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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Topping v Department of Finance & Personnel [2005] NIIT 110_04 (22 February 2005) URL: http://www.bailii.org/nie/cases/NIIT/2005/110_04.html Cite as: [2005] NIIT 110_4, [2005] NIIT 110_04

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THE INDUSTRIAL TRIBUNALS

CASE REF: 110/04

APPLICANT: David Topping

RESPONDENT: Department of Finance & Personnel

DECISION

The unanimous decision of the tribunal is that:-

1. The applicant's complaint of sex discrimination by way of victimisation was not made within the prescribed time limits and that it would not be just and equitable to extend the time limits. Accordingly the complaint is dismissed.
2. The applicant's complaint of unlawful deduction of wages is well founded and the tribunal orders the respondent to pay to the applicant the sum of £2,858, as per the schedule agreed by the parties at hearing.

Appearances:

The applicant was represented by Mr P. Robinson, of NIPSA.

The respondent was represented by Mr A. Sands, Barrister-at-Law, instructed by the Departmental Solicitor's Office.

3. The applicant's originating application, dated 8 January 2004, complained of discrimination by way of victimisation contrary to the Sex Discrimination (Northern Ireland) Order 1976, and of unlawful deduction of wages contrary to the wages protection provisions of the Employment Rights (Northern Ireland) Order 1996.
4. The applicant commenced employment with the respondent in 1993 and from February 1999 worked as a driver/messenger in the respondent's Centralised Transport Unit. It was common case that the applicant had lodged an internal grievance in mid-2000 alleging, among other matters, sexual harassment by a female Line Manager. It was also agreed between the parties that following a meeting in August 2000 between the respondent's Establishment Officer, Mr Ryan Dobson, and the applicant, at which the applicant was accompanied by his trade union official, Mr Peter Robinson, the applicant agreed to withdraw his formal grievance in return for transfer to a new role as security guard and an undertaking that his grievance would be investigated as a Personnel matter by Mr Dobson.
5. In his IT1 the applicant complained of the decision taken by his employer at the time of and as part of the arrangements governing his transfer in September 2000 to retain him on a 42-hour week, the 'conditioned hours' that applied to the role of messenger/driver. He claimed that as part of the transfer the respondent should have moved him to a 40-hour week, the 'conditioned hours' that applied to security guards under the collectively agreed terms and conditions of the Northern Ireland Civil Service. He maintained that this decision and its outworking in terms of the reduced wages he earned for overtime amounted to sex discrimination by way of victimisation. However, the applicant did not lodge his complaint of sex discrimination until 8 January 2004.
6. After the applicant's representative had opened the applicant's case, in view of the time limits that apply to claims of sex discrimination and in view of the time that had elapsed between the applicant's transfer and his complaint to tribunal, the tribunal asked to be addressed on the issue of the tribunal's jurisdiction to hear the complaint. In particular it asked the parties to focus on the questions (a) whether the application had been presented within the specified time limit, and (b) whether, if it had not, it would be just and equitable in all the circumstances of the case for the tribunal to extend the time limits to allow the complaint to be considered. The applicant's representative was invited to consider whether he wished to call evidence to deal with the issue of time limits but elected not to do so. The tribunal heard submissions from both representatives.
7. For the applicant Mr Robinson submitted that the Sex Discrimination Order itself stated that any act extending over a period should be treated as done at the end of the period. Mr Topping's complaint was that the discrimination was continuing, and that every time he was paid overtime at the wrong rate there was a fresh act of discrimination. Mr Robinson cited the cases of Rovenska v GMC [1997] IRLR 367 CA, and Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 EAT. In Rovenska the applicant attempted a number of times to obtain an exemption from a language test the GMC required her to pass in order to register as a doctor. The EAT overturned the Tribunal's decision that the applicant's complaint was out of time because presented more than three months after the date of the GMC's last refusal. The EAT allowed her appeal, on the basis that a continuing policy on exemption was being challenged as discriminatory. The Court of Appeal dismissed the GMC's appeal but on different grounds. They considered that this was a 'single act' case but that correspondence on the applicant's behalf brought the case within time. It is not clear therefore that this case assisted the applicant. In Owusu, the EAT held that a failure to promote or shortlist was a complaint of a one-off act, but that a repeated failure to upgrade the applicant, or to allow him to act up at a higher grade when the opportunity offered was capable of amounting to a discriminatory practice, that is, a continuing act for the purposes of the Order.
8. Alternatively, Mr Robinson submitted, the Order provided that a tribunal could hear the complaint, even if it was out of time, should the tribunal exercise its discretion to do so. However, Mr Robinson declined to call evidence from the applicant or to make any additional submissions in regard to reasons as to why the tribunal should exercise its discretion.
9. For the Respondent, Mr Sands submitted that the act the applicant complained of was the decision in September 2000 to pay him on the basis of a 42-hour rather than a 40-hour week. This was the alleged act of discrimination or victimisation. It was clear (it was not disputed) that the applicant had had knowledge of this. He took steps and made inquiries in regard to it. The tribunal was referred to correspondence (in the agreed bundle of documents prepared by the applicant) between the applicant's trade union adviser and the respondent from late 2002 and early 2003. In the course of this correspondence the applicant raised the very issue he made complaint of in his application to tribunal one year later. The applicant, in short, had been aware of the issue for a long period in advance of his complaint to the tribunal. He had taken steps to address the issue by raising an internal grievance. And he had had the benefit of advice from his trade union. Time had begun to run, he said, from the moment when the applicant had become aware of any allegedly less favourable treatment. The time for complaint had expired long before the applicant complained to tribunal. Moreover, at least one of the authorities that Mr Robinson had cited dealt with a situation involving a series of discrete acts of discrimination. Such situations were different from the present case.
10. The tribunal considered the submissions of the parties, the correspondence between the applicant's representative and the respondent from late 2002 and early 2003, and referred to the 1976 Order and to the authorities dealing with time limits in Harvey on Industrial Relations and Employment Law. Article 76 of the Order provides, so far as relevant:

(1) An industrial tribunal shall not consider a complaint under Article 63 unless it

is presented to the tribunal before the end of the period of three months

beginning when the act complained of was done.

. . . . . . .

(5) An industrial tribunal may nevertheless consider any such complaint, claim or

application which is out of time if, in all the circumstances of the case, it

considers that it is just and equitable to do so.

(6) For the purposes of this Article—

(b) any act extending over a period shall be treated as done at the end of that

period.

11. The cases acknowledge the difficulties that often arise in distinguishing between single or one-off acts with continuing consequences and a continuing act 'extending over a period' for the purposes of Art 76 (6) (b). One of the cases relied on by the applicant, Rovenska, offers a neat illustration, where the EAT and the Court of Appeal arrived at contrasting conclusions on the same facts. The tribunal concluded from a consideration of the authorities set out in Harvey, Part L, paragraphs [556-557], nevertheless, that the facts of the instant case resembled more than any other the facts in Sougrin v Haringey Health Authority [1991] IRLR 447. In that case the applicant alleged discrimination arising out of a disputed grading. She claimed the grading she had received in 1988 amounted to direct discrimination on grounds of race, and that because this affected her pay there was a 'continuing act' of discrimination, which entitled her to present a complaint in 1990. The EAT rejected this argument. It held that the fact she continued to receive lower pay than her comparator was the consequence of the decision to place her at the disputed grade -- not the result of a 'continuing act'. There was no less favourable term of her contract because the relevant term in her contract was that she would be paid according to her grade, and that was not a discriminatory provision.
12. The tribunal considered that the reasoning of the EAT in Sougrin applied, with appropriate allowances for the differences, to the facts of the present case. On this basis the tribunal found that Mr Topping's claim was out of time, and by a substantial period. That is so bearing in mind that, contrary to the respondent's contention, time begins to run from the date of the act complained of and not from the date of knowledge. (See Harvey, Part L, paragraph [556].) The date of knowledge is a factor relevant to the discretion to extend time. The tribunal went on to consider whether, in spite of the delay, it should extend the time limits to allow the applicant's claim to be considered.
13. Under Article 76 (5) of the 1976 Order the tribunal has a discretion to extend the time limits where it considers it 'just and equitable' to do so. Among the factors that a tribunal is required to consider in the exercise of its discretion is the prejudice to each party as a result of either granting or refusing an extension of time, the presence or absence of any other remedy for the applicant, the length of time by which the application is out of time, the reasons for the delay (including the date of knowledge) and the steps taken by the applicant to obtain professional advice once he knew of the possibility of taking action. (See Harvey, Part L, paragraphs [556-573], and Part T, paragraphs [277-290].)
14. The tribunal did not consider that the respondent would be unduly prejudiced by allowing the applicant's complaint to proceed (other than by the fact of having to defend the claim), since the relevant witnesses and the relevant documentary records were still available. On the other hand the tribunal were conscious of the failure of the applicant to give evidence on the issue of delay or to offer any explanation through his representative as to why he had not lodged proceedings until January 2004 (other than claiming that the discrimination was 'continuing'). The respondent in submissions had referred to a grievance procedure taken by the applicant that had run its course by the beginning of April 2003. The applicant's grievance had been dismissed. A further nine months elapsed before the applicant lodged proceedings. The applicant could not, therefore, rely upon any argument based on the time required to exhaust an internal grievance procedure. The applicant, moreover, had had access to advice and representation from his trade union in the period between 2002 and 2004. The delay in lodging proceedings, in the tribunal's view, was unlikely to have been for want of professional advice. The tribunal considered that it was for the applicant to satisfy the tribunal that it should exercise its discretion to extend time limits and that he had not done so. In these circumstances, and bearing in mind that the applicant still enjoyed a potential remedy through his complaint of unlawful deductions, the tribunal declined to exercise its discretion to extend time. The applicant's complaint of sex discrimination is therefore dismissed.

Unlawful deductions

15. The tribunal heard evidence in respect of the applicant's claim of unlawful deductions from the applicant and from the respondent's Mr Dobson, and was referred to a bundle of agreed documents. There were few issues of fact between the parties either on the papers or in oral evidence. Rather the parties disagreed on the construction to be placed on the facts. The tribunal found the following facts proved.
16. The applicant, while working as a messenger-driver at the respondent's Centralised Transport Unit prior to September 2000, had been employed in the grade of Support Grade Band I (SGBI), the top band in the grade, and had been so employed since 22 February 1999. As a messenger-driver the applicant's terms and conditions of service, set out in the Northern Ireland Civil Service Staff Handbook, provided for a 42-hour week (including lunch breaks). The applicant, as part of the informal resolution of his harassment complaint accepted, in August 2000, that he should transfer, on his return to work, to the role of security guard. He returned to work and his transfer was effective from 4 September 2000.
17. Prior to these events, and further to agreement between management and trade union side, the respondent had decided to downgrade the role of security guard, from SGBI to SGBII, with effect from February 1998. As part of that agreement any new security guards recruited after February 1998 were to be appointed at the (lower) SGBII grade and paid on the (lower) SGBII pay band. The position of existing security guards employed at SGBI level was protected under the agreement by a 'red circling' arrangement. They would continue to be paid on the SGBI pay band. In the period subsequent to the applicant's transfer, approximately one-third of the complement of security guards occupied the SGBI grade and the tribunal was referred to a list of 16 such employees. A distinctive feature of the terms and conditions of service applying to security guards, whether at SGBI or SGBII grade, set out in the NICS Staff Handbook, provided that security guards should work a 40-hour week (including lunch breaks).
18. As part of the terms of the applicant's transfer it was agreed between Mr Dobson and the applicant's trade union official, Mr Robinson, that the applicant should not be placed at a disadvantage by reason of his transfer. Notwithstanding the respondent's decision to downgrade the role of security guard in February 1998 it was agreed therefore that the applicant should transfer 'in his existing grade' (the precise terms of Mr Dobson's advice to the respondent's Mrs Irene Fraser).
19. Following his transfer the applicant, in common with his colleagues, regularly worked between 20 and 30 hours' overtime each week. He was not aware of any anomaly in his position until it was raised with him by management in November 2002. He was advised in writing on 10 December 2002 that the effect of the terms of his transfer 'in his existing grade' was that he was deemed still to be an SGBI with conditioned hours of 42 hours a week. He was further advised that had he wished to benefit from the 40-hour week that applied to other security guards he would have had to downgrade to SGBII. The applicant pursued an appeal against this decision from December 2002 onwards. The appeal reached its final stage and was dismissed by the respondent Department by letter of 4 April 2003.
20. A complicating factor in the dispute between the parties emerged from a Memo issued by the respondent's pay section and disclosed to the applicant's adviser on 19 January 2005, one year after the applicant's complaint had been lodged with tribunal and some four weeks in advance of Hearing. The applicant assumed that the advice he was given in November/December 2002 in respect of a 42-hour week meant two things. First, he understood that his hourly rate was being calculated on the basis of a 42-hour week and was correspondingly less than it would have been had it been calculated on the basis of a 40-hour week. Second, the applicant understood that, alone among his colleagues in Security, he had to work a basic 42 hours before any of his additional hours attracted overtime payments. The applicant's original schedule of loss, included with his IT1, was based on these two assumptions. The respondent's Memo of 19 January 2005, however, while it confirmed that the first assumption was correct indicated that the second was not. The applicant, since his transfer in September 2000, has had the number of his overtime hours calculated on a 40-hour week base line. At Hearing, the respondent confirmed that this was not an accident or an oversight.

The law

21. Article 45 of the Employment Rights (Northern Ireland) Order 1996, so far as relevant, provides:

(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a) the deduction is required or authorised to be made by virtue of a

statutory provision or a relevant provision of the worker's contract . . .

. . . . . . . . . .

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

22. The applicant contended that in virtue of the terms of his transfer to work as a security guard, 'in his existing grade', at SGBI level, and by reason of the express terms of the NICS Staff Handbook providing for a 40-hour week for security guards, that he was entitled on transfer to a 40-hour week and entitled to have his hourly rate and in particular his overtime payments calculated on the basis of a 40-hour week. This was the basis of the wages that were properly payable to him for the purposes of the Order. He maintained that the difference between what he had been paid in overtime payments and what he should have been paid in overtime payments amounted to an unlawful deduction.
23. The respondent contended that the terms of the applicant's transfer, 'in his existing grade', at SGBI level, to a role which had been downgraded to SGBII, meant that his terms and conditions were still governed by the terms and conditions that had applied to his grade while he worked as a messenger-driver, in particular the term stipulating a 42-hour week. The only alternative source would be the terms and conditions applicable to security guards. From February 1998 these specified SGBII level. Since this was thought inappropriate following Mr Topping's harassment complaint the source for his terms and conditions had to be those regulating the terms and conditions of his grade as a messenger-driver. Hence the requirement to retain the Applicant on a 42-hour week.
24. The respondent distinguished the applicant's position from that of his SGBI colleagues in security. Their position was attributable to a unique, once-off, concession that protected their SGBI status, a red circling arrangement. Mr Topping, they submitted, was still better off than his SGBII colleagues in security, since he retained his SGBI grading, and was as well off as he had been as a messenger-driver. He had not suffered any detriment. Arguably, the applicant was even better off than he had been as a messenger-driver since he had access to better overtime opportunities. In fact it was put to the applicant that he had suffered no detriment and that his terms and conditions had remained unchanged. The applicant agreed that his terms and conditions were unchanged, except for the fact that he now worked as a security guard and not as a messenger-driver.
25. The tribunal considered that the sole relevant terms of the agreement of August 2000 were that the applicant should transfer to work as a security guard and that he should do so 'in his existing grade' to ensure that he did not suffer any disadvantage as a result of his transfer. The evidence tended to show that beyond this, no detailed consideration was given by the respondent to the terms under which Mr Topping should transfer to the role of security guard. A straightforward construction of this agreement, the tribunal concluded, meant that

the applicant would transfer on his existing pay band and that the terms and conditions relevant to the role of security guard would apply to the applicant. Mr Dobson in his evidence claimed that the substance of this agreement was that the applicant should suffer no detriment and that he would retain the terms and conditions attached to that particular grade. The tribunal rejected Mr Dobson's evidence in so far as it implied that the applicant had accepted that although he was going to work as a security guard he should continue to be bound by the terms and conditions that applied to messenger drivers. Nothing in the records placed before the tribunal provided support for such a qualification of the agreement. Had the respondent required such a condition as part of the transfer arrangement, disqualifying the applicant from one of the contractual benefits of work as a security guard, it was open to and incumbent upon them to set it out as part of the transfer arrangement, so as to displace the application of the standard terms and conditions that apply to security guards. That was not done.

26. In default of such an express reservation the tribunal concluded that the source of the applicant's contractual terms subsequent to his transfer, other than those deriving from the agreement in August 2000, was the collectively agreed terms and conditions of the Northern Ireland Civil Service as set out in the Staff Handbook. It is clear from the Handbook that the 'conditioned hours' appropriate to any employee are determined not solely by the grade (be it SGBI or SGBII, or other) at which the employee works, but critically also by the role in which they are employed. In particular, security guards, irrespective of grade, in the June 1998 edition of the Handbook, benefit from a 40-hour week. In the tribunal's view this was conclusive of the disagreement between the parties, in the applicant's favour.
27. The tribunal were fortified in their conclusion by the stance adopted by the respondent in their Memo of 19 January 2005. The respondent submitted that for the purposes of calculating the applicant's hourly rate as a security guard they were entitled to have regard to the 'conditioned hours' applicable to the applicant's grade in his role as a messenger-driver. Accordingly this rate was obtained by first dividing his annual salary by 52 and then dividing the result by 42. However, for the purposes of calculating the applicant's overtime hours the respondent accepted that it worked from a base line of 40 (conditioned hours from nine to five) and that all hours worked by the applicant over 40 were paid at the overtime rate. The respondent's Mr Dobson, the Department's Establishment Officer, admitted to the tribunal that the position was confusing. Indeed he volunteered that he had first believed it to be a mistake. However, he confirmed that it was not a mistake.
28. Mr Dobson, under cross-examination, further admitted that when he had first dealt with the applicant's grievance in 2002-03 he had presumed that it followed that if the applicant's hourly rate was calculated on the basis of a 42-hour week that his overtime hours would also be calculated on a baseline of 42 hours. He accepted that the applicant's situation was without a single parallel in the situation of any other member of the Department's staff. Having accepted that the position defended by the Department was confusing and on its face inconsistent, the respondent's Mr Dobson raised a certain expectation on the tribunal's part that the apparent confusion would be dissipated and the inconsistency explained in the course of his evidence, or failing that, in the respondent's submissions. However this matter was not clarified for the tribunal during the course of the Hearing. The tribunal, accordingly, formed the view that the respondent's defence to the applicant's claim was inconsistent and untenable.
29. The tribunal therefore finds the applicant's claim of unlawful deductions is well founded and orders the respondent to pay to the applicant the sum of £2,858.00 as per the schedule agreed by the parties at Hearing.
30. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order

(Northern Ireland) 1990.

Chairman:

Date and place of hearing: 22 February 2005, Belfast.

Date decision recorded in register and issued to parties: