THE INDUSTRIAL TRIBUNALS

CASE REF:	667/06

CLAIMANT:			Paul Cavanagh

RESPONDENTS:		1.	Department of Finance & Personnel
				2.	Rates Collection Agency

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant cannot properly compare himself with a female Staff Officer in the Planning Department of the Department of the Environment, and therefore his claim for equal pay is dismissed. 

Constitution of Tribunal:
Chairman (sitting alone):		Mr S A Crothers

Appearances:
The claimant appeared in person and represented himself.
The respondents were represented by Ms J Simpson, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

1.	The claimant at the time of his application to the tribunal was working in the Rates Collections Agency, Belfast, as a Project Support Officer.  This is an Executive Agency within the Department of Finance & Personnel.  He was seeking to compare his pay to Miss Claire Savage (the ‘comparator’) who works as a Staff Officer in the Planning Department of the Department of the Environment (‘DOE’).  He was claiming under the provisions of the Equal Pay Act (Northern Ireland) 1970 (the ‘Act’).

2.	The issue before the tribunal was as to whether the claimant had a valid comparator for the purposes of the Act. 

3.	The tribunal heard evidence from the claimant and from Miss Amanda Allaway, an Executive Officer I Grade, working in the Equal Opportunities Unit of the Department of Finance & Personnel (‘DFP’).  The tribunal was also assisted by documentation provided by both parties.  

4.	Having carefully analysed the evidence before it in relation to the issue set out above, the tribunal makes the following findings of fact:-

(i)	The DFP and the DOE are separate corporate entities.  The claimant is directly employed by the DFP and the comparator is employed by the DOE.  The terms and conditions of employment for both the claimant and the comparator are contained in the Northern Ireland Civil Service Handbook.  The claimant and the comparator were both recruited by the DFP.  Their rates of pay are negotiated by the Central Personnel Group in DFP (‘CPG’).  They are each paid in accordance with pay bands agreed by the CPG and are subject to the same disciplinary rules and regulations appearing in the Staff Handbook.  These conditions are applicable to all Civil Servants who are in the common employment ultimately of the Crown.  

(ii)	There are 11 Departments operating under the aegis of the Northern Ireland Civil Service.  Individual Departments such as the DFP and DOE determine their employees’ pay points within the relevant pay bands and carry out annual appraisals, if applicable.  Furthermore, each Department is responsible for the discipline of its employees and for day-to-day management of their work and payment of their salaries.  If any inequalities occur in an employee’s pay and conditions across Departments, negotiations with the trade union (NIPSA) are carried out with a view to reaching agreement on the issue.  Ultimately the Permanent Secretary as head of the defaulting Department is responsible for rectifying any such inequality in his own Department based on CPG advice.  Each Department is ultimately responsible to a Minister, in accordance with Article 4(1) of the Department’s (Northern Ireland) Order 1999.

(iii)	The mechanism for pay increases is effected through CPG.  After receiving representations from the individual Departments a case is made to HM Treasury.  The Northern Ireland block is then divided between the various Departments depending on their individual requirements for the year in question.  The bandings of pay applicable to each grade is the same across all Departments.

5.	The law in relation to the issues before the tribunal is set out in some detail in the written submissions from both parties appended to this decision.  The Act operates by the inclusion of an equality clause in the male’s contract of employment equalising his pay with that of a female comparator.  The test for the comparator is set out at Section 1(7) of the Act as follows:-

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

The Tribunal considered the cases of Defrenne -v- Sabena (No. 2), 43/75 [1976] ECR 455 ECJ (“Defrenne”), Hasley -v-  Fair Employment Agency [1989] IRLR 106 NICA, Scullard -v- Knowles [1996] IRLR 344 EAT (“Scullard”) and South Ayrshire Council -v- Morton [2002] IRLR 256 CS (“Morton”).  In addition the Tribunal considered the cases of Lawrence -v- Regent Office Care Limited ECJ 2002 IRLR 822 (“Lawrence”), Robertson -v- Department for Environment, Food & Rural Affairs [2205] IRLR 363, CA (“Defra”) as well the other cases and statutory provisions referred to in the submissions attached to this decision.

6.	The Tribunal carefully analysed the evidence before it together with the submissions (both written and oral) from both parties and applied the principles of law to the findings of fact.  

(i)	Firstly, in relation to Section 1(7) of the Act (Supra) it found that although the claimant and the comparator could be said to be in the common employment of the Northern Ireland Civil Service as the term is used in the Defra case, the claimant and comparator were not in the same employment within the meaning of Section 1(7) of the Act.  The Tribunal had to consider whether DFP and the DOE are associated employers within the meaning of that Section.  The Tribunal took into consideration the case of Hasley -v- Fair Employment Agency (Supra) in concluding that a statutory body corporate is not a company within the meaning of the statutory definition of associated employer defined in Section 1(7)(c) of the Act as follows:-

	“Two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control or if both are companies of which a third person (directly or indirectly) has control”.

In this connection the cases of Scullard and Morton were considered.  The latter case, which referred to Scullard, concerns Defrenne and its application to the situation where the applicant in that case, a female primary school teacher employed by South Ayrshire Council, sought to name as one of her comparators a male secondary school head teacher employed by Highland Council.  Paragraphs 21 and 22 of the Defrenne decision read as follows:- 

“21.	Among the forms of direct discrimination which may be identified solely by reference to the criteria laid down by Article (141) must be included in particular those which have their origin in legislative provisions or in collective labour agreements and which may be detected on the basis of a purely legal analysis of the situation.

22.	This applies even more in cases where men and women receive unequal pay for equal work carried out in the same establishment or service, whether public or private”.

Having considered the facts of the case and the relevant statutory and case law Lord Justice Clarke (Lord Gill) states at paragraph 63 of his judgment:-

“In our view, the material considerations are that the applicant and her comparators are in the same branch of public service and are subject to a uniform system of   national pay and conditions set by a statutory body whose decision is binding on their employers.  It seems reasonable to us to refer to them as being engaged in the same service (see Hasley -v- Fair Employment Authority, Supra, at paragraphs 26 - 27)”.

The Tribunal concludes that Section 1(7) of the Act does not apply to the claimant and his comparator who are not in the same branch of public service even under the wider interpretation in the Scullard and Morton cases under European law.

(ii)	The Tribunal then considered the case of Lawrence which held that, for equal pay proceedings, within the ambit of Article 141 EC, the pay difference between workers of different gender performing equal work must be “attributed to a single source”.  In paragraph 18 of the Judgment it is stated as follows:-

	“However, where, as in the main proceedings here, the differences identified in the pay conditions of workers performing equal work or work of equal value cannot be attributed to a single source, there is no body which is responsible for the inequality and which could restore equal treatment.  Such a situation does not come within the scope of Article 141(1) EC.  The work and the pay of those workers cannot therefore be compared on the basis of that provision”.  The test in Lawrence was then applied in the Defra decision which is not on all fours with the present case in that it concerned inter alia the specific delegation of pay bargaining for civil servants to individual government Departments.  However, one essential factor in the Lawrence and Defra cases and relevant for this case is that for the single source argument to be successful, the relevant body must be one which is responsible for the inequality and which could restore equal treatment.

	As Mummery LJ in the Defra case states at paragraph 18 of his judgment, 

	“The critical question is:  is there a single body responsible for the discriminatory pay differences of which the complaint is made?”

On the facts as found the tribunal concludes that there is not a single body responsible for the alleged discriminatory pay differences of which the complaint is made. Further, as the evidence reveals, ultimately the head of the relevant Department is responsible pursuant to advice from CPG for restoring equal treatment.  

(iii)	For the above reasons, the Tribunal concludes that the claimant cannot properly compare himself with a female Staff Officer in the Planning Department of the Department of the Environment, and therefore his claim for equal pay is dismissed.      

Chairman:

Date and place of hearing:	16 April 2007, Belfast.

Date decision recorded in register and issued to parties: