Bailey v Northern Ireland Fire and Resc... [2010] NIIT 1699

THE INDUSTRIAL TRIBUNALS

CASE REF: 1699/08

CLAIMANT: Sean Paul Bailey

RESPONDENT: Northern Ireland Fire and Rescue Service

DECISION

The unanimous decision of the tribunal is that the claimant’s claim is not well-founded. Accordingly, that claim is dismissed.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Mr R J Gunn

Mrs T Hughes

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.

The respondent was represented by Mr J O’Hara, Queen’s Counsel, instructed by Belfast City Council Legal Services.

REASONS

1. This case is regarded by the parties as a ‘lead case’ in respect of a number of other cases. In all of the other relevant cases, the claimants are part-time firefighters, who have brought cases against the respondent (‘the Service’). In each relevant case, the claimant claims that the respondent, in the context of a particular recruitment exercise, unlawfully discriminated against him, contrary to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (‘the Regulations’).

2. The claimant is a part-time (‘retained’) firefighter. The claimant was an unsuccessful applicant for a full-time vacancy which the Service had available in Antrim. He was unsuccessful because the Service ruled him to be ineligible. He was ineligible because the Service had decided that, although the vacancy was to be filled internally, it was to be trawled only among full-time firefighters. So the claimant was ineligible for the post, according to the rules established by the Service, on account of his status as a part-time firefighter.

Some key legislative provisions

3. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 were enacted for the purpose of implementing the Part-time Workers Directive (Directive 97/81/EC).

4. Clause 4 of the Directive ‘Framework agreement on part-time work’ (which is annexed to the Directive) is entitled ‘Principle of Non-Discrimination’ and provides, at paragraph 1 of Clause 4, as follows:-

“In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds.”

5. Paragraph 3 of Clause 5 of the same agreement provides that, as far as possible, employers:-

“ … should give consideration to:-

…

(b) requests by workers to transfer from part-time to full-time work or to increase their working time should the opportunity arise;

… .”

6. The claimant’s claim is brought under Regulation 5 of the 2000 Regulations. Regulation 5, so far as material, is in the following terms:-

“(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker –

(a) as regards the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2) The right conferred by paragraph (1) applies only if –

(a) the treatment is on the ground that the worker is a part-time worker, and

(b) the treatment is not justified on objective grounds.”

The claim and the defences

7. As the parties accept, the provisions of the 2000 Regulations have to be construed in light of the requirements of the Directive.

8. It will be noted that infringement of Regulation 5, in the circumstances of this case, can occur only if all of the following elements of the Regulation 5 definition are satisfied:-

(1) The claimant must have been treated less favourably than the Service treated a comparable full-time worker. The respondent accepts that this element of the definition is met in this case.

(2) By subjecting the claimant to the relevant less favourable treatment, the Service must have subjected him to a ‘detriment’ within the meaning of Regulation 5. The Service accepts that this element of the definition was met in this case.

(3) The relevant treatment must have been accorded to the claimant, “on the ground that the worker is a part-time worker …”. The Service accepts that this element of the definition is also met in this case.

9. There will be no infringement of Regulation 5 unless the relevant treatment “is not justified on objective grounds”.

10. The parties are divided on the question of whether or not the relevant treatment in this case “is not justified in objective grounds”.

11. According to the Service, the relevant treatment (the exclusion of part-timers from the relevant internal trawl) was justified mainly for two reasons.

12. First, the Service sought to justify the relevant treatment by reference to the Service’s obligation to promote equality of opportunity within its workforce.

13. In that context, in the respondent’s amended defence of December 2009, the Service made the following points:-

“(i) The recruitment of full-time Fire fighters is carried out approximately every 18 months to two years by public advertisement, allowing access to the competition by all those interested. In contrast to this, part-time Fire Fighters are recruited by reference to how close they live/work to the nearest station – this is an essential element of their application. They must be within 5 minutes. As a result, there are many fewer candidates for the position of retained or part-time Fire Fighter because the number of people who can comply with the job requirements, including the requirement to be available for work and to be within the required response area, is severely limited. This is a fundamental distinction in the recruitment process … .”

14. In the course of this hearing, Mr O’Hara amplified and modified this aspect of the respondent’s assertion of justification, by stressing that it would have been inappropriate, in light of the Service’s obligation to promote equality of opportunity, within its workforce, between men and women, for the Service to have recruited internally from among its part-timers. Although he focused on the gender equality of the opportunity obligation in that context, he also noted that the Service had a duty to promote equality of opportunity between persons of different religious beliefs and between persons holding differing political opinions.

15. The second aspect of the claimant’s assertions of justification in the present context is to be found at paragraph (vi) of the December 2009 amended defence:-

“(vi) The way in which [the relevant posts] were filled allowed the respondent to avoid redundancies, it being a general obligation on the part of employers to try to avoid redundancies by offering alternative work where possible … .”

16. Both parties accepted that the test for justification under the 2000 Regulations was the same as the test for justification under other employment discrimination enactments (including the sex discrimination legislation).

17. Mr Potter did not suggest that the justifications put forward by the Service amounted to a sham. However, he did assert that there was evidence that showed that, at around the time of the relevant trawl, the respondent did not actually believe that its part-time workers were carrying out work which was broadly similar to the work which was typically being carried out by its full-time firefighters.

Sources of evidence

18. We received oral testimony from Mr Colin Lammey, the Chief Fire Officer of the Service. We also saw two large agreed bundles of documents. During the course of the hearing, the parties made some miscellaneous documents available to us. We told the parties that we would not take account, for evidential purposes, of the content of any document in a bundle unless that document has been specifically drawn to our attention by one of the parties.

The facts

19. We now set out findings of fact which are relevant to the issues which we have determined:-

(1) The claimant wanted to apply for vacancies for whole time firefighters which were advertised internally within the Service in June 2008. The relevant vacancies were vacancies for “Wholetime Firefighter Vacancies on a Variable Crewed Shift System”.

(2) The successful applicants would be required to participate in a shift system which would require them to work only during periods within the hours 11.00 am to 11.00 pm. (In contrast, part-time, (‘retained’) firefighters must make themselves available at many different times of the day or night, at extremely short notice).

(3) The posts for which the claimant wished to apply were posts which were based in Antrim fire station. At the same time as the relevant Antrim vacancies were being advertised, similar vacancies were also being advertised in Carrickfergus and Coleraine.

(4) The Service decided to fill these vacancies through an internal trawl. However, it did not allow the retained firefighters to participate in that trawl.

(5) At the time of the relevant trawl, the claimant had been a retained firefighter at Antrim fire station for many years.

(6) The claimant would not have had a problem with a Service decision to recruit externally in respect of these vacancies. His concern has been that, once the Service had decided to recruit internally, it ought to have recruited from the entire ‘Service family’. In other words, it ought to have included the part-timers, as well as the full-timers, within the trawl.

(7) The recruitment exercises in respect of Antrim, Carrickfergus and Coleraine in 2008 (which include the exercise which is the subject of the claim in this case) were preceded by similar exercises which had occurred in 2006/7 in respect of vacancies in Portadown and Ards. The vacancies in the latter two towns, like the 2008 vacancies in Antrim, Carrickfergus and Coleraine, were caused by the introduction of the variable crewed shift system. As was explained in the December 2009 defence:-

“(iv) … [In about 2006], standards were raised in retained or part-time [Service] stations, requiring a quicker turnout time to calls. This came about as a result of the decision to adopt in Northern Ireland a new national model which had been developed in England. The attaining of a quicker turn out time could only be guaranteed by the introduction of a full-time crew [within each relevant Service station] for the busiest part of the day, ie 11.00 am – 11.00 pm. Accordingly, it was decided to introduce what became known as a variable crewed shift system in each of seven towns which included Antrim, Carrickfergus and Coleraine. This involved appointing 10 full-time Fire fighters in each [relevant] town to cover two shifts on a seven day per week basis. Each [such] shift had one watch commander, one crew commander and three Fire fighters … “

(8) According to the same paragraph of the amended defence:-

“Rather than conduct a recruitment exercise, the respondent redeployed surplus full-time Fire Fighters to these posts.”

In our view, that statement does not entirely accurately reflect the true position. In reality, the Service did conduct a recruitment exercise for the purpose of filling the relevant posts. This was a recruitment exercise which was limited to internal staff, but it was a recruitment exercise nonetheless. Under that exercise, the Service invited applications from full-time firefighters for the relevant posts. It was not a condition of eligibility, in the context of that recruitment exercise, that the relevant applicant be ‘surplus’.

(9) In the event, the relevant recruitment process did not involve much competition among potential re-deployees, because the Service was unsuccessful in attracting the interest of sufficient potentially willing re-deployees.

(10) Within the Service, a full-time firefighter is recruited on the basis of terms and conditions which include a provision to the following effect:-

“You shall be liable to transfer to, and to serve in, any part of Northern Ireland, provided that a permanent transfer will be subject to the prior approval of the Chief Fire Officer and without prejudice to your consultative rights … .”

(11) Despite the clear wording of that provision, the Service, in practice, generally refrains from compulsorily redeploying firefighters who are no longer within their probationary period. (Firefighters serve a probation period of two years). The Service did not attempt to purport to compulsorily redeploy any non-probationary firefighters for the purpose of filling the new vacancies for full-timers which had occurred as a result of the variable crewing shift system initiative.

(12) Under that initiative, the following stations which, had previously been run entirely by retained firefighters, required, for the first time, an element of whole time crewing (for the purpose of meeting the new emergency response standards):

Portadown,

Newtownards,

Coleraine,

Omagh,

Carrickfergus,

Antrim and

Armagh.

Under one version of the variable crewing policy proposals, each of those stations was now, for the first time, to have one appliance crewed by full-time personnel, who would operate a two watch system over a 12 hour period (11.00 am – 11.00 pm), on each day of the week. Under those proposals, it was envisaged that those new full-time crewing arrangements would operate alongside retained (or part-time) crewing arrangements. Under the latter arrangements, retained personnel would crew a second appliance in each relevant town, on a 24 hour basis, and would crew the ‘full-timers’ appliance from 11.00 pm – 11.00 am each day.

(13) The availability of these vacancies were first notified to full-time firefighters by Circular 24/2006, which was issued in mid 2006, and which invited ‘expressions of interest’ from full-timers, in the following terms:-

“Wholetime personnel, who are currently substantive within [the Watch Commander role, the Crew Commander role or the firefighter’s role], are encouraged to express an interest in transferring to any of the aforementioned stations with no obligation, by contacting the Human Resources Department … for an Information Pack. Personnel should clearly mark the Stations to which they may wish to transfer. Notifications should be received by 12.00 noon on Friday, 8 September 2006.

Upon receipt, interested personnel will be sent an Information Pack with more comprehensive details of shift patterns, etc.”

(14) Obviously, Circular 24/2006 was envisaging a recruitment process under which full-timers would be redeployed to the relevant vacancies, if they wished to be redeployed. However, the Circular envisaged the possibility of a competitive process of selection in respect of envisaged redeployments. Accordingly, the Circular concluded with the following words:-

“Personnel should note that where applications to transfer exceed the available number of posts, a selection process will be undertaken in keeping with [the Service’s] Code of Procedures on Recruitment and Selection.”

(15) The relevant recruitment exercises were carried out first in Newtownards and Portadown. The next phase of the exercise, which is the phase with which we are primarily concerned in this case, focused on filling the relevant full-time posts in Antrim, Carrickfergus and Coleraine.

(16) Some of the available vacancies in Antrim, Carrickfergus and Coleraine had already been filled as a result of responses to Circular 24/2006 in 2006. The remaining relevant vacancies in Antrim, Carrickfergus, and Coleraine were publicised internally on 26 June 2008.

(17) During the relevant 2006 recruitment exercise, the Fire Brigades Union (the main firefighters union within the Service) had not explicitly objected to the filling of the relevant vacancies through an internal trawl which was restricted to full-timers. However, even at that stage, another union, the RFU, which was recognised for collective bargaining purposes in respect of firefighters, but which had only a limited membership among firefighters, had objected to the method of recruitment, on the basis that it involved discrimination against part-timers. At the time of the June 2008 recruitment exercise, the FBU had begun to object to the exclusion of part-timers (from eligibility in connection with the recruitment exercise), and had begun to argue that this was contrary to the part-time workers discrimination legislation.

(18) The current position of the Service in this litigation is that the Service accepts that part-time firefighters do work which is broadly similar to that of full-time firefighters. However, it was not always so. In July 2009, against the background of this case, AC McClintock sent a very detailed and elaborate memorandum to Deputy Chief Fire Officer Jones, which included the following:-

“The differences in work undertaken across these two elements of the Service are predominantly a matter of ‘scale’ rather than scope …

Also, there are certain duties which may theoretically fall within their job description [that is, the retained firefighter’s job description] but which – due to capacity and complexity – we do not routinely ask them to perform. Due to time constraints and lack of previous exposure to the depth and breadth of the issues, the continued well-being of our Retained staff – in the acute Health and Safety environment in which [the Service] operates – practicality dictates that the extent, duration and intensity of their activities must be more limited.

…

I believe the issues indicated above demonstrate that Whole-time personnel perform a number of functions for which their Retained colleagues do not have a remit. Even where Retained staff do hold the remit, there is a considerable difference in the level and extent of the involvement.”

(19) In July 2006, Mr Colin Lammey, the Chief Fire Officer, in a written document which was produced in the context of the variable crew initiative controversies, expressed himself in the following terms, on the question of whether there was an equivalence between the work carried out by full-time firefighters and the work carried out by retained firefighters:-

“This question is for Area Commander McCallum, however, it is worth me saying that I do not believe that a Fire Fighter is a Fire Fighter in terms of IPDS. Whole-time Fire Fighters can achieve competent Fire Fighter status within 3 years of joining. It will take Retained Fire Fighters many years to reach that same standard”.

(20) We note that these views were being expressed by Mr Lammey at a time when part-time discrimination case law, on the question of whether or not part-time firefighters carried out similar work to full-time firefighters, was at a less advanced stage than the stage which it has reached at present.

(21) In reality, the Service had considerable difficulties in persuading full-timers who had the right to say ‘no’ (full-timers who had completed their period of probation) to apply for redeployment to the new full-time vacancies.

(22) The vacancies created by the variable crewing initiative did not achieve an enthusiastic response from many full-timers. As a result, it was necessary for two people, Mr Moffett and Mr Dunlop (probationer firefighters), to be compulsorily transferred for the purpose of filling two of the variable crewing vacancies at Antrim.

(23) The specification for a retained firefighter includes the following requirements, which are not contained within the specification in respect of a whole-time firefighter. According to the “retained” specification, the part-timer must meet the following requirements:-

“Live and work within an area from which he/she will be able to respond to an alarm and be in attendance at the Fire Station within a maximum of 5 minutes of being alerted.

Have the consent of his/her employer(s) to respond to fire calls during working hours.

Be able to demonstrate that he/she is able to provide emergency fire cover for a minimum of 120 hours per week across a range of time periods for week days and weekends.”

(24) The hours of duty of full-time firefighters generally were considerably more predictable than the demands which the Service might make upon a retained firefighter.

(25) The hours of duty of full-time firefighters generally were 42 hours per week, working on a two-shift system of nine hours (9.00 am – 6.00 pm) and 15 hours (6.00 pm – 9.00 am) over an eight day cycle, giving two day-duties and two night-duties, followed by four days leave.

(26) Partly because of concerns which were addressed by equality bodies in the past – we arrive at no conclusions as to whether those concerns were justified or unjustified – the Service has, in particular, committed itself to compliance with a documented and relatively rigid system of “systematic and objective recruitment” in respect of external recruitment of full-timers. In particular, all such vacancies are widely advertised. As the Service has indicated (in a response dated October 2009 to a Notice for Additional Information), less rigorous, less objective, and less transparent recruitment practices were in place in relation to the recruitment of part-time firefighters:-

“Regarding entry requirements for Retained personnel there was a provision [in the relevant recruitment policies] to allow Chief Fire Officers discretion in cases where it was difficult to attract applicants in some areas. Consequently the system was less rigorous in some instances than that for Whole-time Services. It was always a challenge to the Service to recruit sufficient numbers of Retained personnel to provide the required fire cover across Northern Ireland.”

As the same response goes on to point out:-

“In contrast, the recruitment exercises for Whole-time positions are extremely competitive, with thousands of applicants on each occasion for a small number of posts and this means that those successful in securing positions through open competition have met the selection criteria to the highest levels.”

(27) Part of the “equal opportunities” aspect of the Service’s justification in this case is the contention that the Service refrained from allowing the part-timers to participate in an internal trawl because it considered that it was not appropriate to confer recruitment advantages upon people from a relatively unrepresentative pool.

(28) According to the Service’s ‘Code of Procedures on Recruitment and Selection’ (at paragraph 1.4), the general principles under which the Service operates, in the context of recruitment, can be summarised as follows:-

“In preparing this Code the Fire Authority has endeavoured to ensure that:-

· all potential applicants who are eligible and suitably qualified are aware of vacancies and encouraged to put themselves forward for consideration;

· the recruitment to publicly advertised posts is not confined to those agencies, schools, or geographical areas which provide, only or mainly, applicants of a particular gender or from a particular community, so ensuring that advertisements are not limited to a publication or other announcement which is likely to be read, only or mainly, by a particular community or persons of a particular gender;

· included in all advertisements is a statement to the effect that the Fire Authority is an equal opportunity employer, committed to the fair and equal treatment of all those seeking employment;

· …

· procedures are avoided by which applicants are, mainly or wholly, identified through any restricted group if this means that only members of a particular community, or a disproportionately high number of them, then come forward; and

· procedures are avoided which directly or indirectly discriminate on the grounds of religious belief, political opinion, … gender (including pregnancy), …”

(29) In the present context, we regard the following aspects of the quoted summary as being particularly relevant:-

(1) There is a commitment, as a general rule, to recruitment from as broad a pool as possible.

(2) There is commitment, as a general rule, to the avoidance of procedures whereby applicants are mainly or wholly identified through any restricted group, if this has implications for equality of opportunity.

(3) Procedures are avoided which involve indirect discrimination on the ground of religious belief, political opinion or gender.

(30) At the relevant time, women were very seriously under-represented (as compared with men) among full-time firefighters, and they were also very seriously under-represented among part-time firefighters. At that time, the under-representation among part-time firefighters was not significantly better or worse than the under representation among full-time firefighters.

(31) However, it is clear that, because of the relative certainties in relation to the time span and duration of the demands which would be made upon the firefighter’s time in relation to the full-time variable shift pattern posts, as compared with the equivalent demands which would be made of retained firefighters, the variable crewing posts would, in principle, be likely to be more attractive to women with caring responsibilities. (In our view, it is a matter of notoriety that, in Northern Ireland, responsibilities for caring for the children of a relationship fall, in practice, upon women more often than they fall upon men).

(32) The claimant was being prevented from applying under this internal trawl at a time when frequent opportunities were available to him, through the external trawls, to become a full-time firefighter.

(33) In March 2008, Mr Karl Cormick, a retained firefighter in Coleraine, wrote to the Service in relation to his application for a variable crewing post within Coleraine Fire Station, for which he had been deemed to be ineligible because of the restriction, under the internal trawling arrangements, to full-time firefighters. He pointed out that he had been told that the reason for his ineligibility was that females were under-represented within the Service. Against that background, he made the following point in his letter of grievance:-

“If then, it is the case that I have had my application for the variable crewing post disregarded for the reason that females are under-represented within the … Service, then I believe that the treatment I have received may amount to unlawful discrimination on the grounds of my sex … .“

The response of the Service to that argument was as follows:-

“After consultation, the following applies. Variable crewing vacancies are not open to Retained personnel – they are specifically for the employment of the existing Wholetime Fire Fighters. Preference is not given to existing Retained personnel and appointments offered to them automatically. This is because to do so may amount to unlawful discrimination. The Retained Service is very predominantly male. Apart from a national drive to attract more women into fire fighting as a career throughout all of the UK, there is a responsibility on [the Service] to ensure that measures are in place to encourage women to apply for posts. Any attempt to automatically secure Whole-time positions for Retained male Fire Fighters not only flies in the face of that ethos but may also breach equality codes of practice. It would be open to legal challenge on the grounds of sex discrimination and is not authorised, therefore within our current procedures.”

(34) In a consultation document dated 31 July 2006, which was issued in connection with the variable crewing initiative’s implications for Carrickfergus, the following query was asked and answered:-

“[Question] Why recruit when you already have 27 firefighters on Station?

[Answer] Equality Laws prohibit Retained personnel transferring directly into the Whole-time. Retained personnel are recruited from very small geographic area, whereas Whole-time do not have to live within a certain distance form the Station.”

We note that this answer appears to be referring to general equality of opportunity obligations, as distinct from gender equality requirements in particular.

(35) Another of the questions and answers in that document referred to the difference between the conditions which would be available to the full-time post holders pursuant to the variable crewing proposal, and those which would be available to those who continue to work as Retained Officers:-

“[Question] The idea of ‘family friendly’ is only for the Whole-time? Getting the Retained to cover the unsociable hours such as 02:00 hrs is not family friendly. It was accepted that as part of the job there would be the rough (calls in the middle of the night) with the smooth (calls during the day) but now it seems like the Retained just get the rough?

[Answer] The retained will still get day time calls – they are responsible for the [second] appliance and the standards require 2 appliances at a fire. The Retained will also have the first opportunity to make up any Whole time shortfalls which may actually turn out to be an increase in the potential for daytime hours for Retained.”

(36) A consultation document regarding the implications of the variable crewing for Newtownards, which was dated July 2006, included the following question and answer:-

“[Question] Why can Retained personnel not automatically become the new Whole-time crew? Retained personnel are already trained so why not just change their contract?”

[Answer] Equality Laws prohibit this – Retained personnel are recruited from a very small geographic area whereas Whole-time do not have to live within a certain distance from the station.”

We note that this answer is framed by reference to ‘equality’ laws generally, rather than being framed by reference specifically to sex discrimination laws.

(37) When a consultation exercise was carried out in the summer of 2006, in relation to the first phase of implementation of the variable crewing proposal, the Service accurately recorded (in a document which was issued to Portadown Service personnel in July 2006) that the Fire Brigades Union had been involved with relevant negotiations from the beginning.

(38) In May 2008, the Service made 35 new appointments as a result of an external recruitment exercise. In September 2008, the Service made 23 new appointments as a result of an external recruitment exercise. In October 2007, the Service made 21 new appointments as a result of an external recruitment exercise.

(39) We also note that, on 26 June 2008, Mr Michael McGimpsey (the Minister for Health, Social Services and Public Safety) on the basis of briefings ultimately emanating from the Service who wrote to Dr William McCrea MP MLA in the following terms:-

“While I accept that the existing recruitment process may not encourage Retained Fire Fighters … to apply for full-time posts, [the Service’s] recruitment policy must meet the statutory obligations set down in Section 75 of the Northern Ireland Act 1998 and other anti-discrimination legislation.

The current NIFRS process for recruitment is both equitable and fair and fundamental to ensuring that its recruitment policy meets all relevant statutory obligations with regard to equality of opportunity.

It could, for example, be argued that to allocate whole-time vacancies to Retained Fire Fighters, the vast majority of whom are male, without their having to compete through a selection process as other candidates are required to do, would impact adversely on women applicants …”

We note that this explanation, although it uses gender equality of opportunity as an example, does not limit itself to gender equality opportunities.

(40) In a letter dated 29 October 2006, addressed to Lady Sylvia Herman MP, Mr Paul Goggins MP (Parliamentary Under Secretary of State) stated the following (on the basis of briefings which had ultimately emanated from the Service):-

“Turning to the … specific matter of selection procedures, NIFRS recruitment policy, which is in line with UK Fire Service arrangements, requires Retained personnel to go through the normal recruitment selection procedures if they wish to join the Whole-time Service. Many Retained personnel have taken this route into the Whole-time Service. However, competition for these posts is subject to equal opportunity legislation and were NIFRS to give preference to members of the Retained Service, which is almost totally made in its composition, it would be acting outside current Sex Discrimination Legislation.”

(41) In the interests of readability, and with a view to avoiding duplication, we have included some additional findings of fact elsewhere within this Decision.

The law

20. We now set out a statement of relevant legal principles.

21. For the Service, Mr O’Hara accepted that the onus was on the respondent to show justification.

22. As already mentioned above, the parties were agreed that the test for objective justification in the context of the 2000 Regulations was in substance the same as the test for justification in direct discrimination under other employment discrimination enactments (including the sex discrimination legislation). In considering the issue of justification in this case, we proceeded on the basis of that agreed approach. However, we also took note of the comments in ‘Harvey on Industrial Relations and Employment Law’ (at Division A, paragraphs 2730/2380) where the following comments are made:-

“… [I]t is perhaps difficult to envisage cases where [justification in the context of the Part-time Workers Regulations] could be shown clearly, for at least two reasons – (1) In relation to pay, the employer can already use the pro-rata principle and so the question is when would it be justified to pay at less than pro-rata, eg on hourly rates; (2) In relation to non-pay benefits there is the possible problem that these Regulations contain no equivalent to Reg 4 of the fixed-term Employees Regulations 2002, which specifically allows a “package” approach to terms and conditions … Arguably, therefore, the emphasis is on not finding justifiable differences other than on the specifically- incorporated pro-rata principle.”

23. Subject to the foregoing, we have proceeded on the basis that, so far as the requirements of objective justification are concerned, there is no material distinction to be drawn between the onus upon an employer under the equal pay legislation or the sex discrimination legislation on the one hand, and the onus upon an employer who seeks to justify differential treatment in the context of the part-time workers discrimination legislation. (See paragraph 53 of the Court of Appeal judgment in Redcar and Cleveland Borough Council v Banbridge [2008] IRLR 776).

24. In our view, the authoritative test in relation to justification is to be found in Hampson v Department of Education and Science [1989] IRLR 69. According to Hampson, justification requires an objective balance to be drawn between the discriminatory effect of the potentially discriminatory act and the reasonable needs of the employer. As the Court of Appeal made clear in Hampson, the Hampson test is no different from as the objective test adopted in sex discrimination and equal pay cases, derived from EU case law and set out, in particular, in the Bilka-Kaufhaus case (Bilka-Kaufhaus GmbH v Webber von Hartz [1987] ICR 110, ECJ).

25. The Hampson test requires that the potentially discriminatory act should correspond to a real need on the part of the employer, should be appropriate with a view to achieving the objective pursued, and should be necessary to that end.

26. In Pulham v London Borough of Barking and Dagenham [2010] IRLR 184, Underhill P made the following comments (at paragraph 15 of the judgement) which are relevant in the context of the Bilka-Kaufhaus formula:-

“As Elias P observed in MacCulloch v Imperial Chemical Industries Ltd [2008] ICR 1334 (see para. 10(2), at p 1338 A-B), what the language of [Reg 3 of the age discrimination regulations] is intended to express is the classic proportionality test, which has been applied to resolve issues of justification in discrimination cases at least since the decision of the European Court of Justice in Bilka-Kaufhaus GmbH v Webber von Hartz [1987] ICR 110. The exercise required of the tribunal in such a test is:-

“… to weigh the reasonable needs of the undertaking against the discriminatory affect of the employer’s measure and to make its own assessment of whether the former outweigh the latter.”

(see para 10(4) in MacCulloch, at p 1338 C-D). That exercise of course necessarily involves identifying the “legitimate aim” which the employer is seeking to achieve by taking the measure complained of – that measure being the “means”. But the dichotomy of “aims” and “means” is not always clear-cut and the two elements can sometimes reasonably be formulated in more than one way. In Loxley v BAE Systems Land Systems (Munitions and Ordnance) Ltd [2008] ICR 1348, Elias P observed, in relation to the justifications relied on by the employer in that case that “whether [they] are better described as aims or as proper means of achieving the aims, is perhaps a matter of semantics” (see para. 37 at p 1356 C). Tribunals need not cudgel their brains with metaphysical enquiries about what count as aims and what counts as means as long as the underlying balancing exercise is carried out”.

27. In their amended defence of December 2009, the Service has asserted that the relevant recruitment exercise in Antrim had been prefigured by a similar recruitment exercise which had been carried out in respect of vacancies in Newtownards and Portadown and, that the Fire Brigades Union had not raised any question of discrimination in connection with the Newtownards and Portadown recruitment exercise. However, in our view, the explicit or tacit agreement or acquiescence of a trade union, in relation to a potentially discriminatory measure, is not an important factor in favour of an employer’s plea of justification. (In this general context, see Pulham, paragraphs 40 – 41).

28. As Lord Mance pointed out in R(E) v Governing Body of JFS and the Admissions Appeal Panel of JFS [2010] IRLR 136, at paragraph 97 of the judgment, an ex post facto justification for a measure which is prima facie indirectly discriminatory can prove difficult to show. However, that difficulty seems to be mainly an evidential issue and there is no doubt that, in theory, ex post facto justification of indirect employment discrimination is legally permissible. (See paragraphs 128-132 of the Court of Appeal judgement in Secretary of State for Defence v Elias [2006] EWCA Civ 1293, especially at paragraph 128).

29. Mr Potter has drawn our attention to paragraph 46 of Pulham v London Borough of Barking and Dagenham. At that paragraph of his judgment, Underhill P emphasised that an employment tribunal, in attempting to ascertain whether justification has been proven (in the context of an employment discrimination claim) must have sufficient information about the discriminatory impact on the claimants and about the background against which the allegedly discriminatory measure has been decided upon. However he also made the point that this did not imply that the tribunal should be invited by either party to embark on an exhaustive review of the entire context of the respondent’s operations. Instead, as Underhill P pointed out, “… the broad picture will suffice.”

30. In this context, Mr Potter drew our attention to the commentary which is set out at paragraphs 213 and 213.01 of Division L of “Harvey on Industrial Relations and Employment Law”. As is made clear in the Lax and Starmar decisions (both quoted at that paragraph of Harvey), there is no scope in discrimination law, in the context of justification, for a test based on any band of reasonable responses. Furthermore, as was pointed out by the EAT in Starmar, the respondent’s reliance in that case on certain, specified, ‘business reasons’ was not one which the tribunal was bound to accept. Starmar is authority for the proposition that the decision as to whether justification is proven involves the relevant employment tribunal in going beyond identifying the existence of a margin of discretion; instead, the task of the tribunal is to ask whether the tribunal is satisfied that the arguments (being put forward by the employer) were adequate in themselves.

31. Mr Potter also referred us to the case of Hockenjos v Secretary of State for Social Security [2005] IRLR 471, which is discussed at paragraph 214 of Division L of Harvey. However, we consider that Hockenjos is of limited relevance in the present context, because the Hockenjos case arose in the context of the State seeking to show justification for a particular act or policy of government (as distinct from the present situation, which is one in which an employer, in the role of employer, is seeking to justify potential discrimination).

32. The Service is a public authority within the meaning of Article 75 of the Northern Ireland Act 1998. Article 75 of the 1998 Act imposes an obligation upon a public authority, in carrying out its functions relating to Northern Ireland, to have due regard to the need to promote equality of opportunity between persons of different religious beliefs, between persons holding differing political opinions, between men and women generally, and between persons who do have dependants and persons who do not have dependants.

33. Article 55 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the 1998 Order”) imposes an obligation on the Service to review, from time to time, the composition of those employed in the Service and the employment practices of the Service, for the purposes of determining whether “members of each community” are enjoying, and are likely to continue to enjoy, ‘fair participation’ in employment in the Service. Article 55 of the 1998 Order is to be found in Part VII of that Order. In effect, Part VII imposes duties on the Service to seek to achieve fair participation, within the Service, by people of differing religious/political community origins.

34. No provisions analogous to the Part VII provisions are contained in any of the sex discrimination legislation. However, Article 75 of the 1998 Act imposes equality of opportunity promotion obligations in relation to people of different genders and in relation to people who do have, and people who do not have, dependants. In any event, it has long been the settled public policy of Northern Ireland that a body which is publicly funded must take proportionate steps with a view to achieving and maintaining equality of opportunity within its workforce.

Conclusions

35. As the respondent’s amended defence of December 2009 points out (at paragraph vii of the defence), the way in which the posts in the seven towns were filled “allowed the respondent to avoid redundancies…”. However, in reality, nobody would have been at risk of redundancy if the posts had been filled on the basis of a full internal trawl (as distinct from being filled on the basis of an internal trawl which was limited to full-timers). The reality was that, at the time when the relevant posts were being filled through a restricted internal process, the Service was carrying out other recruitment exercises under which a substantial number of external candidates were being added to the workforce of the Service.

36. Accordingly, we reject the proposition that the avoidance of redundancies provided a justification for the restriction of the internal trawl to full-timers. Redundancy avoidance did not provide justification either because the restriction was not necessary to achieve that particular objective, or because the restriction (of the internal trawl to full-timers) was not an appropriate and proportionate way to achieve that objective.

37. However, we do accept that the alternative basis of justification (the ‘equal opportunities’ justification) is an adequate justification for the discriminatory effect of the exclusion of part-timers from the relevant internal trawl. We have arrived at that conclusion for the following reasons and against the following background, and having had regard to all of our findings of fact.

38. Within any particular locality, part-timers are recruited from a narrow pool (mainly because of the requirement that they must be available at very short notice to deal with fire duties, and because of the requirement that they must live within five minutes of the nearest station; in contrast, the pool of candidates from which full-time firefighters are recruited is significantly more representative of Northern Ireland as a whole, especially in terms of religious/political community backgrounds.

39. Because of the requirement that a retained part-time firefighter must make himself/herself available at very short notice, on an entirely irregular basis, the role of part-time firefighter is likely to have been significantly less attractive to women with caring responsibilities than the posts which had become available because of the variable crewing project : It will be recalled that the latter posts called for regular cover by full-time crew only during a particular period (11.00 am – 11.00 pm).

40. Furthermore, we are satisfied that in terms of objectivity, transparency and documentation, the process by which part-time retained firefighters are recruited is much inferior to the process by which the great majority of full-timers have been recruited. (According to the Service, there are good reasons for those differences. We accept that those contentions may well be correct. However, for the purposes of arriving at conclusions on the justification issues we do not need to arrive at definitive conclusions on that aspect of the matter).

41. The general thrust of the Service’s contemporaneous defence of its decision to pursue a restricted (as distinct from a full) internal trawl was based on the respondent’s contention that it was appropriate to do so in light of the Service’s obligation to promote equality of opportunity between men and women in connection with its workforce.

42. In our view, that is an important and legitimate aim. In our view, the Service, in that context, was entitled to take account of the circumstance that, like most fire services in the United Kingdom, it has experienced considerable difficulties in achieving a balanced composition (between men and women) within its front-line workforce.

43. On the claimant’s side of the case, scepticism has been expressed as to whether the restriction of the internal trawl to full-timers would ever be likely, in reality, to have any significant impact on the general composition of the workforce. We share that scepticism.

44. Howeverthe extension of the trawl to cover part-timers would have been a retrograde step in terms of gender equality of opportunity. The restriction of the trawl to full-timers at least offered the potential to make more opportunities available to women.

45. Women are under-represented among retained firefighters. Accordingly, recruitment to the ranks of full-timers from a limited pool which included the pool of part-time firefighters would not offer even the potential of improving the representation of women among the ranks of full-time firefighters.

46. On the other hand, if any internal trawl was restricted to full-timers, any resulting redeployment would potentially lead to a vacancy which could be filled externally. External trawls were the subject of much competition, on a Province-wide basis, from the general community. Accordingly, the restriction of internal trawls to full-timers had the potential, indirectly, to improve the position regarding the under-representation of women within the full-time Service.

47. It is true that, in its defence of the restricted trawl, at the time of those restricted trawls, the Service focused mainly on gender equality of opportunity issues (as distinct from arguing on the basis of equality of opportunity implications generally). However, even at the time of the relevant recruitment exercises, it must have been obvious to all concerned that there were also potentially adverse equality of opportunity implications, in the context of religion and in the context of political opinion, which would arise from any broadening of the scope of the internal trawl.

48. In our view, the practical equality of opportunity significance of this policy (the restriction of the internal trawl to full-timers) was obvious in the context of religious/political opinion equality of opportunity. Because of the sectarian geography of Northern Ireland, a requirement that retained firefighters must live within five minutes of a particular fire station is likely, in practice, to restrict the availability of such posts to Protestants mainly (in some areas) or to Roman Catholics (‘Catholics’) mainly (in some other areas). On the other hand, external trawls (which are the sole means by which full-timers become employed in the Service) are carried out on a Northern Ireland-wide basis, and they are potentially open to everybody, regardless of their religious beliefs/political opinion. It is true that the Service focused on the gender equality of opportunity implications of a removal of the restriction, in their defence of that restriction. However, it is also clear that, even at the time when the restriction was first imposed, the potential religious/political opinion equality of opportunity implications must have been apparent to all concerned. In any event, as has been pointed out above, ex post facto justifications are not in principle impermissible.

49. Is a margin of discretion available to an employer in the context of discrimination law objective justification? In the factual circumstances of this case, we do not need to arrive at definitive conclusions in relation to that question. We are satisfied that, even if we assume that no such margin of discretion is available to the employer in this case, objective justification has been proven in this case.

50. For the claimant, Mr Potter suggested that, in equality of opportunity terms, the scale of the available vacancies was so small as to have minimal impact. We agree that the vacancies in Antrim did have minimal potential impact in themselves, in respect of equality of opportunities. However, if the Service had conceded the principle in this instance (the principle that internal full-time vacancies should in general be available on an internal trawl to a pool which included part-timers), it would have been difficult to avoid applying that principle in relation to future vacancies which were being filled through internal trawls.

51. Mr Potter suggested that, in reality, the Service was glad to be able to put forward equality of opportunities reasons for restricting internal trawls to full-timers, because, at that time, the Service did not, in reality, recognise that part-time firefighters carried out essentially the same work as full-timers. We accept that there was an influential view, at senior levels within the Service, at material times, which was to the effect that the nature of the work carried out by part-timers was intrinsically different from the nature of the work being carried out by full-timers. That view is no longer a respectable view, in light of discrimination case law in recent years, but it was a respectable view during the periods which are material for present purposes.

52. If (as we have found) there really was justification on account of equality of opportunity implications, that justification does not disappear simply because influential people within the Service were pleased, for illegitimate reasons, that such justification, from an equality of opportunities point of view, did exist.

53. The vacancy for which this claimant applied was a vacancy that had been created because of the Service’s decision to reduce the amount of work available to part-timers. So the claimant was seeking to be considered for this full-time vacancy, on the basis of an internal trawl, at a time when the Service (through the filling of the relevant vacancies) was potentially reducing the amount of work which was likely to be available to the Antrim part-timers, including the claimant. We accept that this circumstance is a matter which has to be taken into account in deciding whether or not the restricted nature of the internal trawl was justified. However, this circumstance has to be viewed alongside the equality of opportunities considerations.

54. As already indicated above, the Service has also sought to justify the restriction of the internal trawl by pointing out that externally advertised vacancies attract a large number of applicants, whereas part-time vacancies are often difficult to fill. In our view, that circumstance, on its own, would not provide adequate justification for the restriction of the internal trawl. However, it is a circumstance which can properly be taken into account in considering the proportionality aspect of the ‘equal opportunities’ justification.

Chairman:

Date and place of hearing: 1 – 3 February 2010, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Bailey v Northern Ireland Fire and Resc... [2010] NIIT 1699_08IT (30 April 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/1699_08IT.html Cite as: [2010] NIIT 1699_8IT, [2010] NIIT 1699_08IT

Industrial Tribunals Northern Ireland Decisions