SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
A CREDIT UNION
(REPRESENTED BY MURPHY & CONDON SOLICITORS)
- AND -
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. (1) Appeal against Equality Officer's Recommendation EP11/97 and Appeal for determination that the Equality Officer's Recommendation EP11/97 has not been implemented.
2. In April, 1994 the claimant was secretary of the Board of Directors ('the Board') of the Credit Union in a voluntary capacity. Following the unexpected resignation of the manager she was asked by the Board to take on the responsibility of running the office on an interim basis. The claimant subsequently was put on a weekly wage and acted as manager. She was employed on this basis for the period April, 1994 to June, 1995. During that time her contract was extended several times.
In June, 1995 a new manager was appointed. Prior to his appointment the new manager had been finance officer of the Credit Union. The claimant argues that when she was acting as manager she was performing like work within the meaning of Section 3(a) and 3(b) of the Anti-Discrimination (Pay) Act, 1974, with both the finance officer and the former manager of the Credit Union and was entitled to the same rate of remuneration.
The dispute was the subject of an investigation by an Equality Officer who recommended that the Credit Union pay the claimant the same rate of remuneration as the comparator, the former manager of the Credit Union, for the period of her employment.
On the 27th of January, 1998 the Credit Union appealed the Equality Officer's Recommendation to the Labour Court on the following grounds:-
- that the work of the cliamant was not comparable to the work
of the comparator;
- that there were vast differences in the amount and quality of
the duties of the post;
- that the work of the claimant was less valuable than that of a
full-time manager with full responsiblites for finance;
- that the Recommendation is vague and uncertain and incapable
On the 29th of January, 1998 the claimant appealed for implementation of EP11/97.
The Court heard the appeal in Cork on the 28th of May, 1998.
At the commencement of the hearing Counsel for the respondent Credit Union indicated that the respondent was prepared to accept that the claimant was employed on like work with the comparator within the meaning of Section 3(b) of the Act. Counsel did, however, indicate that the respondent wished to proceed with the appeal on the basis that there were "grounds other than sex" which justified the difference in remuneration between the claimant and the comparator. Without prejudice to its contention in that regard, the respondent also wished to argue that certain benefits received by the comparator in the course of his employment should not be regarded as "remuneration" for the purpose of determining the quantum of arrears due to the claimant.
Reasons other than sex
On behalf of the respondent it was argued that differences in qualifications and experience between the comparator and the claimant provide a general justification for the differences in their rate of remuneration. This line of defence was fully pursued before the Equality Officer and was comprehensively rejected by her. Having reviewed the submissions of the parties on this point, the Court is satisfied that such differences in experience and qualifications as may have existed between the claimant and the comparator did not have any material bearing on her ability to carry out the duties of manager of the Credit Union. Accordingly, they could not provide objective justification for payment of a lower rate of remuneration to the claimant than that paid to the comparator.
In addition to basic pay, the comparator received a number of additional benefits in the course of his employment with the respondent. These included a weekly payment of £155 by way of unvouched expenses, the provision of a car for private use together with all associated costs, and membership of a defined contribution pension scheme in which £435 per month (£5,220 per annum) was invested on his behalf.
None of these perquisites were available to the claimant. While there was some uncertainty as to the comparator's basic pay, it was agreed that a sum of £285 per week (£14,820 per annum) should be taken as the correct amount. The claimant's basic pay was £250 per week (£13,000 per annum).
It was submitted on behalf of the respondent that it had never authorised the payment of unvouched expenses, pension contributions or a company car to the comparator. It claimed that the discovery of these payments and benefits by the Board of the Credit Union gave rise to the difficulties which lead to the resignation of the comparator as its manager.
It further emerged that the "expenses payments" were not disclosed to the Revenue Commissioners and were not subject to any deduction of tax or PRSI contributions. Both parties accept that the manner in which these payments were received by the comparator was illegal in that its main purpose was to evade payments lawfully due to the revenue authorities. It was, however, pointed out that a settlement had subsequently been made with the Revenue Commissioners in respect of moneys owing to them on foot of these transactions.
The respondent contends that unauthorised payments or other benefits which the comparator received in the course of his employment cannot be taken into account in determining the rate of remuneration to which the claimant was entitled by virtue of Section 2(1) of the Act. It submitted that the pay and benefits package afforded to the manager who succeeded the claimant, is a fair illustration of an appropriate authorised level of remuneration for the job. This package, while significantly more than that paid to the claimant is considerably less than that received by the comparator.
On behalf of the claimant it was contended that the Board of Management of the Credit Union was aware of the full extent of the comparator's package and implicitly authorised it. It was pointed out that the comparator had the full use of a company car since 1989 and that it was treated as a fixed asset in the accounts of the respondent.
With regard to the unvouched expenses, it was claimed that by agreeing to pay the outstanding statutory deductions the respondent acknowledged that the amount involved was part of the comparator's pay. While conceding that the respondent had not made specific decisions on detail, it was claimed that the comparator had been explicitly authorised to establish a personal pension scheme.
The claimant also contends that since she was performing like work with the comparator she is entitled to the same rate of remuneration received by him, rather than that paid to the present manager.
The term "remuneration" is defined at Section 1(1) of the Act as
"[including] any consideration, whether in cash
or in kind, which an employee receives, directly
or indirectly, in respect of his employment from
This is a broad definition which covers any payment or material benefit which an employee receives from his/her employer in respect of his/her employment. It appears to the Court that once the payment or benefits is in respect of employment, it matters not whether it is contractual or ex-gratia. It is, however, essential, that it be received from the employer, and by necessary implication received with the employer's knowledge and consent.
In the present case there is an almost total lack of records as to what the respondent authorised the comparator to receive in respect of his employment. It is, therefore, necessary, for the Court to determine the extent to which the disputed benefits were authorised in consideration of the comparator's services as an employee of the respondent. Having reviewed the evidence presented and the submissions of the parties, the Court has reached the following conclusions:-
The Court does not accept that the respondent Credit Union authorised, either expressly or by implication, payment of £155 per week to the comparator, in putative expenses, the clear object of which was to evade liability to tax. It is reasonable to assume, however, that the comparator would have been entitled to recover some element of expenses genuinely incurred in the course of his employment.
While accepting that the comparator was authorised to set up a private pension scheme the Court does not accept that the respondent would have approved a contribution rate of the magnitude involved, representing, as it did, 38% of the employee's basic pay. Nonetheless, in deciding that the comparator should have the benefit of a pension scheme, the respondent must have intended to provide some level of funding. In considering the applicability to the claimant of any authorised pension contributions paid on behalf of the comparator, the Court takes the view that the comparator's permanent status as compared to the temporary/acting status of the claimant could constitute grounds other than sex to justify the claimant's exclusion from the pension scheme.
In the case of the company car, the Court cannot accept that the comparator enjoyed this benefit without the knowledge and implicit consent of the respondent. A car was first acquired out of Credit Union funds in 1989 and was subsequently replaced. There is no suggestion that the comparator tried to conceal its acquisition form the respondent and at all times it was treated as a fixed asset on the books and accounts of the respondent. In those circumstances the Court accepts that the provision of a car was part of the comparator's remuneration.
In view of its conclusions as to the extent to which significant benefits enjoyed by him were unauthorised, and in the absence of any reliable records, the Court finds it practically impossible to accurately measure the cognisable value of the comparator's remuneration package. If the Court were to sever the unauthorised benefits in their totality in assessing arrears due it could produce an unfair result for the claimant. This could arise as no account would be taken of the extent to which they may have been authorised by implication, or formally authorised had authorisation been sought by the comparator. Equally, if they were to be regarded as fully reckonable it would produce an unfair result for the respondent and, in the Court's view, be a misapplication of Section 2(1) of the Act.
Recognising the Court's dilemma in that regard, Counsel for the respondent submitted that account should be taken of the rate of pay and other benefits granted to the current Credit Union manager, who is the claimant's immediate successor in the post.
While it is the rate of remuneration of her male comparator to which the claimant is entitled, in the circumstances of this case the Court believes that the remuneration of the current manager provides a fair indication of what the respondent regards as the true value of the job. It is also indicative of what the respondent would have authorised in respect of the comparator had its affairs been conducted more regularly at the material time.
In the circumstances, the Court considers it appropriate to deem the value of the current manager's remuneration package to be the authorised value of the comparator's remuneration.
It is the determination of the Court that the claimant is entitled to receive remuneration equal in value to the authorised remuneration paid to her male comparator. The respondent's appeal against the Recommendation of the Equality Officer is disallowed and the claimant's appeal for implementation of that Recommendation is allowed.
For the purpose of implementation of this determination the Court deems the value of the respondents current manager's remuneration package to be the authorised value of the comparator's remuneration. Based on that decision the Court expects the parties to agree the quantum of arrears due to the claimant. Failing agreement the Court will, on the application of either party, assess the amount due.
Signed on behalf of the Labour Court
20th August, 1998______________________
Enquiries concerning this Determination should be addressed to Fran Brennan, Court Secretary.