EDA2329

1. Appeal of Adjudication Officer Decision No(S) ADJ-00035307 CA-00046487-004

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 21 December 2022. A Labour Court hearing took place on 27 June 2023. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Paul O’Sullivan, the Complainant against Adjudication Officer Decision ADJ-00035307 in a claim of discrimination on the ground of gender. The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts).

The Adjudication Officer held that the Complainant had not established a prima facia case of discrimination. This complaint is linked to Determination No PWD2315 and Decision No LCR22795.

Background.

The Complainant submits that he is being discriminated against on the ground of gender as two of his female colleagues who carry out the same duties as he does, are being paid a higher rate of pay. He is seeking equal pay for equal work. The Respondent does not dispute that the two comparators are paid a higher rate. However, it is their submission that the higher rate arises from a red circled arrangement and is not related to gender. The complaint was lodged with the WRC on the 3^rd January 2022. Therefore, the cognisable period for the purpose of the Act is 4^th July 2021 to 3^rd January 2022.

Summary of Complainants submission.

The Complainant confirmed to the Court that this complaint, was one of direct discrimination on the gender ground in respect of rate of pay. The Complainant submitted that, after a third fixed term contract, he received a contract of indefinite duration from the Respondent on the 11^th December 2015 known as a Long-term Flex contract (LTF). On the 18^th August 2021 the Complainant requested and received a statement of earnings from the Respondent. This statement indicated that he was a permanent employee and that his job title was assembler.

It is the Complainant’s submission that as a person on an LTF contract he earned less than a permanent employee, so he looked to have his rate of pay increased to that of a permanent assembler on the basis of the statement he received. He was aware that permanent assemblers were paid €1,671 euro per annum more than employees on LTF contracts. He submitted that 59% of permanent staff are female while 82% of staff on LTF contracts are male. The Complainant accepted that LTF contracts are contracts of indefinite duration that have no end date, unlike his previous Fixed Term contract.

The Complainant identified two female comparators who are in the permanent cohort of staff and receive the higher rate of pay. It is his submission that the fact that he is paid a lower rate of pay for doing the same job is discrimination based on gender. He accepts that there are males that get the higher rate of pay but submits that because there are more woman in that group it is direct discrimination. The Complainant processed this issue through the internal grievance procedure, but his complaint was not resolved.

The Complainant submitted that he has clearly established facts from which it may be presumed that there has been discrimination and that the burden of proof lies with the Respondent to show that the reason he was paid less that his comparators was not related to his gender.

The Complainant opened a number of cases to the Court in support of his position.

Summary of Respondents submission

Traditionally the Respondent had two categories of workers, permanent staff and fixed term workers. The fixed term workers were employed on fixed term contracts of maximum duration 23 months. However, after a break in service they could be re-engaged on a further fix term contract. The Complainant was initially employed on that type of contract.

Following discussion with SIPTU in 2015 in respect of how the fix term contracts were operating amongst other things, it was agreed that a new category of employment contract would be put in place, a long-term flexi contract which is a contract of indefinite duration, creating stability and permanence for the staff involved. As part of the negotiation process it was agreed that the existing permanent worker’s terms and conditions of employment would be red circled to the staff in that category at the time of the agreement. New terms and conditions of employment were agreed for the new LTF contracts and fixed term employees could apply for an LTF contract. The Complainant applied and was successful in December 2015 in obtaining an LTF contract.

It is not disputed that the two female comparators identified by the Complainant are part of the red circled cohort of workers and in receipt of higher pay, nor is it disputed that they do the same work. However, the basis for the difference in pay is not related to gender, it arises from the collective agreement in 2015 to create a new category of workers, and to red circle existing permanent staff’s terms and conditions of employment.

Section 19 (5) of the Act provides that nothing in the Act prevents the Respondent from paying different rates of pay on grounds other than gender. The Respondent also opened to the Court a number of cases supporting their contention that the red circling of staff is permitted once the basis for the red circling is not linked to one of the protected grounds.

Mr Lowey BL on behalf of the Respondent submitted that they had clearly established that the difference in pay arose from a re-organisation within the workplace. That reorganisation saw the introduction of a new grade of worker with its own terms and conditions of employment, and the red circling of terms and conditions of employment for staff who at that time held permanent positions. Nobody has been appointed to the red circled terms and conditions since the introduction of the LTF grade. Mr Lowey Bl submitted that the basis for the different rate of pay is not linked to gender and that the difference in pay will disappear overtime. The fact that there are more females in the red circled cohort arises from the composition of the workforce at the time the red circling was put in place and is purely coincidental.

Applicable Law

Section 6 of the Act states,

• 
  [(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
  (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—
  (i) exists,
  (ii) existed but no longer exists,
  (iii) may exist in the future, or
  (iv) is imputed to the person concerned,
  (b) a person who is associated with another person—
  (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
  (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]
  (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
  (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
  (b) ……
  

  Section 19 goes on to state,
  (1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
  [(2) In this section “relevant time” in relation to a particular time is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.]
  (3) For the purposes of this Part, where B's employer is an associated employer of A's employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.
  [(4)
  (a) Indirect discrimination occurs where an apparently neutral provision [would put] persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer.
  (b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.
  (c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.]
  (5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.
  

Discussion and Determination

The Complainant did not dispute the fact, that nobody has been appointed to the red circled terms and conditions since the LTF grade was introduced. Nor did he dispute that there had been recent collective pay agreements whereby workers on LTF contracts had received lump sum increases on their salary that had not applied to the red circled group. It was his submission that because the terminology used in the correspondence from the Respondent to him, referred to him as permanent rather than LTF (contract of indefinite duration) he was entitled to the higher rate of pay. In that submission the Complainant does not set out how a letter categorising him as permanent as opposed to LTF, constitutes discrimination on the gender ground.

The Complainant does not dispute that at the time he received an LTF contract that the terms of the existing permanent staff were red circled. He confirmed to the Court that he understood in the context of this complaint what red circled meant, and he offered no reason as to why this arrangement should not be considered to fall within the defence provide fore in section 19 (5) of the Act.

The Court having given careful consideration to the submissions of the parties both written and oral, determines that the payment of a higher rate of pay to a cohort of workers for the reasons set out above, even if the cohort is predominantly female is for reasons other than gender and therefore does not constitute discrimination on the ground of gender.

The appeal fails. The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CO'R	______________________
26 July 2023	Deputy Chairman