Killian Flood BL

About this case:

• Court:
  Court of Appeal
• Judge:
  Lord Justice Treacy

The claimant alleged that she had been employed with the DOJ and had intermittently performed the functions of a higher paid role since October 2010. She argued that similar male comparators were paid a higher salary during this period and she was therefore entitled to the same level of pay.

The Court of Appeal upheld the decision of the Industrial Tribunal in finding a breach of the Equal Pay Act (NI) 1970. The central issues in the appeal where whether the DOJ could rely on the “genuine material factor” defence when it did not form part of its pleaded case and, whether the actions of the claimant’s line manager could be regarded as a GMF defence.

Background

The claimant, Ms Teresa Marie McGrath, worked for the NI Court Service prior to March 2010. She was employed as a Deputy Principal legal officer, which was a lower level position that a Grade 7 employee. At the time, her contract allowed for “fluid grading” which meant that she could be promoted to a Grade 7 position after a year.

However, following devolution in April 2010, the DOJ took over the functions of the NICtS. As such, Ms McGrath’s employment was transferred to the DOJ, who ended the “fluid grading” opportunity. In future, any promotion to Grade 7 employment would have to occur from an open competition.

The claimant accepted the DP legal officer position. However, from October 2011, she received a “temporary promotion” to a Grade 7 post to cover absent employees. This period ended in June 2013. There were a further three periods up until 2016 in which Ms McGrath was required to perform the functions of a Grade 7 worker. During the temporary periods, she was paid at the higher level of Grade 7.

Following a job evaluation review in 2016, the claimant was promoted to a Grade 7 role, but pay was only backdated to June 2016. Accordingly, Ms McGrath issued proceedings seeking compensation dated back to 2010, when she claimed to have taken the responsibilities of the role. She alleged that male comparators were receiving higher pay and presented evidence to this effect.

The Tribunal concluded that she had been engaged by the DOJ in like work with her comparators from October 2011. Further, the DOJ had not proved that the variation in the claimant’s contract from those of her comparators were genuinely due to a material factor which was not the difference of sex.

Several key points lay in this decision. First, the DOJ did not call any witnesses to challenge the claimant’s evidence of the level of work she engaged in during her employment. Second, Ms Brenda Donnelly, the former Official Solicitor and line manager to the claimant, gave evidence that the claimant worked at Grade 7 level at all material times. This was known to senior management in the DOJ, but was never addressed.

Ms Donnelly accepted that her evidence was inconsistent with her previous written evaluations of the Ms McGrath’s work. However, she claimed that she was maintaining the “official line” and that she had previously been “lying to keep myself right”. Again, no evidence was called to rebut these serious allegations against senior DOJ staff.

The DOJ appealed the decision on several grounds, claiming that the Tribunal had erred in law. The issue of central importance to the appeal was the evidence of Ms Donnelly, which the DOJ argued constituted a “genuine material factor” defence in the appeal. The DOJ submitted that Ms Donnelly had deliberately mislead her line managers for her own purposes, which action constituted a GMF explaining the difference in pay.

Court of Appeal

Although a large number of legal submissions were raised by the DOJ, the court began its decision by identifying two key issues. These were 1) whether the DOJ could raise a defence of GMF which was not part of its pleaded case and 2) whether Ms Donnelly’s actions could be regarded as a GMF defence.

The court held that the DOJ was seeking to raise new points on appeal because Ms Donnelly’s actions were never pleaded as a GMF defence and there was no attempt to amend the pleadings before the Tribunal. The court said that the DOJ “audaciously, seeks to rely on this evidence to establish a GMF defence on which to dismiss the claimant’s equal pay claim, which had never been pleaded in the first case”.

The evidence was originally adduced to prove that Ms McGrath was doing “like work” and was not “adduced, tested or considered before the Tribunal as a GMF defence” [emphasis in original].

Based on the statement of issues, the GMF on which the DOJ sought to rely was different to the original justification, which was that the difference in pay was due to a difference in grades.

Having regard to the applicable principles from Notting Hill Finance Ltd v Nadeem Sheikh EWCA Civ [2019] 1377, the court refused to allow the new GMF point to be raised. The failure of the DOJ to reply to a statutory questionnaire, seeking to amend pleadings or call any evidence weighed against the new points being heard.

The court went on to hold that the conclusion of the Tribunal on the GMF defence was “unassailable”. The claimant had raised the rebuttable presumption that she was discriminated on the grounds of sex as she had established a gender-based comparison that she was underpaid for like work. The DOJ “failed to address properly or at all the issue of GMF and adduced no evidence of a GMF defence”.

In particular, the court was unimpressed that the DOJ had failed to answer the statutory questionnaire served by the claimant, despite the fact that it was an important part of the process. Further, the court set out email correspondence which contained concerns from senior management in NICtS in 2010 about the “fluid grading” issue following devolution. It was “surprising” that the DOJ failed to address these issues in the Tribunal hearing.

Conclusion

Accordingly, the Tribunal was entitled to reach the decision that it did based on the evidence. No proper GMF defence had been raised and, as such, the DOJ had not proved that the variation in the claimant’s contract from her comparators was genuinely due to a material factor which was not the difference of sex. The appeal was dismissed.