SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
THOMAS LENEHAN & COMPANY LIMITED
(REPRESENTED BY MASON HAYES & CURRAN, SOLICITORS)
- AND -
MS. MARIA MANNIX
(REPRESENTED BY THE EQUALITY AUTHORITY)
Chairman: Ms Jenkinson
Employer Member: Mr McHenry
Worker Member: Ms Ni Mhurchu
1. Appeal Against Equality Officers Recommendation Ep04/2000
2. The full background to the case is contained in the Equality Officer's recommendation EP04/2000.
The worker/appellant (Ms. Mannix) was employed by the Company ( in Capel Street) on a full time basis from December, 1996. She had worked intermittently for the Company for 22 years, mainly in the areas of paints and ironmongery. The comparator (Dermot Kelly) joined the Company in February, 1998. He earned £240 for a 40 hour week, whereas the worker earned the equivalent of £185 for a 40 hour week. The worker was employed as a sales assistant. The Company claims that the comparator was recruited as an assistant manager, a position which attracts a higher rate of pay than a sales assistant.
The worker claims that she performed like work with the comparator and should have been paid an equivalent salary. The dispute was referred to an equality Officer for adjudication, and his recommendation issued as follows:
"In view of my conclusions that Ms. Mannix did not perform like work with the work performed by Dermot Kelly, in terms of Section 3 of the Anti-Discrimination (Pay) Act, 1974, I find that she has no entitlement to the same rate of remuneration as that paid to him."
The worker appealed the recommendation to the Labour Court on the 16th of February, 2000, in accordance with Section 8(1)(A) of the Anti-Discrimination Act, 1974, on the grounds that the Equality Officer erred in fact and in law in his conclusions in the above recommendation. The Court heard the appeal on the 31st of August, 2000. Both parties made written and oral submissions. The following is the Court's Determination:
The worker's representative has appealed the Equality Officer's Recommendation on the grounds that the Equality Officer erred in fact and in law in concluding that the appellant did not perform like work with the work performed by the comparator in terms of Section 3 of the Anti-Discrimination (Pay) Act, 1974. The appellant claimed that she did in fact perform like work and that there were no reasons other than sex to justify her not being paid the same rate of remuneration as the comparator.
The Court decided against carrying out a work inspection as neither the appellant nor the comparator are currently employed by the Company, both were present and available for questioning at the Court hearing, and the comparator's position has since disappeared due to Company restructuring.
The appellant claimed that the comparator's duties were not consistent with that of an assistant manager's duties but were consistent with that of a "sales assistant with extra responsibilities"-similar to the appellant's duties.
The Court accepts that certain job functions were similar, including the responsibility for receiving and checking goods on arrival and notifying suppliers of any shortages in deliveries or any breakages.
The Court considered the duties of the claimant and the comparator, as listed at the hearing, to find whether or not they performed work of equal value within the meaning of Section 3 (c) of the Act. The Court looked at the responsibility, skill and mental effort involved in both jobs and finds as follows:-
The Court is satisfied that the comparator had responsibility for the purchase of a variety of ironmongery and tools, the turnover of which was greater than that of the appellant. He had a direct responsibility for profit margins whereas the appellant did not. He had a responsibility for a much greater range of products and for a greater floor area.
The comparator was required to source new suppliers and to negotiate directly with a number of suppliers. He had a very thorough knowledge and comprehension of the ironmongery and hardware business. He had autonomy to order products and to expand on the range of products for sale. He was responsible for fixing retail prices so as to achieve certain profit margins. The comparator was required to evaluate stock levels and make decisions on re-ordering and re-stocking.
In making decisions on re-ordering and re-stocking, the appellant was required to consult with her manager. The appellant dealt with the regular suppliers of paint, she was not required to negotiate on prices or to source new suppliers.
Due to the fall in sales in the ironmongery and tools department prior to his appointment, the comparator was required to achieve certain profit targets. Following his efforts there was an improvement in sales, resulting in increased profits. The impact of his purchasing skills resulted in further improved profits. Although the appellant was entitled to a bonus based on sales turnover, she was not required to increase profits on paint sales. Greater flexibility was required of the comparator than of the appellant in terms of tasks performed.
These findings lead the Court to conclude that the demands made on the comparator were greater than the demands made on the claimant.
The Court accepts the Company's statements that
1. The comparator was headhunted by the Company.
2. A letter of appointment was given to the comparator contemporaneously with the commencement of his employment which stated that he was being offered a
Position of Assistant to Capel Street Manager with a view to becoming a branch Manager.
The Court finds as a fact that the claimant and the comparator did not perform like work within the meaning of section 3 of the Anti-Discrimination (Pay) Act, 1974.
The Court rejects the appeal and upholds the Equality Officer's Recommendation.
Signed on behalf of the Labour Court
3rd November, 2000______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.