Emma McIlveen

The case of Department of Justice v McGrath [2021] NICA 40 demonstrates the importance of ensuring your defence to an equal pay claim is properly pleaded from the outset of the case.

The case was an appeal from the Industrial Tribunal which held that it was in breach of the Equal Pay Act (NI) 1970, and that Ms McGrath was entitled to equal pay. The appeal from the Department of Justice (DoJ) was dismissed by a unanimous decision.

In this article, Equal pay and discrimination – advancing a new argument on appeal, I set out the background to the case, the grounds which the case was appealed on and the key issues for the Court of Appeal.

The background to the case is that, prior to working for the DoJ, Ms McGrath had worked for the Northern Ireland Court Service (NICS). The NICS advertised for legal officers and grade 7 positions, to which Ms McGrath applied. The application pack described that, following a change in structure resulting from devolution, all legal officer and grade 7 posts would transfer to the Northern Ireland Civil Service and salary scales would depend on skills and experience. Ms McGrath did not have the skills for a grade 7 post and applied for that of legal officer. Once the department was formally devolved, existing employees enjoyed new terms and conditions with the benefits of any existing contract rights, including fluid grading. Applicants, such as Ms McGrath, who were not yet employees could not be offered fluid grading. On making the application shortlist Ms McGrath received amended terms and conditions for the legal officer role that she had applied for, which prevented her from being considered for promotion to grade 7 given the absence of fluid grading in the revised offer. She agreed to continue her application under the revised term and was formally employed on 1 July 2010.

On commencing work, she was assigned to an office of five to six female employees who all held grade 7 posts. Between 3 October 2011 and 30 June 2013 she temporarily conducted a grade 7 post whilst covering for an absent employee and was remunerated at that level. When she was returned to her original role, she raised a grievance stating that she had been downgraded. There was no policy for temporary positions to be made substantive and the claimant did not appeal the resulting decision.

On 10 March 2015 all employees were informed of a job evaluation review of all posts. Following the departure of the department head all other staff covered the work regardless of grade distinction. The job evaluation was conducted whilst Ms McGrath was on maternity leave. Her post was upgraded to a grade 7 post. Backpay for the revision was to commence on 1 June 2016. Ms McGrath took issue with this, claiming that she had been in the post since 6 September 2010. She lodged a second grievance and made a claim to the tribunal. She served a statutory questionnaire to the DoJ and did not receive a reply. In her claim to the tribunal, she specifically questioned whether a material factor defence was being relied upon. The tribunal found that she had not been discriminated against on grounds of sex, but that she had been engaged in like work with her comparators. The DoJ had not met the burden of proving that the variation between her contract and that of her comparators was genuinely due to a material factor which was not the difference of sex. The DoJ was therefore in breach of the Equal Pay Act.

With regards to raising new points on appeal, the Court of Appeal highlighted:

1. ‘First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.’
2. ‘Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).’
3. ‘Third, even where the point might be considered a “pure point of law”, the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24 at [29]).’
4. ‘[T]here is no general rule that a case needs to be “exceptional” before a new point will be allowed to be taken on appeal. Whilst an appellate court will always be cautious before allowing a new point to be taken, the decision whether it is just to permit the new point will depend upon an analysis of all the relevant factors. These will include, in particular, the nature of the proceedings which have taken place in the lower court, the nature of the new point, and any prejudice that would be caused to the opposing party if the new point is allowed to be taken.’

I conclude the article by highlighting the key takeaways from the McGrath decision for respondents and give practical strategic pointers for consideration in equal pay cases. 

During the pandemic, I started to publish a monthly newsletter entitled ‘McIlveen on Employment’. This newsletter provides an overview of interesting developments and cases within the employment law arena. If you are interested in receiving this, please visit my sign-up page.