Kristopher Banks V Armagh City, Banbridge and Craigavon Borough Council

Kristopher Banks v Armagh City, Banbridge and Craigavon Borough Council Decision of the Fair Employment Tribunal dismissing claim of religious discrimination. The Fair Employment Tribunal found that the Claimant had suffered an unlawful deduction of wages contrary to the Employment Rights (Northern Ireland) Order 1996 and the Respondent was ordered to pay him £2489.60. The Claimant is an employee of the Respondent since 2010 as an amenity site attendant based in Craigavon. From the commencement of his employment the Claimant worked a six day pattern of working Monday to Saturday and the sixth day (Saturday) was always paid at an overtime rate of time-and-a- half. He also received a 10% shift allowance. Reference to these two payments was not contained in the Claimant’s offer of employment letter or in his Main Terms and Conditions of Employment. The Claimant gave evidence that at the very outset of his employment he was told by his manager that he was required to work every Saturday and that he was entitled to a 10% shift allowance. The Claimant was informed by the Respondent in October 2013 that in future he would be working only a five day week Monday to Friday which meant the loss of the additional day’s pay at the overtime rate. The Claimant was informed by the Respondent that the sixth day on overtime would be removed from everyone after negotiation with and agreement of the unions in compliance with the national policy of single status working. At this time the Claimant was also informed that the shift allowance would cease because it had always been paid to him in error. The Claimant alleged that the Respondent told him that the only persons entitled to receive the shift allowance from then on were those contractually entitled to do so as evidenced by prior written confirmation. The Claimant had never received written confirmation and so the Respondent excluded him from receiving entitlement to receive that allowance. The Claimant challenged the validity of both of these proposals by the Respondent. The Claimant discovered that a Catholic employee who worked on the same site as him doing exactly the same work was one of those employees deemed by the Respondent to be contractually entitled to receive the shift allowance although this employee was to lose the sixth day overtime work. This employee had started work a year after the Claimant and had performed the same shifts as the Claimant. The Main Terms and Conditions signed by the Claimant and this Catholic employee were identical. However, the Catholic employee had received a letter shortly after his employment commenced which included specific reference to the entitlement to the shift allowance. Two other Protestant employees had also received letters at the same time also referring to the entitlement to shift allowance. The Claimant had not received such a letter. The Claimant believed that the only employees at amenity sites who were to retain the shift allowance were all Catholic and those who lost it were all Protestant. The Respondent argued that only those who previously had received written confirmation of their entitlement to the shift allowance were entitled to receive it. The Tribunal accepted that at the outset of the review of employee wages the Respondent intended to remove the shift allowance from all employees in pursuit of the potentially legitimate aims of reducing operational costs and in particular of reducing any margins of difference in pay rates between genders. The Respondent had sought legal advice on the specific legal status of the letter which had been sent to the Catholic and two other Protestant employees which had referred to the entitlement to the shift allowance. The Respondent received advice that the letter constituted a written term of the contract of employment. The Respondent decided to continue to make payment of the shift allowance to those who had received such a letter. The Respondent conceded to the Tribunal that no equality impact study had been carried out before implementation of the shift allowance change. The Equality Officer had not been consulted even after the Claimant had raised the disparity in outcome between Catholic and Protestant employees. The Respondent had not sought legal advice when it became aware of a potentially discriminatory practice regarding its reliance upon criterion of written confirmation of entitlement to shift allowance. The Tribunal held that the implementation of the removal of the shift allowance was to comply with a national Single Status Agreement and had nothing to do with religion. The initial intention of the Respondent was to remove the shift allowance from all amenity site workers which included those from the Catholic community. It was prevented from doing so by the legal advice it received. The application by the Respondent of the distinction between those who had received written confirmation of the shift allowance and those who had not was a lawfully and reasonably done as an effective and proportionate means of achieving lawful objectives. The Tribunal found that there was no evidence that there was any historical distinction made on religious or political grounds between those who had received written confirmation of entitlement and those who did not. The Tribunal judgement expressed concern at the clear perception amongst the Claimant’s colleagues that he had been discriminated against on grounds of religion. The Tribunal stated that the ill–feeling and distress experienced by the Claimant could easily have been avoided by the Respondent if it had been less dismissive of his complaints and that the Respondent did not know how to address his concerns without compromising its driving aim of avoiding equal pay claims. (The Tribunal concluded that the payment of a shift allowance to the Claimant could properly be regarded as an implied term in his contract of employment and as such payment of it properly should be regarded as wages for the purposes of Article 45 of the Employment Rights (Northern Ireland) Order 1996. Any deduction falling within the scope of Article was therefore unauthorised. The Tribunal ordered the Respondent to pay the Claimant the deduction of the shift allowance from the date of the first removal until the hearing of the case and that his shift allowance was to be restored as a result of the Tribunal decision.) .

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