The claimant was employed as an administrative officer by the respondent and was based in the Belfast Benefits Centre.  In May 2014 he was elected to serve as a Sinn Fein Councillor on Mid-Ulster District Council and was re-elected in May 2019.

The claimant presented a claim to the Tribunal on 31st January 2017 claiming an unauthorised deduction of wages when there was an alleged failure to be paid for ‘Special Leave’ which was allowed by the respondent so employees could carry out public duties.   This claim was subsequently amended to include allegations of unlawful discrimination on the ground of political opinion.

The respondent refuted the claimant’s claims citing that there was no contractual entitlement for employees to be paid under the Special Leave Policy when the employee is remunerated for the public duty in question.  This was on the basis that councillors in Northern Ireland are paid for their services.  Furthermore, the respondent refuted that political opinion had any basis in the decision not to grant any Special Leave payment.

The issue arose on foot of the refusal to pay the Paid Special Leave which the claimant internally appealed.   There was an issue whereby the previous line manager was unaware of any payment for the work as a councillor but when this came to light the Paid Special Leave was no longer allowed.  It was queried that the basic allowance given to a Councillor was not remuneration which was outlined in a letter from Mid-Ulster Council.   There was also agreement that there were expenses paid by the Council to the claimant for work done as a councillor.

On the political discrimination ground, the claimant outlined a number of comparators but focused on Councillor Nigel Kells of the DUP.  This was on the basis that Mr Kells had received Paid Special Leave on eight occasions namely four occasions in December 2015 and four occasions in January 2016.  However, the claimant failed to outline the situations in which these payments were paid and the Tribunal found that he was not an appropriate comparator as they were not materially the same circumstances.

The Tribunal accordingly held that the unlawful deduction from wages claim failed.  The fact that he had received payments previously was largely on the understanding that he was not paid for his work as a councillor.   Furthermore, there was no political discrimination as the claimant did not discharge the burden of proof of showing less favourable treatment than a comparator.  The Tribunal also held that even if the burden had been discharged the respondent could have relied upon the Special Leave Policy and there was no evidence to suggest the policy was discriminatory.

Practical Lessons

This case demonstrates the workings of Paid Special Leave for carrying out public duties.  Bearing this in mind, the Tribunal has given a wide berth in terms of what is meant by a payment for the purposes of the public duties with the allowance for a councillor sufficing.  Public bodies will want to be aware of this decision and to ensure that they have policies in place that adequately deal with these issues. 

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/