David v Goliath

Ever since the trauma of TR was visited upon our profession, there have been regular complaints on this blog that Napo have refused to either instigate or support any meaningful legal challenge to any aspect of it. Therefore, thanks to a tip-off from a reader, I suspect it will be of considerable interest to hear of a recent Employment Tribunal decision Mrs C Stepheson v Secretary of State where one unrepresented Probation Officer had the bottle to take on Goliath in the form of fully-funded Treasury Counsel. 

Before going any further I feel I must say that I feel considerably conflicted. Having read the Reserved Judgment, it should go without saying that I have enormous respect for the individual involved. However, even though all the details are in the public domain, I'm conscious that drawing attention to it may make a difficult situation even worse for the claimant. But the issues raised would seem so fundamental that I feel it necessitates examination and discussion. 

In my view it is nothing short of outrageous that there has never been any Napo-supported test case, a situation I know has caused widespread consternation leading to many resignations. This is not just a serious error of judgement that requires 'calling out', I sincerely hope that this person's case might attract the attention of legal experts and possibly an offer of pro-bono assistance in relation to an appeal. 

The Judgment extends to some 37 pages, covers lots of issues and I urge people to read it in full. I'm no lawyer, but it's clear to me that if one person, unrepresented, could have got this far at an Employment Tribunal, just imagine how far a properly-funded and resourced legal challenge could have got? For the sake of a whole profession, history really should record that matters were thoroughly examined legally and that we have recourse to a definitive legal judgment regarding the key issues raised here, not least the TUPE-type transfers. Napo should be ashamed.

I repeat - read the whole decision, but these are some of the key issues that caught my eye:-   

RESERVED JUDGMENT

The judgment of the Tribunal is that: 

1. The complaint of indirect age discrimination fails. 
2. The Tribunal does not have jurisdiction to consider a ‘stand alone’ complaint of indirect sex discrimination in respect of pay. 
3. The Tribunal does not have jurisdiction to determine the equal pay complaint insofar as that is a complaint about alleged breach prior to 1 June 2014. 
4. Insofar as the Tribunal has jurisdiction, the equal pay complaint fails. 
5. The complaint alleging an unauthorised deduction from wages also fails.

REASONS

1. The Complaints 

The complaints are:- 

• Indirect age discrimination 
• Equal pay (and indirect sex discrimination) 
• Unauthorised deduction from wages 

In essence Mrs Stephenson complains that unlawful discrimination occurred when a change to the respondent’s pay policy had the effect that the claimant would not reach the top of pay band 4 within ten years of qualifying (which had been her expectation at the time of qualifying) and instead would – if she remained employed that long – only get to the top within 22 years of qualification. The unauthorised deductions complaint concerned the alleged withholding of annual pay increments.

We have put the indirect sex discrimination complaint in parenthesis because, as discussed with the parties at a preliminary hearing for case management on 8 April 2016 and as further discussed on day one of this hearing, it appeared that the Tribunal had no jurisdiction to determine a “stand alone” indirect sex discrimination complaint where the less favourable treatment was in connection with pay. Instead the appropriate cause of action was limited to the complaint in respect of equal pay (see Equality Act 2010 section 70). It was acknowledged, however, that the concept of indirect discrimination can be relevant in an equal pay case as opposed to being a freestanding complaint. We deal with this further in our conclusions set out below.  

7. The Relevant Facts 

There has not been any significant dispute concerning the relevant facts – at least the background facts. 

7.1 The claimant began her employment as a trainee Probation Officer with what was then the National Probation Service on 14 October 2002. Prior to that the claimant had worked in Social Services and for a brief period she had worked in HR Administration for the Transport Executive. 

7.2 The claimant underwent a two year training course and achieved a Diploma in Probation Studies and a Bachelors Degree in Community Justice. 

7.3 In October 2004 on qualification the claimant was issued with a new statement of employment particulars (the original 2002 statement is at pages 118-120) and the 2004 statement is at pages 121-124. Under the heading “Conditions of Service” it was noted that those were generally as laid down by the National Negotiating Council for the Probation Services (“NNC”). The statement noted that copies of those conditions were available in the workplace. In addition there were local conditions of service. This part of the statement also includes the following: “Your grade and salary are as stated in the letter of appointment and as specified on your pay advice. Subject to satisfactory service your salary will rise by annual increments to the maximum of the scale.” 

7.4 The claimant began at the bottom of band 4 on the pay scale. The 2004 statement does not stipulate what the “annual increments” will actually be, nor does it give any indication as to when the claimant would or might reach the top of the scale (or band). 

7.5 In a letter from the National Probation Service to the claimant which apparently was undated but which she received on 10 November 2006 the claimant was informed of the outcome of the Job Evaluation exercise which had been carried out in respect of her job which was described as “probation officer based at Doncaster”. The claimant had been placed (or remained) in pay band 4. Details of the claimant's new salary, post assimilation were given. What was described as a development point – used to determine incremental progression on assimilation – was given as SCP (Single Column Point) 92, and the new SCP itself as SCP 74. This letter is at page 125 in the bundle. In explanatory notes which it is assumed were enclosed with that letter there is a paragraph which is headed “Applying Incremental Progression” (see page 126). This explains that once the new SCP has been determined incremental progression would take place. The number of incremental points to be advanced depended on where the new SCP lay in relation to the development point. A table set out the various options. This depended on whether the new SCP was below, on, or above the development point. Because the claimant’s new SCP was below her development point the table indicated that the number of increments advanced per year would be four. By reference to the heading to the notes this was in respect of the 2006 pay award. The claimant contends that the effect of this document was that it would now only take seven years for the claimant to get to the top of the band. That, of course, assumes that for the remaining seven years there were four increments per annum. In the event, that proved not to be the case. Neither the pay award implementation letter nor the explanatory notes said anything about how long it might take an individual to get to the top of the band.

7.13 According to the claimant's case, it is the 2010 reduction to one point per annum which leads to her understanding that it would now take 22 years to reach the top of band 4. However, as the respondent points out, the claimant had in fact made good progress during the earlier part of her ‘qualified’ employment. It also points out that the claimant is not subject to a contractual retirement date and so whilst the claimant’s concern is that she will not reach the top of band 4 before she retires, that concern is based upon her intention to retire at 66 when she receives her state pension. Everything else being equal, the claimant could continue to work beyond her 66th birthday. The respondent also points out that it is, and would be, open to the claimant to apply for a promotion to take her to a higher pay band altogether.

7.16 On 1 June 2014 a restructuring of Probation Trusts came into effect. It is the respondent’s case that the result of this was that employees of those Trusts were from that date transferred to either one of the newly created Community Rehabilitation Companies (“CRCs”) or the newly established National Probation Service (“NPS”). Further, it is the respondent’s case that it was to the NPS which the claimant was transferred. As we have noted above, the claimant says that she was not aware of this transfer and the respondent has not been able to show us any letter which might have been sent to employees such as the claimant to notify them of this change. As we have also noted, there are relevant statutory provisions – the Offender Management Act 2007 and related documents, that we need to consider when determining whether we have jurisdiction to entertain that part of the equal pay complaint that relates to what the respondent contends was the separate employment which ended in June 2014, thereby triggering the time limit referred to in section 129 of the Equality Act 2010.

7.17 We understand that the claimant raised a grievance on 3 June 2015 broadly about the issues which are now the subject matter of this claim. However, we have not actually seen the grievance or any related documentation.

7.18 Clearly, whatever the outcome of that grievance was, it was unsatisfactory as far as the claimant was concerned because on 4 November 2015 the claimant presented her claim to the Employment Tribunal. Mrs Woodhouse, the claimant's colleague, commenced a claim on the same basis at that time, but that claim has not proceeded.

9.1.5 The claimant complained that whilst the direction of the Chancellor of the Exchequer that public sector pay awards should not exceed 1% had been upheld within the Probation Service, there had been other public sector employees who had benefitted from pay awards and she gave politicians – presumably Members of Parliament – as an example. The claimant believed that the respondent was deliberately misinterpreting the Chancellor of the Exchequer’s requirement – they had paid 1% as a pay award but in doing so had failed to pay the contractual increments. The claimant suggested that, by backdating what had been described as a pay award, employees had been misled into thinking that their contractual incremental progression had been paid. The claimant noted that as of 1 April 2017 the contractual increment had been paid in that month.

9.1.7 Under the heading of “equal pay claim” the claimant contended that her four male comparator probation officers had had more favourable contracts as they had progressed to the top of the band 4 pay scale within ten years post qualification, having received what the claimant described as “the contractual automatic annual incremental progression year on year”. That had been progression at three points per year and the claimant suggested that because that had been happening for at least ten years it had become custom and practice. In addition, the comparators had during the same period of time also received consolidated and non consolidated pay awards and in due course would have a greater pension pot than the claimant. The claimant contended that the comparators had benefitted from the different terms which had been offered to them. The claimant was now precluded from the additional consolidated and non consolidated pay awards given to the comparators which placed her at a particular disadvantage when compared with those comparators.

9.1.10 Under the hearing “Indirect sex discrimination” the claimant explained that the basis of this complaint was that the respondent had a pay policy which no longer allowed for automatic pay progression and that put women at a particular disadvantage when compared to men. The claimant went on to refer to recruitment trends in the Probation Service which she said showed a significant shift towards more females than males being employed. A situation emerged accordingly whereby males were clustered around the top of the pay scale in proportion to females who were placed lower down the pay band. We should add that we have not received any statistical evidence of what the recruitment trends in the Probation Service might be. The claimant acknowledged that evidencing that assertion had proved difficult due to what she described as the respondent’s failure to provide reliable statistical data in a timely manner despite having been issued with an order. She contended that the data which had been provided initially was confusing and meaningless and that the data provided subsequently had proved to be inaccurate and therefore unreliable.

9.1.11 Noting that the respondent had conceded that the claimant's four comparators were paid at the pay maxima, the figures which the respondent had provided only showed three males at the top of the pay band. The claimant in her submissions stated that she was aware of at least six males (it is unclear whether she means six additional males) who are at the pay maxima and potentially more who are based in other locations within South Yorkshire. We should add that the Tribunal is unaware who those six are (other than the four comparators if they are included); still less are we aware of any others at different locations in South Yorkshire. The claimant's assertion remained that men were disproportionately clustered at the top of band 4 and the claimant invited the Tribunal to draw an adverse inference as to why the information which she had been requesting since February 2016 had subsequently proven to be inaccurate and therefore unreliable.

9.1.16 The claimant then went on to deal with the TUPE transfer point. In fact it should be noted that the respondent is not suggesting there was actually a TUPE transfer but rather something which was akin to a TUPE transfer. In any event the claimant accepted that in June 2014 she had transferred from the Probation Trust to the newly formed National Probation Service but contended that that was under the umbrella of the Ministry of Justice and that her continuity of service had remained. As far as time issues were concerned, the claimant contended that in respect of equal pay, indirect age discrimination and indirect sex discrimination there had been a continuing failure to pay her the same as a male comparator. Failing that the claimant wished the Tribunal to take into account that she had not been able to secure union support. The union had encouraged her to await the outcome of pay negotiations. The claimant had become aggrieved in 2015 when she realised that colleagues close by were earning nearly £5,000 more than herself per annum and she had submitted a grievance. She had then pursued the matter as a litigant in person.

9.1.18 Further we should add that on 31 July 2017 (therefore post our hearing) the claimant sent an email to the Tribunal in which she said that having had some time to reflect on the proceedings she now wanted some other matters to be considered by the Tribunal. The first was that the respondent had introduced new documentation on the first day of the hearing – the statistical analysis – and that on the last day had made the suggestion that the claimant was the subject of a TUPE transfer. On the latter point we repeat the caveat about what the respondent actually contends. Further as we have already noted, the respondent had been contending that there was a transfer type time issue at least since it amended its response in October 2016. Whilst, as Mr Lewis pointed out on the first day of the hearing, that was not referred to in the List of Issues agreed at the 13 September 2016 preliminary hearing, that is perhaps unsurprising as the amended pleading to which we have referred did not arrive until the following month. Accordingly, whilst we accept that the claimant as a layperson may not have realised the significance of it, we do not think it is fair to suggest that the transfer/time issue was only raised by the respondent on the last day of the hearing.

9.1.19 In her email the claimant went on to contend that as she believed the raw data to have been inaccurate and unreliable, so too was the analysis which counsel had prepared based upon it. Further, the claimant contended that the respondent suggestion that she could have sought promotion was totally irrelevant. The case was about her current grade of probation officer, the role that she had trained to do. If she had wished to work in a management capacity she would have elected to apply for that role.

9.2.7 In terms of particular disadvantage it was understood that the claimant contended that the PCP caused the disadvantaged group two types of particular disadvantage – less annual pay and being precluded from reaching the top of the pay scale before retirement with the consequent adverse impact on pension. In relation to lower annual pay, Mr Lewis contended that there would be no actual difference in annual pay as between the two groups who, both having qualified in 2004, would continue to progress up the pay scale in accordance with the version of the policy then in operation. Accordingly from April 2011 onwards both groups, irrespective of their age, would have advanced by one pay point each year, meaning that it took both groups the same period of time to reach the top of their band. Whilst the claimant might consider that it was unfair that her four male comparators had been able to progress when more generous pay progression was provided for, that was not the appropriate comparison to make for an indirect discrimination complaint.

9.2.8 In any event, on the basis of the available statistical data (at pages 289F-M) it was adequately clear that older probation officers (those over 46) in band 4 had, as a matter of fact, higher average pay than their younger colleagues in the same band. That was so even if the Tribunal disregarded those who had already reached the top of the pay band and so were not affected by the 2011 change. The statistics also showed that older band 4 probation officers were in fact more likely in general to be clustered around the top of the pay band, and Mr Lewis referred us to table 8 on page 289E. Therefore the respondent contended that the claimant could not show sufficient or any statistical basis for her argument that older workers were paid less.

9.2.9 In relation to pension disadvantage, Mr Lewis repeated his argument that unfairness in relation to colleagues who had started in earlier cohorts was not an apt comparison. However in any event the claimant had not called any evidence, statistical or otherwise, on the effect of the alleged PCP on the pension entitlement for either group. Further, the alleged disadvantage could not be adequately linked to the protected characteristic of age because other factors would come into play, including an individual’s preferred retirement age, particularly bearing in mind that the respondent did not impose a mandatory retirement age. Members of the older group could also seek promotion and finally, members of the disadvantaged group benefitted from the advantage of the underpin arrangement that was not available to the younger group.

9.2.17 In relation to the comparator pool, the claimant's case was that the disadvantaged group was a pool of female probation officers employed since 1999, and that the advantaged group were her four male probation officer comparators: Messrs Ullah, Harley, Taylor and Lockington. There was a clear and marked material difference, most obviously because the claimant was seeking to compare a group of female employees employed since 1999 with a group of male employees all of whom had been employed since well before 1999. Despite the relatively small difference between the parties as to such matters as the four comparators’ start dates, it was accepted that all four comparators had started employment before 1999 and they had all reached the top of band 4 several years before the alleged PCP was introduced in 2011. Accordingly the comparators benefitted from a significantly different pay progression regime, one which had been in operation for several years before anyone from the claimant's comparator group had started to work for the respondent. It was not just that the comparators had longer service; it was the time at which they happened to have started that service. The claimant was seeking to adopt a highly selective and artificial pool for comparison. Moreover, the four males had not been affected by the change in 2011 because they had already reached the top of the pay band.

9.2.18 In any event Mr Lewis’ written submissions go on to consider the question of establishment of a group disadvantage for the claimant's group of female probation officers. Mr Lewis contended that from the claimant's own selection of that group it was clear that the difference in annual pay had nothing to do with sex and everything to do with the date on which the four comparators happened to start their employment with the respondent. Further, if those four males had been female they would have benefitted in exactly the same way because of their start dates. In fact it was the respondent’s case that numerous female colleagues with similar start dates to those males had benefitted in exactly the same way. 

9.2.19 Mr Lewis went on to note that the claimant contended that recruitment trends over the past 15-20 years in the Probation Service showed an increase in female employees to that of males, and that by reference to her male comparators there was the suggestion that males were clustered at the top of the band 4 pay scale. Mr Lewis did not accept this on the basis of the available data. It appeared that approximately 17 band 4 probation officers were male, which equated to approximately 15%. Table 5 on page 289D showed a relatively even spread of men across the various pay points within band 4. Further, only three (which would equate to 18%) of people at the top of the band were men, so that the corollary was that the overwhelming majority of employees at the top of band 4 were in fact female (82%). Mr Lewis noted that the claimant contended that there were four men or an even greater number at the top of band 4. If it was four then no significant statistical difference was made to the analysis above. Insofar as the claimant contended that there were more than four men she was either mistaken or wrong, and had not proved her case. The data shown on page 289 of the bundle indicated that the overwhelming majority, some 70%, of those with longest service, that is over 20 years at band 5, were female; whereas 25% of those with least service (up to 12 years) were male. The claimant had not proved any statistical or other basis for asserting that female employees as a group earned significantly less than men.

10.2.3 In the circumstances of the claimant's case the delay of over four years clearly was a considerable delay. However, we need to consider the reasons for it. That includes, in our judgment, the uncontested evidence that whilst she approached her union at an early stage, the union advised a “wait and see” approach rather than giving the claimant positive advice about steps that she could take herself. The claimant has not been able to afford legal advice. We discount the respondent’s suggestion that her brief involvement in the world of HR – in the context of a short-term administrative position – imparted to the claimant sufficient knowledge or experience so as to permit her to speedily proceed to enforce her rights. Whilst the claimant has criticised the respondent for failing to provide statistical data to her, we do not consider that to be relevant to the issue we are currently dealing with. That is because the claimant only began making her requests in February 2016 – some months after she had commenced the proceedings. It is not therefore a case where she was waiting for documentation in order to decide whether or not to proceed.

10.2.4 Despite the long delay, we conclude that the cogency of the evidence has not been affected. There has been no significant factual dispute in any event. In terms of the availability of documentation, it would appear that the only person potentially prejudiced by the delay has been the claimant herself in terms of statistical evidence which she had hoped to obtain to support her case. It is not a case where the respondent has been prejudiced in its defence by the lack of documentation it would seek to rely upon.

10.2.5 In terms of prejudice overall, we take the view that a decision to extend time would only prejudice the respondent to the extent that it is required to defend a complaint that otherwise would have been struck out. It is not and has not been prejudiced in the way in which it has actually had to defend the complaint. The reality, of course, is that we are considering this point not as a preliminary issue but at the conclusion of a two day hearing. The prejudice to the claimant in not allowing an extension of time would be far greater as she would have no opportunity to have this significant part of the claim tested on its merits. Accordingly our decision is that it would be just and equitable to extend time to the date of actual presentation of this claim on 4 November 2015.

10.5.2 Dealing first with the alleged disadvantage of less annual pay, we find that we are reliant on the statistics which have been provided. As recorded in paragraph 5 above, the claimant’s quest for statistical information has been fraught and clearly has caused her great frustration. Bearing in mind that the Tribunal cannot “step into the arena”, we believe that by granting (on their merits) the Claimant’s applications for specific disclosure, the Tribunal has done all that it can to assist the Claimant. That has not resulted in provision of the type of data which the Claimant hoped she would receive. Whilst it is not an ideal situation, we take the approach that we have to decide the case on the material before us, including such statistical information as we now have. It would be an extreme step to draw the inference which the claimant invites us to which, if we are permitted to paraphrase, is that the respondent has deliberately failed to disclose statistics or other documentation that it has with the intent of depriving the claimant of a proper opportunity to have her claim adjudicated on its merits. Even if we were to make that inference (which we do not) the claimant would then be inviting us to simply accept her assumptions or suspicions unsupported by documentary evidence. That is an approach we cannot adopt.