SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
PRINTECH INTERNATIONAL LIMITED
(REPRESENTED BY THE IRISH PRINTING FEDERATION)
- AND -
MS. DENISE COTTER AND MS. SANDRA POLAND
(REPRESENTED BY THE GRAPHICAL, PAPER AND MEDIA UNION
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Appeal by the Union against Equality Officer's Recommendation EP06/99.
2. The dispute concerns a claim by the Union, on behalf of two workers, that they are entitled, under the terms of the Anti-Discrimination (Pay) Act, 1974, to the same rate of remuneration as that paid to a named comparator. The claim was the subject of investigation by an Equality Officer who found that, while the complainants did "like work" with the named comparator, the employer discharged the onus on him that there were grounds other than sex to justify the pay differential between the complainants and the comparator. The Equality Officer recommended as follows:-
"In view of my conclusions that there are grounds other than sex to justify the pay differential between the complainants and the comparator, under Section 2 (3) of the Anti-Discrimination (Pay) Act 1974, I find that the workers have no entitlement to the same rate of remuneration as that paid to the named comparator."
The Union appealed Equality Officer's Recommendations EP06/99, to the Labour Court, on the 28th July, 1999. The Court heard the appeal on the 29th October, 1999. Both parties made written submissions to the Court which were expanded upon orally during the course of the hearing.
This is an appeal by the claimants represented by the Union against an Equality Officer’s recommendation that, although the claimants and comparator were engaged on like work within the meaning of Section 2 (1) of the Anti-Discrimination (Pay) Act, 1974 (The Act), there were grounds other than sex within the meaning of 2(3) of the Act, 1974 to justify the comparator's different rate of remuneration. The Equality Officer found that the comparator, who had previously held a managerial post, had, at his own request and due to personal circumstances, been assigned to the digital print department at his previous rate of pay. The Equality Officer, therefore, found grounds other than sex for the different rates of remuneration between the claimants and the comparator.
It is from this finding that the claimants appealed the Equality Officer's recommendation. The grounds of appeal are that
•the Company in its submission stated that this was not a case of "red circling";
•the Company in its submission stated that the reason for the difference in the remuneration was that the comparator was head hunted and that his skill, expertise, status and service was sufficient to justify the difference in remuneration on grounds other than sex. The claimants appealed on the grounds that, where two parties were engaged in like work, the fact that one has greater skill, status and expertise than the other in areas not concerned with the work, was not of itself sufficient to justify different remuneration on grounds other than sex.
In response the Company made the following points:
1)Due to a personal tragedy and a request to work nights the comparator was allowed to work in the 'docutech' (digital print) area, with his status and remuneration unchanged;
2)The claimant signed specific withdrawals of their equal pay claims as part of an acceptance a redundancy package in October, 1997;
3)Whatever his personal circumstances, the comparator would be entitled, on the basis of his greater skills, status and expertise in other areas, to carry his previous rate of pay into the docutech area and this of itself would be sufficient to justify a finding that the differences in remuneration were justified on grounds other than sex within the meaning of the Act.
If the Company succeeds in any of these three grounds then the appeal must fail.
During the hearing the Company was reluctant to use the term red circling.
InIrish Crown Cork Co. v Desmond and others(1983) ELR 180, Lynch J stated:
"The term red circle does not appear in the Act and as pointed out in the authorities cited to me can mean different things to different people. What the Labour Court must consider under section 2(3) is whether the difference in rates of pay between (the claimant) and the defendants is or is not genuinely attributable to grounds other than sex. In other words, the subsection cannot be used to uphold a practice which seeks to conceal discrimination on sexual grounds".
Keane J. dealt with the issue of red circling in Minister for Transport, Energy and Communications v Campbell and others High Court 1994 77SP (1996 ELR 106) and approved the following passage in the judgement of Lord Denning inClay Cross (Quarry Services) Ltd. v Fletcher(1978) IRLR 361:
"the issue depends on whether there is material difference (other than sex) between her case and his. Take heed of the words betweenherandhis. They show that the Tribunal is to have regard toherandhim- to the personal equation of the woman as compared to the man, irrespective of any extrinsic forces which led to the variation in pay. As I said inShields v E Coomes Holdings Ltd(1978) IRLR 263, section 1 (3) (of the corresponding English legislation) applies "when the personal equation of the man is such that he deserves to be paid at a higher rate than the woman". Thus the personal equation of the man may warrant a wage differential if he has much longer length of service or has superior skill or qualifications or gives bigger output or productivity orhas been placed, owing to downgrading, in a protected pay category, vividly described as red circled, or to other circumstancespersonal to him." (Emphasis added).
In quoting Lord Denning above, Mr Justice Keane stated that "I would accept that passage,mutatis mutandis, as correct statement of the law applicable to section 2 (3) of the (1974) Act".
Keane J. held that, in arriving at a conclusion as to whether persons are being genuinely reassigned to protected pay posts on compassionate health grounds, the Labour Court is entitled to take account of all the facts surrounding the reassignment.
The facts of this case are that the comparator was paid more than the claimants. At the date of claim, the comparator’s remuneration package was made up of a basic rate of £280.00 per week, plus £132.00 merit money/supervisor differential plus a night shift allowance of £63.00 per week and a company car. The appellants were paid a basic rate of £236.09 plus a double day shift allowance of £41.00 per week. The Union's claim is that the basic rate paid to the claimants should be the same as that of the comparator. It has made no claim in respect of the other elements of the comparator's remuneration.
The Court notes that, at his request in 1994, due to circumstances which arose due to a personal tragedy, the Company allowed the comparator to transfer to the docutech area working at night. This change of working environment was allowed without any changes taking place in his title, or remunerative package.
While the Company may be reluctant to use the term red circled, the Court is of the view that this situation fits within the common meaning of such a term in industrial relations.
Having examined the entire circumstances surrounding the remuneration of the comparator, the Court accepts that the comparator has been place owing to his personal circumstances in a protected pay category and that, therefore, his remuneration is red circled.
The Court also notes from the evidence presented to it that those employees who replaced the appellants were paid at a similar basic rate as paid to the appellants. Two male employees replaced the appellants.
The Court, having found that the comparator’s remuneration is red circled, therefore, agrees with the finding that there are grounds other than sex within the meaning of Section 2 (3) of the Act to justify the difference in pay.
In view of the above finding the Court does not consider it necessary to find on points 2 and 3 of the Company's response.
In the circumstances, the recommendation of the Equality Officer is upheld and the appeal is disallowed.
Signed on behalf of the Labour Court
25th January, 2000.______________________
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.