Witness Statement
For any readers interested in the details - here is the witness statement I gave to the original Employment Tribunal hearing back in 2008 - over the right of former APT&C workers in Edinburgh - to pursue equal pay claims against the City Council.
Now this should give you some idea as to why Edinburgh's case was thrown out - and why the council's behaviour was described as - trying to 'defend the indefensible'.
EMPLOYMENT TRIBUNAL
B E T W E E N :
VARIOUS CLAIMANTS
AND
The City of Edinburgh Council - Respondent
WITNESS STATEMENT OF MARK IRVINE
RE SECTION 1 (6) HEARING
I, MARK IRVINE will say as follows:
1. I am an independent consultant and work with a wide range of clients across the public, private and voluntary sectors both in the UK and in Europe. My current CV is attached for information. I am retained as a consultant by Action4Equality (Scotland) Limited.
2. Up until November 1999 I was employed as Unison’s Head of Local Government in Scotland, acting as its chief negotiator with the Convention of Scottish Local Authorities (“COSLA”) and the 32 local authority employers.
3. I was appointed as Unison’s Head of Local Government in July 1993 when the new union came into being following a merger of its three predecessor organisations, COHSE, NALGO and NUPE.
4. I acted as the Joint Secretary to the Joint Trade Union Side which negotiated the 1999 Single Status Agreement in Scotland (“the Red Book”). As such, I am very familiar with the thinking behind the Red Book, its terms, purpose and the express understanding of both the employers and trade unions as to its effect.
5. Prior to 1999, I had acted as the Chair of the Manual Workers Scottish Council and as Joint Secretary to the APT&C Staffs Scottish Council. These two bodies negotiated the terms of the former collective agreements known in Scotland as “the Green Book” for Manual workers and “the Blue Book” for APT&C workers. These two bodies ceased to exist after the Red Book was agreed in 1999. They were replaced by the new Single Table Scottish Joint Council when their respective collective agreements (i.e. the Scottish Green and Blue Books) were superseded by the Red Book Single Status Agreement.
6. Previously, I had also been a member of the UK National Joint Council for Manual Workers and the UK National Joint Council for APT&C staff: the two bodies which negotiated the original Single Status Agreement in 1997 which applied to the UK other than Scotland.
7. The 1997 Single Status Agreement (also known, confusingly as the Green Book) was subject to further negotiations between the employers and trade unions in Scotland and was finally adopted (with some differences) as the Red Book as a new national agreement in Scotland in 1999 following membership ballots within Unison, GMB and TGWU (now Unite). The constitution of the new Scottish Joint Council had the effect of removing Scotland from direct involvement in negotiations at UK level. This was a change of historic importance for both the employers and the trade unions.
8. The background to the introduction of the Single Status Agreements in 1997 and 1999 was the discriminatory practices, recognised by both employers and trade unions, arising out of the differences in treatment between Manual and APT&C workers, in particular with regard to bonus payments and working hours. The drive was to harmonise terms and conditions of employment. It was agreed that there was a need for a single national agreement applying to both categories of worker. There was a need for national bargaining in vital areas and a better deal for female workers via an equality-proofed Job Evaluation Scheme (“JES”).
9. It was also agreed that there was a need for more flexibility within the national agreement to negotiate and agree issues at local (meaning local Council) level by, for example, removing the previous right to appeal Job Evaluation outcomes to National (Scottish) level. This was agreed in Part 2 of the Red Book (para. 14 Scottish Collective Agreements Bundle (“SCA”):474) and was a major change from the procedures which operated under the old Green and Blue Books in Scotland.
10. The City of Edinburgh Council (“the Council”) had a clear obligation in accordance with the terms of the Red Book (Part 2 para. 1.2 in particular, [SCA:487]) to review all existing bonus schemes in order to ensure that they were not operating in a discriminatory manner. Whilst the Council did carry out a Survey of Bonus Schemes in about 2001 [SC2: 236] they apparently did nothing with that information and did not take any steps to remedy the inequality created by such schemes.
11. The 1997 Single Status Agreement emerged after years of painstaking negotiations in the UK negotiating bodies (Manual and APT&C). The employers and trade unions both agreed there was widespread pay discrimination and that the only alternative to litigation was a new national agreement and the introduction of a non-discriminatoryJES. Both sides were aware of the Cleveland dinner ladies litigation which resulted in kitchen workers winning a multi million pound settlement after comparing themselves with gardener bonus earners.
12. The 1999 Red Book in Scotland reflects the 1997 Agreement with some significant modifications. For example, it allowed a specific time for negotiations to take place following the formation of a new single table bargaining structure [SCA: 473, 475 and 503]. Single table bargaining was a major change in 1999 and a major feature of the new arrangements agreed in the Red Book. The Red Book also effected substantial changes to the terms and conditions of employment of former Manual and APT&C workers.
13. The principles underlying the Red Book and the 1997 Single Status Agreement are the same. However, in Scotland there was an express timetable for the introduction of the JES, which was not present in the 1997 Single Status Agreement as originally agreed. The reason for this in Scotland was to ensure that the JES scheme was introduced at a proper pace and within a time frame. The Scottish employers initially agreed to develop a Scotland wide JES via COSLA and this required extensive consultation amongst the employers and separately with the trade unions.
14. The Red Book has been in operation since 1999. It was provided in the Red Book that its conditions would be expressly referred to for new starters from July 1999 onwards as per para. 5 of the Red Book Implementation Agreement [SCA:473]:
"Where contracts of employment incorporate Scottish agreements, references to the former APT &C or Manual Worker agreements will now be to the new Red Book. Employees need to be notified accordingly, on an individual basis at a suitable opportunity".
15. In the letters of engagement of workers recruited since 1999 to former Manual and APT&C posts, the Red Book has been expressly referred to as governing their terms and conditions of employment (see for example R10: SC.CL.02.09, 06.04, 06.05, 10.06, 12.03, 13.02, 13.05, 14.07, 16.01 and 17; and R10 Com 35, 112, 126, 153 and 167). From 1999, the Red Book was incorporated in the contracts of employment of workers engaged before that time because collective agreements negotiated by the trade unions were expressly incorporated into their contracts of employment and governed their terms and conditions (see for example, R!0 SC CL 05.03, 03.01, 11.19, 13.11, 15.02, 18.04and R10 Com 5, 32, 76, 124, 158, 241).
16. The terms contained in the Red Book were agreed by the employers and trade unions and endorsed by the new Scottish Joint Council. As a non-discriminatory JES had not yet been agreed, that matter remained outstanding. But that did not prevent each Council in Scotland adopting the Red Book agreement and applying it immediately which is what was done. As the Edinburgh Council report [SC2: 134] shows, in Edinburgh the agreement was formally adopted in June 1999 and all existing staff in former APT&C and Manual jobs were moved onto the new agreement and a single spinal column was created. The intention was to match the annual grade earnings for former Manual workers to an annual spinal column point applicable also to former APT&C workers. The single spinal column was new in the Red Book. The unions produced a joint document explaining single status for its members [SC2: 297]. The old former Manual grade bands are all matched to spinal column point bands, showing the correlation between the earnings of former Manual workers and former APT&C workers. Annual pay increases for both former Manual workers and former APT&C workers were by reference to the same spinal column as from 1999.
17. The spinal column annexed to the implementation agreement in the Red Book referred to annual rates of pay. After further negotiation, a new spinal column of hourly rates was agreed between employers and trade unions at Scottish Joint Council level. This was confirmed in a letter of May 2002 headed Scottish Joint Council for Local Government Employees which I annex to this witness statement. The way in which salaries were communicated to staff was as shown in R13 which is the SJC salaries agreement for 2006. There is a single pay rate referable to the spinal column but it is translated back for those employed on former Manual grades so that they can understand how their pay is calculated. There are not separate salary agreements for former Manual and former APT&C workers. There is a single annual salaries agreement which refers to the single spinal column. This is a major change effected by the Red Book.
18. I am aware that the Council is contending in these proceedings that the Red Book is not a scheme of pay and conditions of service which revokes or rescinds the Green or Blue Books and that it contains “no free standing terms and conditions”. I find this astonishing. At the time of the negotiations, it was never suggested by the employers that the Red Book would have no contractual effect in relation to the terms and conditions of employment of former Manual and APT&C workers until implementation of the JES. It was clearly agreed in 1999 that the Red Book would supersede the existing Green and Blue Books and that the terms and conditions of those agreements on pay and grading (subject to the introduction of the single spinal column) survived only as incorporated in the Red Book pending the JES (see the Implementation Agreement to the Red Book [SCA: 473 TO 476]). The terms on pay and grading in the Green and Blue Books cannot be revisited or renegotiated - they can only be replaced by new, non-discriminatory pay and grading arrangements as envisaged by the Red Book.
19. The Red Book has made significant changes in relation to pay. Just to give an example of how the Red Book operates in relation to pay, before the Red Book, Manual workers would have been on a standard 39 hour week. In order to determine an individual’s hourly rate of pay, the weekly figure could be divided by 39. Following the Red Book, the weekly figure would be divided by 37, producing a higher hourly rate. Overtime rates after the Red Book would be payable from the 38th hour and at a higher rate so that former Manual workers are more highly paid than before the Red Book. All payments referable to basic hourly pay would be higher.
20. It is not correct, as the Council contends, that Part 2 of the Red Book simply replicates terms and conditions already existing in 1999. Not only was a single spinal column introduced but, for example, the Red Book introduced a new sick pay provision that did not exist under the Green or Blue books and which benefited the employers. It excluded from any entitlement to sickness allowance employees with less than 26 weeks continuous service (para. 10.2.1 of Part 2 of Red Book [SCA: 491). It also introduced the new standard working week of 37 hours for all employees to be introduced on a phased basis from 1 April 2000 (para.15 of Part 2 of Red Book [SCA: 475]). There was also the variation in relation to grading appeals already referred to above. Further, in relation to former Manual workers, the former grading panel under the Green Book ceased to operate from 1999 onwards.
21. As the Council has accepted in its amended Response, pay is not determined by the location at which an employee works. Nor is it determined by the department in which an employee works. Pay is a consequence of the spinal column point which is allocated to the particular job, terms and conditions are not agreed at departmental level or on the basis of location - particularly not since the Red Book terms and conditions were agreed.
22. It appears in para. 17 of its Amended Response that the Council is laying some blame for the extensive delays in adopting a JES at the doors of the trade unions. It is the responsibility of the Council to carry out a JES and to ensure that its obligations in relation to equal pay are complied with. By 1999, the national recommended JES had already been agreed in principle by the Scottish employers. The employers (consisting of all 32 Member Councils) spent £250,000 of public money in further trials and road tests. The trade unions at this time had endorsed the national model. All that the Council had to do was to use the nationally recommended scheme agreed with COSLA and to implement it locally. If the Council had considered that there was any unreasonable behaviour by the trade unions, it could have referred this to the Scottish Joint Council, which it did not do. Disputes can also be referred to binding arbitration as a last resort.
23. I am aware that the Council is relying in para. 23 of its Amended Response, in relation to the “single source” argument in this case, on further documents disclosed since the last 5 day hearing. I have considered para. 23 and the documents disclosed, although not in detail. It is of course correct that directors of departments have delegated budgets but budgets are determined by the Council. The delegation of budgets does not mean that individual departments are responsible for agreeing the pay of their staff or that they can redress any inequality in pay. This can only be done at Council level. There is a single HR department for the Council as a whole and the Council has both the power and the duty to redress inequalities in pay for its staff. This is not the responsibility of individual departments. At present, I have great difficulty in understanding what relevance the delegating of budgets has to whether the Council complied with its obligations in relation to equal pay.
24. I have read Kevin Duguid’s statement prepared for the hearing which commenced in June and agree with what he has said where those matters are within my own knowledge. I specifically adopt what he says about Job Mobility and would add that for many employees a mobility clause is specifically referred to in their letters of engagement. I also specifically adopt what he says under the heading “The Old Green and Blue Books”.
25. All of the Claimants in these cases are individuals employed in providing the Council’s core services. The Council is their employer and responsible for ensuring that their pay is not discriminatory, in particular as between traditionally male jobs and traditionally female jobs. The conditions of service of the Claimants and their comparators are governed by a single collective agreement (the Red Book).
26. Whilst I know that this is a matter for legal argument, as a former senior trade union officer, it seems to me that if the Council’s equal pay obligations could be avoided on the basis that claimants and comparators work in different locations or different departments, the Council’s equal pay obligations would be of very limited value. Certainly this type of argument was not in anyone’s mind at the time of negotiation of the Red Book, when it was expressly recognised that there was a serious issue relating to the payment of bonuses to the predominantly male groups of Manual workers. It was agreed by the employers that it was appropriate to include the Manual and APT&C workers within the single collective agreement known as the Red Book. The argument that there are, in reality, two collective agreements, the existence of which enables the Council to avoid its equal pay obligations to the Claimants, is far-removed from the discussions and agreements leading up to the final agreement of the Red Book terms and conditions. I believe that the Red Book reflects what was agreed and the clear intention of both employers and trade unions to include the former Manual and APT&C workers within one single collective agreement with one single collective bargaining arrangement.
I have read this witness statement and confirm that the facts and matters contained in it are true to the best of my knowledge and belief.
Signed
Mark Irvine
Date August 2008
16. The terms contained in the Red Book were agreed by the employers and trade unions and endorsed by the new Scottish Joint Council. As a non-discriminatory JES had not yet been agreed, that matter remained outstanding. But that did not prevent each Council in Scotland adopting the Red Book agreement and applying it immediately which is what was done. As the Edinburgh Council report [SC2: 134] shows, in Edinburgh the agreement was formally adopted in June 1999 and all existing staff in former APT&C and Manual jobs were moved onto the new agreement and a single spinal column was created. The intention was to match the annual grade earnings for former Manual workers to an annual spinal column point applicable also to former APT&C workers. The single spinal column was new in the Red Book. The unions produced a joint document explaining single status for its members [SC2: 297]. The old former Manual grade bands are all matched to spinal column point bands, showing the correlation between the earnings of former Manual workers and former APT&C workers. Annual pay increases for both former Manual workers and former APT&C workers were by reference to the same spinal column as from 1999.
17. The spinal column annexed to the implementation agreement in the Red Book referred to annual rates of pay. After further negotiation, a new spinal column of hourly rates was agreed between employers and trade unions at Scottish Joint Council level. This was confirmed in a letter of May 2002 headed Scottish Joint Council for Local Government Employees which I annex to this witness statement. The way in which salaries were communicated to staff was as shown in R13 which is the SJC salaries agreement for 2006. There is a single pay rate referable to the spinal column but it is translated back for those employed on former Manual grades so that they can understand how their pay is calculated. There are not separate salary agreements for former Manual and former APT&C workers. There is a single annual salaries agreement which refers to the single spinal column. This is a major change effected by the Red Book.
18. I am aware that the Council is contending in these proceedings that the Red Book is not a scheme of pay and conditions of service which revokes or rescinds the Green or Blue Books and that it contains “no free standing terms and conditions”. I find this astonishing. At the time of the negotiations, it was never suggested by the employers that the Red Book would have no contractual effect in relation to the terms and conditions of employment of former Manual and APT&C workers until implementation of the JES. It was clearly agreed in 1999 that the Red Book would supersede the existing Green and Blue Books and that the terms and conditions of those agreements on pay and grading (subject to the introduction of the single spinal column) survived only as incorporated in the Red Book pending the JES (see the Implementation Agreement to the Red Book [SCA: 473 TO 476]). The terms on pay and grading in the Green and Blue Books cannot be revisited or renegotiated - they can only be replaced by new, non-discriminatory pay and grading arrangements as envisaged by the Red Book.
19. The Red Book has made significant changes in relation to pay. Just to give an example of how the Red Book operates in relation to pay, before the Red Book, Manual workers would have been on a standard 39 hour week. In order to determine an individual’s hourly rate of pay, the weekly figure could be divided by 39. Following the Red Book, the weekly figure would be divided by 37, producing a higher hourly rate. Overtime rates after the Red Book would be payable from the 38th hour and at a higher rate so that former Manual workers are more highly paid than before the Red Book. All payments referable to basic hourly pay would be higher.
20. It is not correct, as the Council contends, that Part 2 of the Red Book simply replicates terms and conditions already existing in 1999. Not only was a single spinal column introduced but, for example, the Red Book introduced a new sick pay provision that did not exist under the Green or Blue books and which benefited the employers. It excluded from any entitlement to sickness allowance employees with less than 26 weeks continuous service (para. 10.2.1 of Part 2 of Red Book [SCA: 491). It also introduced the new standard working week of 37 hours for all employees to be introduced on a phased basis from 1 April 2000 (para.15 of Part 2 of Red Book [SCA: 475]). There was also the variation in relation to grading appeals already referred to above. Further, in relation to former Manual workers, the former grading panel under the Green Book ceased to operate from 1999 onwards.
21. As the Council has accepted in its amended Response, pay is not determined by the location at which an employee works. Nor is it determined by the department in which an employee works. Pay is a consequence of the spinal column point which is allocated to the particular job, terms and conditions are not agreed at departmental level or on the basis of location - particularly not since the Red Book terms and conditions were agreed.
22. It appears in para. 17 of its Amended Response that the Council is laying some blame for the extensive delays in adopting a JES at the doors of the trade unions. It is the responsibility of the Council to carry out a JES and to ensure that its obligations in relation to equal pay are complied with. By 1999, the national recommended JES had already been agreed in principle by the Scottish employers. The employers (consisting of all 32 Member Councils) spent £250,000 of public money in further trials and road tests. The trade unions at this time had endorsed the national model. All that the Council had to do was to use the nationally recommended scheme agreed with COSLA and to implement it locally. If the Council had considered that there was any unreasonable behaviour by the trade unions, it could have referred this to the Scottish Joint Council, which it did not do. Disputes can also be referred to binding arbitration as a last resort.
23. I am aware that the Council is relying in para. 23 of its Amended Response, in relation to the “single source” argument in this case, on further documents disclosed since the last 5 day hearing. I have considered para. 23 and the documents disclosed, although not in detail. It is of course correct that directors of departments have delegated budgets but budgets are determined by the Council. The delegation of budgets does not mean that individual departments are responsible for agreeing the pay of their staff or that they can redress any inequality in pay. This can only be done at Council level. There is a single HR department for the Council as a whole and the Council has both the power and the duty to redress inequalities in pay for its staff. This is not the responsibility of individual departments. At present, I have great difficulty in understanding what relevance the delegating of budgets has to whether the Council complied with its obligations in relation to equal pay.
24. I have read Kevin Duguid’s statement prepared for the hearing which commenced in June and agree with what he has said where those matters are within my own knowledge. I specifically adopt what he says about Job Mobility and would add that for many employees a mobility clause is specifically referred to in their letters of engagement. I also specifically adopt what he says under the heading “The Old Green and Blue Books”.
25. All of the Claimants in these cases are individuals employed in providing the Council’s core services. The Council is their employer and responsible for ensuring that their pay is not discriminatory, in particular as between traditionally male jobs and traditionally female jobs. The conditions of service of the Claimants and their comparators are governed by a single collective agreement (the Red Book).
26. Whilst I know that this is a matter for legal argument, as a former senior trade union officer, it seems to me that if the Council’s equal pay obligations could be avoided on the basis that claimants and comparators work in different locations or different departments, the Council’s equal pay obligations would be of very limited value. Certainly this type of argument was not in anyone’s mind at the time of negotiation of the Red Book, when it was expressly recognised that there was a serious issue relating to the payment of bonuses to the predominantly male groups of Manual workers. It was agreed by the employers that it was appropriate to include the Manual and APT&C workers within the single collective agreement known as the Red Book. The argument that there are, in reality, two collective agreements, the existence of which enables the Council to avoid its equal pay obligations to the Claimants, is far-removed from the discussions and agreements leading up to the final agreement of the Red Book terms and conditions. I believe that the Red Book reflects what was agreed and the clear intention of both employers and trade unions to include the former Manual and APT&C workers within one single collective agreement with one single collective bargaining arrangement.
I have read this witness statement and confirm that the facts and matters contained in it are true to the best of my knowledge and belief.
Signed
Mark Irvine
Date August 2008
