NI: Court of Appeal: Ministry of Justice violates equal pay law for discrimination based on sex


Court of Appeal: Ministry of Justice violates equal pay law for discrimination based on sex

Killian Flood BL
Killian Flood BL

the Court of Appeal of Northern Ireland rejected an appeal from the Department of Justice against a finding that he had discriminated against an employee on the basis of sex.

Claimant alleged that she worked for the Department of Justice and that she had performed the duties of a higher paying position on and off since October 2010. She argued that similar comparator men received higher wages during of this period and that she was therefore entitled to the same level of salary. Pay.

The Court of Appeal upheld the decision of Labor court by finding a violation of the Equal Pay Act (NI) 1970. The central questions of the appeal were whether the DOJ could invoke the defense of the “real material factor” when it was not part of its case and whether the actions of the plaintiff’s supervisor could be regarded as a defense of the GMF.


The applicant, Ms. Teresa Marie McGrath, worked for the NI Judicial Service prior to March 2010. She was employed as a Deputy Senior Legal Officer, which was a lower level position than a grade 7 employee. At the time, her contract called for a “fluid assessment,” which meant she could be promoted to a grade 7 position after one year.

However, following the deconcentration in April 2010, the DOJ took over the functions of the NICtS. As such, Ms McGrath’s job was transferred to the DOJ, which ended the “smooth graduation” opportunity. In the future, any promotion to a 7th year job will have to be done through an open competition.

The applicant accepted the position of DP’s legal counsel. However, from October 2011 she received a “temporary promotion” to a grade 7 post to cover absent employees. This period ended in June 2013. There were three other periods up to 2016, in which Ms. McGrath was required to serve as a grade 7 worker. During the temporary periods, she was paid at the top level of the 7th year.

Following a job evaluation review in 2016, the claimant was promoted to a grade 7 position, but the salary was not retroactive until June 2016. As a result, Ms. McGrath hired a claim process dates back to 2010, when she said she had taken on the role responsibilities. She alleged that male comparators were paid higher wages and presented evidence to that effect.

The Court concluded that she had been engaged by the Ministry of Justice in similar work with its comparators from October 2011. In addition, the Ministry of Justice had not proved that the variation of the contract of the provider compared to those of its comparators was genuinely due to an important factor which was not the difference of sex.

Several key points are found in this decision. First, DOJ did not call any witnesses to challenge Claimant’s testimony about the level of work she performed during her employment. Second, Ms. Brenda Donnelly, the former official prosecutor and supervisor of the claimant, testified that the claimant was working at the grade 7 level at all relevant times. This issue was known to senior management of the Department of Justice, but was never addressed.

Ms Donnelly admitted that her testimony was inconsistent with her previous written assessments of Ms McGrath’s work. However, she claimed that she maintained the “official line” and had previously “lied to be right”. Again, no evidence has been presented to refute these serious allegations against senior DOJ officials.

The DOJ appealed the decision on several grounds, claiming the Tribunal had erred in law. The central issue to the appeal was Ms. Donnelly’s testimony, which DOJ said was a “bona fide material factor” defense in the appeal. The DOJ argued that Ms Donnelly deliberately misled her supervisors for her own purposes, which constituted a GMF explaining the difference in pay.

Court of Appeal

Although a large number of legal arguments were raised by the DOJ, the court began its decision by identifying two key issues. These were 1) whether the DOJ could raise a defense of GMF that was not part of its argument and 2) whether Ms. Donnelly’s actions could be viewed as a defense of GMF.

The court ruled that the DOJ was seeking to raise new issues on appeal because Ms Donnelly’s actions had never been argued as a GMF defense and there had been no attempt to alter the pleadings before the tribunal. The court said the DOJ “boldly seeks to build on this evidence to establish a GMF defense upon which to dismiss the plaintiff’s equal pay claim, which was never argued in the first case.”

The evidence was originally produced to prove that Ms McGrath was doing “similar work” and was not “presented, tested or examined in court. as a defense of the GMF” [emphasis in original].

Based on the problem statement, the GMF that the DOJ sought to rely on was different from the original rationale, which was that the difference in pay was due to a difference in rank.

Considering the applicable principles of Notting Hill Finance Ltd v Nadeem Sheikh EWCA Civ [2019] 1377, the court refused to authorize the raising of the new GMF point. The DOJ’s failure to respond to a statutory questionnaire, seeking to modify pleadings or call evidence weighed against the new points heard.

The court then ruled that the court’s conclusion on the defense of the GMF was “unassailable”. Claimant had raised the rebuttable presumption that she had been discriminated against on the basis of sex because she had drawn a comparison on the basis of sex that she was underpaid for similar work. The DOJ “did not address the GMF issue correctly or not at all and presented no evidence of a GMF defense”.

In particular, the tribunal was not impressed that the DOJ did not respond to the statutory questionnaire served by the claimant, despite being an important part of the process. In addition, the tribunal issued email correspondence containing concerns from senior NICtS management in 2010 about the “fluid gradation” issue after devolution. It was “surprising” that the DOJ did not address these issues during the Tribunal hearing.


Therefore, the Tribunal was entitled to make the decision it took based on the evidence. No appropriate defense of the GMF had been invoked and, as such, the DOJ had not proved that the variation of the contract of the provider compared to its comparators was really due to a significant factor which was not the sex difference. The appeal was dismissed.

© Irish Legal News Ltd 2021

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