Thursday 7 March 2013
His Honour Judge Babington, sitting today in the County Court, dismissed equal pay claims brought by a number of Civil Servants who had worked in and/or were working in the Police Authority of Northern Ireland or the Northern Ireland Office when an equal pay settlement was reached between the DFP and NIPSA in February 2009.
In 2009, some 4,500 equal pay claims were lodged with the Industrial Tribunal concerning Northern Ireland Civil Service (NICS) staff who worked at Administrative Assistant (AA), Administrative Officer (AO) and Executive Officer II (EOII) grades. They alleged they were being treated differently than male comparators working at the same grades within their relevant Departments. On 1 February 2009, the Department of Finance and Personnel (DFP) and the Northern Ireland Public Service Alliance (NIPSA) reached an agreement on how these claims would be resolved. This was accepted by NIPSA’s Executive Committee and agreed in a ballot by its relevant members.
In broad terms, the agreement provided that those employees affected would have their salaries revised upwards, and in addition a lump sum was to be paid to those same employees which it said was to represent loss of salary during the six year period prior to the agreement. The overall cost of the agreement to the NICS was in the region of £120m.
This claim was brought by four groups of civil servants who were appointed to the NICS but were then seconded to the Police Authority for Northern Ireland (PANI) or the Northern Ireland Office (NIO) for part or all of the period from their appointment up to 1 February 2009. All of the plaintiffs in the four groups suffered by non-payment of the lump sum. While DFP did make offers of lump sum payments to some of the plaintiffs, these were rejected because the lump sum did not represent the totality of the period that those civil servants felt they were entitled to receive. In addition, some of the plaintiffs argued that they were not being paid on the appropriate new salary scale again because some of the period over which that was to be reflected had not been taken into account.
Judge Babington considered the evidence presented to the court including NIPSA bulletins and Frequently Asked Questions (FAQs) setting out the outline terms of the agreement. He concluded that they make it absolutely clear that the outline terms were restricted to those working in the NICS Departments at the relevant time. He also found it was clear beyond any doubt that the agreement did not extend to those in the NIO, PANI/PSNI and other Non-Departmental Public Bodies (NDPBs). The judge said that this is what the NIPSA Bulletins were telling members and it was further amplified by the fact that NIPSA knew this as it said it was seeking discussions with management in those bodies to have the settlement extended. In addition, those working in the NIO, PANI/PSNI and other NDBPs were not included in the NIPSA ballot. FAQ 1.6 also made it clear that those who were on secondment to another employer who was responsible for their pay negotiation would not have those periods taken into account as far as the settlement was concerned.
Judge Babington then considered three letters written by Sir David Fell, then head of the NICS, to NIPSA in June, July and October 1996. They came about because of concerns raised by NIPSA about the policy of delegation that was being introduced by the Government which would effectively mean that pay and associated matters would not be negotiated centrally but would be done on a Departmental or Agency basis. This was introduced for all Government Departments and as NIO was a Westminster Department it got “delegation almost automatically” as Sir David Fell said in his evidence before the court. NIPSA had sought an assurance that delegation would not lead to individuals having their pay reduced or that illegal deductions might be made. Sir David gave evidence that it was not within his power to give such assurances at an individual level rather than a group level.
The plaintiffs claimed that Sir David’s letters gave each civil servant who was subject to a delegation some contractual right that they should be entitled to the benefits of the agreement. Judge Babington, however, was satisfied that what Sir David was trying to do was to give some comfort to NIPSA who were totally opposed to delegation as such. He considered it was never Sir David’s intention to create some sort of implied term which would allow individuals a contractual right to have the same benefits as those not subject to delegation.
In his conclusions, Judge Babington said that he was quite satisfied that the agreement reached between DFP and NIPSA was limited to those how had worked and/or were working in the NICS Departments and excluded those working in the NIO and PANI/PSNI. It also excluded for the settlement calculations those who had service in the NIO and PANI/PSNI during the relevant periods. Judge Babington concluded that while he had some sympathy for the plaintiffs, he had no alternative but to dismiss their claims on the basis of these findings.
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