Official Report (Hansard)
Date: Wednesday, 07 September 2011
Committee for Finance and Personnel
NICS Equal Pay Settlement
I welcome the NIPSA representatives: Mr Kieran Bannon, assistant general secretary; Ryan McKinney, assistant secretary; and Mr Billy Lynn, chairperson of NIPSA’s Civil Service executive committee. We have been discussing the issue of equal pay with departmental officials and we welcome the opportunity to hear from you as representatives of some of those who will be affected by that issue. I ask you to make an opening statement, after which I will allow for dialogue and discussion with members.
Mr Kieran Bannon (Northern Ireland Public Service Alliance):
Thank you, Chairperson. I thank the Committee for the opportunity to present further evidence. As you said, we have provided a briefing, including a covering letter which picks up on some of the points that the departmental officials made at the hearing on 22 June 2011 and which we put into context. If you do not mind, we will cover a few contextual issues, after which we will take questions from members.
The first thing to mention is the reference made by the officials in the hearing to the attitude of our members, including Department of Justice (DOJ) — formerly the Northern Ireland Office (NIO) staff — and Police Service of Northern Ireland (PSNI) and former PSNI staff. It was said that they had a “green eye” when they saw the Northern Ireland Civil Service (NICS) settlement. The officials were quoted as saying that they believed that the attitude of our members was:
“I would like some of that too”.
That seemed to be at odds with the comment that an official made later in the meeting when he talked about having sympathy with staff and understanding why they were so disgruntled. It was odd that he should have taken such a diametrically different position at a different time in the evidence session.
We want to make it clear on behalf of our members — if they were here they would want to say it themselves — that they take great exception to, and offence at, the suggestion that they had a green-eyed attitude. The fact is that those members have been dedicated Northern Ireland civil servants for many years. In that respect we need to be careful that the Committee’s perspective is clear about the status of those individuals. The impression could be created that all the staff in the former NIO and the PSNI had been recruited to the Department of Finance and Personnel (DFP) as Northern Ireland civil servants and then seconded out to the NIO or the PSNI. However, there are a number of people, who we continue to represent, who had some former service with those bodies and, in fact, may well have spent 10 or 15 years or more working in a NICS Department, having been recruited to the Civil Service. Without any say or choice in the matter, they were transferred into the PSNI or the NIO a few years before the settlement was reached. They are now being told that their years with the PSNI or NIO as Northern Ireland civil servants, having been recruited as such, would be excluded, as have those of staff members who had always worked in the NIO or the PSNI.
It is also important to note that the departmental officials did not mention that neither the NIO nor the PSNI had authority to make effective a disciplinary matter — a dismissal, for example — involving a person who had worked in those bodies. The individuals concerned, as Northern Ireland civil servants, would have had the right to appeal to the head of the Northern Ireland Civil Service and go through the normal procedures to which any Northern Ireland civil servant is entitled. Yet when it comes to this matter, despite their status, they are to be treated entirely differently. Based on the points that I have made, our members would take great exception to the suggestion, as quoted by the departmental officials, that it was a matter of them saying “I would like some of that”.
It is also important for us to clear up some other points. When some of our members made representations to their political representatives, some of the responses that they got referred to NIPSA having signed up to the agreement. That is quite right. We signed up to the agreement in so far as it covered the people who it covered, but we made it clear throughout the negotiations and at every point since that we expected that our members in non-departmental public bodies who attracted NICS rates of pay, those in the NIO and PSNI, and retired civil servants should have some benefit from the settlement that we had reached. In fact, some progress has been made with the non-departmental public bodies. Individuals employed in those bodies are not Northern Ireland civil servants, and no equal pay cases were launched in those areas. However, the fact that they attracted NICS rates gave them a contractual entitlement to receive elements of the settlement that we reached. We are concerned about this issue being portrayed as something that can be brushed aside because NIPSA signed up to an agreement. We signed up to an agreement that benefitted the staff members covered by that agreement, but that does not mean that we will not continue to make representations or that we had not made representations throughout the negotiations in relation to the other areas. We have been consistent on that matter.
Another point that we want to be clearer on is the notion that was portrayed by the civil servants about NIPSA pursuing a case for breach of contract. Reference was made to those matters being sub judice and various other things. We do not want to go into any details. However, to make it clear, the Northern Ireland Civil Service, in an attempt to avoid having to go down a legal route through the tribunal cases that we launched, entered negotiations with us. Indeed, as I understand it, when the NICS presented its case to the Minister of Finance and Personnel and the Assembly, great play was made of its desire to have a negotiated settlement rather than to go down the legal route. Indeed, that is on record in Assembly debates. The equal pay issue was conceded by the Civil Service in reaching that settlement, because it knew that it would have lost the case had it gone to tribunal. I presume that that is the legal advice that it got, because it would not pay out those large sums of money otherwise. It is not a matter of an equal pay case being pursued on behalf of those outstanding areas, but it is a matter of a breach of contract, given the status of those staff members as Northern Ireland civil servants. In my reading of the Hansard report of the Committee meeting of 22 June, I thought it odd that DFP officials suggested that the PSNI and others should consider taking equal pay cases, given that they had accepted and conceded the case and reached an agreement. It is clear that we are pursuing an issue of breach of contract. It was also interesting to see the recent criticisms in the press of the PSNI, in particular, pursuing and trying to defend cases and the amount of money that had been spent in doing so. A total of £26 million was set aside by the PSNI to settle those cases, and, for the life of us, we do not know why we are not in negotiations about having that applied and settling those matters.
The final point that we want to make before we conclude on this aspect and answer questions from Committee members relates to retired members of the civil service. We noted from the Hansard report of the Committee meeting of 22 June that Mr McLaughlin asked about the number of people who would be involved and whether it would be 400,000 or 12,000, and, later in the proceedings, the management side quoted a figure of 8,760. We were a bit bemused about that figure. The old adage of statistics, statistics and damn lies comes to mind in the sense that it depends what that 8,760 represents. For example, it is our understanding that that figure involves casual staff members who were employed over the period and who would not be covered by the terms of the settlement. We do not have precise figures, but those staff members may total 3,000, and the figure of 8,760 may be automatically reduced by discounting those staff members. There are also people who may be permanent members of staff but who have less than two year’s service. Under the terms and conditions of the Civil Service, those staff members would get a particular payment, but there would be no deferred pension element and no ongoing responsibility or liability on behalf of the Civil Service. Those staff members would also have to be deducted from the 8,760.
We wonder why civil servants quote such figures when they are before Committees or presenting facts about these cases, and we can find no reason for it other than it is a deterrent when people start to beat their breasts about the numbers involved and the likely costs that may result. That figure is not an accurate representation of the number of staff who would be covered. So, we have to seriously question the figure that was given and ask for more defined figures of the number of people who would be entitled to some element if casual staff and those who did not have deferred pensions were excluded.
The final point that we make in our paper in relation to retired members is how the management side in the NICS has continually used the six-month time limit on pursuing legal redress as a reason for not doing something for the retired members. That is simply a very narrow legal point. It simply says that if you have not lodged a case within six months, you have no legal entitlement or statutory right to pursue a case in a court. That is all it means. It does not mean that the law says that you cannot reach a settlement of this matter. The law does not say that you cannot pay an amount of money to those people. In fact, if there is the will, the NICS management, politicians, legal representatives, Assembly Members and Ministers have the right to decide to make some payment on the full terms of the settlement or that which would be appropriate to the circumstances. In our view, those staff would have been entitled to the lump sum and a recalculation of pension. However, we have always made it clear that if the management side was not prepared to concede that point, we would negotiate some element of recognition for the dedicated service that those people gave to the public sector for 30 years or more.
OK, thank you very much. I am conscious that we have officials from the Department coming in to give evidence afterwards, and we will be able to raise with them some of the questions that were raised about the equal pay settlement issue in that session.
You challenge the figures that the civil servants provided us with. Have you an estimate of the numbers of staff who may be involved or the cost? Hopefully, we will be given sets of figures from you and from the Civil Service, and we have to find out where the truth of all this is with regard to the Committee’s position on how the matter should go forward.
We do not hold everybody’s personal details. We have some information only about our own members, such as length of service. We would not know about the circumstances in which they left. However, from previous evidence and discussions, possibly at an individual level, some Committee members may be aware that the Civil Service Pensioners’ Alliance and our NIPSA retired members group made representations. I think they were quoting figures of about 460 to 480 people who had left the service or, through no fault of their own, had to retire because of ill health in the period between 2003 and the end date for the settlement.
Therefore, we do not have precise figures, and no one would be able to produce them. At the end of the day, however, it is incumbent on Departments and civil servants to produce factual and accurate information in response to questions about particular issues. I need to be careful what I say — I am not saying that they were necessarily trying to mislead the members of the Committee but they should be asked to quantify the figures that they provided. To throw out figures in the way that they have is reckless. They should be asked to give a breakdown.
In the conclusion of our paper, we suggested to the Committee that civil servants should be asked to give precise figures and costings in those areas. Around 3,000 casual staff over that period would not attract anything. That number would automatically have to come off the figure, as would the number of permanent staff with less than two years’ service. You then start to get that figure down. Potentially between 1,500 and 3,000 people may be able to attract something. It would not, as we understand it, be 8,700.
People who did a bit of work around the issue wrote to me over the summer with figures, and I thought that they sent a copy of that letter to the Committee Clerk. They also mentioned that people who had left voluntarily would be exempt. I think that brought the figure from 8,000 to the 3,000 mark. I have figures in my room, but I thought that copies were sent to the Committee as well.
The Committee Clerk:
The Committee may have previously received that information.
Fair enough. We will have the officials in after this so that we can ask them some further questions.
I begin by declaring an interest: my sister-in-law is one of those affected. If I did not declare that fact, someone would suddenly pounce on it.
The question seems to be, when is a civil servant not a civil servant? For example, if someone had been employed by the PSNI and had then come back into the Northern Ireland Civil Service at the time the award was made, would he have got the award? If two civil servants replaced one another at that time, one coming back into DFP, while the other went to the PSNI, would the one who went to PSNI be excluded and the one who went back to DFP included?
The answer potentially is yes. In the briefing that we provided, we tried to set out at paragraphs 1.6 and 2.7 the particular circumstances that are outstanding matters for us. I have tried to be as helpful as I can because it can get somewhat confusing, given the point that you have just made.
We have people in the PSNI who would have received the revised rates of pay. There are two main elements to the settlement: revised rates of pay, which came into effect on 1 February 2009, and the settlement lump-sum figure. We have people in the PSNI who may at some point have seen service with a Civil Service Department. At the point when this was being settled, there were people in the PSNI who received 1 February 2009 revised rates of pay, taking account of the entirety of their service irrespective of where it was. You could have a person, as you described, who was in the PSNI but moved into an NICS Department and who, although he received the 1 February revised rates of pay, did not receive the amount of years’ credit to get him to an assimilation point on the scale. So those individuals would be on a lower point of the scale — a Northern Ireland civil servant in a Northern Ireland Civil Service Department with previous service with either the NIO or the PSNI, would be assimilated at a lower point of the scale than someone who is now in PSNI. That is an absolute nonsense.
What we are trying to achieve for people who are now in the PSNI is the settlement lump sum. For those in the Northern Ireland Civil Service who have had service described as non-reckonable, because they were at some point in the PSNI or the NIO, we are looking to have both their 1 February 2009 revised rate of pay and their lump sum recalculated to give them the credit for those years, rather than treat it as non-reckonable.
I should also declare an interest, because I am still a member of a trade union. You have my buy-in anyway. However, I declare that interest because I want to cover all aspects. I see where you are coming from. This is not black and white; it is a very grey area, which will become more and more complex as we go through it.
Given that point, we direct you to the issues in our briefing paper. We have tried to copy into it our past briefings for background.
The management side, the NICS, said that a pay delegation was given. A pay delegation was given back in 1996 or 1997. There are two separate points: one involves former NIO members, and one relates to the PSNI staff. The PSNI never exercised any pay delegation. It was never in separate negotiations with NIPSA and has always simply applied the settlement that NIPSA negotiated for all civil servants through the central Whitley Council. Last time around, officials presented that in a way that was a bit misleading. They suggested that it did not matter whether the PSNI actively pursued that delegation by a separate set of negotiations: they had it. Had that been the case, why was no issue raised about our members in the Social Security Agency (SSA), who, to this day, still have a delegation but have never exercised it? Why did civil servants freely go to Ministers and get the money that was necessary to settle cases in those areas? It just does not stack up. On the management side, there is no continuity of position in what it presents to try to defend its position.
Thank you very much.
As well as the people in the Civil Service, are you speaking on behalf of PSNI personnel?
Yes, we represent them. An important point is that our main difficulty is not with the management in the PSNI structure. We have had discussions with them, and they were willing to make payment. They were trying to put business cases up the line. Another point that the official made was that, if they thought the claim was legitimate, they should put in a business case. They have put in a business case. That business case has gone to the Department of Justice, which, at one time, was blocking it and then, eventually, at a certain point, agreed to let it proceed for consideration by Department of Finance and Personnel officials.
We referred to that around the time when we made representations to the Justice Minister, because, as we have noted in our response, he said that he had asked his officials to get on with it. However, since that meeting, we have had no direct contact from the management sides of either DFP or DOJ about that. The fact is that, in our view, those individuals have an entitlement to it.
The other issue that the officials raised, that of a single source of pay, has slightly more relevance in the context of the former NIO members, in the sense that there were pay negotiations each year with the NIO, and there was a separate grading structure. However, the AA and AO grades in the Northern Ireland Civil Service had equivalents in the D1 and D2 grades in the NIO. They were exactly the same grades, so there is no issue over the grading. The issue is whether that legal point is insurmountable. In our view it is not, because it comes down to saying that, if you are not a single-source employer, you cannot use one employment area as a comparator to another for those purposes. In fact, the official used himself as an example and said that he could not use a health service grade as a comparator in his situation.
By and large, that rule of law is fairly all right. It is fairly all right to say that you cannot have a civil servant doing a comparison with a member of the health service for equal pay purposes. The difference in this scenario is that the employee happens to be a civil servant. In the other circumstance that was presented by the officials, employees were in two entirely separate areas of employment. In this case they are not. This involves Northern Ireland civil servants who, at some point, happened to be posted in the Northern Ireland Office. They may have had years or decades of service in the Northern Ireland Civil Service and were then forced to transfer to that area. That is the important difference when we are looking at those particular circumstances in relation to the issue of single source of pay. In fact, it should be single source of employment. The difference is that those people also happen to hold the status of Northern Ireland civil servants, and should therefore have the right to make the comparison between the NIO and a Northern Ireland Civil Service Department, or between the PSNI and a Northern Ireland Civil Service Department.
Hello again. I know your face. There is considerable sympathy for those former civil servants who find themselves outside the negotiated settlement. There is also a pragmatic recognition that you have to try to achieve certain thresholds and then build on them, rather than perhaps holding out for the final, all-singing, all-dancing settlement. That is the nature of your work in a whole lot of other circumstances.
It seems to me that we have to concentrate on the fact that those staff had a common status as civil servants. Clearly, Ministers are being informed with, and possibly conditioned to, some exaggeration of what would be involved in a comprehensive settlement. I have heard it said in previous discussion in this Committee that there would not be enough money in the block grant, but nobody quantifies the amount, breaks it down or examines it. Nevertheless, for Ministers who are struggling to balance deficit budgets, it can be an impressive argument, at least to prevent people from digging any deeper.
On the question of quantifying the number of outstanding claims, I presume that at some stage, by diligence, we can get the Department to give us more refined figures. However, even at that stage, there may be some discussion about whether that truly represents those who are aggrieved and who feel as though they are at the end of an injustice. Perhaps the union has to equip itself with some figures by issuing a call to the people who feel that they should have been included to register, outwith the statutory six-month time frame. You register their interests with the union and their wish to be considered.
There are a number of categories of aggrieved individuals and groupings who have approached political representatives to say, “What about us?” When you listen to the stories, it appears that those people have a genuine grievance, and I have been convinced of that for some time. The range of people who found themselves excluded from the deal and the circumstances behind that are difficult to keep in perspective. However, the fact that they were civil servants and were operating in what were acknowledged to be unequal circumstances over a period in their career seems to have established at least some basis for resolving the matter. In my view, that is clearly the case.
I am pleased that you are considering legal action. I have raised the issue here previously about whether, in circumstances where someone was retiring or leaving the Civil Service, the employer side had actually exercised its duty of care by giving that individual formal notice that, when the equal pay settlement eventually arrived, they should record their interest within six months of leaving. I do not think that that was ever done. If we are exploring legal options, that is one possibility.
On the issue of legal entitlements and status, is it true that there has been no detriment, other than the normal commonsense adjustments between the different conditions that existed in circumstances where civil servants were subject to transfer and the pressures of responding to that, and that their pension rights were unaffected generally? Was the principle that they were civil servants accepted? Has that been properly reflected in the engagement with the Department?
Your comments are very welcome. We will consider your first point regarding people registering some interest. We have had a lot of interest registered with us —
I am sure that you have.
— since the May 2008 newspaper article in which the then Finance Minister said that the claims would be settled. We will give that point further consideration. However, I think that there is an onus on management side to quantify as well, which is a point that has been made before.
I am talking about the two, rather than waiting until they do it, whenever they do so, and starting to examine it then.
On the second issue about notice to individuals, once we knew that we were going to be lodging cases and had reached that point of the process, we issued a circular in August 2008. In that circular, we advised members who were leaving the service about this point of law that had to be satisfied if they wished to pursue the matter by legal recourse. That is an important issue. We are managed by law now, and I would say that that is probably reflective of the public and private sectors per se. It is not a matter of walking in to a negotiation — I know that a number of you have trade union backgrounds — and doing the right and decent thing for people. The first thing that an employer will do now is to get his barristers and solicitors in and ask them, “Can I be taken to court over this matter?” If the answer is no, you are more or less on a hiding to nothing. If the answer is yes, it is a case of, “Let us see what we can negotiate at the minimum cost to overcome the problem.” That, essentially, is what happened in the settlement of those equal pay cases. Although it was a significant settlement, it was not, by any stretch of the imagination, everything that we sought. That is a fact.
There is an issue in that civil servants always hide behind the legal provision. As I said, with regard to retirees, the only point about the six-month rule is that if you seek to pursue it legally, you have to do so within six months. It does not debar management side from entering an agreement with us. Obviously, we would have liked retired civil servants to have received the lump sum figure for the period that they were in service and a recalculation of their pensions. However, we have made it clear to management side in briefings and negotiations that if that ultimate were not there, we would like to negotiate something. That is the opportunity that civil servants have not grasped — for us to set our sights lower and for them to be able to set their sights a bit higher and to stop hiding behind that narrow legal point of time limits for pursuing a case legally.
On the other matter, as Northern Ireland civil servants, irrespective of whether they worked in the NIO or the PSNI, they were members of the Northern Ireland Civil Service principal Civil Service pension scheme. That is a moot point because, as we have been trying to get across in our negotiations to management side and in any evidence that we have presented before this Committee or the Justice Committee, in every regard, when those people may have said that they did not want to be transferred from their Departments to the NIO or the PSNI, the point was rammed down their throats: “Sorry. You are a Northern Ireland Civil Servant; you are going there.” Yet, when it comes to the settlement they are told that they are no longer considered to be Northern Ireland civil servants. They can fancy it up every way they want to as regards the law and narrow legal points. That is what it boils down to at the end of the day.
Mr D Bradley:
During your presentation, you said that the legal point is not insurmountable. Is that with regard to the time limit?
No. It is with regard to the commitment to get a settlement of the issue. Again, we see that that point is being hidden behind. The official clearly picked an example to give you that suits the law exactly. He could not compare himself to a member of the health service because the two are entirely different. As we say in our covering letter, that is a good example with which to explain the law. It is not a good example when you talk about civil servants who, in the circumstances that we have described this morning, were forced to transfer to an area such as that. They were still Northern Ireland civil servants. That is why the general rule of law, which is probably sound enough, is not appropriate. That is why I talk about taking it in that context. If there is willingness on management side to recognise that status and the points that Mr McLaughlin has just made and to say, “Let us negotiate a settlement for that area”, the issue is not insurmountable.
Mr D Bradley:
Without breaking the sub judice rule, is the County Court action on behalf of your members as a body corporate or on behalf of individuals or groups of members?
To take a case, we must have named individuals to be able to present circumstances. Therefore, in the same way as a tribunal’s proceedings, the County Court’s proceedings have been taken forward on the basis of having named individuals. We have lodged eight or 10 cases. Those cases will be representative of the circumstances that we have described this morning; for example, of someone who was in the PSNI but has not received the settlement lump sum, or someone who was in the Civil Service but whose time with the NIO or the PSNI has not been covered. Those cases are representative of all of the circumstances that we have outlined and discussed this morning. They are called simply “lead cases”, which, I suppose, are test cases by nature and cover the circumstances that are being put forward.
Mr D Bradley:
I have one final question. Are members of unions other than NIPSA involved in that? If so, are unions working together to any extent?
No. The affected grades that are involved are those of administrative assistant, administrative officer and executive officer II, and any grades that are analogous to those grades in the Civil Service. NIPSA is the sole union for those areas.
In the lead-up to the final settlement, what negotiations did the union have with the Senior Civil Service about those people? Did the union take its eye off the ball and forget about them?
No. Its eye was never off the ball. I tried to make that point earlier. We have to remember that the negotiations were without prejudice. Therefore, we had to respect that label. We are now beyond that period because we have a settlement.
Without getting into precise details, I can confirm that the concerns of all the non-departmental public bodies, NIO members, PSNI members and retired civil servants who attracted NICS rates of pay were very much on the table at every point of the negotiations. Management side and NIPSA exchanged different drafts of the document that was produced. Right up until that document was published and management side said what it was offering, we had references covering those areas. That would not have appeared in the management drafts, but we had those references in every draft right up to the very death.
The one thing that we will confirm is that management side said that it was only extending the offer to members of Northern Ireland Civil Service departments. We balloted only our members in that area because the offer extended only to those people. However, we made it clear that we were not giving up on the representations that we had made throughout the negotiations on the other groups’ behalf. There is clear evidence that we have never given up on our members. We did not give up on them in the negotiations, and we have still not. If we had done so, we would not be lodging cases in the County Court.
Do you not think that you would have had a stronger hand if you had held off and tried to get the whole thing in one settlement? I know that Mitchel said that it is not easy to get an all-singing, all-dancing settlement, but do you not think that you signed up too soon?
You have to understand that it did not happen overnight.
No, I understand that.
It dates back to 1998 or 1999 when management undertook what was called a pay and grading review. I understand that the Chairperson asked some questions about when management knew about the equal pay issues, and the official said that it was only crystallised when NIPSA lodged its cases and the negotiations to settle them began. Management side knew since 1998 or 1999 that there were equal pay issues. The issue did not become crystallised until we eventually had to lodge our cases and were forced, as we are now, to take the judicial route.
This was not a speedy process by any stretch of the imagination. Peter Robinson, the then Finance Minister, made his announcement in May 2008. We sent a letter to management side the next day and asked for negotiations immediately. It took a month — it may have been June or July — before management side even acknowledged the letter. We then had to go to the permanent secretary in December to complain that officials were not in negotiations with us. We set five dates in January. Along with colleagues, I came in from leave to go to the first one, only to be told the evening before that it had been postponed without any further dates being given.
We had to drag management side to the negotiating table every step of the way. We spent about 18 months in supposed negotiations to get to that point. Although we have sympathy for all our members who we are still trying to represent in these matters, the tens of thousands of other people put pressure on us to enter the agreement. Once management side said that negotiations were over and presented its best and final offer, we were obliged to put that to our members. We did not have the option of saying that we would hold out longer. We were obliged to take the offer to our members.
I have one point to make about PSNI staff. You state in the briefing paper that, following your meeting with the Minister of Justice, he obtained legal advice that there was no liability. Do you reckon that that relates solely to the delegation to which you referred?
It is as simple as that?
Thank you very much. Departmental officials will be coming to the Committee, and there will be a chance to talk further with them about the issue. There is obviously still some mileage remaining before the issue will be resolved. It was helpful for the Committee to hear your perspective, considering that we have already heard evidence from officials. We will continue to discuss and pursue the matter.
I appreciate that. Thanks.