Worthingtons Commercial Solicitors in Belfast have agreed to write an email every two months exclusively for Legal-Island email subscribers. These emails cover what, in the opinion of the writers, are the recent Northern Ireland employment cases that will most interest employment law practitioners.

Highlights this time around are: a High Court decision on contractual entitlement to back pay and the necessity for clarity and clear intentions to be recorded; and a Northern Ireland Court of Appeal decision on disability, victimisation and witness statements in the tribunal.

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1. Janette Murdock v South Eastern Education and Library Board – Chancery Division High Court

The Plaintiff was employed as a classroom assistant at Tor Bank Special School in Dundonald. Under her job evaluation it was agreed through the Union that any resulting increase through the evaluation process would provide for back pay to be backdated to 1 January 1995. The proposal was offered to Janette Murdock in 2007 that she was to be put into a higher pay grade namely between points 18 and 25 on the relevant scale pay and to receive back pay. This was subject to her agreement that she would agree the measure of back pay.

As a classroom assistant Ms Murdock worked 32.5 hours a week and, as the standard working was 36 hours per week as set by the Joint Negotiating Council, 32.5 hours per week is almost 90% of that time so the new salary would be 90% of the point on the scale between 18 and 25 rather than 100%. Therefore the knock on effect of this was that instead of receiving £33,572.50 in arrears of pay which she would have had if her 32.5 hours entitled her to be treated as a full-time worker she was offered only £12,849.50 using a 36 hour week or for these purposes “divisor”. Therefore her claim before the Chancery Court was for a loss of £20,723.

In effect she was claiming that she was entitled to an increase in her salary without deduction for the fact that classroom assistants worked only 32.5 hours per week. There was no clause in the Plaintiff’s contract of employment which stated this and indeed it was relied upon by the Plaintiff under the Northern Ireland Education and Library Boards: Job Evaluation – Officer’s Guide to the Scheme that “if your job is regarded to a higher grade as a result of job evaluation you will automatically receive the increased salary. This increase will normally be backdated to the date when your application was lodged or the date on which your new duties were deemed to have started. Retrospective payments will not be made prior to 1 January 1995”.

The submission on behalf of the Plaintiff was that the clause “will automatically receive the increased salary” must be referring to the full-time salary of a classroom assistant at that time. There was no suggestion at that time of classroom assistants working 36 hours per week. The idea of treating the 32.5 hours as 90% of the labour of 36 hour people (let alone a lower percentage of 39 hour people) had not been discussed at that time.

The question is whether it was the intention of the parties judged by the language used by them that the back pay of the salary could not be reduced because of the fact that the classroom assistant only worked 32.5 hours per week. The case argued by the Defendant was that they have a legitimate apprehension that if they were to accord to the Plaintiff a retrospective payment in the way which she desires there would be a significant risk of a claim which may be successful on behalf of a very large number of male employees who throughout the period in question were working 6½ hours longer per week than the Plaintiff. The Judge referred to the decision Adams v British Airways plc [1996] IRLR574 in which the Court of Appeal stated:

“A collective agreement has special characteristics, being made between an employer or employers organisation on the one side and a trade union or trade unions representative of employees on the other, usually following a negotiation. Thus it represents an industrial bargain, and probably represents a compromise between the conflicting aims of the parties, or ‘sides’ as in this context they are revealing called. ...a collective agreement must be construed like any other, giving a fair meaning to the words used in the factual context (known to the parties) which gave rise to the agreement”.

In this decision the Judge held that there was a collective agreement between the management side and the staff side. However, considering the wording of the Officer’s Guide, “this increase will normally be back dated to the date when your application was lodged or the date on which your new duties were being started”. The use of the word “normally” would appear to leave open the possibility of exceptions.

The Judge in this case held that there was, “literally no evidence at all that the particular position of classroom assistants were taken into account; the absence of hours worked pointed strongly to them not being in mind” and therefore the right to back pay was via the offer in the sum of £12,849.50 and there was no entitlement to the full amount. Full Decision:
http://bit.ly/dMyjge

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2. Veitch –v Red Sky [2010] NICA 39

This case was referred to the Court of Appeal on the issues of:

* whether the Tribunal, properly directing itself on the law, could reasonably have found on the facts proved or admitted that the claimant had not demonstrated that he had a disability within the meaning of the Disability Discrimination Act 1995; and

* whether the Tribunal, properly directing itself on the law, could reasonably find that it was necessary on the facts proved or admitted to make any findings in relation to the claimant's victimisation claim.

The Claimant had been successful in his Claim to the Tribunal that he had been constructively dismissed and had suffered unlawful deductions from wages. However, the Tribunal did not accept his claim of Disability Discrimination and Victimisation.

The Tribunal held that he was not disabled for the purposes of the Disability Discrimination Act 1995 (as amended) and stated that because he had not been shown to be disabled within the definition of the 1995 Act it was unnecessary to make any findings of fact in relation to the appellant's discrimination claims as a whole, including his victimisation and reasonable adjustment claims. It was these aspects of the Tribunal findings that were the subject of the appeal.

Firstly the Court had no hesitation in holding that the Tribunal:

“fell into error in concluding that, because the Tribunal had concluded that the appellant was not shown to be disabled within the statutory definition, the claim of victimisation had to be dismissed. Whether or not a person is disabled he is entitled to the protection of section 55. This defines victimisation as discrimination by A of B when he treats B less favourably than he treats or would treat other persons whose circumstances are the same as of B and does so for a reason set out in section 55(2). This includes the bringing of proceedings under the Act or alleging that A or any other person has contravened that Act. The fact that a person fails to prove that he is disabled does not mean he cannot have a victimisation claim. Accordingly, this issue must be remitted to a fresh Tribunal”

Secondly the Court held that the Tribunal failed to consider the Claimant’s disability as set out in the case of Goodwin v Patent Office [1999] IRLR 4 and stated that:

“the Tribunal elevated the production of medical evidence on the issues at each stage of the Goodwin inquiry to the status of a necessary proof. This is to overstate the position. Although it heard submissions on the question of the extent of the appellant's difficulties the Tribunal did not set out what evidence it had heard on those issues and it did not set out its findings of fact on those issues. It appears to have concluded that it should make no findings in respect of the claimed difficulties because of the absence of medical evidence.”

The Court of Appeal emphasised the J –v DLA Piper UK LLP 2010 ICR 1052 ruling and stated:

“The presence or absence of medical evidence may be a matter of relevance to be taken into consideration in deciding what weight to put on evidence of claimed difficulties causing alleged disability but its absence does not of itself preclude a finding of fact that a person suffers from an impairment that has substantial long-term adverse effect. The absence of medical evidence may become of central importance in considering whether there is evidence of long-term adverse effect from an impairment. Frequently in the absence of such evidence a Tribunal would have insufficient material from which it could draw the conclusion that long-term effects had been demonstrated.” The case was remitted for a full re-hearing on these points.

The Court of Appeal took the opportunity to comment on the “length of the proceedings” and made this statement quoting Pfeiffer and SCA Packaging:

“tribunals should feel encouraged to set time limits and timetables to keep proceedings within a sensible timeframe. In many instances unnecessary protracted oral evidence could usefully be avoided by requiring a party to ensure that the evidence in chief of witnesses should be provided in the first instance in a written statement with the witness then being available for cross-examination only. If a party complains that in the course of case management the tribunal has unfairly conducted the hearing or interfered with the party's fair trial rights that will raise an issue of law which should be pursued in the appeal process and should not generate a separate complaint of misconduct. It is ultimately a matter for this court to determine whether proceedings have been conducted fairly or unfairly. In the event of contentious rulings in relation to the management of a case the tribunal should record succinctly its reasoning so that, in the event of an appeal, this court can determine the fairness of the approach taken. Applying the presumption omnia praesumuntur fairness will be presumed unless the contrary is shown.”

Consequently for those attending Case Management Discussion’s in the tribunal office - Witness Statement are now the default position.
http://bit.ly/ekj75x

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The main content of this email was provided by Maxine Orr of Worthingtons Commercial Solicitors in Belfast. Maxine works exclusively in employment law and should anyone have any queries she may be contacted on 028 90 434015. Maxine is an accredited mediator Website:
http://bit.ly/9NE0Ia

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Legal-Island
19 January 2011

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