SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Owens
Employer Member: Mr McHenry
Worker Member: Ms Ni Mhurchu
1. Appeal by the Union against Equality Officer's Recommendation EP1/98.
2. The Hospital is a voluntary hospital which was founded in 1913 as a TB hospital. It now cares for mentally handicapped and elderly patients. It also treats patients with chest infections. At the end of 1995 the Eastern Health Board gave permission for the hospital to open an additional ward for the elderly and three male employees were recruited in December, 1995, and January, 1996, as domestic staff. The Hospital claims that, due to an administrative error, the new employees were placed on the general operative pay scale instead of the domestic pay scale.
The Union submitted a claim to an Equality Officer on behalf of 26 named female employees who are employed in the household, laundry and kitchen areas of the hospital that they are entitled to the same rate of remuneration as that paid to the three named male comparators in terms of Section 3(a), Section 3(b) and Section 3(c) of the Anti-Discrimination (Pay) Act, 1974. At the date of the claim the female domestic staff were paid the domestic rate of pay which ranged from £181.74 to £192.13 per week. The three male comparators were in receipt of the general operative rate of pay which ranged from £194.06 to £205.81 per week. Both pay scales have thirteen points.
The Hospital accepted that 'like work' within the meaning of Section 3 of the Anti-Discrimination (Pay) Act, 1974, existed between the work carried out by the claimants and that carried out by the comparators. However, the Hospital claimed that the comparators were paid an incorrect rate due to an administrative error which had nothing to do with their sex. The Union did not accept that an administrative error had been made, as the same female claimants and the same Employer had been involved in a similar equal pay claim for which the Labour Court issued a determination (DEP695) on the 10th of November, 1995.
The Equality Officer issued her Recommendation on the 12th of January, 1998. She found that there were grounds other than sex for the difference in remuneration paid to the 26 named female claimants and to the 3 named male comparators. She found, therefore, that the female claimants did not have entitlement to the same rate of remuneration as that paid to the male comparators. The Union appealed the Recommendation to the Labour Court on the 5th of February, 1998, on the following grounds:-
(1) The Equality Officer erred under law.
(2) Any other matter raised by the Union at the hearing.
The Court heard the appeal on the 18th of May, 1998. Both parties made written and oral submissions to the Court. The following is the Court's Determination:-
The Court heard both sides to the appeal. This is an unusual case in that the Employer accepts that a like work situation exists but that, due to an administrative error, the comparators were incorrectly placed on the general operative grade and rate instead of the appropriate domestic rate.
Not unreasonably, the Union does not accept that such an administrative error could easily have been made so soon after these same claimants have had an equality claim investigated and determined.
The Court understands fully the Union position on this matter and is concerned that, despite the existence for over 20 years of Anti-Discrimination pay legislation and recent claims in this particular hospital, that new recruits would be placed on a particular grade and pay solely because of their gender.
However, the Court having examined the evidence presented, is of the view that the Union has not sustained the argument or produced reasonable proof that the difference in pay between the claimants and comparators wasdeliberately basedon gender. The Court is satisfied that the Equality Officer finding that the difference in pay was based on grounds other than sex is correct and, despite the views expressed above, the Court upholds the Equality Officer's findings and dismisses the appeal.
The Court so determines.
Signed on behalf of the Labour Court
16th June, 1998______________________
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.