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	Industrial Tribunals Northern Ireland Decisions
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THE INDUSTRIAL TRIBUNALS

CASE REF: 1229/05

CLAIMANT: Cathie McKimm

RESPONDENT: Down District Council

DECISION

The unanimous decision of the tribunal is that the claimant's "like work" equal pay claim is not well founded. Accordingly it is dismissed.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Mrs T Hughes

Mr J Nicholl

Appearances:

The claimant appeared in person.

The respondent was represented by Mr D McAughey, Barrister-at-Law, instructed by Director of Legal Services, Belfast City Council.

REASONS

1. The claimant was employed by Down District Council as its Arts Officer from January 2001 until April 2007.
2. In these proceedings, the claimant has made various claims of victimisation discrimination. She also makes a "like work" equal pay claim.
3. The victimisation discrimination claims have already been the subject of a decision of this tribunal. That Decision was issued on 30 July 2008. This Decision should be read in conjunction with the 30 July Decision.
4. In this Decision, we adjudicate in respect of the claimant's "like work" equal pay claim.

The key equal pay legislative provisions

5. Section 1 of the Equal Pay Act (Northern Ireland) 1970 ("the Act") establishes a requirement of equal treatment, in relation to terms and conditions, for men and women who are in the same employment.
6. Section 1(1) is in the following terms:

"if the terms of a contract under which a woman is employed at an establishment in Northern Ireland do not include … an equality clause they shall be deemed to include one".

7. Section 1(1) has to be read in conjunction with sub-sections (2) and (3) of that section.
8. Section 1(2) of the Act explains that a right to equal pay potentially arises in each of three situations:-

(1) If the claimant is employed on "like work" with an appropriate statutory comparator (a person of the opposite sex "in the same employment"); or

(2) If the complainant is employed on work which has been rated (by a job evaluation study) as equivalent to that of an appropriate comparator; or

(3) If, in certain circumstances, the claimant is employed on work which, in terms of the demands made on her, is of "equal value" to that of the comparator.

9. In any of those three situations, in which a right to equal pay potentially arises, there will not actually be such an entitlement if the employer proves, pursuant to Section 1(3) of the Act, that the relevant variation (between the claimant's contract and the comparator's contract), is genuinely due to a "material factor" which is not the difference of sex.
10. The respondent in these proceedings does not allege that it is entitled to any Section 1(3) defence.
11. Situation (1), as listed at paragraph 8 above, is provided for at paragraph (a) of Section 1(2). According to that paragraph, a woman is to be regarded as employed under "like work" with the comparator in the following situation only:

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

12. Sub-section (5) of Section 1 provides as follows:

"(5) A woman is to be regarded as employed on like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences."

The issues

13. In these proceedings, the claimant has identified the respondent's Museum Curator, Mr Mike King, as the statutory comparator in the context of her equal pay claim.
14. Mr King was employed in the latter position throughout the period of the claimant's employment with the Council.
15. The parties have agreed that for the purposes of determining this equal pay claim, the tribunal should assume that, throughout the claimant's period of employment:

(1) the things which the claimant was doing in her post in 2005 were the same as the things that she did in that post throughout that period; and

(2) the things which Mr King did in his post in 2005 were the same as the things which he did in his post throughout that period.

16. The claimant does not assert that her work was the same as Mr King's work. Instead, she contends that her work and his work were of a broadly similar nature.
17. Against that background, the claimant would be entitled to succeed in her "like work" equal pay claim if, but only if, her work and the work of Mr King was of a broadly similar nature, and the differences (if any) between the things she did and the things he did were not of practical importance in relation to terms and conditions of employment.
18. Accordingly, in the context of this equal pay claim, we are concerned with two issues:

(1) Was the work which the claimant did and the work which Mr King did of a broadly similar nature?

(2) Were the differences (if any) between the things which she did and the things which Mr King did of practical importance in relation to terms and conditions of employment?

The sources of evidence

19. At this second stage of the main hearing, we took account of all of the evidence which had been made available to us at the first stage of the main hearing. We also wish to mention the following additional sources of evidence:
20. On the claimant's side of the case, we received oral testimony from the claimant in respect of her "like work" equal pay claim.
21. On the respondent's side of the case, we received oral testimony, in respect of the "like work" equal pay claim, from the following:

(1) Mr John McGrillen, Chief Executive of the Council;

(2) Ms Sharon O'Connor, Director of the Division to which the claimant and Mr King belonged; and

(3) Mr John Heyburn, of the Business Improvement Service of Belfast City Council.

22. In addition to the documents to which we have referred to in the course of our 30 July Decision, we also saw the following:

(1) A document which had been prepared by the claimant, at our direction, in which she listed the factors which she considered to be relevant in the context of her contention that her work and that of Mr King was of a broadly similar nature.

(2) A document which was prepared by the respondent, again at our direction, outlining the respondent's contentions as to the main relevant differences (differences of practical importance in relation to terms and conditions of employment) between the things which the claimant did and the things which Mr King did.

23. As already recorded in our Decision of 30 July, we had told the parties that we would only have regard to any document within any bundle if our attention was specifically drawn to that particular document.

The arguments

24. In relation to this part of the case, the respondent provided a separate written submission. In the course of a hearing on 22 July 2008, the claimant had the opportunity to respond to that submission and Mr McAughey expanded upon that submission in the course of oral argument.
25. The respective arguments of the parties can be summarised as follows.
26. The claimant asserted that the duties and responsibilities of the two posts were analogous. Although there were differences of detail between what she did and what Mr King did, those differences were of no significance in the context of terms and conditions.
27. The respondent argued that the posts were not broadly similar. In any event, according to the respondent, the differences between the duties of the two posts were so significant that any competent job evaluator would, in the context of a job evaluation, end up evaluating the posts as belonging to two different grades.

The facts

28. In arriving at our decision in respect of the equal pay claim, we have taken account of all of the findings of fact which were recorded in our July Decision. In the context of the "like work" equal pay claim, we made the following additional findings of fact:

(1) When Mr King was appointed to his post, the essential criteria for the post included a requirement that the post-holder must hold at least a second class honours degree in Anthropology, Archaeology, Geography, Geology, History, History of Art or Zoology. When the claimant was appointed to her post, the entrance criteria did not require a first or second class honours degree, nor did they require any university degree. Instead, what was required was either a third level qualification or two years relevant post-qualification experience.

(2) We have been shown a revised job description, dated August 2005, in respect of the Museum Curator ("the Curator JD"). We accept that that JD is a broadly accurate and comprehensive description of what Mr King did at all relevant times. We have also been shown a revised job description for the Arts Development Manager post, dated February 2005 ("the revised Arts JD"). We are satisfied that that JD was a broadly accurate and comprehensive description of what the claimant actually did, in the course of her employment as Arts Development Manager at all relevant times.

(3) We have compared the job summary in each JD. According to the Arts JD, the job purpose is to manage the Arts Service, to advise the Council on Arts services and to work in partnership with external bodies in connection with Arts development needs in Down District. According to the Curator JD Job Summary, the purpose of the post is to have overall responsibility for the running of the Down District Council Museum, to manage the Museum Service and to advise the Council on Heritage and Museum Services and related matters.

(4) The Arts JD lists various "Key Tasks" of the Arts post. The Curator JD lists various "Key Tasks" of the Curator post.

(5) Many of the Key Tasks of the two posts are very similar.

(6) However, we regard as significant the fact that the key tasks of the Curator post include the following tasks, which in our view are distinctive tasks of the Curator post:

"(13) to acquire on a permanent or temporary basis artefacts, documents and display materials.

(14) to securely conserve, catalogue and organise all relevant Museum materials.

…

(16) to be consulted about, and have concern for all archive or other potentially valuable historic materials belonging to the Council.

(17) to carry out or facilitate research on the Museum Collections or on appropriate archaeological, historical, or environmental matters relevant to the District and where relevant, to publish findings and exhibit artefacts produced.

(18) to ensure that the functions and programmes of the Museum Service are in line with best practice in the areas of collection, curation, conservation and communication."

(7) We are satisfied that "Curator Key Tasks" which we have quoted above have no parallel, even in broad terms, in the workload of the claimant's post.

(8) We accept that the Curator is the Council's resident expert on all archive, historical and archaeological matters and that this expertise is available to the Council on a continuous basis, even if the Council does not need to avail of it all the time.

The legal principles

29. The following legal principles are relevant in the context of the issues which we have had to decide:

(1) As we pointed out above (at paragraph 18), there are two key issues in this case.

(2) The second of those issues is whether or not there are any differences between the things which the claimant did and the things which Mr King did which are of practical importance in relation to terms and conditions of employment.

(3) We have determined the second issue in favour of the respondent. Accordingly, we do not need to consider the first of the paragraph 18 issues.

(4) We have reminded ourselves that, in deciding that second issue, we have to consider the work that was actually done, rather than the work which the employer may be entitled to require the employee (under the contract of employment) to do.

(5) In deciding whether any relevant differences are of practical importance, one practical guide is whether the differences are such as would put the two posts into different categories of a job evaluation study. (See British Layland Ltd v Powell [1978] IRLR 37).

(6) However, the question of whether or not the differences are such as would put the two posts into different job evaluation study categories is not the only relevant guide; indeed, it is not the acid test.

(7) Instead, the question of whether the differences between the things done by the woman and her comparator are of practical importance, in relation to terms and conditions, is a question of fact for the tribunal to determine, in its role as an industrial jury.

(8) In determining that question, it is important to take account of the frequency with which any differences occur in practice; in that context, it is also important to take account of the extent of the differences.

Conclusions

30. We feel constrained to decide that the claimant has not established a potential right to equal pay pursuant to Section 1(2)(a), because the Curator post was responsible for carrying out the "Key Tasks" listed at paragraph 28 above, while the claimant's post had no responsibilities which were properly analogous to those Key Tasks.
31. In reality, an important aspect of the Curator's role is to act as a continuously available in-house source of expertise. We consider that our conclusion in that connection are supported by the fact that, as part of the key requirements for the post, there is the requirement that the post-holder have an honours degree in one of a small number of specified subjects (all of which are relevant to the role of the Curator). We note that there is not even a broad equivalent of the latter requirement in the context of the claimant's post.
32. We have no doubt that the Curator's role as a continuously available source of in-house professional expertise is a matter which is of considerable practical importance in the context of terms and conditions of employment.
33. For those reasons, the claimant's claim that she is entitled to equal pay pursuant to Section 1(2)(a) has to fail. We are satisfied that the differences between the things that she did and the things that Mr King did were of practical importance in relation to terms and conditions of employment.

Next steps

34. In the context of equal pay, the next question is whether the claimant wishes to pursue an equal value claim. (See paragraph 8(3) above).
35. The tribunal has raised that issue because of the fact that the claimant is self-represented. By raising that issue, the tribunal is not implying that it has arrived at any view, even a preliminary view, on the question of whether an equal value claim would have any reasonable prospect of success.
36. If the claimant does decide that she wishes to pursue an equal value claim, the following questions will have to be determined:

(1) Is the claimant entitled, without leave of the tribunal, to pursue an equal value claim in respect of the disparity of pay between her post and that of Mr King?

(2) If not, has the tribunal power to grant her leave to do so?

(3) If the tribunal has the power to grant such leave, should it grant leave?

37. If necessary, those questions will be addressed at the end of the Review hearing (which is being held in respect of the respondent's application for review of the 30 July decision).

Chairman:

Date and place of hearing: 25 June 2008, 22 July 2008, at Belfast.

Date decision recorded in register and issued to parties: