SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
IRISH TIMES LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Owens
Employer Member: Mr Pierce
Worker Member: Mr Rorke
1. Appeal by the Union against Equality Officer's Recommendation EP06/1997.
2. The Irish Times Limited was established in 1859 and it publishes the Irish Times and the Irish Field. The worker concerned in the appeal is Mr. Noel Rogers, an Analyst Programmer earning a salary of £25,923. The Union claims that Mr. Rogers is entitled to the same rate of pay as two named comparators, both of whom are employed as commercial system support executives, earning an annual salary of £21,828, plus a bonus of £8,500, on the grounds that he performs like work with them.
The claim, which is rejected by the employer, was submitted by the Union, on the 21st of May, 1996, to an Equality Officer, for investigation and recommendation. The Equality Officer issued her recommendation on the 30th of June, 1997, in which she concluded that Mr. Rogers "does not perform 'like work' with that performed by either of the two named female comparators in terms of Section 3(a), Section 3(b), Section 3(c) of the Anti-Discrimination (Pay) Act, 1974". The Equality Officer found that Mr. Rogers "does not have any entitlement to the same rate of remuneration as that paid by the Irish Times Limited to the two named comparators". The Union lodged its appeal with the Court, on the 7th of August, 1997 and the appeal was heard by the Court on the 8th of December, 1997. In its appeal, the Union claimed that the Equality Officer erred, as follows:-
1. In choosing, of the named comparators, one who had a background in advertising. As the second comparator had a background in secretarial work, a background in advertising was, therefore, not an essential requirement of the job;
2. In stating that both claimant and comparator work on different technologies when, in fact, they both work on the same and different technologies;
3. On the issue of training, as the comparator's involvement is routine and repetitive and less demanding than that of the claimant;
4. In stating that there are higher demands made of the comparator in respect of mental effort when it is the case that the claimant has a far more demanding role, and in incorrectly assessing the area of work/time pressure;
5. In concluding that the physical working conditions of claimant and comparator are all but identical;
6. In reaching incorrect conclusions in Paragraphs 5.11, 5.12, 5.13 and in reaching a conclusion, in Paragraph 5.14, contrary to the provisions of the Anti-discrimination (Pay) Act, 1974.
Both parties to the dispute made written submissions to the Court, which were expanded upon orally during the course of the hearing.
This appeal is based on two principal grounds:
(a) the Union alleges that the Equality Officer was in error in her conclusions in relation to the issue of 'like work', and
(b) the Union alleges that the Equality Officer failed to properly apply the provisions of Section 2(3) of the Act to the case.
The Court is satisfied that if the employer was paying the claimant and the comparator different rates of remuneration on the basis of factors which had no relation to the sex of the workers, then, even if the work was 'like work' (which the employer denies), the different rates would not be due to discrimination on the part of the employer.
The Court notes that the Equality Officer was satisfied that the work of the claimant and of the comparator was not 'like work'. Given that conclusion, it was in fact unnecessary for the Equality Officer to consider Section 2(3) of the Act at all. However, the Equality Officer did make a finding under Section 2(3), which the Union contests.
The Court has not investigated the claim of 'like work' in detail by examining the work of the claimant and of the comparator, and considers it unnecessary to do so, since it is satisfied that even if there were 'like work' (which is denied), the employer was justified paying different rates of remuneration on grounds not related to the sex of the workers.
Mr. Rogers (the claimant) is employed alongside a female colleague in the I.T. Services Department. His female colleague is earning the same annual rate of pay as himself. It is accepted by all parties that Mr. Rogers and his female colleague are employed on 'like work'. There is no suggestion that the female colleague is a 'token' woman in the job. It is to this colleague that the claimant should look in the first instance when satisfying himself that he is not being discriminated against on grounds of sex in relation to his pay in his job. To choose a comparator from outside of the department and doing a different job is an artificial device, which only makes sense if the claimant is in a grade or occupation dominated by one sex. It makes no sense to claim discrimination in pay when there are colleagues of the opposite sex doing the same work as the claimant. This is a similar situation to that which arose in the Steel Company of Ireland and Wilton case DEP971 and in which the Court was satisfied that there were grounds other than sex for the payment of different rates between the claimant and the comparator.
The Court is satisfied that the pay rates for staff in the I.T. Services Department and in the Commercial Systems of the Irish Times were agreed prior to any recruitment to these areas; hence the rates applied, whether male or female staff were recruited. The claimant is being paid the rate for the job, a rate fixed before either he or his female colleague came into the job. The factors which account for the differences between the payment for his job and the job of the comparator are that they are different jobs, in different areas, to which the employer attached different values.
In these circumstances, even if there had been 'like work' between the work of the claimant and that of the comparator (which has not been established), there are grounds other than sex for the differential.
The appeal is dismissed.
Signed on behalf of the Labour Court
1st July, 1998______________________
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.