Robert David Johnston v BT Plc (NIIT)
Cross-border jurisdictional discrimination claims may be permissible
Facts
The Claimant, along with two colleagues Mr Faulkner and Mr Rogan were ‘base site’ engineers employed by BT Plc in NI and at the material time were providing support for the BT Cellnet Ltd mobile telephone network under a maintenance agreement in NI. BT Cellnet Ltd was a wholly owned subsidiary of BT Plc and employed base site engineers to do identical work in GB. The Claimant and his two colleagues were paid and appraised by BT Plc but were considered part of the BT Cellnet Ltd base site engineer team. The three base site engineers in NI, who worked exclusively on the mobile telephone network were the only employees carrying out this work in NI. The Claimant worked in this capacity since 1987 until his retirement in 2002.
In or about 2000 BT Plc introduced a restructuring programme known as “NewGrid”. One of the aims was to simplify employee grades and implement an agreed grading system. Under this scheme the base site engineers were re-graded C3. In the meantime, in October of 2000, the base site engineers employed by BT Cellnet Ltd (all based in GB) were transferred to BT PLc. This did not affect the NI engineers as they were already employed by BT Plc. However, a decision was made in the context of the transfer between BT Cellnet Ltd and the GB base site engineers and subsequently between BT Plc and the union (CWU) that the base site engineers employed by BT Cellnet Ltd would be upgraded to D1, which was higher than C3. The Claimant and his colleagues were not included in this re-grading and remained at C3 under the Newgrid arrangements. After the transfer of the GB engineers, BT Plc honoured the pre transfer agreement under TUPE legislation. As a result the base site engineers in NI who carried out identical work as their GB counterparts and who had the same employer nevertheless were paid at a lower rate. BT Plc refused to upgrade the Claimant and his two colleagues.
In addition, in or about June of 2000, BT Plc introduced a scarce skills retention bonus of £40,000. Only the GB base site engineers received this payment. The Claimant and his colleagues did not receive any retention payment and were refused when they requested it.
The Claim
The Claimant and his two colleagues brought claims of indirect race discrimination in accordance with article 3 (3) of the Race relations (NI) Order 1997, on the basis that their race was Northern Irish or in the alternative that they were not English Scottish or Welsh. They drew as their comparators those base site engineers who were paid at the D1 higher grade and who received a retention bonus. This group was comprised entirely of base site engineers from GB.
The case pre-dated the amendments to the Race Relations legislation in 2003 and therefore was decided on the basis of the old definition in relation to indirect race discrimination.
The Claimant claimed that by refusing to re-grade him and pay him a bonus the Respondent applied to him a ‘requirement or condition’ (that he be a transferred TUPE-Cellnet employee) which the respondent ‘applied equally’ to GB persons but which was such that ‘the proportion’ of non GB people who could comply with it was ‘considerably smaller’ than the GB people who could comply with it. And which the respondent ‘could not show to be justified irrespective of national origins of the persons to whom it was applied and which was to the detriment of the Claimant because he could not comply with it’
The Respondent (BT Plc), defended the case on the following grounds:
* The Claimant’s comparators were impermissible comparators because they were based outside NI.
* They were in appropriate comparators generally
* The Respondent’s decisions were justifiable.
The Respondent called no witnesses. It relied solely on documents presented in the tribunal bundle.
The Tribunal’s Conclusions
* It was unlikely that the Claimant could rely for the purposes of the race legislation on his racial group as consisting of people whose national origins were ‘Northern Irish’. Rather, case law suggests the correct approach would be to define his racial group as comprising ‘all of humanity with the exception of GB people’.
* Having satisfied itself that the acts complained of occurred inside the territorial jurisdiction of NI, the tribunal went on to conclude that there was ‘nothing in the structure or detailed provisions of the 1997 Order to indicate that extra- territorial comparisons cannot be made for the purposes of determining whether or not a Northern Ireland employer, by doing what he does do within NI is, or is not, living up to his NI racial equality of treatment obligations’. This would include looking at how the employer treats employees outside of NI. The Claimant was therefore not precluded from comparing himself, with people who worked in GB.
* However, the tribunal noted that cases brought within Article 3(1) have to be read in conjunction with Article 3(3):
“ A comparison of the case of a person of a particular racial group with that of a person not of that group under paragraph (1) must be such that the relevant circumstances in the one case are the same or not materially different, in the other.” (emphasis added)
Whilst accepting that the Claimant and his two colleagues formed the disadvantaged group under the definition the tribunal did not accept that the GB base site engineers were appropriate comparators in that ‘unlike the disadvantaged people, the ex Cellnet people had been made promises by an entity which had been their employer at the time when the promises were made. Unlike the disadvantaged class members, the ex Cellnet people had been told they would be re-graded (and receive a bonus) In making those promises, Cellnet did not directly or indirectly discriminate against its staff on racial grounds, because it made the same promises to all of its base site engineers.’
The tribunal went on to hold that if it was right in relation to it’s conclusion on the correct comparators then the Claimant would be unable to establish an adequate disparate impact. Otherwise, if incorrect, disparate impact would be established.
* In terms of Justification the tribunal noted that an objective balance had to be drawn between the discriminatory effect of the relevant condition and the reasonable needs of the employer. It noted that an employer would not be precluded from defending its position on affordability alone. However, in the current case, the Respondent had not put forward any specific evidence in this regard.
The tribunal concluded that the Respondent was obliged under TUPE to honour the commitments made by Cellnet to its employees. The reason why the Claimant and his colleagues were not included was because as BT Plc employees they simply were not part of this arrangement and the Respondent did not wish to pay out more than it was legally or contractually bound to do. This was justification enough and it did not matter that the TUPE justification was not relied upon by the Respondent at the time of the refusal.
The tribunal, noted the unfairness of the Claimant’s circumstances and expressed its sympathy but concluded that the wage differential had not resulted from indirect Race discrimination.
Accordingly, the case was dismissed.
Legal-Island would like to than Lisa Taggart, Senior Legal Officer, Strategic Enforcement Division, Equality Commission for Northern Ireland, for the content of this article.
