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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Baker v Department for Social Social Development [2008] NIIT 1059_06IT (18 April 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/1059_06IT.html Cite as: [2008] NIIT 1059_06IT, [2008] NIIT 1059_6IT |
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CASE REFS: 1059/06 & Ors
(as per list attached)
CLAIMANTS: Baker & Others
RESPONDENT: Department for Social Development
The unanimous decision of the Tribunal is that the lead claimants' claims of indirect sex discrimination are dismissed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Dr V Eakin
Mr R Gunn
Appearances:
The claimant was represented by Miss Morgan of NIPSA.
The respondent was represented by Mr D Lunney, Barrister-at-Law, instructed by the Departmental Solicitors Office.
The Issues
1. Did the cases fall under Article 3(1)(b) or Article 3(2)(b) of the Sex Discrimination (Northern Ireland) Order ("the Order") 1976?
2. (1) If the cases were governed by Article 3(2)(b) did the application of the respondent's Capacity Planning Tool (CPT) amount to an application of a provision, criterion or practice which was applied equally to men and women?
(2) If so, does it put women at a particular disadvantage when compared with men?
(3) Did it put the claimant's at that particular disadvantage?
(4) If the answer to (3) is "yes" can the respondent's show it to be a proportionate means of achieving a legitimate aim?
Sources of Evidence
Findings of Fact
(i) The expression "term time leave" dates back to 1996 and is a period of unpaid leave. It is a form of part-time working and has particular relevance during the summer months of July and August. It is designed to cover individuals who have family and child care responsibilities. One of the aspects of the respondent's policy on term time is that an applicant must have a child of school going age.
(ii) In 2001 a mechanism was introduced for dealing with applications for term time leave. As part of the operation of the mechanism managers were given a discretion to set the minimum percentage of employees required in a particular office or area of work. The Tribunal had before it various circulars and amended circulars. The circular/guidance issued in 2001 was not an agreed document with the relevant Trade Union. The same applied to the relevant 2006 circular. The CPT was applied only to the Social Security Agency ("SSA"), being an agency within the Department for Social Development.
(iii) As a result of operating the mechanism governed by the 2001 guidance, difficulties arose within the SSA, particularly towards the summer of 2005. These difficulties were as a result of various managers setting different minimum percentages for the numbers of employees necessary during periods when individuals would be granted their term time leave. A balance had to be struck between setting the minimum and preserving the performance of the various offices and meeting business needs.
(iv) In 2005 various offices within the SSA had to cope with four groups of work namely:-
(1) Fresh claims;
(2) Renewal claims;
(3) Supersessions;
(4) Reconsiderations.
Ministerial targets were set for fresh claims but not for the remaining categories. This meant that priority was given to meeting Ministerial targets for fresh claims and backlogs built up in relation to the other categories of work. However, Ministerial targets were met in 2005. In the Summer of 2005, there was a degree of mismanagement by various managers in setting the minimum percentage threshold too low and at the same time granting a considerable number of term time applications over the summer months. Clearly, on the evidence, a crisis had built up within the SSA and something had to be done. The difficulties were compounded by the fact that in 2006 internal targets were being set for the categories of renewal claims, supersessions and reconsiderations. Furthermore, a budgetary cap was placed on overtime during 2006. The budget for the SSA had been reducing progressively for a number of years prior to 2006.
(v) In order to cope with the critical situation which had developed, the respondent devised further guidance and incorporated within it the mechanism known as the CPT. The circular introducing the CPT was described as a revised circular. Its major effect was to dispense with the manager's discretion and to set the minimum percentage threshold at 60%. This could not be varied.
(vi) For various reasons 21 individuals who ought to have been made subject to the CPT were not included, and these individuals were, for statistical purposes, treated as if the CPT did not apply to them. The Tribunal accepts that the various levels of management held meetings and discussions regarding the implications of the CPT. The various circulars require the respondent to take into account the business needs of the employer (including performance) and to consider situations of hardship when deciding on the applications for term time leave. In February 2006 assessments were carried out at management level of the various members of staff within each office or area of work to assess, on an estimated projection basis, when annual leave was likely to be taken. Other factors such as sick leave (based on information for the previous two years) and maternity leave were factored into the process at this stage. However the dramatic effect of the introduction of the CPT was that, (taken together with the continued ministerial targets in respect of fresh claims, the introduction of internal targets, and the budgetary constraints regarding overtime) a large number of term time leave applications were being rejected and various individuals, including the claimants, had to compensate for this by applying for additional paid annual leave, and in the case of Carol Owens flexi leave as well but with no loss of salary. Annual leave was regarded as being totally separate from term time leave. However, the practical effect of these arrangements was that the claimants were absent from employment for lengths of time equivalent to what would have been the situation had their term time applications been granted.
(vii) The Tribunal is satisfied that no guarantee was given to Deborah Keenan regarding her term time leave application. As in the case of Carol Owens, she proceeded through the grievance procedure after her application was refused, but without success. The Tribunal is further satisfied that staff on permanent contracts were given priority when it came to deciding who should be given term time leave in 2006. One instance of this related to the claimant, Carol Owens, as Pauline McCabe (an employee on a permanent contract) was granted term time leave for the week commencing 7 August 2006 in priority to her. Carol Owens had applied for term time leave during the period from 7- 20 August 2006.
(viii) The Tribunal was also shown various statistics which the claimants argued showed that women were placed at a particular disadvantage when compared with men in respect of term time leave. These statistics are reflected in the Agreed Facts. They show, inter alia, that in 2005 there were 548 female applications for term time leave. Of these 467 were successful (85.22%) and 81 were disallowed (14.78%). In the same year 35 male applicants applied for term time leave. Of these 33 were successful (94.29%) and two unsuccessful (5.71%). In 2006, 463 females applied for term time leave; 162 were successful, (34.99%) and 301 applications were disallowed. There were again 35 male applications. 19 of these were successful (54.29%) and 16 were disallowed. Both parties acknowledged that under the revised definition of Indirect Sex Discrimination (infra), factors other than statistical evidence can be taken into account.
(ix) At the same time as imposing a strict requirement upon managers in relation to the minimum percentage, managers were entitled under the 2006 guidance to make a business case for a reduction in the minimum percentage below the threshold set in the 2006 guidance and to see if scope for granting term time leave could be increased through the employment of part-time members of staff or casual staff or by considering overtime. The Tribunal accepts that managers did explore such options but that the net effect was that no further scope could be created. Mrs Rocks in her evidence accepted that there was a detriment to individuals who, because of a refusal of term time leave, had to take additional annual leave.
The Law
"(2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if - …
(b) he applies to her a provision criterion or practice which applies or would apply equally to a man, but –
(i) which puts or would put woman at a particular disadvantage when compared with men,
(ii) which puts her at that disadvantage, and
(iii) which he cannot show to be a proportionate means of achieving a legitimate aim".
The Burden of Proof Regulations
"(2) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that respondent –
(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or
(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act".
"(1) Pursuant to section 63A of the SDA, it is for the claimant who complains of sex discrimination to provide on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s. 41 or s. 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as "such facts".
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
(5) It is important to note the word "could" in s. 63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, any inference that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA.
(8) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant had proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.
(12) That requires a Tribunal to access not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."
"The Court in Igen –v- Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal "could conclude" that on the balance of probabilities the respondent had committed an unlawful act of discrimination.
"Could conclude" in s.63A(2) must mean that "a reasonable Tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of inadequate explanation" at this stage……., the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complaint were of like with like as required by s5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment".
(ii) The above relates mainly to direct discrimination. In relation to the burden of proof in indirect discrimination cases, useful guidance is to be obtained from the case of Nelson -v- Carillion Services Ltd (2003) IRLR 428 CA, where Simon Brown LJ reviewed the state of the law in light of the changes made by the 2001 Regulations and concluded:
"It seems to me tolerably clear that the effect of s.63A was to codify rather than alter the pre-existing position established by the case law. The burden of proving indirect discrimination under the 1975 Act was … always on the complainant, and there pursuant to s.63A it remains, the complainant still having to prove facts from which the Tribunal could conclude that he or she has been unlawfully discriminated against "in the absence of an adequate explanation from the employer". Unless and until the complainant establishes that the condition in question has had a disproportionate adverse impact upon his/her sex the Tribunal could not in my judgement, even without explanation from the employer, conclude that he or she has been unlawfully discriminated against".
The Tribunal is mindful of the fact that this case is based on the definition of indirect discrimination preceding the relevant definition. However, there is little guidance from the authorities as to how precisely the burden of proof operates in indirect sex discrimination cases.
Harvey on Industrial Relations and Employment Law ("Harvey") comments in Volume 2 at L [193] as follows (in relation to the Nelson case (Supra)):-
"That view of the limited impact to be accorded to s63A in relation to indirect discrimination contrasts with the much wider scope which the provision has been seen to have when it comes to the drawing of inferences of direct discrimination … Whatever the precise scope of s63A, claimants remain under an obligation to bring to the tribunal some evidence in support of allegations of disproportionate impact, and this will usually involve both the use of statistics and the concept of a "pool" of affected individuals, real or hypothetical, to test the consequences of the provision, criterion or practice which is being subjected to scrutiny".
Article 7 of the Order which is entitled "Basis of Comparison" states (insofar as relevant to this case) that:-
"7. Each of the following comparisons, that is –
(a) a comparison of the cases of persons of different sex under Article 3(1) or (2), … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
(iii) The Tribunal considered the implications arising from the case of Rutherford & Another –v- Secretary of State for Trade and Industry (No. 2) (2006) UKHL19, [2006] IRLR 551 and in particular the judgement of Baroness Hale at paragraph 72 where she states:-
"It is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and the disadvantaged groups. So it is no answer to say that the rule applies equally to men and women, or to each racial or ethnic or national group, as the case may be. The question is whether it puts one group at a comparative disadvantage to the other. However, the fact that more women than men, or more whites than blacks, are affected by it is not enough. Suppose, for example, a rule requiring that trainee hairdressers be at least 25 years old. The fact that more women than men want to be hairdressers would not make such a rule discriminatory. It would have to be shown that the impact of such a rule worked to the comparative disadvantage of would-be female or male hairdressers as the case might be".
(iv) The Tribunal carefully considered the relevant section in Harvey on indirect discrimination at L [171] ff. It also took into account Lord Justice Sedley's judgement in the case of Grundy -v- British Airways Plc [2007] EWCA Civ 1020, [2008] IRLR 74, where, in relation to establishing a pool, he states at paragraph 27:-
"The correct principle, in my judgement, is that the pool must be one which suitably tests the particular discrimination complained of: but this is not the same thing as the proposition that there is a single suitable pool for every case. In fact, one of the striking things about both the race and sex discrimination legislation is that, contrary to early expectations, three decades of litigation have failed to produce any universal formula for locating the correct pool, driving tribunals and courts alike to the conclusion that there is none".
He continues in paragraphs 30 and 31 to state:-
"The dilemma for fact-finding tribunals is that they can neither select a pool to give a desired result, nor be bound always to take the widest or narrowest available pool, yet have no principle which tells them what is a legally correct or defensible pool … Rutherford (No.2) seems to me to be a striking illustration of Lord Nicholls' proposition that the assessment of disparate impact is a question of fact, limited like all questions of fact by the dictates of logic. In discrimination claims the key determinant of both elements is the issue which the claimant has elected to pose and which the tribunal is therefore required to evaluate by finding a pool in which the specificity of the allegation can be realistically tested. Provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen. We do not accept that Rutherford is authority for the routine selection of the widest possible pool; nor therefore that any question arises of "looking at" a smaller pool for some unspecified purpose short of determining the case".
(v) In relation to the aspect of justification, the Tribunal took into account the paragraphs in Harvey at L [207] to [214] and the relevant cases referred to therein beginning with the decision of the European Court of Justice in Bilka-Kaufhaus GmbH -v- Weber Von Hartz 170/84 [1986] IRLR 317. In relation to the issue of proportionality it considered the case of Hardys and Hansons Plc -v- Lax [2005] EWCA Civ 846, (2005) IRLR 726, CA. As Harvey comments at L 213:-
"The Court held that there was no scope, in discrimination law, for a test based on "the band of reasonable responses which a reasonable employer would adopt" – ie the test for culpable unfairness in the law of unfair dismissal. The test, emphasised the CA, is what is objectively justified. The principle of proportionality requires the tribunal to take account of the reasonable needs of the business, but at the end of the day it was for the tribunal to make its own judgement as to whether the rule imposed was "reasonably necessary". It is not enough that the view is one which a reasonable employer could take". Harvey then continues to comment that "while this decision was given on the basis of the "old" (ie pre October 2005) definition of indirect discrimination, the reference to the principle of proportionality fits very well with the "new" test of justification "a proportionate means of achieving a legitimate aim". Unless and until superior courts indicate the contrary, it is thought it thus offers a reliable guide to how the new wording should be read".
The Tribunal also considered the employment Appeal Tribunal decision in GMB -v Allen and Others [2007] IRLR 753. However, the respondents' counsel indicated that this case is currently under appeal, and that the respondents would not be relying on it in relation to what is meant by the word "proportionate" in the definition.
Conclusions
(1) the CPT is a criterion provision or practice. This was not disputed by the respondent.
(2) The appropriate pool in which the specificity of the allegations can be realistically tested is the pool comprising all applicants (both male and female) within the SSA, who applied for term time leave during 2006.
(3) The Tribunal is satisfied on the evidence that women were put at a particular disadvantage when compared with men following the introduction and application of the CPT in February 2006.
(4) The Tribunal does not accept the respondent's contentions that Article 7 can only be discharged on the basis of an office to office comparison involving the same amount of annual leave, sick leave and maternity leave. It is satisfied that the wording is wide enough to conclude that the relevant circumstances in this case are that both males and females were entitled to apply for term time leave and did so in circumstances which were the same or not materially different.
(5) The Tribunal is satisfied that the lead claimants in this case were put to a particular disadvantage in that they had to avail of contractual and statutory rights by way of annual leave and, in the case of Carol Owens, also flexi leave, in order to compensate for the respondent's refusal to grant term time leave.
(6) The Tribunal is also satisfied, on the evidence, that in the circumstances which arose in the Summer of 2005, the respondent was pursuing a legitimate aim of meeting business needs, including required performance levels though the mechanism of the CPT in 2006. Notwithstanding the associated introduction of a budgetary cap on overtime (being one of the factors which could be used in assessing whether term time could be granted) and the introduction of internal targets for the other three areas of work referred to previously, the Tribunal is satisfied that the respondent has shown that the CPT was a proportionate means of achieving that legitimate aim, as being reasonably necessary.
(7) The claimants' claims to the Tribunal are therefore dismissed.
Chairman:
Date and place of hearing: 18 June 2007; 28 - 31 August 2007;
11 – 12 February 2008; 7 March 2008.
Date decision recorded in register and issued to parties:
Case To Be Known As: -
Baker & Others -v- Dept. for Social Development
CRN: 1059/06 IT & Others
| Claimant | CRN | Representative | |
| 1 | Baker, Rosemary | 1059/06IT | NIPSA |
| 2 | Barrett, Paula | 1229/06IT | NIPSA |
| 3 | Boreland, Karen Margaret | 1043/06IT | NIPSA |
| 4 | Brown, Martina | 1055/06IT | NIPSA |
| 5 | Burns, Nora | 1060/06IT | NIPSA |
| 6 | Caldwell, Maire | 917/06IT | NIPSA |
| 7 | Coleman, Paula | 1054/06IT | NIPSA |
| 8 | Ferris, Karen | 1044/06IT | NIPSA |
| 10 | Fox, Geraldine | 2611/06IT | NIPSA |
| 11 | Gallagher, Irene Agnes | 2484/06IT | NIPSA |
| 12 | Harmon, Cathy | 1053/06IT | NIPSA |
| 13 | Hutchinson, Shirley | 1046/06IT | NIPSA |
| 14 | Keenan, Deborah Ethne | 657/06IT | NIPSA |
| 15 | Kelly, Patricia | 1057/06IT | NIPSA |
| 16 | Lees, Deirdre | 1051/06IT | NIPSA |
| 17 | Lynch, Grainne Mary | 1056/06IT | NIPSA |
| 18 | McAleenan, Geraldine | 1230/06IT | NIPSA |
| 19 | McCabe, Pauline | 1227/06IT | NIPSA |
| 20 | McGovern, Bernadette | 953/06IT | NIPSA |
| 21 | Melly, Maureen | 954/06IT | NIPSA |
| 22 | Nolan, Brigid | 1226/06IT | NIPSA |
| 23 | O'Doherty, Mary | 1058/06IT | NIPSA |
| 24 | Owens, Caroline | 1050/06IT | NIPSA |
| 25 | Quinn, Geraldine | 1049/06IT | NIPSA |
| 26 | Rooney, Karen Jane | 1047/06IT | NIPSA |
| 27 | Russell, Eileen | 1228/06IT | NIPSA |
| 28 | Scott, Hilary | 1039/06IT | NIPSA |
| 29 | Shearer, Bronagh | 1052/06IT | NIPSA |
| 30 | Smith, Aileen | 1045/06IT | NIPSA |
| 31 | Sweeney, Marie | 1038/06IT | NIPSA |
| 32 | Turley, Bronagh Mary | 1031/06IT | NIPSA |
