SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
ERICSSON SYSTEMS EXPERTISE LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Mr Walsh
1. Appeal by the Union against Equality Officer's Recommendation No. EP4/96.
2. The full background to the case is contained in the Equality Officer's Recommendation No. EP4/96.
The Ericsson Group has two divisions on site in Athlone i.e. E.E.I. and L.M.I., with all the claimants working for the former while the comparator worked for L.M.I. before his transfer to E.E.I. in August 1994. While at L.M.I. the comparator was grade E. For 6/8 weeks before his transfer he worked at the data transmission (D.T.) department and was doing work graded F. The Company claims that he should have transferred to E.E.I. as a grade E (he was compensated for the loss of his grade F with a lump sum) but due to a clerical error he was graded F.
The case involves an appeal by 11 of the claimants against EP4/96 which arose from a claim by 15 female staff against the Company. The 11 involved in this appeal (all on grade E ) were found to be performing like work with the comparator (paragraph 5.4 of EP4/96).
The Union's case is that the comparator was twice given the grade F solely because he was a male. The Company argues that granting the comparator grade F (the second time following his transfer to E.E.I.) was a mistake.
The Union appealed the Recommendation to the Labour Court on the 13th August, 1996 in accordance with Section 8(1)(a) of the Anti-discrimination (Pay) Act, 1974. The grounds for the Union's appeal are as follows:-
(a) That the Equality Officer erred in accepting in Clause 5.1 that the Company made a mistake in granting a Grade F to the comparator. How can the management claim to have made the same mistake twice several months apart?
(b) Even if there is some basis for the issue of management having made a mistake in respect of the comparator, the financial benefit of that "mistake" should equally be extended to the claimants i.e. the Grade F salary for as long as he had it plus the compensation paid to him.
(c) That under the 1974 Act it is not a reasonable response for an employer, found to be in breach of the Act, to merely withdraw the rate to the comparator rather than extending it to the claimants.
(d) The conclusions in Paragraph 5.7 are incorrect in that the only reason the comparator had been paid Grade F on two different occasions was that he was male. On the first occasion it was management that claimed the comparator was Grade F even if subsequently it turned out he was not.
The Court has carefully considered the written and oral submissions made by the parties in considering this appeal. It has also noted letters subsequently submitted to the Court by the Union side in relation to the correction made to the payroll.
The main thrust of the Union's appeal is the allegation that the Company attempted to extend to the comparator the Grade F salary solely because he was a male. This, it is claimed, was done on two occasions and far from being a mistake, it was an attempt to get around the grading system in the Company. Subsequently he was compensated for the Company's failure to succeed in its attempt.
It is the Company's case that the comparator was enjoying Grade F for a short period of time in his old company L.M.I. and that payments made at that grade, after his transfer to E.E.I., were in error and had been paid back to the Company.
While it is clear that there was a certain amount of confusion surrounding the handling of the comparator's package on transfer, the Court finds that the payments at Grade F level after transfer were in error, albeit that instructions had been given for the payments.
The Court accepts that it was never the Company's intention to pay or award Grade F to the comparator on his transfer to E.E.I. The Court, in arriving at this conclusion, took account of the letter of appointment of 21st September, 1994. The Court is equally satisfied that the financial arrangements made by L.M.I. on transfer, while generous, would have applied to a female in similar circumstances and were not based on sex.
The Court is conscious that the way in which this whole issue was handled by management, with complete lack of proper communications, transparency and an obvious conflict within the management team, exacerbated this situation unnecessarily.
However, while this may have caused tension in an industrial relations sense, the Court is satisfied that Equality Officer's Recommendation No. EP4/96 is correct and that there was no discrimination within the terms of the Anti-Discrimination (Pay) Act, 1974.
The Court, therefore, rejects the appeal.
Signed on behalf of the Labour Court
29th August, 1997______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.