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FAIR EMPLOYMENT TRIBUNAL

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					                    THE INDUSTRIAL TRIBUNALS


                                                                   CASE REF: 1443/11


CLAIMANT:                   Julie Muldrew


RESPONDENT:                 Board of Governors of Larne Grammar School



                                     DECISION
The unanimous decision of the tribunal is that the claimant was unlawfully and indirectly
discriminated against by the respondent on the ground of her gender by the requirement
that a Head of Year post could only be held by a full-time teacher. The claimant is
awarded £5,000.00 as compensation for injury to feelings. Interest on that sum calculated
at £185.20 is also payable. She should also be paid a sum equivalent to the
Teachers Allowance she was required to relinquish from September 2011 to the end of
that academic year, net of income tax and statutory contributions.



Constitution of Tribunal:

Vice President:             Mr N Kelly

Members:                    Dr C Ackah
                            Mr D Walls



Appearances:


The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by
The Equality Commission for Northern Ireland.


The respondent was represented by Mr B McKee, Barrister-at-Law, instructed by
O’Reilly Stewart, Solicitors.


Background

1.    The claimant was at all material times, and remains, a teacher in Larne Grammar
      School. She commenced that employment in 1995. It is common case that she is
      a competent and experienced teacher.




                                            1.
2.    The respondent is the Board of Governors of Larne Grammar School, a voluntary
      grammar school. The respondent is the claimant’s employer.

3.    After a restructuring of management posts within the respondent school, the
      claimant was appointed Year Head in 2008.

4.    In 2008/2009 and in 2009/2010, the claimant applied for and was granted
      temporary variation in her employment contract, which reduced her working week
      from five days to four days. The variation was sought to facilitate childcare.

5.    During that two year period, the claimant was required to relinquish her Year Head
      post, and the associated salary supplement, as part of the temporary contract
      variation.

6.    The claimant returned to her normal contractual terms and worked full-time from
      September 2010 for a one year period. During that period, she resumed her
      responsibilities as Year Head and received the related salary supplement.

7.    In September 2011, the claimant again reduced her working week from five days to
      four days as a temporary contractual variation for the purposes of childcare. The
      claimant was again required to relinquish her Year Head post and the associated
      salary supplement while she worked part-time.

8.    The claimant lodged a claim (‘the first claim’) on 24 June 2011. That claim raised
      several matters, most of which had been resolved between the parties and no
      longer required determination by the tribunal. The first claim also raised an
      allegation of indirect sex discrimination in relation to the temporary variations in
      contract from full-time to part-time in 2008/2009 and 2009/2010 and in relation to
      the further temporary variation in contract which was due to commence from
      September 2011. The first claim, and indeed the second claim referred to below,
      did not specifically refer to part-time worker discrimination. However, they made it
      plain that the focus of the claims was the exclusion of part-time teachers from
      Year Head posts. The respondent did not object to part-time worker discrimination
      being included as an issue to be determined.

9.    The claimant lodged a further claim (‘the second claim’) on 27 January 2012 raising
      the same issues. The respondent lodged a response to the second claim on the
      first day of the hearing. Both parties consented to the second claim and response
      being accepted by the tribunal and being consolidated with the first claim for
      hearing.

The issues

10.   Counsel for both parties, and their instructing solicitors, have to be commended for
      the constructive approach that they have adopted in this case to both narrow the
      issues, and to further the overriding objective, as set out in Regulation 3 of the
      Industrial Tribunals (Constitution and Rules of Procedure) Regulations
      (Northern Ireland) 2005.

11.   It was common case that:-




                                           2.
              (i)     The requirement that Year Heads be full-time teachers (‘the PCP') had
                      an adverse and disproportionate impact on female teachers.

              (ii)    The PCP had had an adverse impact, amounting to a detriment, on
                      the claimant.

              (iii)   That PCP had been put in place for a legitimate purpose.

              (iv)    That legitimate purpose was securing pastoral care for pupils at the
                      respondent school.

12.   Other matters had been resolved between the parties before the commencement of
      the hearing and the only issues which remained for determination by the tribunal
      were:-

              (i)     Did the tribunal have jurisdiction to determine the first or
                      second claim? Specifically had the claimant complied with the
                      statutory grievance procedure as set out in the Employment
                      (Northern Ireland) Order 2003 and were the claims within time?

              (ii)    If the tribunal had jurisdiction for the purposes of a claim of indirect
                      sex discrimination under the Sex Discrimination (Northern Ireland)
                      Order 1976 and/or a claim of part-time worker discrimination under the
                      Part-time Workers (Prevention of Less Favourable Treatment)
                      Regulations (Northern Ireland) 2000, was the PCP a proportionate
                      means of securing the legitimate objective, and therefore, was the
                      PCP objectively justified?

              (iii)   If the PCP was not objectively justified, what was the appropriate
                      remedy in relation to either the first or second claim in terms of injury
                      to feelings, loss of salary supplement and pension loss?

The hearing

13.   The evidence was heard over three days from 30 January 2012 – 1 February 2012.
      The witness statement procedure was used, with one minor exception. Each
      witness, with that one exception, adopted their statement(s) as their
      evidence-in-chief and moved directly to cross-examination and re-examination.

14.   The tribunal heard evidence from the claimant and, on her behalf:-

              (i)     Mr Mark Langhammer, Director of the Association of Teachers &
                      Lecturers (‘ATL’);

              (ii)    Reverend Dr Paul Irwin Reid, a member of the Board of Trustees and
                      of the Board of Governors of the Head of Year; and

              (iii)   Mr Darwin Workman, a recently retired Year Head in the respondent
                      school.

15.   The tribunal also heard from the following witnesses, called on behalf of the
      respondent:-


                                               3.
            (i)     Mr John Wilson, the Principal of the respondent school;

            (ii)    Ms Lynn Hunter, one of two Vice Principals of the respondent school;

            (iii)   Reverend Dr Colin David McClure, Chair of the Board of Governors of
                    the respondent school; and

            (iv)    Mr Richard McGeagh, Year Head and Teacher Governor of the
                    respondent school.

16.   Issues arose in the course of the hearing and, with the consent of the claimant,
      Ms Hunter gave limited oral evidence-in-chief to deal with those matters and to
      ensure that as complete a picture as possible was presented to the tribunal.

17.   At the close of the evidence, the parties agreed to lodge written submissions
      dealing with the remaining issues, by 5.00 pm on 3 February 2012. Those written
      submissions are annexed to this decision.

Findings of fact

18.   The respondent school employs approximately 49 teaching staff headed by the
      Principal, Mr Wilson.

19.   There are two Vice Principals. Ms Hunter is responsible for pastoral care issues.
      The other Vice Principal takes the lead on academic issues.

20.   The respondent school has seven year groups, from Year 8 to Year 14. Each year
      has a Year Head. Each Year Head receives a salary supplement known as a
      Teaching Allowance. Each Year Head is required to be a full-time teacher.
      Year Heads have pastoral care responsibilities.

21.   There are several Departments in the respondent school, eg Modern Languages.
      Each Department has a Head of Department. Heads of Department have
      responsibility for academic issues.

22.   Apart from the Principal, the Vice Principals, certain members of senior
      management, the Year Heads, those teachers engaged in a mentoring programme,
      and the teacher assigned responsibility for preparing and maintaining the
      class timetable, all other teachers employed in the respondent school are assigned
      duties as Class Tutors.

23.   Each Class Tutor has specific responsibility for one quarter of a particular year
      group.

24.   There is presently no requirement that Class Tutors need be full-time teachers. In
      the case of two groups of pupils, each comprising one quarter of their respective
      year group, two part-time teachers share class tutor responsibilities and duties. In
      the case of one other group of pupils, a full-time teacher and a part-time teacher
      share those duties and responsibilities. Unlike Year Heads, Class Tutors receive
      no additional payment.




                                            4.
25.   The respondent school has a formal pastoral care policy which issued in 2010 and
      which superseded earlier versions of the policy. It provides:-

            “The importance placed on the pastoral care of our pupils is reflected by, and
            embedded within our school aims:-

                   (i)        to enable all pupils to develop aesthetic and cultural awareness
                              and to realise their intellectual and physical potential through
                              the provision of a broad, balanced and coherent curriculum;

                   (ii)       to create an awareness of, and encourage a respect for,
                              spiritual, religious and moral values and to promote tolerance
                              for the view of others;

                   (iii)      to provide a caring and supportive environment in which pupils
                              may have equal opportunities to pursue their studies, interests
                              and personal development in a spirit of enjoyment and
                              co-operation, regardless of sex, race, culture or religion; and

                   (iv)       to help all pupils to grow into independent, self-disciplined,
                              confident and responsible adults able to fully participate in
                              society.

            Pastoral care is an integral part of the whole educational experience offered
            to our pupils and is not a distinct entity. It underpins every aspect of the
            pupil’s experience in school and exists, not for its own sake, but to enable
            pupils to achieve their potential.

            Our pastoral care aim is:-

                   ‘To offer the best possible pastoral care by providing support and
                   guidance for pupils in an environment which is characterised by good
                   relationships, mutual respect and tolerance.’.”

26.   In cross-examination, the respondent’s witnesses frequently emphasised that the
      respondent’s policy was to offer the best possible pastoral care.

27.   The pastoral care policy also provided that:-

            “The pastoral care system should provide academic and emotional support
            and help to promote good discipline and change unacceptable behaviour. In
            this school we undertake the following tasks:-

                   -       devise policies and procedures which ensure the physical and
                           emotional security of our pupils (child protection policy, behaviour
                           management policy, special educational needs and disciplinary
                           policy, anti-bullying policy and any others which may be relevant);

                   -       monitor pupil progress and communicate this to parents;

                   -       help and guide pupils through critical transition times by providing
                           advice, support, mentoring and counselling;


                                                5.
                    -   liaise with parents and other agencies for the benefit of the pupils;

                    -   create a caring and orderly community which is sensitive to the
                        needs of pupils, staff and parents and promotes good
                        relationships;

                    -   aim for high standards of behaviour to provide an environment in
                        which pupils can achieve their potential;

                    -   provides support services (school nurse, school counselling
                        support staff, education, welfare officer, behaviour guidance
                        support officer).”

28.   Under the heading ‘the organisation of pastoral care in Larne Grammar School’, the
      policy provides:-

             “Individual guidance and welfare of pupils is provided through a year-based
             pastoral system. On entry to the school each pupil is allocated to a tutor
             group with a class tutor who has daily contact with the children and is
             responsible for dealing with day-to-day matters, as well as monitoring overall
             progress and providing educational guidance. Year 8, 9 and 10 tutor groups
             have one session each of personal development, employability and
             citizenship weekly. Year 13 and 14 tutor groups have one weekly session of
             class tutorial with their class tutors, Year Head and on occasions, a visiting
             speaker. Year 11 and 12 tutor groups follow a modular ‘life skills’
             programme which includes careers, personal development and citizenship.
             Drugs and sex education are covered by personal development, biology and
             RE classes.

             Class tutors are supported by experienced Year Heads and a Vice Principal
             who keeps in close contact with the Principal and parents as well as support
             and welfare services.”

Contentions of the parties

29.   The contentions of the parties are set out more fully in the written submissions
      attached to this decision. However, in essence, the respondent argued that the
      requirement to provide the best possible pastoral care to pupils means that
      continuity of care is essential and that a Year Head needs to be present in the
      school on five days a week to provide the necessary continuity and to deal with
      matters at the appropriate level of experience. In essence, the claimant argues that
      pastoral care is provided by a team encompassing all teaching staff, the
      class tutors, the Vice Principal, the Principal, the school counsellor (who is available
      on one half day per week) and mentoring services. The claimant argues that during
      her absence on one day a week (Monday) the small number of urgent cases could,
      and probably would in any event, be dealt with by the Vice Principal. The less
      serious cases could be dealt with, and probably would in any event be dealt with, by
      Class Tutors. Other matters could wait until her return to work on the following day.




                                             6.
Evidence of the claimant

30.   Much of the claimant’s witness statement related to matters which had already been
      resolved between the parties before the commencement of the tribunal hearing.

      In relation to the remaining core issue; ie whether the Year Head needed to be a
      full-time teacher, the claimant’s evidence was that she could properly carry out all
      the duties of the post, over a four day week, taking Monday off. She emphasised
      that pastoral care was the responsibility of all staff at the school and that it was
      delivered by a team comprising Class Tutors, Year Heads and the Vice Principal in
      charge of pastoral care, with the assistance of others, including a part-time school
      counsellor and individual class teachers.

31.   The claimant stated that the Year Head had to lead and support those Class Tutors
      who had responsibility for pupils within their year group, to build relationships with
      the pupils, their parents and staff, to supervise pupil attendance and punctuality and
      to arrange any necessary meetings with parents to acquaint them with school policy
      or to discuss particular problems. A Year Head also had to supervise and direct
      weekly reports, to proof read annual reports before they are sent to parents and to
      maintain all appropriate records of pupils within their year group. The Year Head
      must also organise a year assembly for her particular year every seven weeks.

32.   In cross-examination the claimant was asked to comment on several examples put
      forward by the respondent’s witnesses of incidents in which it was argued that it had
      been necessary, or least highly desirable, for a Year Head to be present on
      five days per week. In relation to each such incident, the claimant argued that an
      experienced Year Head working together with other members of the pastoral care
      team, ie the Class Tutors as the initial points of contact, other teaching staff, the
      Vice Principal, the School Nurse, and School Counsellor, etc would be able to
      provide a fully satisfactory service in relation to pastoral care. While the claimant
      accepted in certain cases her absence on a Monday might cause a delay in
      completing an investigation, she felt any such investigation could still be completed
      satisfactorily and that proper continuity of care and proper reassurance could be
      afforded to both pupils, parents and staff.

Evidence of Mr Mark Langhammer on behalf of the claimant

33.   Again, much of the evidence submitted by Mr Langhammer in the form of a
      witness statement had been overtaken by events and related to matters which had
      been resolved prior to the commencement of the hearing.

34.   Mr Langhammer stated in cross-examination that where a teacher has a
      Teaching Allowance (salary supplement), it could be paid pro rata if that teacher
      worked part-time, but if that teacher undertook the whole of the appropriate range of
      duties covered by that Teaching Allowance, that teacher could be paid the full
      allowance.

Evidence of the Reverend Dr Paul Reid on behalf of the claimant

35.   The Reverend Dr Reid stated, in his witness statement, that at a meeting of the
      Board of Governors in March 2008, ie at the meeting which the first temporary


                                            7.
      variation of contract was approved, he had moved an amendment to provide that
      the claimant should retain her responsibilities and salary supplement as Year Head.
      That amendment does not appear to have been moved because of concerns about
      unlawful discrimination. He stated that this amendment had been seconded by the
      teacher representative on the Board of Governors but had not been accepted by the
      Board. He pointed out that there would be several instances in which Year Heads
      would not be immediately available to deal with pastoral care issues or indeed even
      be on school premises. He referred to illnesses, domestic crises, such as
      bereavements, school trips and training. He accepted, in cross-examination, that
      the need for pastoral care is constant but responded that the need for academic
      education is similarly constant. If one can be delivered by staff on a part-time basis,
      he argued that the same would also apply to the other. He accepted that a
      Year Head who was not on duty and not being paid on a set day each week could
      not be obliged as a matter of contact to respond to any particular pastoral care
      issue on that day. However, he felt a Year Head could in reality be contacted by
      mobile telephone and would respond, if it were necessary to do so.

      The Reverend Dr Reid accepted that, in certain instances, the absence of a
      Year Head on a particular school day would delay the conclusion of an investigation
      or the resolution of a pastoral care matter. He maintained that, in his view, the
      Year Head and the Head of Department were equal in terms of responsibility; the
      Year Head had responsibility for pastoral care and the Head of Department for
      academic matters. The respondent had allowed Heads of Department to work for
      three days a week. In his view, academic matters were as important as pastoral
      care matters to the respondent school and if academic education could be delivered
      by a team of teachers, some of whom were part-time, so could pastoral care.

Evidence of Mr Darwin Workman on behalf of the claimant

36.   Mr Workman had recently retired but had been employed by the respondent school
      as a Year Head for some 12 years. He stated that it was his considered opinion
      that, with careful planning, the responsibilities of the role could be carried out in
      four days per week as opposed to five days per week, by a dedicated and
      well-organised Year Head. He stated that much of the work involved was
      administrative and could be completed during non-teaching time in school, after
      school or at home. He also stated that pastoral care problems often revealed
      themselves over a period of days and that it was seldom, in his experience over
      12 years, that a matter needed to be dealt with by a Year Head immediately. Such
      matters would be dealt with in the first instance by the Class Tutor in accordance
      with the pastoral care policy and in the unlikely event that it could not be properly
      dealt with by the Class Tutor and could not be put on hold for a day pending the
      return of the Year Head, then the Vice Principal could deal with the matter. He
      stated that in his experience such a situation had seldom, if ever, arisen. He also
      stated that only on the rarest occasions would an interview be arranged with
      parents on the same day as a problem had been brought to the attention of a Year
      Head.

      More serious issues, such as child protection or criminal offences, were brought
      immediately to the attention of the Vice Principal as the person in charge of pastoral
      care and the person responsible for dealing with those serious issues.




                                             8.
Evidence from the respondent’s witnesses

Evidence of Mr John Wilson, Principal of the respondent school

37.   Mr Wilson referred to the 2008 salary policy promulgated by the respondent school.
      It stated:-

             “Teaching Allowances will be accessible to all staff and will be allocated on a
             pro rata basis for part-time staff. All allowances will be based on the totality
             of teaching and learning responsibility.”

      It also stated that:-

             “Teaching Allowance 2 may be awarded to Year Heads. Given the pastoral
             nature of the post (including child protection) these will only be available to
             full-time members of staff.”

38.   Mr Wilson stated that the claimant had agreed to relinquish the status and salary
      supplement of Year Head when her contract was temporarily varied for the years
      2008/2009 and 2009/2010.

39.   Mr Wilson stated that the needs of the pupils required that the Year Head should be
      present in the school for five days per week and that the post could not be
      adequately fulfilled by a part-time teacher working four days per week. Since he
      and the Board of Governors were satisfied that the duties of Year Head could not
      be carried out on four days per week, the question of whether or not a full Teaching
      Allowance or a pro rata Teaching Allowance would be paid to the claimant did not
      arise.

40.   Mr Wilson set out in his witness statement several different instances which he
      stated indicated to him that the post of Year Head needed to be filled by a
      full-time member of staff. In each of these incidents, the Year Head had personally
      taken action in relation to a pastoral care issue. Mr Wilson stated that the support
      which had been given would not have been as effective if the Year Head had not
      been available in the school consistently on each day of the week.

Evidence of Ms Lynn Hunter, Vice Principal of the respondent school

41.   Ms Hunter stated that she had assumed full responsibility for pastoral care in the
      respondent school in 2002 following the publication of a pastoral care document in
      2001. She stated that since 2001 there had been an increase in the workload of
      Year Heads.         This included dealing with issues such as indiscipline,
      disengagement, family issues, attendance concerns, special educational needs,
      bullying, issues relating to self esteem and self harming, and issues relating to the
      increased use of social networks and information technology. She stated that it was
      important that all pastoral care issues should be dealt with as soon as they arose
      and that it was vital that parents or guardians be kept informed of all such issues
      and the outcome of any relevant investigations.

42.   She stated that Class Tutors were responsible for day-to-day monitoring of the
      pupils and dealing with low level matters, such as a lost school book or a lost piece


                                             9.
      of homework, etc. More serious issues were referred by Class Tutors to the
      Year Head who could refer the most serious matters on to her as Vice Principal.
      Pupils could also approach a Year Head directly for advice and assistance. She
      stated that pupils recognised their Year Head as someone they could turn to if they
      had a serious problem. In her view, this required full-time presence of the
      Year Head on school premises.

43.   She emphasised the need for personal contact between Year Heads and parents
      and stated that Year Heads often contacted parents by telephone on the day any
      particular incident occurred to explain that the school was aware of the incident and
      to explain what the school was doing in relation to that incident.

Evidence of the Reverend Dr Colin David McClure, Chair of the Board of Governors
at the respondent school

44.   The Reverend Dr McClure emphasised in his evidence the priority that the
      respondent school attached to the pastoral needs of children.

45.   In cross-examination, the Reverend Dr McClure accepted that the focus of his
      witness statement had been the priority to be accorded to the pastoral needs of the
      pupils. He also accepted that there were other factors that should be weighed in
      the balance when considering whether a post should, or should not, be offered to a
      part-time worker. He further accepted that he had referred nowhere in his
      witness statement to European or domestic sex discrimination legislation. He had
      referred to the Children (Northern Ireland) Order 1995, the Human Rights Act and
      the United Nations Convention on the Rights of the Child.                 On further
      cross-examination, he stated that he ‘didn’t think that we (the Board) spent any time
      considering any other factors’ (when considering whether the Year Head post could
      be filled by part-time teachers. He confirmed again that the primary concern of the
      Board in imposing the PCP had been the best interests of the pupils. When
      pressed on whether there had been any discussion at all of the potential adverse
      impact on women he responded:-

             “I certainly don’t recall any discussion.”

46.   He further stated when asked whether there had been any review of the PCP given
      the potential adverse impact on women that he ‘didn’t recall any’.

      He stated:-

             “If you’re asking if we as a Board gave detailed consideration to that – I don’t
             believe we did – but it was part of the culture.”

47.   The Reverend Dr McClure accepted that pastoral care was delivered by a team and
      that every teacher and indeed every person employed in the school shared a
      responsibility for pastoral care.

48.   He stressed the need for continuity and the need for the Year Head to develop
      relationships with pupils and parents and he felt that that required the Year Head to
      be a full-time teacher. He also felt that all Class Tutors should be full-time teachers,
      although the school did not require that at present. His view was that best practice
      would point to that result. He also felt that that would be the normal assumption.


                                              10.
      He stated that ‘the time would come when it should be inserted (in the school
      policy)’.

49.   When teachers were away from school premises on training courses or school trips,
      he felt that they were still engaged on their employment contracts and were
      contactable in an emergency. He confirmed that there was no specific requirement
      in school policy that teachers engaged in such activities should carry a mobile
      phone but he was confident that they would nevertheless be easily contactable
      since such courses were usually carried out at fixed locations.

Relevant law

50.   The Employment (Northern Ireland) Order 2003 provided for a statutory grievance
      procedure. In broad terms, it included a requirement that an employee who wished
      to lodge a tribunal claim of unlawful discrimination had to first lodge a written
      grievance with his/her employer and then wait 28 days before lodging the tribunal
      claim. If the employee did not do so, the tribunal had no jurisdiction to hear the
      claim.

51.   That part of the 2003 Order was revoked by the Employment Act (Northern Ireland)
      2011 with effect from 5 April 2011. The 2011 Act provides for voluntary compliance
      with a LRA Code of Practice. If the employee unreasonably fails to comply with the
      Code an award can be reduced by up to 50%.

52.   Transitional provisions apply to continuing acts which commenced on or before
      2 April 2011.

53.   In the circumstances of this case, a claim of unlawful discrimination must be lodged
      within three months from the act complained of or, in the case of a continuing act,
      three months from the last relevant date.

54.   The only substantive issue, as opposed to jurisdictional issue, remaining to be
      determined is whether the requirement imposed by the respondent school for
      Year Heads to be full-time teachers was a proportionate means of achieving what
      was accepted by both parties to be a legitimate objective, ie the need to provide
      pastoral care to pupils.

55.   Where there is a clear, and in this case, an agreed adverse disproportionate impact
      on a protected group, in this case women, it is for the employer to establish, on a
      balance of probabilities, cogent and convincing reasons for the imposition of the
      relevant provision, criterion or practice.

56.   The parties have set out references to case law in the attached written submissions.
      The tribunal has considered those references and submissions in reaching its
      decision.

57.   In R (on the application of Elias) (claimant) v Secretary of State for Defence
      (defendant) [2006] IRLR 934, the Court of Appeal considered a non-statutory
      compensation scheme for those were interned by the Japanese during the
      Second World War. That scheme provided an ex-gratia payment to civilian
      internees who could establish that they were ‘British civilians’. That meant that an
      applicant had to establish that they had been born in the UK or that a parent or


                                           11.
      grandparent had been born in the UK (‘the birth link criteria’). Mrs Elias alleged that
      that requirement was, inter alia, indirectly discriminatory on grounds of national
      origin and that it could not be justified.

      The Court of Appeal stated:-

             “The Judge correctly held that the desire of the Government to limit the
             category of those who claim under the compensation scheme to persons
             with a close link with the UK at the time of internment was a legitimate aim.

             The Judge also correctly held that the eligibility criteria were not
             proportionate, however, to the aim to be achieved. In so finding, the Judge
             correctly adopted a rigorous standard in scrutinising the reasons advanced
             by the Secretary of State in justifying the birth link criteria. The argument
             that the Secretary of State had a wide margin of appreciation or discretion
             could not be accepted. A stringent standard of scrutiny of the justification
             was appropriate because the discrimination, although indirect in form, was so
             closely related in substance to the direct form of discrimination on grounds of
             national origins, which can never be justified.

             A three stage test is applicable to determine whether criteria are
             proportionate to the aim to be achieved. First, is the objective sufficiently
             important to justify limiting a fundamental right? Secondly, is the measure
             rationally connected to the objective? Thirdly, are the means chosen no
             more than is necessary to accomplish the objective?

             In the present case the Secretary of State was in breach of an express
             statutory duty not to discriminate on racial grounds. It was more difficult to
             justify the proportionality of his choice of the birth link criteria as a matter of
             discretionary judgment when he did not even consider whether or not he was
             indirectly discriminating on racial grounds. It was also relevant to take
             account of the fact that the compensation scheme was not properly thought
             out in the first place, the issue of discretion was not properly addressed at
             the relevant time and that poor standards of administration were evident.
             Consequently, there was no proper attempt to achieve a proportionate
             solution by examining a range of criteria and by balancing the need for
             criteria to achieve the legitimate aim of close links with the UK with the
             seriousness of the detriment suffered by individuals who were discriminated
             against. As there was no proper consideration of whether there were other
             less discriminatory means of restricting payments to those with a close link to
             the UK, there was no evidential basis for finding that the birth link criteria
             were the only criteria that were reasonably necessary and proportionate to
             achieving the legitimate aim.”

58.   In Colman Coyle v Mrs Z Georgiou [EAT/535/00] the EAT addressed the issue
      of establishing objective justification in the following way:-

             “The question is whether the tribunal erred in law in deciding that the
             appellants had discharged the burden of establishing justification. As we
             have already indicated, Ms McKie’s attack on the tribunal’s decision that the
             respondent’s claim of sex discrimination failed was based primarily on the
             failure by the tribunal to take into account and make findings about material


                                             12.
             parts of the evidence. Ms McKie accepted that the tribunal correctly directed
             itself by reference to Hampson v Department of Education & Science
             which, although it had been qualified to a degree was, in essence, that:-

                    ‘If there is a prima facie discriminatory situation, clear and cogent
                    reasons must be given to justify it.’

             “Per Lord Johnston, Lord Chancellor and Lord Chancellor’s Department v
             Coker and Osamor [2001] IRLR 116.”

Decision

59.   Time-limitation is the first issue to be considered. The claimant originally worked
      and had agreed to work for 2008/2009 and 2009/2010 on a part-time basis with no
      Teaching Allowance and the loss of the status and duties as Year Head. However,
      she then worked for one full year in 2010/2011 as Year Head with the full
      Teaching Allowance. The tribunal has concluded that this must break any
      continuing act of discrimination and that the claim can only properly refer to the
      summer of 2011, when the claimant again sought and was granted a temporary
      variation in contract but on terms that she relinquished the Year Head post and the
      associated Teaching Allowance from September 2011.

60.   The tribunal has concluded that the first and second tribunal claims were within
      time. The first claim was lodged on 24 June 2011 following the decision of the
      respondent school to grant the 2011 temporary variation of her contract subject to
      the PCP. That decision had first been communicated to her in a letter dated
      25 March 2011.

      The second claim, lodged on 27 January 2012, was lodged during a continuing act,
      ie during the continuing failure to allow the claimant to undertake the responsibilities
      of Year Head while working four days a week.

61.   The second issue to be considered is the effect of the statutory grievance
      procedure. The act complained of, ie the decision of the respondent school to
      impose the PCP in relation to the temporary contract variation in 2011/12,
      commenced on 25 March 2011, ie before the law in relation to statutory grievances
      changed on 3 April 2011. The act continued after 2 April 2011 and the first tribunal
      claim was lodged on 24 June 2011. Under the transitional Rules, the pre-3 April
      2011 regime applies to the first claim.

62.   The statutory grievance issue has not been fully addressed in the written
      submissions lodged on behalf of either party. However, on the balance of
      probabilities, the tribunal concludes that the claimant did lodge a grievance on
      20 June 2011. However, she did not wait 28 days before lodging the first tribunal
      claim. The tribunal therefore does not have jurisdiction to deal with the first tribunal
      claim.

63.   The second claim is similarly subject to the pre-3 April 2011 regime under the
      transitional provisions, since a grievance was lodged before 2 July 2011. However,
      the claimant has waited 28 days before lodging the second tribunal claim. The
      claim is therefore within the tribunal’s jurisdiction. The claim is still within time
      because it is a continuing act; see above.


                                             13.
64.   Turning to the substantive issue, the unanimous decision of the tribunal is that the
      respondent has not discharged the burden placed upon it to establish that the PCP
      was a proportionate means of achieving the legitimate objective of securing pastoral
      care for pupils at the school.

65.   Firstly, it has to be remembered that this is not a subjective test. There can be no
      doubt that the Reverend Dr McClure, Mr Wilson, Mr McGeagh and Ms Hunter
      genuinely believed that the PCP was both right and that it was based solely on the
      ground of pastoral care. However, the test to be applied by the tribunal in
      assessing proportionality is objective in nature and requires the tribunal to carefully
      scrutinise the reasons put forward by the respondent to justify a PCP which, on the
      facts of this case, has been accepted to have a disproportionately adverse impact
      on women and an adverse effect on the claimant in particular.

66.   An employer in such circumstances does not, as a matter of law, need to prove
      that, before the PCP came into operation, it had conducted a proper and structured
      analysis of the impact of the PCP and had conducted a balancing exercise between
      the need to secure pastoral care on the one hand, and the need to avoid, or to
      minimise, any discriminatory impact on protected groups on the other. However, it
      is clear that the respondent in the present case had completely failed to consider
      the potential discriminatory impact on women of a requirement that Year Heads
      should be full-time. The Year Head posts are important both in terms of school
      management and in terms of individual career development. The fact that
      restricting those posts to full-time workers could have an unlawful and indirect
      impact on women, or an unlawful and direct impact on part-time workers, can hardly
      have come as a surprise to anyone with any knowledge of personnel management.
      Every manager knows, or should know, that excluding part-time workers from
      consideration for certain posts raises the risk of indirect sex discrimination and of
      part-time worker discrimination. Such a policy is something that requires careful
      consideration. The respondent, in this case, focused entirely on securing pastoral
      care. It is clear from the evidence from the Reverend Dr McClure that no
      consideration whatsoever was given to the possibility of indirect sex discrimination
      or part-time worker discrimination and equally clear that that issue has not been the
      subject of any review since the PCP was first imposed in or around 2008. While
      that failure to properly consider discriminatory impact, and to properly conduct a
      balancing exercise between the legitimate objective and the protection of particular
      groups, is not necessarily fatal to the respondent’s position, it must make it more
      difficult for the respondent to establish an objective justification. As the Court of
      Appeal stated in Elias:-

             “It was more difficult for him to justify the proportionality of his choice of the
             birth link criteria as a matter of discretionary judgment when he did not even
             consider whether or not he was indirectly discriminating on racial grounds.”

67.   In the Elias decision, the Court of Appeal stated that a particularly stringent
      standard of scrutiny of the justification was appropriate because the alleged
      discrimination, although indirect in form, was so closely related in substance to the
      direct form of discrimination on grounds of national origins that extra scrutiny was
      justified. In that particular case an applicant for the ex gratia payment had to
      establish that they were a ‘British civilian’ by proving that they had either been born
      in the UK or that they had a parent or grandparent born in the UK. Clearly such a


                                             14.
      requirement should have ‘leapt off the page’ in terms of raising a potential risk of
      unlawful discrimination. The facts of the present case are not that far removed in
      essence from that situation. As indicated above, it appears to this tribunal that any
      measure which deliberately and openly excludes part-time workers from a
      management post or a career advancement post must, or at the very least should,
      have alerted those considering its introduction to the potential for unlawful
      discrimination. Alarm bells should have been ringing. In such circumstances, if no
      consideration of that potential takes place, and if no consideration is given to
      whether an alternative approach is possible, the respondent must be in a difficult
      position.

      In any event, it is clear from Hampson, that the employer must provide clear and
      cogent reasons for the PCP where there is a prima facie discriminatory situation.

68.   The respondent’s witnesses struck the tribunal as genuine individuals who were
      primarily, and indeed solely, concerned with securing the best possible pastoral
      care for pupils. However, it appears to this tribunal that they had completely shut
      their eyes and ears to the possibility of unlawful discrimination against members of
      the teaching staff and to the possibility of finding an alternative and more
      proportionate means of providing the best possible pastoral care to its pupils, while
      not at the same time unlawfully discriminating against a protected group. The
      Reverend Dr McClure, the Chairman of the Board of Governors, was quite explicit
      that he felt that not just Year Heads but Class Tutors needed to be full-time to
      properly carry out their duties and that the respondent’s policy may have to be
      amended to specifically secure that objective. In the meantime, even though there
      was no formal requirement in the respondent’s policy that Class Tutors should be
      full-time and even though there were currently three part-time Class Tutors, his view
      was that best practice would require Class Tutors to be full-time. That would be the
      ‘underlying assumption’ of the pastoral care policy.            In cross-examination,
      Ms Hunter was equally clear in stating that in her view a part-time manager could
      not properly manage full-time staff. She was referring to the relationship between
      Year Heads and Class Tutors. When pressed, under cross-examination, both
      witnesses genuinely failed to understand that their position was somewhat
      unrealistic and somewhat old-fashioned.

69.   It cannot be the case that, solely to secure the best possible provision of a particular
      service in an ideal world, it is objectively justifiable to exclude those who, for family
      reasons, need to work part-time. Such a requirement would have a significant
      discriminatory effect, as has been admitted on the facts of this particular case. It is
      widely understood, as a personnel management issue, that that can only be
      permitted where there are clear and cogent reasons underpinning that position. If
      the view taken by the respondent organisation were more widely recognised, it
      would be impossible for general practitioners, consultants, lawyers, managers, or
      indeed workers in any significant professional or managerial post to work
      part-time. With any such post, there can always be an argument that continuity
      over the full working week would provide the best possible service and there can
      always be an argument that it is better for the customer or client to deal with one
      individual throughout the process from first contact to last. There can always be an
      argument that something may, at some point, be lost in translation between a
      part-time worker and another part-time worker or between a part-time worker and a
      full-time worker as responsibilities shift during the working week. To exclude
      part-time workers from such positions, solely on the ground that service provision


                                             15.
      might sometimes fall short of the gold standard, or might sometimes involve
      flexibility from other workers, would be to reverse any progress in
      equal opportunities terms back to the 1950s.

70.   It is clear that pastoral care is the responsibility of all the members of staff,
      particularly the teaching staff, of the respondent school. It is also equally clear that
      pastoral care is delivered by a team, comprising primarily the Class Tutors, the
      Heads of Year and the Vice Principal, with the assistance of the School Counsellor,
      School Nurse and other teachers. Day-to-day matters of no particular importance
      would be dealt with routinely by the Class Tutors or indeed by class teachers. The
      most serious issues, particularly those involving child protection matters, would be
      dealt with by the Vice Principal who would in many such cases, refer the matter
      directly to the PSNI or Social Services. In between those extremes, the Year Head
      would deal with matters, in many cases referred to her by Class Tutors and in other
      cases brought directly to her by pupils or others.

71.   It seems clear to this tribunal that the bulk of the matters which would fall to be dealt
      with by the Year Head could be dealt with by the Year Head on the days when
      present in school if that Year Head were present for four days out of five. It may
      well be a different situation if a Year Head were part-time to the extent of being
      present in school for only two or three days a week. However, that is not the
      situation in the present case and is not the situation that we are called on to
      consider. In most cases, the Class Tutor, class teacher or even the Vice Principal
      could advise the pupil’s parents or other interested parties that the Year Head
      would look at the matter immediately on her return to the school on the next day,
      and that she would then interview the relevant parties, prepare a report as required
      and take further action. The relevant individuals could also be advised that a
      Year Head would keep them up-to-date with progress and report back to them on
      an appropriate basis. In those cases where instant action was needed, preliminary
      action could, it appears to this tribunal, be undertaken by Class Tutors or teachers
      or, in the most serious cases, by the Vice Principal. In many of the most serious
      cases, the Vice Principal would have been involved in any event. In many other
      cases, the Class Tutor would have been the primary contact point and would have
      initiated preliminary action in any event. There would be, on the evidence before
      this tribunal, comparatively few instances where a case was of such urgency and of
      such a particular level of seriousness that it would not have gone directly or
      immediately to the Vice Principal for action in any event; but would require action to
      be taken on the one day the Year Head was absent by either the Vice Principal,
      Class Tutor or some other member of staff, undertaking duties which would
      otherwise have been undertaken by the Year Head.

      Perhaps the best way to consider this question is to refer to the three stage test set
      out in Elias. The first stage is whether the objective is sufficiently important to
      justify limiting a fundamental right. Clearly pastoral care is sufficiently important.
      The second stage is whether the PCP is rationally connected to the objective.
      Again the answer has to be ‘yes’. The availability of part of the pastoral care team
      is rationally connected to the provision of pastoral care. The third stage is whether
      the PCP is no more than is necessary to accomplish the legitimate objective. The
      answer this time has to be ‘no’. It is on this point that the respondent’s case fails.
      The respondent has failed to establish that the PCP was no more than was
      necessary to secure the legitimate objective and has failed to establish that a little




                                             16.
      flexibility within the pastoral care team would have had any real effect on the
      provision of pastoral care.

72.   The unanimous decision of the tribunal is that the claimant would have been able to
      discharge effectively the duties of Year Head on four days attendance at the school
      per week. A small minority of matters would require some action to be taken in the
      interim by someone who would not have, in the circumstances of that particular
      case, been undertaking that action in any event. In the tribunal’s opinion, the
      claimant could and should have been permitted to undertaken the duties of the post
      on four days per week. It therefore follows that the claimant was entitled to a full
      payment of the Teaching Allowance rather than a pro rata payment of the
      Teaching Allowance and it is so ordered.

73.   The tribunal is satisfied that the PCP, in the circumstances of this case, amounted
      to indirect sex discrimination. There is therefore no need for the tribunal to consider
      the alternative head of claim; ie part-time worker discrimination.

Injury to feelings

74.   Deciding whether to award compensation for injury to feelings, and, if an award is
      made, deciding on the level of an award is always a difficult exercise. In Vento v
      Chief Constable of West Yorkshire Police [2003] IRLR 102 the Court of Appeal
      stated:-

             “It is self-evident that the assessment of compensation for an injury or loss,
             which is neither physical nor financial, present special problems for the
             judicial process, which aims to produce results objectively justified by
             evidence, reason and precedent. Subjective feelings of upset, frustration,
             worry, anxiety, mental distress, fear, grief, anxiety, humiliation, unhappiness,
             stress, depression and so on and the degree of their intensity are incapable
             of objective proof or of measurement in money terms. Translating hurt
             feelings into hard currency is bound to be an artificial exercise.

             Although they are incapable of objective proof or measurement in monetary
             terms, hurt feelings are nonetheless real in human terms. The courts and
             tribunals have to do the best they can on the available material to make a
             sensible assessment, accepting that it is impossible to justify or explain a
             particular sum with the same kind of solid evidential foundation and
             persuasive practical reasoning available in the calculation of financial loss or
             compensation for bodily injury.”

75.   The three Vento bands have now been updated for inflation. The tribunal has
      concluded that an award in the lowest band, ie between £500.00 and £6,000.00
      would be appropriate. The claimant must have experienced hurt at the loss of
      status, and indeed loss of remuneration, which was imposed in a somewhat
      arbitrary manner and without any consideration of the potential for unlawful
      discrimination. However, this case cannot be compared, in terms of subjective
      injury to feelings, to a ‘standard’ harassment case or to a case where there is
      malice. The tribunal therefore fixes the appropriate award at £5,000.00.

76.   Interest at 8% may be awarded from the date of the act of discrimination under the
      Industrial Tribunals (Interest on Awards in Sex Discrimination and Disability


                                            17.
      Discrimination Cases) Regulations (Northern Ireland) 1996. The imposition and
      maintenance of the PCP in the present case was a continuing act, commencing in
      September 2011. Interest at 8% to the date of the decision is therefore, without
      absolute mathematical precision, £185.20. The tribunal can see no grounds on
      which it could be determined that interest should not be awarded.

77.   The claimant in terms of past and future loss is entitled to the salary supplement
      (Teaching Allowance) for 2011 to 2012, ie during her latest temporary contractual
      variation. The tribunal however does not know the claimant’s marginal tax rate and
      therefore is not in a position to calculate the appropriate net figure as compensation
      for that loss. It is hoped that the parties can resolve this matter between
      themselves and can agree the appropriate figure. If not, the tribunal can be asked
      to hold a remedies hearing.

78.   The issue of pension loss does not appear to be a matter which should trouble the
      tribunal. The claimant is in a final salary pension scheme rather than a career
      average scheme. Given the claimant’s age and the temporary nature of the
      contractual variation, it seem improbable that there could be any impact on her
      pension position.

79.   This is a relevant decision for the purposes of the Industrial Tribunals (Interest)
      Order (Northern Ireland) 1990.




Vice President:


Date and place of hearing:       30 January 2012 – 1 February 2012, Belfast


Date decision recorded in register and issued to parties:




                                            18.
IN THE MATTER OF AN INDUSTRIAL TRIBUNAL

Between:

                                   JULIE MULDREW

                                                                                 Claimant:

                                           -and-

           BOARD OF GOVERNORS OF LARNE GRAMMAR SCHOOL

                                                                              Respondent:

                    Written Submission on behalf of the Claimant

Following amendments made to the Sex Discrimination (Northern Ireland) Order 1976
indirect sex discrimination in the employment field is defined as follows.

A person discriminates against a woman if the person applies to her a provision, criterion
or practice that is applied equally or would be applied equally to a man but:

       • which puts or would put women at a particular disadvantage when compared
       with men; and
       • which puts her at that disadvantage; and
       • which the person cannot show to be a proportionate means of achieving a
       legitimate aim.

The test for disproportionate impact was amended in 2001 and again in 2005. When
considering cases that relate to events prior to the 2005 amendment regard should be had
for the fact that the test was different and, arguably, narrower than the current test.

This part of the definition now requires the claimant to show that the application of the
provision, criterion or practice puts or would put women at a particular disadvantage
when compared with men who are in the same circumstances. Government guidance
suggests that statistics can be helpful in ascertaining relative

                                                                                            1



                                                   19.
disadvantage, but they are not essential. In the present case the disadvantage has been accepted by
the Respondent.

The choice of the appropriate pool is a matter for the tribunal but it should be sufficiently wide to
include all those who might be affected by the provision, criterion or practice.

The Court of Appeal in Jones v University of Manchester [1993] IRLR 218 CA held that
the appropriate pool for comparison in a recruitment case was all those people who could comply
with the other selection criteria, apart from the requirement at issue.

In Hacking & Paterson and another v Wilson EAT/0054/09 the EAT reaffirmed that where
an indirect sex discrimination complaint is based on an employer’s refusal to grant a benefit the
appropriate pool of comparators should include only those employees who want the benefit.

London Underground Ltd v Edwards (No.2)[1998] IRLR 364 CA concerned changes to
the rostering system for train drivers on the London Underground. All the male drivers (over
2000 in total) were able to comply with the new rosters, as were 20 of the 21 female drivers. The
only exception was Ms Edwards, a single parent, who found that she could no longer reconcile
work with her childcare responsibilities. The Court of Appeal upheld the tribunal’s decision that
the new rosters indirectly discriminated against women, even though 95% of the female drivers
were able to work them, because all the men could comply. Where the number of employees in
the relevant pool was as small as in the instant case, the tribunal was entitled to draw on the well-
known fact that women are more likely to be single parents than men. A considerably smaller
proportion of women would, therefore, have been able to work the new rules, i.e. 95% as against
100% of the men. This authority demonstrates that a tribunal may use its common sense and
experience in answering the proportionality question and in defining the pool.




In the present case the tribunal has evidence at paragraph 77 of the Claimant’s substantive
witness statement (Witness Bundle pages 24-25) in respect of the teaching staff in the school. Of
the 8 staff who work part time only 1 is male. The tribunal has also been furnished with DFP
statistics relating to Northern Ireland as a whole which demonstrate that 40% of female
employees work part time compared to 7% of male employees and that 85% of part time
employees are women. Further statistics which have been obtained from DENI and which have
been forwarded to the Respondent’s representative (and which are appended hereto) demonstrate
that the preponderance of part time teachers in post-primary schools in Northern Ireland is
female. None of this is likely to be a surprise having regard to the matters at issue. It is also likely
given that the post of Year head in Larne Grammar is an internal appointment that the internal
pool is the appropriate pool. In any event, the parties are in agreement that on the figures the
Claimant is able to demonstrate indirect discrimination subject only to the defence of
justification.




                                                                                                       2



                                                        20.
In Chief Constable of Avon & Somerset Constabulary v Chew EAT/503/00 the EAT
upheld a tribunal’s finding that a requirement to comply with shift rosters in order to be entitled
to work part time was indirectly discriminatory. The tribunal considered the appropriate pool to
be all officers to whom the condition was applied. The tribunal identified at least 11 officers in
this pool who could not comply with this condition. This produced a difference of 2.26% between
the proportions of men and women who could comply. Although this difference did not, on the
face of it, amount to a sufficiently disparate effect the EAT held that the tribunal had been correct
to adopt a flexible approach and have regard to other factors in concluding that the condition had
a disparate adverse impact on women, i.e. the fact that the statistics indicated the bare minimum
of officers who could not comply and that an inherently likely effect of the condition was that it
would disadvantage officers with childcare responsibilities, and that the overwhelming burden of
such responsibilities falls on women.

In British Airways plc v Starmer [2005] IRLR 862 EAT the EAT held that British Airway’s
refusal to allow the pilot claimant to halve her working hours, as opposed to working 75% of her
hours, was indirect sex discrimination. The EAT agreed that a 3.66% difference in men and
women who could work full time constituted a disproportionate impact, saying that the tribunal
was entitled to take into account where appropriate, a more general picture than is specifically
displayed by statistics put in evidence. The EAT did not accept British Airway’s justification that
it would be unsafe if the claimant flew less than 15% of full-time hours, this being based on a
generalised standard requiring a minimum number of flying hours. Although British Airways
appealed, it later withdrew the appeal, accepting that the claimant had been able to maintain high
standards of performance, even though she had less flying time.

In this case the Respondent accepts that it has applied a provision, criterion or practice which puts
or would put women at a particular disadvantage when compared with men and which puts the
Claimant at that disadvantage. In short the Respondent’s defence to the Claimant complaint of
indirect discrimination is confined to “justification”, namely that it contends that it can show that
this is a proportionate means of achieving a legitimate aim.

The legitimate aim relied on by the Respondent is that contained in its “Pastoral Care Policy”
(Bundle page 117):

“Our Pastoral care aim is: to offer the best possible pastoral care by providing support
and guidance for pupils in an environment which is characterised by good relationships,
mutual respect and tolerance.”

It is accepted that this is a legitimate aim the matter at issue is whether PCP relied on by the
                                          —


Respondent is a proportionate means of achieving that aim.


The PCP is set out in the School Salary Policy (Appendix A, Clause 4) which states:
“TLR2 may be awarded to Year Heads. Given the pastoral nature of the post




                                                                                                   3




                                                      21.
(including child protection) these will only be available to full time members of
staff’.

Justification

An employer maybe able to defend the discriminatory result of a provision, criterion or
practice by establishing that it is justifiable because the application of that
provision, criterion or practice is a proportionate means of achieving a legitimate
aim. The burden is on the employer to prove the defence on objective grounds, and
tribunals and courts are required to carry out a balancing exercise between the
employer’s reasonable need to impose the provision, criterion or practice and the
discriminatory effect of the provision, criterion or practice: Hampson v Department of
Education and Science [1989] IRLR 69 CA.

The more discriminatory the provision, criterion or practice, the more difficult it will be
for the employer to show that it was justifiable.

Once a provision, criterion or practice has been shown to put a Claimant at a
particular disadvantage because of her gender and to be to her particular
disadvantage because she cannot comply with it, the burden of proof shifts to the
Respondent to prove that its imposition was nevertheless objectively justifiable as a
legitimate aim and that the means of achieving that aim are appropriate and
necessary irrespective of the gender of those to whom it was applied. This is the
requirement of the European Directives.

In LB Steel v (1) The Union of Post Office Workers and (2) The General Post Office
[1977] IRLR 288 EAT the EAT held that it is necessary to distinguish between a
discriminatory requirement or condition, the imposition of which is necessary, and one
that is imposed merely as a matter of convenience. Consideration should be
given as to whether or not the aim could have been achieved in a non-discriminatory
manner. In conclusion, it is necessary to weigh up the needs of the employer against the
discriminatory effects of the requirement or condition.

In Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317 ECJ the European Court
of Justice (ECJ) held that in order to justify a discriminatory objective, an employer must
show that the means chosen for achieving that objective correspond to a real need on the
part of the undertaking, are appropriate with a view to achieving the objective in question
and are necessary to that end”.

In Whiffen v Mllham Ford Girls’ School [2001]IRLR 468 CA the Court of Appeal held
that a condition in a redundancy policy under which employees on fixed-term
contracts were automatically selected for redundancy before employees on
permanent contracts, and which had a disparate adverse impact on women, was not
justified.

In Allen and others v GMB [2008] IRLR 690 CA the Court of Appeal restored a
tribunal’s decision that the union indirectly discriminated when it advised female

                                                                                              4

                                                  22.
members to accept a settlement of their equal pay claim that was lower than they might have
expected, in the interests of tying up successful negotiations on behalf of other groups of
members who were predominantly male. The Court did not consider that the employment tribunal
had erred in concluding that the GMB’s means
(choosing not to pursue a better deal for the women) were disproportionate to the achievement of
its legitimate aim (securing pay protection and future pay for other groups). The House of Lords
refused GMB’s request for permission to appeal.

Many of the cases in relation to indirect sex discrimination are connected with the refusal of part-
time or job-share work to employees who have caring responsibilities for children In The Home
Office v Holmes [1984] IRLR 299 EAT (decided under the repealed Sex Discrimination Act
1975) the EAT rejected the Home Office’s argument that a requirement of full-time working is
justified simply because the bulk of
industry is organised in this way The employer must be able to show objective
justification for the refusal to allow a woman to return from maternity leave on a
part-time basis when she has previously worked full time.

EU law views treatment as proportionate if it is an ‘appropriate and necessary’
means of achieving a legitimate aim” Article 2 (1) (b) of the Recast Equal Treatment Directive
provides that a PCP will be indirectly discriminatory unless it is objectively justified by a
legitimate aim, and the means of achieving that aim are appropriate and necessary.

This is a strict test. The UK legislation requires the alleged discriminator to show that the
provision, criterion or practice in question is a proportionate means of achieving a legitimate aim
This omits the requirement, required by the Directive, to show that the provision, criterion or
practice is “necessary”.

It is important to note that it is the Directives that set the standards and courts and tribunals must
interpret domestic law in line with European Directives. In cases of indirect discrimination it is
not sufficient to assert that there is a non-discriminatory justification for the action complained of.
Respondents must prove evidence to support this. In Nimz v Freir und Hansestadt Hamburg
[1991] IRLR 222 part-time workers were required to have more years of service than full-timers
before being moved to a higher grade. The ECJ held that in order to justify such a practice the
employer had to show that there was a relationship between the nature of the duties performed
and the experience afforded by the performance of those duties after a certain number of hours
had been worked. The argument that full-time workers acquire necessary skills more quickly and
of greater experience, in so far as there were generalisations, could not amount to objective
criteria capable of justifying a disparately impacting practice.

In Greater Manchester Police Authority v Lea [1990] IRLR 372 the EAT held that there
had to be a “nexus established between the function of the employer and the imposition of the
                                                                        ...


condition, otherwise it is impossible to carry out the objective balance”. Bilka-Kaufhaus was
also considered by the House of Lords in Barry v Midland Bank plc [1998] IRLR 138 where
Lord Nicholls said: ….the ground relied




                                                                                                     5

                                                       23.
upon as justification must be of sufficient importance for the national court to regard this as
overriding the disparate impact of the difference in treatment either in whole or in part. The more
serious the disparate impact on women or men as the case may be, the more cogent must be the
objective justification.”

Tribunals are required to carry out a balancing exercise, taking into account all the
surrounding circumstances and giving due emphasis to the degree of discrimination
caused, against the object or aim to be achieved.

While the Courts are prepared to consider the “reasonable” needs of the business, the test
of whether the provision, criterion or practice comes within a range of
reasonable responses has been explicitly rejected. The Court of Appeal in Hardy and
Hansons plc v Lax [2005] IRLR 726 makes clear that the word “necessary” must be
interpreted to mean “reasonably necessary”. Pill LJ made his own observations on what is
required to establish justification:

“…requires the employer to show that the proposal is justifiable irrespective of the, sex of the
person to whom it is applied, It must be objectively justifiable (Barry) and I accept that the word
‘necessary’ used in Bilka is to be qualified by the word
‘reasonably’, That qualification does not, however, permit the margin of discretion or range of
reasonable responses for which the appellants contend, The presence of the word ‘reasonably’
reflects the presence and applicability of the principle of
proportionality. The employer does not have to demonstrate that no other proposal is possible.
The employer has to show that the proposal, in this case for a full-time appointment is justified
objectively notwithstanding its discriminatory effect. The principle of proportionality requires the
tribunal to take into account the reasonable needs of the business, But it has to make its own
judgment upon a fair and detailed analysis of the working practices and business
considerations involved, as to whether the proposal is reasonably necessary, I reject the
appellants’ submissions (apparently accepted by the EAT) that, when reaching its conclusion, the
employment tribunal needs to consider only whether or not it is satisfied that the employer’s
views are within the range of views reasonable in the particular circumstances.
The statute requires the employment tribunal to make judgments upon systems of work, their
feasibility or otherwise, the practical problems which may or may not
arise from job sharing in a particular business, and the economic impact, in a
competitive world, which the restrictions impose upon the employer’s freedom of
action, The effect of the judgment of the employment tribunal may be profound both for the
business and for the employees involved. This is an appraisal requiring
considerable skill and insight.”

In Allonby v Accrington and Rossendale College [2001] IRLR 364 the Court of Appeal made
clear that once a tribunal has concluded that a condition has a disparate impact on a
protected group, it must carry out a critical evaluation of whether the employer’s reasons
demonstrate a real need to take the action in question. The tribunal must weigh the
justification against its discriminatory effect. This should include consideration of
whether there was another way to achieve the end




                                                                                                   6


                                                      24.
question. If the employer can demonstrate a real need, and in this case it is submitted it
cannot the tribunal will then have to consider the seriousness of the disparate impact on
the Claimant and weigh it against the employer’s need to take the action in question. The
test is objective and although the decision of the employer must not be uncritically
accepted: see British Airways plc v Starmer above.

In assessing any justification put forward, tribunals are under a duty to conduct a rigorous
assessment of the business requirements or rationale for imposing the PCP. A stringent
standard of scrutiny of the justification is appropriate where the discrimination, although
indirect in form, is very closely related in substance to the direct form of discrimination,
since the latter can never be justified. Under the principle set out in Bilka-Kaufhaus the
employer must show that the means chosen for achieving that objective corresponds to a
real need on the part of the undertaking; are appropriate with a view to achieving the
objective in question; and are necessary to that end.

It is clear that it is not enough for it to be shown that the measure was imposed in pursuit
of an intrinsically laudable and otherwise reasonable policy. It is not enough that the
discriminator has the desire, however worthy, to further some social need or otherwise
reasonable policy.

In indirect discrimination claims there will often be cogent reasons for the discrimination,
otherwise the tribunal might draw an inference of direct discrimination. Accordingly, the
issue is whether the justification outweighs the disparate impact.

In Mitchell v David Evans Agricultural Limited [Appeal No. UKEAT/0083/06/SM] the
EAT held that the Tribunal had failed to undertake a full analysis of the justification put
forward by the employer as to why it needed a part-time administrator to go full-time.
The Claimant was dismissed after her employer decided it required a full- time employee.
Her request to work as part of a job share so that she could accommodate her childcare
responsibilities was rejected. The Employment Tribunal held that the company had
justified its need for a full-time member of staff on the basis that a new computer system
had been introduced which the employer expected would take it to another level of
business operation and efficiency. It had a justifiable requirement for greater
administrative efficiency and required one individual who could assist with the bespoke
service of a client. However, allowing the Claimant’s appeal the EAT held that it was not
enough for the Tribunal to identify in a relatively cursory form the factors that it had
found to amount to objective justification and it was not clear from the Tribunal’s
reasoning that it had adopted the correct approach. The Tribunal should have assessed the
reasonable needs of the business and made its own judgment upon a fuller analysis than
was carried out as to whether the proposal was reasonably necessary and whether it
would be justified notwithstanding its discriminatory effect. This involved a quantitative
assessment of the numbers of proportions of people adversely affected and a qualitative
assessment of the amount of damage or disappointment that may result to those persons.


                                                                                               7




                                                  25.
In McGarr v Ministry of Defence Tribunal Case Nos. 2300464/02 and 2303733/03 the
tribunal held that the Respondent’s reaction to the Claimant’s wish to undertake judicial duties
had “borne all the hallmarks of an institutional knee jerk reaction to what it saw as a threat to its
established way of doing things” The Tribunal found that no proper assessment had been made by
the Respondent “as to the extent to which in operational requirements, might be adversely
affected by permitting officers below the rank of colonel to undertake part-time judicial duties In“


Savva v Hillgate Travel Limited Tribunal Case No 2200525/06 the tribunal held that the
employer had failed to put forward sufficient evidence that it had carried out any research or
made any enquiries as to the need to abandon the fixed shift which had lifted in with the
Claimant’s childcare needs.

It is not proposed to rehearse the evidence in this case The tribunal has the witness statements
(including supplemental statements) of the Claimant and her witnesses together with the
statements of the Respondent’s witnesses The tribunal has also heard oral evidence .

Bearing in mind that the burden is on the Respondent to prove the defence on objective grounds it
is submitted as follows

1 The Respondent has failed to satisfy the burden upon it to show that the provision, criterion or
practice relied on, namely, that a Year Head must be full time members of staff, is a proportionate
and necessary means of achieving a legitimate aim.

2. The Pastoral Care Policy (Bundle pages 117-118) envisages a system where “an atmosphere”
is created and systems put in place to deliver pastoral care. It is clear, and has been accepted by
the Respondent’s witnesses, that pastoral care is the responsibility of every teacher and that there
is a team approach to pastoral care. There is nothing in the pastoral care policy which states, or
indeed infers, that a Year Head must be full time.

3. The Respondent has an Equal Opportunities Policy Statement (Bundle pages
112— 116). It is clear from an examination of the documents in this case and the evidence of the
Respondent’s witnesses that no consideration was given to the potential adverse impact or
discriminatory effects of putting such a PCP in place. The Respondent has not considered the
effects of this on women teachers and despite the commitment to monitor and review practices it
has signally failed to do so, even at the date of this hearing. The Respondent itself did not carry
out any balancing exercise even though the Respondent’s flexible working scheme (Bundle page
122) aims “to assist teachers with caring responsibilities and to balance these with their role at the
school” “to ensure compliance with the legislative requirements for employees with caring
        ...


responsibilities and the Principal’s “duty of care to teachers” and “work life balance”. (Bundle
                ...“


page 153)




                                                                                                       8


                                                       26.
4. The TNC model school salary policy (TNC 2008/2) suggests to Boards of Governors that in
“exercising its responsibilities with regard to a school salary policy, it will take account of the
requirements of legislation on Employment, Equal Pay and Fair Employment, and to
considerations of Equal Opportunities”

5. The Pastoral Care Policy, the tribunal was told, was evaluated after the DENI document was
published in 2001. There is no suggestion in the DENI document nor is there any suggestion that
there are any departmental guidelines requiring Year Heads to be full time in order to deliver the
best pastoral care. It refers specifically to support services school nurse, school counselling
                                                                  —


support staff, Education Welfare Officer, Behaviour Guidance Support Officer.

6. The old job description for Year Tutors, now called Year Heads, (Bundle 134-
135) makes no reference to any requirement for a Year Head to be full time. Indeed, the essential
function of the Year Tutor, as set out in the specific “duties and responsibilities” are leadership,
assisting, ensuring, liaising, supervising, directing, have oversight monitor, make regular spot-
checks etc. There is frequent reference to needing to perform certain takes on a “regular” basis. In
relation to meeting parents “to acquaint them with school policy, or to discuss the general and
welfare problems arising with a particular pupil meetings with parents should be arranged for a
                                                      ...


time when both class teacher and year tutor can be present”. There is no requirement for the class
teacher to be full time and accordingly must infer some flexibility about when such meetings are
arranged. The overall duties are consistent with a scheme for delivery of pastoral care and are not
consistent with any requirement nor justification for any condition that a Year Head be full time.

7. The new job description for Year Heads, (Bundle 141J-K) states that applicants must be full
time members of staff. However, it is submitted that any objective reading of the specific “duties
and responsibilities” of the function set out in the Job Description are of the broad leadership,
management, supervision, co-ordination and assistance type referred to above. The preamble
explicitly states that the Year Head is “accountable to the Principal through the Vice Principal
(Pastoral) for the effective management (my emphasis) of pastoral care of pupils in the relevant
year and contributing to (my emphasis) pastoral care throughout the school.

8. Under the sub-heading “RESPONSIBILITY” it states: “Under the direction of the Principal
and appropriate Vice Principal, the Year Head is responsible for the organisation (my emphasis)
of pastoral care within the year group and leading (my emphasis) class tutors in pursuit of high
standards of pupil behaviour and achievement    ..“




9. There is also a Child Protection Policy and procedures (Bundle 141A-F). Nothing in this
document dated 2009 requires a Year Head to be full-time




                                                                                                      9



                                                            27.
NJ

and indeed this document provides for a designated procedure to address child protection issues
which specifies reference to the Designated teacher, the Deputy Designated teacher or in their
absence the Principal.

10. The Respondent also has a Behaviour Management Policy and Procedures (Witness Bundle
174-188) This stipulates the procedure to be followed when behaviour management issues arise It
is clear that this procedure provides for issues to be dealt with other than the year head and there
is nothing in this policy which states or infers that a Year Head be full time.

11. The Guidance for Boards of Governors on the Formulation and Implementation of Salary
Policy (Witness Bundle pages 198-225) provides at paragraph 2 5 that in determining pay the
relevant body should in all cases take carer to avoid approaches likely to give rise to complaints
under employment legislation In addition to the argument that the Board of Governors took no
account of the question of possible disparate impact it appears that the Respondent applied the
PCP to the Claimant even before it was formally adopted.


12. The Respondent’s witnesses were cross-examined on the specific “scenarios” put forward by
them in an attempt to justify the PCP It is submitted that upon a critical analysis and assessment
of these constructed scenarios the respondent has failed to meet the requirements of the burden
which rests upon it to prove objective justification Even if, as the Respondent argues, there is a
need for pastoral care 5 days per week there is a system in place to deliver that care. It does not
require a Year Head to be present 5 days a week to ensure its delivery. The Year Head’s role,
which is the focus of this hearing, can properly and appropriately be delivered without requiring
the Claimant to work full-time.

13. Despite the repeated assertion that continuity was vital the Respondent has failed to
satisfactorily address the situation of Mr Rhyan McCoy and his absences which is inconsistent
with the Respondent’s purported needs for 5 day continuity. It is also difficult to understand how
the need for the type of continuity promulgated by the Respondent can be met when a Year Head
is, for example, out of the jurisdiction on a school trip or when pupils and parents are presented
with a different Year Head each year.

The Respondent refers to the provisions of the UNCRC and, in particular, Article 3 thereof.
Although the UK ratified the UNCRC in 1991, it has not been directly incorporated into UK law.
This means that a child cannot rely directly on the provisions of UNCRC. Further, no child is
advancing any argument before this tribunal.

It is entirely possible “to offer the best possible pastoral care” by delivering the system of
pastoral carer provided for in the policy and without requiring a year Head to be a full-time
member of staff. It cannot be that the aim of the policy demands a




                                                                                                 10


                                                      28.
standard of perfection that would require class tutors to be full-time and for all to be available at
                       —


all times to minister to the instant demands or needs of the pupils and their parents. Such an
approach would not be consonant with an appreciation of the demands of the real world and
ordinary common sense.

It is by now well established that European Union law has supremacy over domestic law. In the
case of Von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR l891
the Court stated: “[T]he Member States obligation arising from a directive to achieve the
result envisaged by the directive and their duty under Article 5 of the Treaty to take all
appropriate measures to ensure the fulfilment of that obligation, is binding on all the
                           ...


authorities of Member States including the courts. It follows that6, in applying the
                                     ...


national law and in particular the provisions of a national law specifically introduced in
order to implement [a directive], national courts are required to interpret their national
law in light of the wording and the purpose of the directive in order to achieve the
[required] result…

The Respondent is also required to have regard to the clear intention of the legislature and the EU
Directives to avoid discrimination against women on grounds of sex. In this case the Respondent
has ignored the potential adverse impact on the vast majority of its part-time staff.

Accordingly, it is submitted that having regard to the evidence in this case the Respondent has
failed to demonstrate that the provision, criterion or practice relied on, namely, that a Year Head
must be a full time member of staff is a proportionate and necessary means of achieving the aim
of offering the best possible pastoral care in the relevant circumstances. In those circumstances,
the Claimant contends that she has been subjected to unlawful indirect discrimination on grounds
of sex and is entitled to a remedy.

Further, and in the alternative, the Claimant contends that she has been subjected to less
favourable treatment as a part-time worker under the provisions of Regulation 5(1) of the Part
Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland)
2000. The Regulations provide protection for workers against unjustifiable discrimination by
employers on the basis of their part- time status. The main protection established by the
Regulations is the right for part- time workers not to be treated less favourably than full-time
workers, unless that treatment can be justified.

The definition of a “comparable full-time worker” is set out at regulation 2(4). A full- time
worker is a “comparable full-time worker” if at the time when the less
favourable treatment of the part-time worker takes place:

        (a) both workers are-    —


            (i) employed by the same employer under the same type of contract, and




                                                                                                   11

                                                       29.
        (ii) engaged in the same or broadly similar work, having regard, where relevant, to
        whether they have a similar level of
        qualification, skills and experience; and

(b) the full-time worker works or is based at the same establishment as the part-time worker or,
where there is no full-time worker based at that establishment who satisfies the requirements of
sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.

In determining whether a part-time worker has been subjected to less favourable treatment the
pro-rata principle shall be applied to any comparison “unless it is inappropriate”. This means that
where a benefit can be broken down into parts related to the amount of time worked, then this
should generally be done for the purposes of the comparison. In those circumstances paying
benefits pro-rata will usually be appropriate.

A claim may be defeated if a Respondent can demonstrate that any less favourable treatment is
justified. In order to justify the treatment it must be shown that the treatment in question was a
necessary and appropriate means of achieving a legitimate business objective.

The Regulations implement the Part-time Workers Directive (97/81/EC) and the purpose of the
Regulations is “to provide for the removal of discrimination against part-time workers and to
improve the quality of part-time work”. Part-timers must not be denied opportunities for training,
promotion or transfer otherwise available to comparable full-time workers because they work part
time.

An employment tribunal may consider a complaint that was out of time if, in all the
circumstances of the case, it considers it just and equitable to do so. In deciding when the act
complained of was done the following principles apply:

        • Where the act is attributable to a term in the contract that act is to be treated as
        extending through the duration of the contract.
        • Any act extending over a period shall be treated as having been done at the end of that
        period.

In Barclays Bank plc v Kapur & Ors [1991] ICR 208 the House of Lords held that where an
employer operates a discriminatory regime, rule, practice or principle, then such a principle will
amount to an act extending over a period and the relevant date is the date on which the
discriminatory regime ends. It is submitted that this is a case in which the discriminatory practice
continues and continues to adversely impact on the Claimant despite it being drawn to the
attention of the Respondent. It is further submitted, that in any event, this issue is confined as to
the period in respect of which compensation should be awarded rather than, subject to the issues
of justification being determined, whether the Claimant is entitled to compensation.




                                                                                                     12


                                                       30.
The Claimant contends that she is entitled to be compensated for the entirety of her loss.

Where a tribunal upholds a case of unlawful sex discrimination it may grant whichever of
the following remedies it considers “just and equitable”:
1. A declaration of the rights of other parties;
2. An order of compensation to be paid to the complainant;
3. A recommendation that the respondent take, within a specified period, action
appearing to the tribunal to be practicable in order to obviate or reduce the adverse effect
on the complainant of the discrimination.

The tribunal is empowered to award compensation to a person who has suffered indirect
sex discrimination even where the respondent did not intend to discriminate unlawfully
against that person and where it would both be just and equitable only to grant other
remedies. Any domestic provision seeking to make compensation for sex discrimination
conditional on proving fault is incompatible with the EC Equal Treatment Directive. The
Claimant contends that she is entitled to compensation for injury to feelings and to
compensate her for the loss sustained.

The Claimant contends that this case is a case of unlawful indirect sex discrimination.
In the event that it is necessary to address the issue in respect of the Part-Time
Workers Regulations the Claimant refers to the mailers set out herein.

In respect of a claim under the Part-Time Workers legislation where a tribunal holds that
their employer has infringed their statutory rights under the Regulations by treating them
less favourably than comparable full-time workers, the tribunal may:

• make a declaration to that effect; and/or
• order the employer to pay such compensation as the tribunal considers just and
equitable in all the circumstances; and/or
• recommend that the employer take action, within a specified period, to obviate or
reduce the adverse effect on the complainant.


G. Grainger
Counsel for the Claimant
06 February 2012




                                                                                          13

                                                  31.
Appendix 1


Teachers in Post-Primary Schools by Gender, Full-Time and Part-Time 2010/2011


Gender Mode of working    Secondary          Grammar.           Post Primary

         Full-time               3726                   2322               6048
Female
         Part-time                538                    401                   939


         Total                   4264                   2723               6987

         Full-time               1925                   1490               3415

Male     Part-time                    50                  47                   97

         Total                   1975                   1537               3512

         Full-time               5651                   3812               9463
All
         Part-time
                                  588                    448               1036


         Total                   6239                   4260              10499




                                                                                14



                                           32.
       Muldrew v The Board of Governors of Larne Grammar School
                Submissions on behalf of the Respondent


This claim is arises from the provision of pastoral care to pupils of Larne
Grammar School. Pastoral care is concerned with promoting pupils’
personal and social development and fostering positive attitudes. Through
pastoral care arrangements and provision a school demonstrates its
continuing concern for its pupils as individuals, actively encouraging them
to be secure, successful and fully participating members of the school and
its wider community.

Larne Grammar School has the declared aim

“To offer the best possible pastoral care by providing support and guidance
for pupils in an environment which is characterised by good relationships
mutual respect and tolerance.” (page 117)

The importance of pastoral care is put in this way:

Pastoral care ... underpins every aspect of the pupils’ experience in school
and exists, not for its own sake, but to enable pupils to achieve their
potential

 Larne Grammar School uses a tiered pastoral system:
• Class Tutors who deal with low level day to day issues;
• Year Heads who oversee the 4 Class Tutors and deal with more serious
issues arising within the student year group to which they are assigned,
and the
• Vice-Principal (Pastoral), who oversees the pastoral care of the whole
pupil body and deals with the most serious pastoral issues
Nearly every teacher is a class tutor unless they have other specific
responsibilities (such as senior management, time-tabling or Year Head).
The role of class tutor is part and parcel of the normal teaching role. Year
Head is a specific role. It is predominantly pastoral and it attracts a bonus
of approximately £3,000 per year.
The Board of Governors Larne Grammar School determined that in order
to provide the best pastoral care for their pupils they require the position of
Year Head to be



                                           33.
occupied by a full time teacher. This requirement is set out in a School
Policy:
“TLR 2 may be awarded to Year Heads. Given the pastoral nature of the
post (including child protection) these will only be available to full time
members of staff” Appendix A point 4 on page 107 of the documents
bundle.
The Year Head is an internal appointment and so affects the teaching staff
of Larne
Grammar School. There are 30 female members of staff of whom 6 are
part time.
There are 10 male members of staff of whom 1 is part time.
This requirement therefore has a greater impact on female teachers (more
of whom and a greater proportion of whom are part time). The Board of
Governors contends that this disadvantage is outweighed by the pastoral
needs of the pupils. The Board of Governors bases this conclusion on a
number of premises:

   (1)That the pastoral needs of the pupils are present each and every day
   (2) In many instances it is crucial to deal with pastoral needs urgently
   (3) Continuity in relationships is crucial to pastoral care

From these premises the Board concludes that

   (1) Pastoral care for 5 days cannot be provided in 4 days

   (2) The absence of a Year Head on a given day is detrimental, in that

   a. It means that a matter which would normally be dealt with by the
   Year Head cannot be, and
   b. It means that a break in continuity between the pupil, parents and
   Year Head is more likely

   The Board considers that while some pastoral care can be provided in
   the absence of the Year Head, it is not the best pastoral care. Adequate
   pastoral care is not sufficient. It does not place enough weight on the
   pastoral needs of the pupils and the unique position and responsibilities
   which are placed on schools.
   The evidence of Rev Dr McClure refers to the pastoral responsibilities
   placed on the
   Board of Governors. At page 154 of the witness statement bundle the
   Executive
   Summary of “Every School a Good School” contains the following:


   The Board of Governors has a statutory duty to:

                                         34.
   Safeguard and promote the welfare of registered pupils at the school
    at all times when the pupils are on the school premises or in the
    lawful control or charge of a member of schools staff

The Indicators of effective performance contained within the Department of
Education Policy document Every School a Good School the characteristics
of a good school are set out. These are described at page 13 as “key
characteristics will be sued through inspection and by ESA in
determining how best to provide support services to schools and help
them raise standards The indicators of effective performance
                         ...


associated with each characteristic are set out in the table below”. At
page 14 under Characteristic: Child-centred an indicator specified is

   the highest standards of pastoral care and child protection are in place.

(1) Is the Year Head’s pastoral responsibility a four or five day role?


The claimant maintains that the role of Year Head requires only 4 days to
fulfil. Hers is not a pro-rata claim stating that the role can be fulfilled by other
people on the day she is absent. On the contrary, the claimant contends that
“it is my sincere belief that the Year Head post can be carried out
efficiently and effectively in 4 days… (p22 para 72)… I wish to state
                                            ...“               “...


again that I do not believe that the role of Year Head requires a member of
staff to work 5 days a week (p24 para 77).

Accordingly the claimant contends that should she work as Year Head for 4
days, she should be entitled to 5 days of the teaching allowance: better terms
pro-rata than any full time member of staff.

However, contrary to her assertions in her witness statement, the claimant
accepted that:

• the pastoral needs of the pupils exist throughout the week

• pastoral matters which would normally fall to be dealt with by the Year Head
may arise when a part-time Year Head is not in school.

• while not all matters for the Year Head are urgent, nevertheless there were
matters which would require to be dealt with on the day they arose.

• the first contact in a matter was important in building or strengthening




                                              35.
relationships with pupils and parents.

• it was better to deal with matters quickly rather than delay which would be
detrimental.

• continuity in the person dealing with a pastoral issue was important, and

• a break in continuity was detrimental to pastoral care

• if a Year Head was not present then there may be delay and/or a break in
continuity.

Mark Langhammer did not deal with this issue. Rev Dr Reid did not provide the
tribunal with any evidence on the point. Darwin Workman suggested in his first
witness statement that the role could be carried out in 4 days (para 3 page 63)
but resiled from this position in his response statement (page 228) in which he
stated that:

“(t)he Pastoral element of the role is a given and will take up the majority of
the Year Head’s time in school on the day the Year Head is not in school,
                                   ...


the role could possibly be carried out by a Class teacher who “shadows”
the Year Head throughout the year’.

This is a clear concession that the role remains to be carried out on the day in
which a Year Head is absent. The evidence before the tribunal from both
claimant in answer to cross examination, the claimant’s witnesses and
respondent is that the pastoral role of Year Head exists on all 5 days.

Lynn Hunter pointed out that “at any time a pupil can approach their year
Head for support or advice and, unless it is a matter for referral within child
protection guidelines, the Year Head will provide support and guidance.
Pupils recognise the year Head as someone they can turn to with a serious
issue.” See paragraph 9 of her witness statement at page 83. Lynn Hunter also
pointed out in oral evidence that all pupils and parents are introduced to the Year
Head at a meeting before the start of year 8 and it is explained that the Year
Head is the person with whom a child can raise concerns and issues.

It is submitted that given the evidence before the tribunal on this aspect of the
case it would be an error of law and perverse for the tribunal to find otherwise
than that pastoral care of the year Head role is required 5 days per week.




                                              36.
(2) Can the best pastoral care be delivered by sharing the role of
Year Head: continuity and first contact?

It was not suggested by the claimant or on her behalf that another teacher
should be appointed Year Head for the day upon which the claimant is not
in school. Rather, two scenarios were put to the respondents witnesses:

(1) That most if not all matters which arose on the day off could be put off
for a day until the Year Head returned to school, or
(2) Most matters could be dealt with by other members of the pastoral
team.

It would appear that the fall back position for the claimant, from receiving a
full 5 day allowance for 4 days, is that she should receive a pro-rata
allowance for 4 days (£2,4OO per annum), while other members of staff
cover her role for her but receive no payment.

There were a number of specific examples of pastoral issues which have
arisen requiring to a greater or lesser degree, urgent contact, or continued
contact with parents and pupils.

It was suggested that another member of staff (whether the Vice Principal
or a Class Tutor) “could” provide pastoral care if a Year Head was absent.
It was not disputed by the respondents witnesses that if a matter was
urgent it would have to be dealt with by someone else, or that if the matter
was riot urgent then resolution could be delayed until the Year Head had
returned. Even if the Year Head was full time there will always be
instances of illness or occasional training absences. However, it was not
suggested to them on behalf of the claimant that such an arrangement was
the ‘best possible pastoral care”. Indeed, the teachers who gave direct
evidence of dealing with such pastoral matters pointed out that the
absence of the Year Head was detrimental to pastoral care.

The tribunal is aware of the detail of these examples, but I would like to
highlight one:, the pupil who had been sick and had lost confidence (page
159 of the witness statement bundle at paragraph 6(a)). He was described
as being peeled off his parents each morning as the Year Head
accompanied him to class. Mr McGeagh gave clear evidence of the need
for continuity in this delicate and sensitive situation. He was in no doubt as
to the importance of continuity in these circumstances. The claimant’s
response to this was “I reject the notion that this needs to be done 5 days




                                          37.
per week’ (page 190 paragraph 6(a)). This is not a reasoned response, but
rather a statement. This statement does accord with the claimant’s desire to be
paid the entire 5 day allowance for 4 days.

Mr McGeagh’s passage of evidence highlighted the difference in roles between
Class Tutors and Year Heads. The Year Heads have a daily (5 days a week) 15
minute slot timetabled as free for them to deal with pastoral issues while the
class tutors took registration.

Lynn Hunter, the Vice Principal (pastoral) gave evidence directly relating to this
issue. She set out the developing emphasis on pastoral care in schools. The
position in respect of dealing with matters quickly is set out simply at paragraph 6
of her statement (page 82 of the witness bundle) where she states:

It is important that all issues are dealt with as soon as they arise, to keep
the disruption to learning a minimum. It is also vital that parents/guardians
are informed of all issues and the outcomes of any investigations to
prevent a situation escalating.

The Claim

The claimant alleges that she has suffered indirect discrimination on the grounds
of her gender.

The Relevant Law

Part Ill of the Sex Discrimination (NI) Order deals with discrimination in the
Employment Field. It provides:

8      (2) It is unlawful for a person, in the case of a woman employed by him at
       an establishment in Northern Ireland, to discriminate against her—

       (a) in the way he affords her access to opportunities for
       promotion, transfer or training, or to any other benefits, facilities or
       services, or by refusing or deliberately omitting to afford her access to
       them, or

       (b) by dismissing her, or subjecting her to any other detriment.

“discrimination” is defined in Part II of the Order The relevant form of
discrimination is defined in article 3(2)




                                              38.
3 (2) In any circumstances relevant for the purposes of a provision to which this
paragraph applies, a person discriminates against a
woman if—


(a) on the ground of her sex, he treats her less favourably than he
treats or would treat a man, or

(b) he applies to her a provision criterion or practice which he applies or would
apply equally to a man, but—


       (i) which puts or would put women at a particular disadvantage when
       compared with men,

       (ii) which puts her at that disadvantage, and

       (iii) which he cannot show to be a proportionate means of
       achieving a legitimate aim.]

   (2) Paragraph (2) applies to—

       (a) any provision of Part III,


   There is also the issue of less favourable treatment of a part4ime worker. In
   essence the test required is the same as the respondent accepts that the
   measure is discriminatory but contends that it is justified.

   Issue before the Tribunal

   It was agreed that the criterion applied by the respondent was:

       “TLR 2 may be awarded to Year Heads. Given the pastoral nature of the
       post (including child protection) these will only be available to full time
       members of staff.”
       (point 4 of Appendix A of the School Policy (107) and contained in the
       Year Head Job Description (141J))

   It was agreed that this criterion put women at a particular disadvantage when
   compared to men. The appointment for the post of Year Head was an internal
   one. The appropriate pool for consideration was the staff of Larne Grammar
   School:
   approximately 30 females of whom 6 were part time, and 10 makes of whom
   1 was part time. It was noted that the discriminatory impact was likely to be
   replicated in


                                             39.
other schools throughout Northern Ireland.

      (1) was the application of the criterion that a Year Head must be full-
      time a proportionate means of achieving a legitimate aim.

The law in relation to proportionality has been considered in Bilka-
Kaufhaus v Weber von Hartz [1986] IRR 317 a case in which Karin Weber
von Hartz was denied, by the department store which employed her,
admission to a pension scheme due to her lack of full time service. The
ECJ held that the measure which causes the disparate impact must
correspond to a real need and the measure must be appropriate with a
view to achieving the objectives pursued and be necessary to that end.
This has been re-interpreted in R v Secretary of State for Employment, ex
parte Seymour- Smith and Perez [1999] IRLR 253 and Kutz-Bauer v Freie
und Hansestaadt Hamburg [2003] IRLR 368 in the following manner:

      (1) whether the measure in. question has a legitimate aim, unrelated
      to any discrimination

      (2) whether the measure is capable of achieving that aim

      (3) whether in light of all the relevant factors, and taking into account
      the possibility of achieving by other means the aims pursued by the
      provision in question the measure is proportionate.

In the present case the aim is providing the best pastoral care for children
as set out in the school’s pastoral care policy. It is submitted that this is
clearly a legitimate aim.

The measure is the requirement that Year Heads are full time.

For the reasons set out above it is submitted that full time Year Heads
provide the best pastoral care because they satisfy the needs of continuity
and availability for urgent matters and first contact.

This leaves the issue of proportionality for the tribunal to determine. There
are a number of principles which can be distilled from the case law:

•     The burden of proof is on the employer to satisfy the tribunal that the
      measure is proportionate: Rainey v Greater Glasgow Health Board
      [1987] ICR 129

•     The test is objective and not a band of reasonable responses:
      Hardys & Hansons plc v Lax [2005] IRLR 726

                                          40.
•     The tribunal must balance the discriminatory effect of the measure
      against the legitimate aim in question that is the loss of the pro-rata
      teaching allowance against the provision of the best pastoral care for
      pupils: Ojutiku v Manpower Services Commission [1982] ICR 661
      and Kucukdeveci v Swedex GmbH & Co [2010] IRLR 346

•     It is not necessary for the employer to considered the proportionality
      question at the time of making the decision: Cadman v Health &
      Safety Executive [2004] IRLR 97 and Seldon v Clarkson Wright &
      Jakes [2011] ICR 60

Remedy

It should be noted that the remedy under the part time legislation is a pro-
rata finding yet the claimant consistently maintains that she should be
entitled to the full allowance while working fewer days. This is inconsistent
with the basis upon which she seeks wishes to establish liability.

The allegation of sex discrimination is similarly limited to a pro-rata
remedy. If the measure restricting the position to full time is unlawful then
the claimant should be allowed to work part time. As a part time worker
she can expect no more than pro-rata payment.

If the tribunal considers that the measure is discriminatory then it should
make a declaration. The tribunal is not required to make an award for
injury to feelings. The test is always was the tribunal considers is lust and
equitable. In this case it is submitted that the claimant was well aware of
the measure in question and had agreed to it on two previous occasions.
On neither of those occasions had she raised a grievance. In respect of
the year 2011-12 she raised a grievance but failed to follow through the
appeal process. Further, the measure in question raises a clear case of a
conflicting legitimate aim which the respondent has chosen in good faith
believing it to be appropriate. Also, the claimant has maintained throughout
the case that she can carry out the post in 4 days and yet should be paid
for 5, even if, as was suggested on her behalf in cross-examination, other
staff cover her role without payment on the days she is absent. It is
submitted that this contention is untenable and the claimant’s dogged
refusal to accept anything less than better treatment than full time
comparators is a factor that should be reflected in considering whether any
award for injury to feelings should be made and if so to what level. It
should also be



                                          41.
noted that the claimant devoted the majority of her witness stamen to
complaining about the loss of her teacher in charge of Spanish post: this entire
claim was not pursued at tribunal.

Time

A complaint that another person has committed an act of discrimination which is
unlawful by virtue of Part Ill against a complainant may be presented to a tribunal
under article 63 of the Sex Discrimination (NI) Order.

have to be presented within three months of the date of the act complained of.
Article
76

Period within which proceedings to be brought

76.—(1) An industrial tribunal shall not consider a complaint under Article
63 unless it is presented to the tribunal before the end of

       (a) the period of three months beginning when the act
       complained of was done; or

       (b) in a case to which Article 82(9A) applies, the period of six months so
       beginning.

(5)    A court or tribunal may nevertheless consider any such complaint, claim or
application which is out of time if, in all the circumstances of the case, it
considers that it is just and equitable to do so.

(6)    For the purposes of this Article—

      (a) where the inclusion of any term in a contract renders the making of the
contract an unlawful act that act shall be treated as
extending throughout the duration of the contract, and

       (b) any act extending over a period shall be treated as done at the end of
that period, and

       (c) a deliberate omission shall be treated as done when the person in
question does an act inconsistent with doing the omitted act or, if he has done no
such inconsistent act, when the period expires within which he might reasonably
have been expected to do the omitted act if it




                                             42.
were to be done.


A number of discrete acts may provide evidence of a policy: Owusu v London
Fire and Civil Defence Authority [1995] IRLR 574. There are conflicting
authorities regarding the existence of a policy when separate discrete requests
are made and refused: Cast v Croydon College [1998] ICR 500 in which the
Court of Appeal suggested that 2 discrete but similar decisions were evidence of
a policy; and Rovensnska v GMC [1998] ICR 85 in which a number of refusals of
a request were held to be separate cause of action.

The claimant first requested a 4 day week in February 2008 (para 47 page 15).
The application was accepted by the Board of Governors subject to relinquishing
the Year Head role. The claimant raised no grievance in relation to this issue and
accepted the offer. In April 2009 the claimant requested a further year on a 4 day
week. Again the request was accepted subject to proviso that the Year Head
post could not be maintained. Again the claimant accepted this position. Again
there was no grievance.

It should be noted that the claimant was in contact with her trade union
throughout this period arising from the removal of her position as teacher in
charge of Spanish. It should also be noted that the school paid the claimant 1
teaching allowance so that the claimant suffered no financial loss, even though
she was no longer carrying out the role and refused an alternative role of the
same responsibility level.

The claimant returned to a full time role in 2010-2011. It is submitted that this
represents a clear and unequivocal break in any alleged detriment suffered by
the claimant and that this defeats any claim the claimant may have that she was
subject to an on-going act of discrimination. The respondents points are therefore
that any claim relating to 2008-09 and 2009-10 should be excluded on the
following grounds:

   (1) If the tribunal considers the two acts should be treated as an on-going act
       or policy, this chain was broken when the claimant returned to full time
       work in
       20 10-11

   (2) The claims are significantly out of time

   (3) The claimant raised no grievance in respect of them at the time despite
       apparently being aware of her rights, and considering that the Headmaster




                                             43.
was taking advantage of the situation (while paying her a teaching allowance
for a role she was not carrying out)

(4)       The claimant was in receipt of union advice throughout this period.

(5)       There is insufficient evidence before the tribunal to support an
          extension of time




                                         44.

				
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