involved, as to whether the proposal is reasonably necessary.  (Hardys and Hansons Plc –v- Lax (2005) IRLR 726 (CA)).

11.8	The test does not require the employer to establish that the measure complained of was the only course open to him or that the legitimate aim could not have been achieved by any other means.  However the Supreme Court made it clear in the Homer case that in determining whether the measure used was proportionate, the tribunal is required to consider whether the employer’s legitimate aims could reasonably have been met by a non-discriminatory alternative measure.    

Trade Union Agreement

11.9	In Pulham & Others –v- London Borough of Berking and Dagenham (2010) IRLR184, the EAT held that:-

		“While a tribunal is certainly entitled to have regard, in assessing the justifiability of a discriminatory measure, to the fact that it has been negotiated with the representatives of the workforce, it cannot abdicate the responsibility of itself carrying out the necessary proportionality exercise.”

The respondents’ objective justification defence

12.	As set out at paragraph 10.44 above, the respondents provided details of their retrospective costs/plus defence on 27 April 2012 in a document entitled “Legitimate Aim of the Respondents and Proportionality”.  Those aims were:-

(i)	to ensure that, as set out in the Interface arrangements, the changes to pay and grading structures which were introduced under delegated pay and grading arrangements on 1 April 1998 did not of themselves act as a barrier to voluntary or compulsory inter-departmental transfers;

(ii)	to ensure that the transfers were affordable and within budgetary constraints; and

(iii)	to ensure that the transfers did not disrupt efficient business organisation or cause management dysfunctionality.

The first aim

13.	The respondents’ first aim was, as set out in the Interface arrangements, to ensure that the changes to pay and grading structures which were introduced under delegated pay and grading arrangements did not of themselves act as a barrier to voluntary or compulsory inter departmental transfers.  The Tribunal is satisfied that this aim is capable of amounting to a legitimate aim.  However, the Tribunal is not satisfied that the Interface arrangements were an appropriate means of achieving this aim or that the way they were applied by the respondents met that aim for the following reasons:-

(i)	as set out at paragraph 5.4 above, DFP had a number of concerns about delegating power for pay and grading to the NIO.  In particular, as pointed out by the then Permanent Secretary, Mr Gowdy, to the then Head of the NICS, Sir David Fell, in November 1995, if as a result of delegation, the NIO pay rates fell below the NICS pay rates (as did happen), DFP could be faced (as it was in the Anderson 2 High Court cases which were instituted in 2004) with substantial claims to bridge the gap.  It could also lead to potential equal opportunities problems as NIO/PANI had a higher female staff profile and a substantially lower Catholic staff profile than the NI Departments which could provide the basis for equal pay and discrimination claims on the grounds of gender and religious belief;  

(ii)	as set out at paragraph 5.5 above, notwithstanding those concerns, DFP granted delegated power for pay and grading to the NIO in 1996, but required the NIO to exercise it within sensible parameters balancing the need to ensure no detriment to staff in contractual terms (which included pay) against the need to ensure effective management of the Northern Ireland block grant;  

(iii)	on 1 April 1998 the NIO introduced its own pay system with fewer grades than the NICS.  Apart from the new NIO Grade D, the other NIO Grades A, B and C incorporated a number of NICS grades.  The new NIO Grade A, with which this case is primarily concerned, incorporated 3 NICS grades which were all paid at different rates namely Grades 6 and 7, for non-legal staff, and the SLA grade for legal staff.  As set out at paragraph 5.7 above, in 1998, the NICS Grade 6 salary was:

(i)	just over £3,000 higher than the NICS SLA grade salary at their minimum and maximum points; and 

(ii)	£3,690 higher than the NICS Grade 7 salary at their minimum points and £9,370 at their maximum points.  

The NICS SLA grade salary was £589 higher than the NICS Grade 7 salary at their minimum points and £6,258 higher at their maximum points.  

The new NIO Grade A salary was:

(i)	virtually the same as the NICS SLA grade salary at their minimum and maximum points;

(ii)	approximately £3,000 lower than the NICS Grade 6 salary at their minimum and maximum points; and 

(iii)	£785 higher than the NICS Grade 7 salary at their minimum points and £6,258 higher at their maximum points. 

By the time of devolution in 2010, the NIO Grade A salary was £7,500 lower than the NICS Grade 6 salary (to which the NICS SLA grade salary had been deemed equivalent from August 2006) at their minimum and maximum points and it had dropped to £695 lower than the NICS Grade 7 salary at their minimum points;  

(iv)	to ensure mobility of staff between the departments, notwithstanding the different pay rates, the Interface arrangements were established in November 1999 by DFP and NIO, in agreement with TUS, to ensure that staff could transfer between NIO and NICS without detriment.  In relation to a transfer from NIO Grade A, the guidance in the Interface arrangements was that the equivalent NICS grade was Unified Grade 7 except for NIO staff ‘formerly’ in NICS Grade 6 and the Senior Legal Assistant Grade for whom the equivalent NICS grade was Unified Grade 6;   

(v)	it is clear from the ‘Source’ document, in respect of which the respondents waived legal professional privilege, that in 1999 the respondents considered that the Interface arrangements would provide a ‘cost neutral or relatively low cost scenario’ because the numbers of staff transferring were anticipated to be relatively low;

(vi)	notwithstanding the prophetic warning of Mr Gowdy, in 1995, the Interface arrangements did not address the potential discrimination and equal pay issues which could and did arise from the profile of those members of staff who were likely to benefit from their application.  While the respondents may not have anticipated in 1999 that at some future date all NIO PPS Grade A legal posts would be evaluated at NICS Grade 7, which could potentially lead to equal pay and other discrimination issues, they should have been aware by May 2009 when the NIO legal posts review had evaluated NIO Grade A legal posts at NICS Grade 7 and when devolution was imminent, that the application of the Interface arrangements would be likely to be detrimental to NIO Grade A legal staff members who had not been promoted to NICS SLA grade before 1 April 1998 but who were performing ‘equal’ work with those who had been;

(vii)	it was clear from Mrs Nesbitt’s and from Mr Hearst’s evidence, under cross-examination, that the respondents were aware in 2010 that their initial decision to apply the Interface arrangements so that only the Pre Anderson Group would transfer to NICS Grade 6 would, in all likelihood, cause a ‘detriment’ to the other NIO Grade A legal officers, including the claimant in terms of equal pay and discrimination on the grounds of sex, religious belief and age.  It was also clear that they were aware that their decision (following receipt of legal advice in or around May 2010 from a Senior Counsel) to extend their application of the Interface arrangements beyond the Pre Anderson Group, but to limit that extension to the Anderson Group and the Anderson Consequentials Group (who by that stage had issued Tribunal proceedings referred to as the Gray Group) would in all likelihood breach equal pay, sex discrimination, age discrimination and religious belief discrimination legislation.  However it was also clear from Mrs Nesbitt’s evidence, under cross-examination, that the respondents nevertheless decided to restrict the application of the Interface arrangements to those Groups to limit the cost of paying the former NIO Grade A legal officers at the higher NICS Grade 6 salary while performing Grade 7 work (as there were very few Grade 6 posts);

(viii)	it is clear from the Tribunal’s findings, as set out at paragraph 10.20 above, that the respondents applied the Interface arrangements to the detriment of the claimant and other NIO Grade A Legal Officers by deliberately misrepresenting the grading of the Pre Anderson Group prior to 1 April 1998 and by deliberately misinterpreting the terms of the Anderson Group settlement of 5 October 1998 in their position paper which the TUS were invited to agree;
 
(ix)	alternatively if the Tribunal’s conclusions at paragraph 10.20 and above are incorrect, the Tribunal is not satisfied that the Interface arrangements were clear or transparent or that they were therefore appropriate to meet this aim.  The Tribunal considers that this was demonstrated by the fact that the respondents initially interpreted the guidance in Annex 1 of the Interface arrangements to mean that only those NIO Grade A Legal Officers (the pre Anderson Group) who had been at the SLA grade before 1 April 1998 (which the respondents incorrectly and misleadingly described as the NICS Grade 6), would transfer to the NICS Grade 6 at devolution.  It took legal advice from a Senior Counsel for the respondents to interpret the guidance in the Interface arrangements to include the Anderson Group and the Anderson Consequentials Group although neither had been employed at either the NICS Grade 6 or the NICS SLA grade before 1 April 1998.  Although the Anderson Group had instituted proceedings before 1 April 1998 alleging sex discrimination on the ground that they had been denied the opportunity to apply for promotion to the NICS SLA grade, their claims were settled on the basis that their promotions to the NIO Grade A would be backdated to 1 October 1998 only.  Other than the fact of the provision of legal advice, in respect of which legal professional privilege was not waived, the Tribunal was given no explanation as to how the Interface arrangements could be interpreted to include the Anderson and Anderson Consequentials Group in light of the terms of settlement;  

(x)	it took further legal advice for the respondents to interpret the Interface arrangements to include the McCann Group who had never been employed at NICS SLA grade before 1 April 1998.  They had only been promoted to NIO Grade A with effect from 30 January 2008 following the institution of proceedings in 2004 and 2007.  Again other than the fact of the provision of legal advice in respect of which legal professional privilege was not waived, the Tribunal was given no explanation as to how the Interface arrangements could be interpreted to include the McCann group, but not the claimant who had been promoted to the NIO Grade A on 1 February 2006, some two years before the McCann Group;

(xi)	the minutes of the Ad Hoc Committee meeting of 3 July 2008 recorded that the FDA position was that people who were Grade 6 prior to 1998 should return to the NICS at that point where they would have been on the Grade 6 scale, if they had not left the NICS and that that should also apply to people joining the NIO post 1998.  The Tribunal considers that the FDA’s position, as stated in those minutes, supports its conclusion that the Interface arrangements were neither clear nor transparent.  

The second aim

14.	The respondents’ second aim was to ensure that the transfers of staff from the NIO and the NICS Grades were affordable and within budgetary constraints.  The Tribunal is satisfied that this aim is capable of amounting to a legitimate aim provided it is not the only aim.  However the Tribunal is not satisfied that this aim has been substantiated for the following reasons.

14.1	As set out in the respondents’ document entitled ‘Legitimate Aim of the Respondents and Proportionality’ the respondents contended that if the claimant’s argument that the Interface arrangements should have been applied to her in the same way that they were applied to the Pre Anderson, the Anderson and the Anderson Consequentials Groups and more recently to the McCann Group and 5 of the Anderson (2) Group, even though she was carrying out Grade 7 work, because there were very few NICS Grade 6 posts (following the outcome of the NIO legal posts review), was to succeed, then the same argument could be applicable to all Grade 7 and all Grade EOII legal and administrative staff across the NICS.  The respondents contended that ultimately all 1,179 Grade 7 staff members across the NICS could potentially seek to be paid at Grade 6 level for carrying out work rated as equivalent and all 4,570 Grade EOII staff across the NICS could potentially seek the same levels of pay as the higher paid Grade EOI staff.  That is because, just as the former NIO Grade A incorporated NICS Grades 7 and 6 and the NICS SLA grade, the former NIO Grade C incorporated the NICS EOII grade and the higher paid EOI grade.  The respondents also contended that all 1,179 Grade 7s and all 4,570 EOIIs could equally claim that the application of the Interface arrangements discriminated against them on the grounds of sex, age and religious belief.

14.2	Mr Hearst explained that as there were no Grade 6 legal posts within the PPS, those PPS legal staff members who were transferred to NICS Grade 6 have been declared surplus and have been placed on a managed pool list with DFP.  This is a list held centrally by DFP who have responsibility for managing the NICS workforce, to ensure that suitable available posts are offered to these surplus staff rather than being advertised or being offered as internal promotion opportunities and that this is designed to ensure that any opportunity to reduce the number of surplus Grade 6s in the PPS is taken and that so far one member of staff at Grade 6 has transferred from PPS to the DSO.  

14.3	Mrs Nesbitt explained that the same issue of surplus staff would be encountered, but on a much greater scale, if all Grade 7 staff had to be regraded to Grade 6 and all EOII staff had to be regraded to EOI.  According to Mrs Nesbitt, it would in all likelihood lead to a massive increase in costs to the NICS and a resultant negative impact on public finances and would cause severe disruption to the management of the NICS, staff morale and industrial relations.  In relation to the cost of transferring all 1,179 Grade 7s to Grade 6 and all 4,570 EOIIs to EOI, the respondents adduced unchallenged evidence that the initial cost would be just over £16 million and that the cost over six years with annual increments to the maximum point of the scale for both grades would be around £47 million.  Mrs Nesbitt explained that in addition to these additional costs which were unsustainable there would also be ‘inevitable’ issues in relation to structure and management.  Mrs Nesbitt went on to explain that if the higher NICS grades were filled and the lower NICS grades depleted, there would a surplus of management staff over those who are managed and that such a structure would not be sustainable and would impact on services to the public and would lead to much reduced opportunities for promotion and a consequent reduction in staff morale.  

14.4	Mrs Nesbitt explained that the additional cost would cause the NICS to consider a redundancy exercise at Grade 6 and EOI as an alternative but that that would bring with it the potential for unfair dismissal claims even if staff were rehired at the lower grades.  In addition, redundancy exercises would have an adverse effect on staff morale and industrial relations as there would be a potential for friction and poor relations between those retained at Grade 6 or EOI and those made redundant and rehired at Grade 7 or EOII.  She also explained that another potential outcome would be that the surplus at Grade 6 would be confined to the 22 PPS Grade 6 Senior Public Prosecutors and that the pool for redundancy would be confined to Grade 6 legal staff in the NICS.  

14.5	Mrs Nesbitt explained that before the NICS could consider redundancy they would have to consider flexible early retirement (FER) which is a voluntary measure.  Mrs Nesbitt’s unchallenged evidence was that the cost of FER for staff who would be considered surplus at EOI level and Grade 6 level would be in the region of £822 million.  She also explained that for any staff who did not accept FER and who were subsequently made redundant, there would be an additional cost raising the total to approximately £900 million.  

14.6	Mrs Nesbitt explained that as that cost was too huge to be borne, redundancies could not be implemented and that the third and only viable option was for staff to be dismissed and rehired at a lower grade which would leave huge uncertainties with regard to potential unfair dismissal claims by the thousands of staff involved and could only have a detrimental effect on staff morale, management time, relations with the trade union and an increased burden on the judicial system.  

14.7	Mrs Nesbitt also explained that some NICS services are “hard charged” which means that actual payment is required when NICS services are provided to outside bodies such as a GB Government Department in the public sector.  She also explained that while those hard charged services are not designed to make a profit, they are charged on a cost recovery basis and, therefore, if salaries were increased substantially as a result of a mass upgrading of EOII staff to EOI and Grade 7 to Grade 6, the resultant cost incurred would lead to an increase in the charge to those outside bodies which in turn could lead to those outside bodies contracting their services out elsewhere and to a loss of employment in the NICS.

14.8	Mrs Nesbitt further explained that the Northern Ireland Executive has already allocated £60 million more to public services for the 2012-13 financial year than is actually available.  This planned over commitment was replicated again in the 2013-14 and 2014-15 financial years as part of the Executive’s budget although the position has since changed with additional capital investment funding having been provided to the Executive as part of the Chancellor’s 2012 autumn statement.  It was financed through further reductions to the NICS resource budget, particularly in 2014-15.  The effect of that is that there are no surplus or unallocated resources held by the Executive to meet unforeseen financial pay pressures across this period.  Therefore, if the claimant’s argument was to succeed, there would be a major detrimental impact on the delivery of front-line public services such as health, education and public transport in the period up to 2015 as the Executive would have to cut allocated resource budgets to service the additional pay pressure.    		   
 
14.9	The Tribunal is satisfied that the respondents have provided the Tribunal with extensive unchallenged evidence of the costs and the financial context of those costs.  However, the Tribunal is not satisfied that the respondents have substantiated their assertion that, if the claimant’s argument was to succeed, ultimately all 1,179 Grade 7s and all 4,570 EOIIs could potentially seek the same levels of pay as NICS Grade 6s and NICS EOIs for the following reasons:-

(i)	in relation to the NIO Grade C which incorporated NICS Grades EOII and the higher paid EOI on 1 April 1998, the guidance at Annex 1 of the Interface arrangements provides that the equivalent grade for NIO Grade C staff on transfer from the NIO to the NICS should be both EOII and EO1.  That is different from the guidance at Annex 1 of the Interface arrangements for staff transferring from the NIO Grade A (which incorporated the NICS Grades 6, 7 and SLA).  The guidance at Annex 1 of the Interface arrangements for NIO staff transferring from the NIO Grade A to the NICS is that their equivalent grade should be NICS Grade 7, except for NIO Grade A staff who were ‘formerly’ in NICS Grade 6 and the SLA Grades, who would automatically transfer to NICS Grade 6.  Annex 1 of the guidance does not provide such an automatic exception for NIO Grade C staff who were formerly in the NICS EOI grade.  Instead the guidance provides that such staff will be ‘considered’ for transfer to the EOI posts in the NICS;

(ii)	the Tribunal is aware that notwithstanding the guidance in Annex 1 of the Interface arrangements, Jonathan Philips’ note of 2 June 2009 contained a commitment that people holding a substantive EOI post prior to 1 April 1998 or “who held a substantive EOI post in another NICS Department and who transferred into the NIO in the interim at NIO Grade C, would automatically become EO1 on devolution”.  The Tribunal is also aware that his note set out details of a different process to be followed to determine whether staff at NIO Grade C should be transferred to NICS EOII or EOI.  Under that process, all Grade C posts were to be reviewed to see whether they were NICS EOI or EOII “to assess how NIO Grade C posts will be integrated into NICS structures.”  NIO Grade C staff were then to be provided with three options which were to remain at NIO Grade C, to transfer to EOII level or to take part in an assessment process to become an EOI;  

(iii)	unlike the situation in the claimant’s case in which her comparators, who were transferred to the higher paid NICS Grade 6 level have been performing the same Grade 7 work as the claimant (because of a shortage of Grade 6 posts), no evidence has been adduced that any NIO Grade C member of staff who transferred either automatically or following an assessment process to NICS EOI grade has been performing EOII level work.  

In those circumstances, the Tribunal is not satisfied that the respondents have substantiated the assertion in respect of their costs aim that if the claimant’s argument was to succeed, then 4,570 EOII staff ‘would’ or even ‘could potentially’ have entitlement to equal pay with the EOI staff.  

14.10	Nor is the Tribunal satisfied that the respondents have gathered and adduced the necessary evidence to substantiate their assertion that if the claimant’s argument was to succeed then the 4,570 EOII staff would or could potentially establish claims in respect of indirect discrimination on grounds of sex, age and religious belief.  That is because to succeed in such claims those 4,570 EOII staff members would have to establish that the application of the Interface arrangements or the process announced by Mr Phillips put them and persons of their sex, their age group and their religious belief at a particular disadvantage compared with persons not of their sex, their age group or their religious belief.  To substantiate their assertion that the 4,570 EOII staff members, or any of them, would be able to bring such claims, an analysis of the gender, age groups and community background of all NICS EOII staff together with an analysis of those with similar circumstances for comparison purposes would have to be carried out.  Although this analysis was carried out in respect of all Grade 7 lawyers in the system before the respondents conceded that the Interface arrangements were tainted with indirect discrimination on the grounds of sex, age and religious belief in relation to the claimant’s group and her comparator group, no evidence of such an analysis has been adduced in relation to the 4,570 EOII staff members.  In the absence of such evidence the Tribunal could only speculate as to what such an analysis would demonstrate which it is not appropriate for the Tribunal to do.

14.11	The Tribunal considers that the same issues arise in relation to the 1,179 Grade 7s and it is not for the Tribunal to speculate whether all or any of the 1,179 would be entitled to claim an entitlement to Grade 6 pay in terms of equal pay and/or indirect discrimination claims on the grounds of sex, age or religious belief without such supporting evidence. 

14.12	The NICS Pay Remit Approval Guidance under the heading Equal Pay/Age Discrimination provides:-

		“37.  	The NICS Reward principles re-affirm the Executive’s commitment to ensuring that pay systems in the public sector are fair and non-discriminatory, reflecting the contribution of the individual.

		38.	It is important that organisations review their pay systems on an annual basis following implementation of pay awards as this helps inform Departmental/Public Body Reward Proposals and ensures appropriate targeting of resources.  Departments/Public Bodies are reminded that conducting equal pay reviews of their reward policies and practices regularly is a requirement of delegation.  The frequency and fairness of such reviews should be commensurate with the size and complexity of the staff group.  When equality proofing reward policies, departments/public bodies should be wary of arguments that five years must be the appropriate length for any pay range – for some jobs this may be too short, for others it may be too long.  There is no substitute for a proper assessment of the pay arrangements for different groups/roles within each responsibility level.

		39.	Where departments have identified a potential pay inequality to address they will need to provide evidence of the extent of this inequality and propose ways of tackling this in a cost-effective manner, subject to affordability constraints.  Departments may need to prioritise within the constraints of the remit and strike an appropriate balance between general pay increases for staff and addressing issues arising from equal pay/age discrimination legislation.

		40.	A full risk assessment, including an assessment of the likelihood of claims and the extent of potential liability as well as the costs of dealing with the issue, should accompany any business case based at least partly on addressing equal pay risks.  Departments/public bodies should also specify what proportion of their pay remit, if any, they plan to devote to addressing issues associated with equality issues.  For example, the settlement of Equal Pay claims for Administrative Assistant, Administrative Officer and Executive Officer 2 staff in February 2009, the cost of which was approved by the Executive.”

	If the respondents had genuinely believed that all 1,179 Grade 7s and all 4,570 EOIIs could potentially bring claims in respect of equal pay, sex discrimination, age discrimination or religious belief discrimination the Tribunal would have expected them to have carried out the above analysis to comply with paragraph 39.  It would also have expected them to carry out a full risk assessment in accordance with paragraph 40.  The Tribunal considered Mrs Nesbitt’s evidence that the respondents would comply with paragraphs 39 and 40, if they received an adverse decision from this Tribunal, to be inconsistent with the terms of paragraphs 39 and 40 of the Pay Remit Approval Guidance.  The respondents’ failure to follow paragraphs 39 and 40 of the Pay Remit Approval Guidance leads the Tribunal to doubt the genuineness of their assertion that, if the claimant’s argument succeeded, 1,179 Grade 7s and 4,570 EOIIs ‘could potentially’ claim entitlement to Grade 7 and EOI pay.  

The Third Aim

15.	The respondents’ third aim was to ensure that the transfers did not disrupt efficient business organisation or cause management dysfunctionality.  The Tribunal is satisfied that this aim is capable of amounting to a legitimate aim.  However the Tribunal is not satisfied that this aim has been substantiated either.  That is because, without the analysis, referred to above, as to the likelihood of the 1,179 Grade 7s and the 4,570 EOIIs or any of them being able to establish claims for equal pay or claims in respect of sex discrimination, age discrimination or religious belief discrimination, the Tribunal could only speculate as to what the likely disruption to efficient business organisation and management dysfunctionality would be and it would not be appropriate for the Tribunal to do so.

Proportionality

16.	In case the Tribunal is wrong in its conclusions, as set out above, it went on to consider whether the Interface arrangements were a proportionate means of achieving the respondents’ aims.  As set out above this requires the Tribunal to weigh the impact of the application of the Interface arrangements upon the affected group against the importance of the aims to the respondents and to make its own assessment upon a fair and detailed analysis of the working practices and business considerations involved as to whether the former outweigh the latter and bearing in mind that the respondents are not required to establish that the Interface arrangements were the only course open to them or that their aims could not have been achieved by any other means.  However, the Tribunal must also bear in mind that in determining whether the Interface arrangements were proportionate, it is required to consider whether the respondents’ aims could reasonably have been met by non-discriminatory alternative means.  The Tribunal considers that in light of the respondents’ failure to gather and adduce the necessary evidence to substantiate their assertion that if the claimant’s argument was to succeed then all 1,179 Grade 7s and all 4,570 EOIIs, or any of them, would or could potentially claim entitlement to be paid at the higher Grade 6 and EOI salaries (as they did in respect of the claimant and her comparator group before conceding that their application of the Interface arrangements was tainted with indirect discrimination in respect of the claimant and her group), the Tribunal cannot carry out a meaningful balancing exercise.  In those circumstances the Tribunal concludes that even if it had been satisfied that the Interface arrangements were an appropriate means of achieving the respondents’ first aim and that the other two aims had been substantiated, the Tribunal would not have been satisfied that the respondents had established that the Interface arrangements were a proportionate means (reasonably necessary) of achieving those aims.  

17.	Even if the Tribunal is wrong in that conclusion, it is clear from the minutes of the meetings of MS and their solicitors on 24 May 2010 and of the ‘small’ MS Group on 15 June 2010 and from paragraph 11 of the position paper that ring fencing of the claimant and, if appropriate the remaining NIO Grade A legal officers, as occurred when a number of legal officers at NICS SLA grade were not upgraded to NICS Grade 6 in 2006 following the NICS review of legal grades, appears to be a non-discriminatory alternative way to meet the respondents’ aims.  In reaching that conclusion the Tribunal took into account the fact that the Ad Hoc Legal Group considered the transfer of all NIO Grade A lawyers to NICS Grade 6 to be a viable option at their meeting of 19 December 2011, notwithstanding that it would be ‘more expensive and managerially difficult’ than transferring only the Pre Anderson, the Anderson, the Anderson Consequentials and the McCann Groups and the five members of the Anderson (2) group to NICS Grade 6.  Although this option may have been more expensive and managerially difficult, the Tribunal considers that if the outcome of the NIO review of legal posts had been that the NIO Grade A legal posts were equivalent to NICS Grade 6 rather than Grade 7, then all the NIO Grade A legal officers would have been transferred to NICS Grade 6 in any event, notwithstanding the increased cost and the effect on the management structure.

18.	It is also clear that the updating of the job descriptions of the claimant and other former PPS Grade A legal officers whose posts were evaluated at NICS Grade 7 (as raised by Mr Kitson as an available option following the NIO review of legal posts – see paragraph 5.24 above) or the enhancement of the Grade 7 legal posts (as raised at paragraph 12 of the position paper) to bring them up to Grade 6 level also appear to be a non discriminatory alternative way to meet the respondents’ aims.  

19.	As set out at paragraph 10.20 above, in light of the incorrect and misleading information which was provided to TUS in the position paper about the Pre Anderson, Anderson and Anderson Consequentials Group and the absence of any information about the McCann Group, the Tribunal does not consider that the fact that the TUS had originally agreed with the establishment of the Interface arrangements in 1999 and with the respondents’ application of the Interface arrangements in relation to the Pre Anderson, Anderson and Anderson Consequentials Groups in 2010 assisted the respondents in their defence.

20.	For the reasons set out above the Tribunal is not satisfied that the respondents have objectively justified their application of the Interface arrangements and the claimant’s claims in respect of equal pay and indirect sex, age and religious belief discrimination are therefore upheld.  In making that decision the Tribunal drew no adverse inference from the respondents’ failure to respond to the claimant’s Statutory Questionnaire within the statutory eight week time limit.  That was because:-

(i)	the respondents had already conceded that the claimant was performing ‘equal’ work with her comparators and that the Interface arrangements were tainted with indirect discrimination on grounds of sex, age and religious belief in terms of the claimant’s group and her comparator group prior to the commencement of the Hearing;

(ii)	the Tribunal was not satisfied that the Statutory Questionnaire contained any specific questions about the respondents’ objective justification defence.    
   
Remedy

The Relevant Statutory Provisions

21.	Section 2 of the Equal Pay Act (Northern Ireland) 1970 provides:-

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

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

(5)	A woman shall not be entitled, in proceedings (including proceedings before an industrial tribunal) brought in respect of a contravention of a term modified or included by virtue of an equality clause, to be awarded any payment by way of arrears of remuneration or damages in respect of a time earlier than the arrears date (determined in accordance with section 2ZB). 

	2ZB “Arrears date” in proceedings under Section 2(5)

(1)	This section applies for the purpose of determining the arrears date, in relation to an award of any payment by way of arrears of remuneration or damages in proceedings in respect of a woman's employment, for the purposes of section 2(5). 

(3)	In a standard case, the arrears date is the date falling six years before the date on which the proceedings were instituted.

22.	Article 65 of the Sex Discrimination (Northern Ireland) Order 1976 provides:-

(1)	Where an industrial tribunal finds that a complaint presented to it under Article 63 is well-founded the tribunal shall make such of the following as it considers just and equitable— 

(a)	an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates; 

(b)	an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court to pay to the complainant if the complaint had fallen to be dealt with under Article 66 (discrimination in other fields);

(c)	a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates. 

23.	Regulation 43 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 and Article 39 of the Fair Employment and Treatment (Northern Ireland) Order 1998 contain similar provisions in relation to remedy.

Equal Pay Claim

24.	Having upheld the claimant’s claim that the respondents have breached the equality clause in her contract of employment, the Tribunal orders that the relevant term in her contract in respect of salary, including employer pension contributions, shall be treated as modified from the date of her first claim, 26 May 2011, so as not to be less favourable than that of her comparators who were paid at NICS Grade 6.  

25.	The claimant sought an award for arrears of pay from the date of the institution of her equal pay claim on 26 May 2011 back to 1 February 2006, which is the date she commenced as a Senior Public Prosecutor, Grade A, in the NIO.  In their letter of 30 May 2013 to the Tribunal, the claimant’s solicitor stated:-

		“We have sought to obtain from the respondent a calculation for financial loss on the basis that the claimant is entitled to be paid on a NICS Grade 6 from 1.02.06 to the present on exactly the same terms, pay and conditions as all those members of the pre Anderson/Anderson and Anderson Consequentials Group.  We understand that her point on the Grade 6 scale would have been the next highest point on the scale to the point at which she was at on a Grade 7 scale at that time.  She is entitled to all the back pay differential between progression up the Grade 6 scale and her actual Grade 7 salary from that date.  She is also entitled to enhanced pension contributions during that period.”

26.	The respondents disputed this claim for the reasons set out at paragraphs 3 to 10 of their remedy submissions.  In summary the respondents submitted that to award the claimant the back pay differential beyond 12 April 2010 would be to give her the benefit of the settlement terms applied to the Anderson (2) plaintiffs, without admission of liability, which she is not legally entitled to.  The respondents provided a schedule of the claimant’s gross pay at NICS Grade 7 and a comparator’s gross pay at NICS Grade 6 for the period 12 April 2010 to the date of the Hearing in May 2013 and the gross daily loss thereafter.  The respondents pointed out that the gross figures for the claimant’s pay and the comparators’ pay are subject to deductions for tax, national insurance and employee pension contributions.  

27.	The Tribunal is satisfied that, in accordance with Section 2(5) of the Equal Pay Act (Northern Ireland) 1970, as set out above, the claimant is entitled to be awarded a payment by way of arrears in respect of the difference in remuneration up to six years before 26 May 2011, the day on which her first proceedings were instituted.  That is because the Tribunal is satisfied that:

(i)	as the claimant has been performing ‘equal’ work with her comparators since 1 February 2006, initially at NIO Grade A level and then at NICS Grade 7 level; and

(ii)	as the claimant’s comparators, or some of them, have had their pay increased for that period as a result of the backdated settlement of their Anderson (2) Group claims;

	the claimant is entitled to arrears in respect of the difference of pay and employer pension contributions in respect of that period.  In reaching that conclusion, the Tribunal is satisfied that what matters is the fact that the claimant’s comparators or some of them received a backdated pay increase during that period, not why.

28.	The claimant’s representatives also provided a schedule of loss in respect of the claimant for the period 1 February 2006 to 1 August 2012.  It would appear from the figures set out in the two schedules that the parties also dispute the actual differences in pay between the claimant and her comparators.  In those circumstances the Tribunal directs the parties to liaise in an attempt to agree the differences in pay, including employer pension contributions, between 1 February 2006 and 26 May 2011 and from 26 May 2011 to 18 March 2014 taking into account the backdated and current increases in pay.

29.	If the parties are unable to agree the figures for the difference in pay during those periods and any interest due for any part of the period, a further Hearing will be arranged to assess the amount of the arrears.   

Equal Pay - Non Pecuniary Loss (Injury to Feelings)

30.	There is no provision for the recovery of non-pecuniary loss such as injury to feelings in the Equal Pay Act (Northern Ireland) 1970 and no such order is therefore made.  That is because the “claim for compensation under the discrimination statutes is by way of recovery for a statutory tort, whereas a claim under the Equal Pay Act is a financial claim in contract, created by the statutory implication in to the contract of employment of an equality clause.”  Council of the City of Newcastle upon Tyne –v- Allan & Others and Degnan & Others –v- Redcar & Cleveland Borough Council (2005) IRLR504.  

The claimant’s claims in respect of indirect discrimination on the grounds of sex, age and religious belief

31.	Having upheld the claimant’s claims in respect of indirect discrimination on the grounds of sex, age and gender the Tribunal declares that the respondents’ application of the Interface arrangements indirectly discriminated against the claimant on the grounds of sex, age and religious belief. 

Pecuniary Loss

32.	The Tribunal is satisfied that its Orders in respect of the claimant’s equal pay claim, namely that:-

(i)	the claimant’s contract shall be treated as modified from the date of her first claim, 26 May 2011, so as to be not less favourable than that of her comparators; and

(ii)	that the respondents pay the claimant arrears of pay from 26 April 2011 back to 1 February 2006;

encompass any damages the claimant would be entitled to in respect of her separate claims of indirect discrimination and that it would not be appropriate to make any further Order in respect of pecuniary loss.

Non-pecuniary loss

33.	In respect of non-pecuniary loss the claimant seeks compensation for injury to feelings.  In addition she seeks aggravated and exemplary damages.

34.	It appears to be common case between the parties and the Tribunal is satisfied that where a complaint of indirect discrimination on the grounds of sex, age or religious belief is upheld, the Tribunal can only award compensation for injury to feelings if:-

(a)	it is shown that the respondent intended to discriminate on the prohibitive ground or grounds; or

(b)	where the Tribunal considers that it would not be just and equitable to decline to do so.

	There appears to be no dispute, as set out in Harvey, Division L, paragraph 875 that:- “Ultimately, ‘intention’ seems to mean knowledge of the consequences rather than motive.”

35.	The Tribunal is satisfied from Mr Hearst’s acceptance, under cross-examination, that from the time in 2010 that the respondents initially decided to apply the Interface arrangements so as to transfer only the pre Anderson Group of NIO Grade A Legal Officers to the NICS Grade 6, they were aware that their decision would in all likelihood offend against all the main categories of discrimination namely sex, age and religious belief.  The Tribunal is therefore satisfied that they had knowledge of the discriminatory consequences of their application of the Interface arrangements and infers from that knowledge that they intended to indirectly discriminate against the claimant on the grounds of sex, age and religious belief.  

The legal principles relating to Injury to Feelings
 
36.	In Vento –v- Chief Constable of West Yorkshire Police (No2) 2003 IRLR102 the Court of Appeal gave the following guidance:-

		“50.	It is self-evident that 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 precedent.  Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, 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.  As Dickson J said in Andrews –v- Gray & Toy Alberta Limited (1978) 83DLR(3d) 452 at 475-476, (cited by this Court in Heil –v- Rankin (2000) IRLR334 at 337, paragraph 16) there is no medium of exchange or market for non-pecuniary losses and their monetary evaluation:

	“... is a philosophical and policy exercise more than a legal or logical one.  The award must be fair and reasonable, fairness be gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional.  No money can provide true restitution.”

51.	Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are nonetheless real in human terms.  The courts 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.  

....

Guidance

65.	Employment Tribunals and those who practice in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury. 

(i)	The top band should normally be between £15,000 and £25,000.  Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.  

(ii)	The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.

(iii)	Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-of occurrence.  In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

66.	There is of course within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.”

37.	The upper limits of the bands were revised by the Employment Appeal Tribunal in the case of Da’Bell –v- NSPCC (2010) IRLR19 to £6,000 for the lower band, £18,000 for the middle band and £30,000 for the upper band.   

38.	In Al Jumard –v- Clywd Leisure Ltd (2008) IRLR 345 the Employment Appeal Tribunal held:-

		“Where more than one form of discrimination arises out of the same facts, it can be artificial and unreal to ask to what extent each discrete head of discrimination had contributed to the injury to feelings, and there will be no error of law where the tribunal fails to do that.  Where discriminatory heads overlap, it is not simply a case of treating both forms of discrimination wholly independently and then adding the sum for each.  The degree of injury to feelings is not directly related to the number of grounds on which the discrimination has occurred.  It may be, for example, that a tribunal takes the view that injury to feelings in a case of race and disability discrimination is not materially different from the injury that would have been experienced had it been race alone.  ...  At the end of the exercise, the tribunal must stand back and have regard to the overall magnitude of the global sum to ensure that it is proportionate, and that there is no double counting in the calculation.”

The legal principles relating to Aggravated Damages

39.	As set out at Harvey Division L paragraph 903 tribunals do have jurisdiction to make awards of aggravated damages in appropriate circumstances.  The award must however be compensatory and not punitive in nature.  

40.	At paragraph 904 Harvey refers to the decision of the Employment Appeal Tribunal in HM Land Registry –v- McClue UK EAT/0435/11 in which the Employment Appeal Tribunal considered the categories of conducts where it might be appropriate for an award of aggravated damages to be made i.e. where the distress caused by an act of discrimination may be made worse by:

(a)	being done in an exceptionally upsetting way, e.g. “in a high-handed malicious, insulting or oppressive way per Lord Reid in Broome –v- Cassell (1972) 1All ER801; 

(b) 	by motive: conduct based on prejudice, animosity, spite or vindictiveness is likely to cause more distress provided the claimant is aware of the motive;  

(c)	by subsequent conduct: e.g. where a case is conducted at a trial in an unnecessary offensive manner, or a serious complaint is not taken seriously or there has been a failure to apologise.

As set out at paragraph 907 aggravated damages may also be awarded if a respondent has defended proceedings in a way that is wholly inappropriate and intimidatory.  An award of aggravated damages will not be supported merely because an employer in a brusque and insensitive manner towards an employee and/or is evasive and dismissive in giving evidence.  

41.	Unlike the position in Great Britain, the Court of Appeal in Northern Ireland held in McConnell –v- Police Authority for Northern Ireland (1997) NI244 that:-

		“an award of aggravated damages should not be an extra sum over and above the sum which the tribunal of fact considers appropriate compensation for the injury to the claimant’s feelings.  Any element of aggravation ought to be taken into account in reckoning the extent of the injury to his feelings, for it is part of the cause of that injury.  It should certainly not be treated as an extra award which reflects a degree of punishment of the respondent for his behaviour.”

	...

	“What a tribunal ought to do in such cases is to weigh the evidence and form a view as to the level of distress and humiliation caused by the act or acts of discrimination, having regard to all the circumstances of the case.  These circumstances will include any features which may have had the effect of aggravating the sense of injury felt by the complainant.  The final result of this assessment will be a single figure reflecting the total injury to his feelings, which may in appropriate cases include an element of aggravation.”

	...

	“Where such a defence is honestly put forward, and the complainant is treated with propriety in the proceedings, the fact that his case or his recollection may be challenged is an insufficient reason without more to regard the employer’s conduct as aggravating the damages.  There may possibly be cases in which there is justification for taking this view, and I do not wish to limit their breadth by attempting to define them.  But an honest, if unfounded or misguided attempt by an employer to defend his actions should not generally be so regarded.”

	...

		“It is naturally all the more reprehensible if a public body, which ought to have proper standards in making its appointments and to be careful to avoid any discrimination, is found to have discriminated against an applicant for employment.  I cannot accept the tribunal’s assertion that it increased the respondent’s feeling of hurt at his rejection on improper grounds.  To increase the damages for such a reason is to fall into the error of punishing the employer because it should be setting an example.  This is an incorrect application of aggravated damages, which are compensatory and not punitive in nature.”

42.	The Tribunal is satisfied that it would be just and equitable to order the respondents to pay compensation to the claimant for any injury to feelings she has suffered as a result of their indirect sex, age and religious belief discrimination of her.  In determining the appropriate award, the Tribunal considered and balanced the following matters.

	On the one hand the Tribunal is satisfied from the claimant’s evidence and from her demeanour while giving evidence that her feelings have been injured as a result of the respondents’ discriminatory treatment of her.  The Tribunal is satisfied that the claimant’s injury to feelings has been exacerbated by:-

(a)	the fact that the respondents treated her in this manner, having welcomed applications from Catholics and females when she applied for the post of Senior Public Prosecutor in 2006;

(b)	the fact that the discrimination has been ongoing since 2010;

(c)	the claimant’s discovery at the Hearing that the respondents were aware of the likely impact of their application of the Interface arrangements, as far back as 2010, but did not carry out an analysis until late 2011/early 2012 and did not concede that their application of the Interface arrangements was tainted with indirect discrimination until February 2012;

(d)	the fact that while maintaining their defence against the claimant’s claim, the respondents have settled claims of other former NIO Grade A Legal Officers who had not been at the NICS SLA grade before 1 April 1998;

(e)	the fact that the claimant has been placed to work in a section which deals with more difficult and complex work than comparator colleagues who have been transferred to the higher NICS Grade 6.

The Tribunal is satisfied that these matters have reduced the claimant’s morale to an extremely low level and have left her feeling deeply hurt, distressed and insulted.  They have also left the claimant feeling unappreciated, disrespected and demeaned as an employee and as a person.

43.	On the other hand:-

(i)	the Tribunal is satisfied that this is not a case in which there has been a lengthy campaign of discriminatory harassment; 

(ii)	although the respondents have settled other cases while maintaining their defence in this case, the Tribunal is not satisfied that the claimant or her group has been singled out for the discriminatory treatment;

(iii)	although the respondents initially denied the discriminatory impact of the Interface arrangements when they were aware of the likelihood of it, they did concede that the Interface arrangements were tainted with indirect discrimination on all three grounds well in advance of the Hearing; and

(iv)	the Tribunal is not satisfied, on the evidence before it, that the injury to feelings sustained by the claimant was aggravated by: 

(a)	the respondents’ late discovery of relevant documents;

(b)	the respondents’ failure to respond to the statutory questionnaire within the statutory time limit;

(c)	by the respondents allegedly providing documents ‘only by mistake’ with regard to the objective justification defence;

(d)	the nature of the respondents’ defence;

(e)	the fact that the claimant broke down at one stage during her cross-examination, as the claimant made it clear that her breakdown was due to the effect of the respondents’ discriminatory treatment of her, which the Tribunal has already taken into account, and not Mrs McGrenera QC’s manner of cross-examination on behalf of the respondents.  The Tribunal is satisfied that Ms McGrenera QC conducted her cross-examination of the claimant with utmost propriety throughout.  

44.	In determining the appropriate compensation the Tribunal considers that as the respondents indirect discrimination of the claimant on the grounds of sex, age and religious belief have arisen out of their application of the Interface arrangements, it would be artificial for the Tribunal to attempt to assess injury to feelings under each separate head of discrimination and that a single, composite award would be more appropriate.  It is also clear to the Tribunal that the claimant’s feelings were injured, not only as a result of the indirect discrimination on the grounds of sex, age and religious belief, but also by the respondents breach of the equality clause in her contract of employment in respect of which the Tribunal has no power to award compensation.  Having considered and balanced all those matters, the Tribunal has assessed the claimant’s injury to feelings as being in the middle of the middle Vento band as revised by the Da’Bell case and has concluded that the appropriate award is £12,000.  

45.	The Tribunal is satisfied that the claimant is entitled to interest on that award from 12 April 2010 (the date of the act of discrimination to which the award relates) to 18 March 2014 (the date of calculation) inclusive at 8% simple interest per annum which amounts to £3,780.  The respondents are therefore ordered to pay the claimant £15,780 by way of compensation for injury to feelings and interest.  

Exemplary Damages

46.	As set out in Harvey at Division L paragraph 908:-

		“Exemplary damages may in some circumstances be awarded, see Kuddus –v- Chief Constable of Leicestershire Constabulary (2001) UKHL29 (2002) 2AC122, HL.  But this will only be so if compensation is insufficient to punish the wrongdoer and if the conduct is either (a) oppressive, arbitrary or unconstitutional action by the agents of Government or (b) where the defendant's conduct has been calculated by him to make a profit which may well exceed the compensation payable to the claimant.”

At paragraph 909 it is stated that:-

	“Although it is now clear that such awards can be made, exemplary damages remain reserved for the most serious cases of abuse of governmental power.”

47.	The Tribunal is not satisfied that the respondents’ conduct of this case amounts to either:-

(a)	oppressive, arbitrary or unconstitutional action by the agents of Government or

(b)	conduct calculated by them to make a profit which may well exceed the compensation payable to the claimant;

and is not therefore satisfied that an award of exemplary damages would be appropriate.

Costs

48.	The Tribunal considers that it would be more appropriate to hold a separate costs hearing once the parties have had the opportunity to consider this decision.  It can be held with any reconvened remedy hearing if that matter cannot be resolved between the parties.

49.	This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992 and the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.  

President:

Date and place of hearing:  13-17 May 2013, Belfast

Date decision recorded in register and issued to parties: