SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
- AND -
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Appeal against Equality Officer's Recommendation No. EP9/1997.
2. The background to the case is as outlined in the Equality Officer's Recommendation No. EP 9/1997. The appeal by the Union is on behalf of 61 named female employees (system checkers) who, the Union claims, are entitled under the terms of the Anti-Discrimination (Pay) Act, 1974 to the same rate of remuneration as paid to the comparators (goods receiving chargehands). The Equality Officer's Recommendation is as follows:
"In view of my conclusions at 5.6 previous that each of the claimants does not perform "like work" with that performed by each of the comparators in terms of Section 3(c) of the Anti-Discrimination (Pay) Act, 1974, I find that they have no entitlement to the same rate of remuneration as that paid to the comparators".
The Union contends that because like work within the separate grades was conceded by the Company, the Equality Officer erred in restricting his job comparison to a single claimant and comparator in the same store in Roscrea. The Union contends that it clearly requested that the claim be considered as a group submission, and that this is supported in the Equality Officer's Recommendation at page 2 paragraph 3.1 where it states:
"It argues that the claim is a group submission in that each claimant should be compared to all other comparators, if necessary".
Specifically, the Union's appeal is that:
"The Equality Officer failed to hold that the appellants have been discriminated against on gender grounds in relation to pay and failed to award the appellants equal pay and the appropriate arrears under the 1974 Act."
The grounds on which the Appellants are appealing to the Court are the following:
(1) The Equality Officer erred in law and in fact in basing his finding regarding like work under Section 3(c) of the 1974 Act on a comparison of only one claimant and one comparator.
(2) The Equality Officer erred in law and in fact in not finding that the work of the claimants was equal or higher in value to that of the comparators under Section 3(c) of the 1974 Act, and in particular in not finding that the work of the claimants was at least equal in value to that of the comparator in terms of:
- physical effort, and
- working conditions
(3) The Equality Officer erred in law and in fact in finding that the appellants had not been discriminated against on gender grounds in relation to pay contrary to the 1974 Act, and in failing to award the appellants equal pay and the appropriate arrears under the 1974 Act.
(4) On all other grounds submitted and relied on during the Equality Officer investigation.
(A list of the claimants and comparators is on file)
The Company denied that any discrimination had taken place in relation to the claimants. The Company gave a detailed account of the work done by the claimants and the comparators (details supplied to the Court). It also claimed that the Equality Officer, in confining himself to a single comparator in Roscrea, did not take account of such skills as forklift driving which many comparators perform, although the comparator in Roscrea does not. The Company maintains that the responsibilities, working conditions and mental and physical effort required of the comparators are higher in value than those of the claimants.
The Union appealed the Equality Officer's Recommendation to the Labour Court on the 5th of September, 1997, in accordance with Section 8(1) of the Anti Discrimination (Pay) Act, 1974. The Labour Court heard the appeal on the 27th of November, 1997. Both sides made written and oral submissions to the Court.
Following the formal hearing of this appeal on 27th November, 1997, the Court, in agreement with the parties, carried out inspections at six locations which were identified by the parties as being representative, in so far as is material to the claim, of all locations at which the claimants and comparators are employed. The locations inspected are the same as those inspected by the Equality Officer in the course of his investigation. Following the completion of the work inspections, the parties made further written submissions to the Court.
On the basis of the work inspections, the Court is satisfied that there is no significant difference in the work of either the claimants or the comparators as between the various stores in which they are employed. The conclusions reached from the six inspections can, therefore, be regarded as applicable to all claimants and all comparators.
The Court has reviewed the conclusions of the Equality Officer in relation to the responsibility, skill, physical/mental effort and working conditions attaching to the work of the claimants and the comparators. In so doing, it has carefully evaluated the submissions of the parties and the outcome of the work inspections which it carried out. Particular regard has been had to aspects of the work of the claimants and the comparators which, it is claimed, were not taken into account by the Equality Officer or not adequately evaluated by him.
It is the conclusion of the Court that greater demands are placed on the comparators than on the claimants in term of responsibility, working conditions and physical effort. In regard to skill and mental effort, the Court does not find any significant difference in the demands placed on the claimants and the comparators. Accordingly, the Court concurs with the conclusions and recommendation of the Equality Officer.
The Court decides that the claimants do not perform "like work" with that performed by the named comparators for the purpose of Section 3(c) of the Act, and are not entitled to the same rate of remuneration as that paid to the comparators.
The appeal is dismissed.
Signed on behalf of the Labour Court
18th June, 1998______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.