SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
MS BRENDA CONROY
(REPRESENTED BY MANDATE)
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Appeal against Equality Officer's Recommendation EP18/98.
2. The Company was founded in 1941 and employs 178 workers. It is engaged in the design, production and sale of ladies underwear. The claimant commenced employment with the Company in April, 1986 as an office clerk. She has been employed in the purchasing department since 1988. The Union submitted a claim on her behalf for equal pay with a male employee who was recruited by the Company in early 1996. The Union alleged that both workers were engaged in "like work". The Company rejected the claim, stating that the claimant was employed as a Purchasing Clerk while the male comparator was employed as Assistant Purchasing Manager.
On the 18th of August, 1997, the Union referred the claim to an Equality Officer for investigation under the Anti-Discrimination (Pay) Act, 1974. The Equality Officer found that the claimant and the comparator were performing work of equal value, that a defence in relation to "grounds other than sex" did not apply and that the claimant was entitled to the same rate of remuneration as the comparator. She issued her Recommendation on the 12th of November, 1998, as follows:-
"In view of my conclusions and having regard to the provisions of Section 8 (5) of the Act, I recommend that the claimant, Ms. Brenda Conroy, be paid the same rate of remuneration as the comparator. This rate should be applied retrospectively for three years prior to the date of claim or to the date that the comparator commenced work with the Company."
On the 26th of November, 1998, the Company appealed the Equality Officer's Recommendation to the Labour Court on the following grounds:-
"1. The Equality Officer erred in law and in fact when concluding that "like work" existed between the jobs of Purchasing Clerk and Assistant Purchasing Manager.
2. Any other grounds which arise during the course of the appeal."
The Labour Court heard the appeal on the 21st of July, 1999. Both parties made written and oral submissions to the Court. On the 8th of October, 1999, the Court carried out an inspection of the work of both the claimant and the comparator. The following is the Court's Determination.
This is an appeal by the Company against Equality Officer's Recommendation EP 18/1998. The Equality Officer investigated the claim and concluded that under Section 3(c) of the Anti-Discrimination (Pay) Act, 1974 (the Act) “work of equal value” existed between the jobs of the claimant and the comparator. The Equality Officer also recommended that the claimant should be paid the same rate of remuneration as the comparator for the three years prior to the date of claim or to the date that the comparator commenced work with the Company.
It is against this Recommendation that the respondent submitted two points for consideration in this appeal to the Court:
•“like work” does not exist between the jobs of the claimant and the comparator in terms of the level of skill, the level of responsibility, the mental effort involved and the working conditions, and
•there are legitimate “grounds other than sex” to justify the higher salary to the comparator.
On behalf of the claimant, Mandate accepted the Recommendation of the Equality Officer.
The Court carefully considered the written and oral submissions of the parties, and visited the work premises to establish the work involved.
Having fully investigated the claim, the Court agrees with the Equality Officer's findings that the claimant's job as compared to that of the comparator is not “like work” within the meaning of Sections 3 (a) and (b) of the Act. The Court has also examined in detail the issue as to whether the claimant did work of equal value to the comparator within the meaning of Section 3 (c) of the Act. The Court examined the overall demands made on the claimant and the comparator in respect of skill, responsibility, mental effort and working conditions.
The Level of Skill Involved
The Court is satisfied that the level of training and experience necessary for the claimant's job at the date of claim was different to that of the comparator's job.
The claimant's job required good computer skills, a knowledge of the ordering system and of the components required for theMothercareproducts. Good communication skills were required when interacting with suppliers and customers. The claimant's job also required observation and control skills so as to monitor upcoming shortages, and foresee potential production difficulties. A thorough knowledge of the operation of the company was required, specifically for theMothercareproducts. A knowledge of ordering was warranted but not necessarily essential as long as the person had attained good computer skills. No third level technical or educational qualifications were necessary for the job. The job entailed checking prices, chasing deliveries, querying incongruous information when stock taking and locating mistakes in the raw materials ordered. The job required supervision on an intermittent basis.
On the other hand, the skills required to carry out the comparator's job included a thorough knowledge of the clothing manufacturing business. A knowledge of ordering from different suppliers was required. Negotiating and communicative skills to get the best price were a necessary part of the job. In addition to monitoring shortages and foreseeing production difficulties, managing a crisis situation when the raw materials were not available or deliveries were left short were important skills required by the job. The complexity involved in the decisions when such a situation arose was far greater in the case of the comparator than in the claimant's case. A judgement call was necessary which required a deeper analysis of the situation than was required in the case of the claimant.
The comparator had shade matching skills which the claimant did not to the same extent. The Equality Officer did not consider this skill aspect in his investigation on the basis that at the time of the claim shade matching was not carried out. However, the Court accepts the evidence given at its investigation that shade matching was carried out by the comparator at the time and, therefore, takes it into account in this Determination. This is a highly technical skill and one which is of particular importance in this industry. The shades for theMothercareline do not change, whereas the shades for the branded lines change eight times per year. The comparator has a responsibility for deciding whether a particular shade can go ahead or not.
The Court concurs with the view of the Equality Officer on the similarity of the physical effort of the jobs involved in this case.
The Court is of the view that the levels of responsibility differ greatly between the claimant and the comparator.
In the event of shortages or late deliveries of material, both the claimant and the comparator have to deal with the consequences. However, the level of responsibility for the comparator is greater, due to the number of components, colours and styles involved.
Similarly, when deciding on the timing of the release of materials, the level of responsibility is greater for the comparator.
The amount of stock required for the branded products is greater and more varied than forMothercareproducts and, therefore, the responsibility involved in the management of stock levels is greater. In addition, there are more assurances (in relation to the viability of the product) associated with theMothercarerange than for the branded ranges. Therefore, the level of risk is greater for the comparator.
The claimant is responsible for the costs associated with theMothercarecomponents and packaging, whereas the comparator is responsible for the costs associated with the branded components and fabric and these costs are greater.
The comparator has responsibility for ordering and receiving a greater number of items than the claimant has responsibility for in respect of theMothercareproducts. The Court notes that the claimant has limited responsibility for the ordering of certain branded components. This latter responsibility emanates principally from a computer alert which indicates where there are shortages of these components. The claimant has responsibility for ensuring that this is followed up with appropriate orders.
The Union contended that the comparator was not involved in ordering. The Court is satisfied that ordering does form part of the comparator's job.
The Court notes the point made by the ex-Production Manager that job titles in the company were of no great significance. The comparator indicated to the Court that he considers himself in a"number 2 position"to the Purchasing Manager. This view was concurred with by the Company. The Court agrees with this assessment of his role and perceived level of responsibility in the company.
The claimant's job is described by the Company as “predominantly one of a clerical nature with some purchasing responsibilities attached”.The Court is of the view that the claimant has greater responsibility than that normally associated with “predominantly one of a clerical nature”. The Court is satisfied that she has responsibility for all aspects of purchasing in relation to theMothercareline and that she carries out such work on her own initiative. Rarely would she need to consult or seek advice from the Purchasing Manager.
The Court is satisfied that the comparator's role includes constructing cash flow forecasts on a monthly basis in co-operation with the Financial Controller. Such forecasting requires a judgement call.
The claimant is required to generate a computer report on the performance of theMothercareline. This report is then discussed each week with the Financial Controller. On the other hand, the comparator is responsible for monitoring the material performance of branded products. It requires greater responsibility as there is not the same reliance on computer information.
The claimant has no responsibility for the budget plan, whereas the comparator has to ensure that the budget never exceeds set targets. The Financial Controller liaises with the comparator on cash flow. This requires judgement and control on behalf of the comparator.
The comparator is responsible for monitoring short term shortages and for dealing with any resultant problems. The claimant, along with the Purchasing Manager, is responsible for monitoring long term shortages. The comparator has responsibility for deciding which supplier has to be paid, as a matter of priority.
The costs associated with the comparator's job are higher and are subject to more variation than those associated with the claimant's job. The Court accepts the Company's contention that the impact of poor judgement or omissions by the comparator would be greater than the impact that would arise in the case of the claimant.
Due to the differences in the levels of responsibilities identified by the Court in the comparator's job compared to the claimant's job, the Court is satisfied that the mental effort is greater for the comparator. The Court is satisfied that the complexity involved in the comparator's job demands a greater effort than that of the claimant.
The claimant's area of responsibility accounts for approximately 30% of turnover whereas the comparator's accounts for the remainder.
The Court is satisfied that the working conditions of the claimant and the comparator are broadly similar. The only differences in their terms and conditions of employment are that the claimant can earn overtime pay whereas the comparator cannot. The Court considers this significant as an employee in a managerial role will generally be regarded as available for work outside normal working time. Normally the remuneration package will not be adjusted accordingly. An employee in a clerical position is normally compensated for working overtime hours.
The only other difference in their conditions is that the comparator chose not to join the Company pension scheme. The claimant had no option but to join the scheme.
The Court is satisfied that the claimant is not engaged in “work of equal value” with the comparator within the meaning of Section 3 (c) of the Anti-Discrimination Pay Act, 1974. Similarly, the Court is satisfied that the claimant and the comparator do not perform "like work" within the meaning of Sections 3 (a) and (b) of the Act. As the Court has decided that the claimant and the comparator do not do “like work” or “work of equal value”, it is not necessary to consider the other grounds of appeal.
The Court upholds the Company's appeal and rejects the Equality Officer's Recommendation.
Signed on behalf of the Labour Court
8th December, 1999______________________
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.