Department Of Justice v McGrath

Factual and Procedural Background

This opinion concerns an appeal by the Department of Justice (DOJ) against a decision of an Industrial Tribunal dated 25 July 2019. The Tribunal held that the DOJ was in breach of the Equal Pay Act (Northern Ireland) 1970 (the 1970 Act) and that the Respondent was entitled to equal pay.

The Respondent had previously worked as an agency employee for the Northern Ireland Courts and Tribunal Service (NICtS) before applying for a permanent Legal Officer post (equivalent to Deputy Principal (DP) grade) with NICtS in early 2010. Following the devolution of policing and justice functions to the DOJ on 12 April 2010, NICtS functions and employees transferred to the DOJ, and employees became subject to Northern Ireland Civil Service (NICS) terms and conditions, including the removal of "fluid grading" (a system allowing promotion without open competition).

The Respondent accepted employment on NICS terms and conditions without fluid grading, aware that promotion to Grade 7 posts would require open competition. She was assigned as a DP to the Office of the Official Solicitor (OS) in September 2010, working in a predominantly female office.

Throughout her employment, the Respondent worked periods on temporary promotion to Grade 7 posts and periods as a DP. Following a Job Evaluation and Grading Support (JEGS) review in 2015, her post was regraded from DP to Grade 7, with back pay effective from 1 June 2016. The Respondent contended she had been performing Grade 7 work since October 2011 and sought equal pay accordingly.

The Respondent served a statutory questionnaire in June 2017, which the DOJ did not answer. Tribunal proceedings were issued in October 2017. The Tribunal conducted an eight-day hearing in April-May 2018 and issued its unanimous decision in July 2019.

The Tribunal found no direct sex discrimination but held that the Respondent had been engaged in like work with male comparators from October 2011 and that the DOJ had not established a genuine material factor defence to justify pay disparity. Therefore, the DOJ was in breach of the 1970 Act and the Respondent was entitled to equal pay.

Legal Issues Presented

1. Whether the Respondent was engaged in like work with her male comparators from October 2011.
2. Whether the DOJ established a genuine material factor defence to justify the pay disparity under the Equal Pay Act (NI) 1970.
3. Whether the Tribunal erred in law by failing to distinguish between different periods of the Respondent’s employment regarding the application of temporary promotion and open competition policies.
4. Whether the Tribunal erred in law by failing to consider that the actions of the Respondent’s line manager could constitute a genuine material factor defence.
5. Whether the Tribunal erred in law by effectively promoting the Respondent in post contrary to NICS open competition policies.

Arguments of the Parties

Appellant's Arguments

• The allocation of Grade 7 work to the Respondent was due solely to the actions of her line manager, who deliberately misrepresented the situation to senior management, and was not related to sex discrimination.
• Periods of temporary promotion involved the Respondent performing Grade 7 work with commensurate pay, so these periods should be distinguished and discounted in the equal pay claim.
• Following the JEGS assessment, the Respondent should have applied for permanent Grade 7 posts through open competition, and the Tribunal erred by effectively promoting her in post.
• The NICS policy on open recruitment and selection is a common term for all employees and does not discriminate on grounds of sex.
• The Tribunal failed to properly consider or accept a genuine material factor defence explaining the pay disparity.
• The Tribunal erred in failing to distinguish between the Respondent’s different periods of employment and the relevant policies applicable to those periods.

Respondent's Arguments

• The direct sex discrimination claim was separate and dismissed; it does not affect the equal pay claim governed by the 1970 Act.
• The Tribunal correctly found the Respondent was performing Grade 7 work from October 2011, raising a rebuttable presumption of sex discrimination.
• The Appellant repeatedly failed to plead or adduce evidence of a genuine material factor defence before the Tribunal.
• The suggestion that the Tribunal should have considered the line manager’s actions as a genuine material factor defence on appeal is unsustainable as it was not pleaded or raised below.
• Distinguishing between different periods of employment is a matter for remedies and not for the liability decision.
• The JEGS review was a tool to establish the grade of work performed and supports the Respondent’s claim to equal pay.
• The Tribunal properly dealt with all factual and legal issues and its decision should be affirmed.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal carefully reviewed the Tribunal’s findings of fact, which were largely unchallenged by the appellant. It confirmed the Tribunal’s acceptance of the Respondent’s evidence, supported by her line manager Ms Donnelly, that the Respondent performed Grade 7 work from October 2011 despite being employed at the DP grade.

The Court emphasized the legal framework under the Equal Pay Act (NI) 1970, whereby once a claimant establishes like work with a comparator, a rebuttable presumption of sex discrimination arises. The burden then shifts to the employer to establish a genuine material factor defence that is non-discriminatory and causative of the pay difference.

The Court found that the appellant failed to plead or properly raise a genuine material factor defence before the Tribunal. The appellant’s attempt to rely on the line manager’s actions as such a defence on appeal was rejected because it was a new point not raised below and no application to amend pleadings was made. The Court applied the principles from Notting Hill Finance Ltd v Nadeem Sheikh and related authorities to refuse the introduction of this new defence at appeal.

The Tribunal’s conclusion that reliance on NICS policies on promotion by open competition did not provide a genuine material factor defence in the Respondent’s circumstances was upheld. The Court agreed that the policy related to hypothetical future vacancies and did not justify the pay disparity for work already performed.

The Court also rejected the appellant’s argument that the Tribunal should have distinguished between periods of temporary promotion and other periods, noting that this issue was more appropriately addressed at a remedies hearing and that the Tribunal had found the Respondent was performing Grade 7 work even when not temporarily promoted.

Overall, the Court found no error of law in the Tribunal’s decision and affirmed that the Respondent was entitled to equal pay under the 1970 Act.

Holding and Implications

The Court of Appeal DISMISSED the appeal.

The direct effect of this decision is that the Industrial Tribunal’s ruling that the Department of Justice breached the Equal Pay Act (NI) 1970 stands, confirming the Respondent’s entitlement to equal pay for like work from October 2011. The Court rejected the appellant’s attempt to introduce a genuine material factor defence on appeal that was not pleaded or evidenced below.

No new precedent was established beyond reaffirming existing principles regarding the burden of proof in equal pay claims, the role of genuine material factor defences, and the limited scope of appellate review in employment tribunal appeals.