SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr Somers
1. Appeal against Equality Officer's Recommendation EP16/99.
2. The full background to the case is contained in the Equality Officer's Recommendation No. EP16/99.
The claimants and the comparator involved in this claim are employed by Roches Stores at their branch in Galway. The claimants are employed as cleaners and are on an hourly rate of £5.50 (6.98 Euro). The comparator is employed as a general distribution worker and is on an hourly rate of £7.59 (9.64 Euro).
The Company claims that the comparator's job involves both cleaning and non-cleaning work. It states that the work performed by the comparator is different to that of the claimants. The Company also argues that " grounds other than sex" exist which demonstrates that gender is not the reason why the comparator is on a higher hourly rate of pay than the claimants.
The Union contends that the claimants do "like work" with that of the comparator and are, therefore, entitled to receive the same rate of remuneration.
The dispute was referred to an Equality Officer for adjudication, and his recommendation issued as follows:-
"In view of my conclusions that Ms Ann Ford and Ms Mary Clancy perform like work with the work performed by the named comparator Mr O'Cearbhalan, in terms of Section 3(b) of the Anti-Discrimination Act, 1974, and as I have also found that there are no "grounds other than sex" to justify the difference in their remuneration I find that they are entitled to the same rate of remuneration as that paid to him.
The claim for equal pay were received on the 18th June, 1999. Section 8(5) of the Act provides for the payment of arrears of remuneration up to a maximum of three years from the date on which the relevant dispute was referred. I, therefore, recommend that the appropriate retrospection be paid to Ms Ford and Ms Clancy."
The Company appealed the recommendation to the Labour Court on the 30th March, 2000 in accordance with Section 8(1)(a) of the Anti-Discrimination (Pay) Act, 1974 on the grounds that the Equality Officer erred in law and in fact in his conclusions in the above recommendation. The Court heard the appeal on the 28th February, 2001. Both parties made written and oral submissions. The following is the Court's determination:-
This is an appeal by the Company against an Equality Officer's recommendation EP8/2000 that recommended equal pay for two claimants employed as Cleaners with that of the named comparator, who was employed as a General Distribution Worker on a higher rate of pay.
The Equality Officer found that "like work" as defined by Section 3(b) of the Anti-Discrimination Act, 1974 exists between the jobs of the claimant and the comparator and furthermore the Equality Officer rejected the Company's argument that "grounds other than sex" exist to justify the higher rate of remuneration of the comparator.
The Company has appealed on three grounds:-
1. The claimants and the comparator do not perform like work or work of equal value as defined in Section 3 subsections (b) and (c) of the Anti-Discrimination (Pay) Act. (The Act)
2. If the claimants do perform like work or work of equal value with the comparator, there are "grounds other than sex" within the meaning of Section 2 (3) of The Act which exist to justify the higher rate of remuneration.
3. The claimants have not sought implementation of the Equality Officer's recommendation and as a result, it is unenforceable.
The Court will address the third point of appeal first. It has long been established that an appeal by either party from a decision of an Equality Officer constitutes a complete rehearing of the case. Therefore, any Determination made by this Court in this appeal is enforceable against the Company. The Company's appeal on this ground is, therefore, disallowed.
Like Work / Work Of Equal Value
The Court has inspected the work place and carefully examined the work done by both the comparator and the claimants. The Court is satisfied that the working conditions of the claimants and comparator are similar; that their level of responsibility is the same; that the same level of skill is required for the tasks which they undertake; and that the same level of physical and mental effort is required for these tasks. The Court, therefore, finds that the claimants and the comparator carry out work of equal value within the meaning of Section 3(c) of the Act. It is not, therefore, necessary to decide whether the claimants and comparator are engaged on like work.
Grounds Other Than Sex
Section 2 (3) of The Act provides:
"Nothing in this act shall prevent an employer from paying to his employees who are employed on like work in the same place different rates of remuneration on grounds other than sex."
An employer, seeking to rely on this defence, must prove that the difference in pay is genuinely attributable to "grounds other than sex" (see Irish Crown Cork Co. v Desmond and Ors.  ELR 180). This requires that the respondent must establish to the Court's satisfaction that the reasons for paying the comparator the particular rate of pay are genuine, and that they do not apply in the case of the claimants. The Court must also be satisfied that there is objective justification for the difference in pay, and that the justification is not just historical but is also relevant at the date of determination (see Flynn v Primark  ERL 218).
The Company advances the argument that the comparator was employed in May 1977 as a General Distribution worker. The Company states that it quickly became clear that due to certain innate difficulties, which could be described as a disability, the comparator was not capable of performing the job for which he was recruited. He found the paperwork associated with the position impossible to complete. Nevertheless, the Company decided to retain him in his position as a General Distribution worker with a reduced range of duties. The Court has been provided with a psychological assessment which states that due to his disabilities, if the decision to alter his duties had not been taken, his work situation would have become very stressful and that this would have had an adverse effect on his health and well being. The clinical psychologist stated that the decision to alter his original duties was a correct one and represented a sensible and sensitive response to real difficulties, which he was having.
The Company further states, and this evidence is accepted, that it has adopted this policy in other instances in the main involving female workers, where the worker was incapable for health reasons of fully performing their duties.
In essence, the Company's claim is that the comparator, as a result of his inability to perform certain functions, has had his duties downgraded but his status and pay have not been adjusted accordingly, and, therefore, he has been "red circled". The Company has not used that term in its submission but the Court is of the view that this term would apply to the employee's position.
The issue of red circling has been dealt with in the case of the Minister for Transport Energy and Communications v Campbell and Ors (1996 ELR106) in which Keane J approved the following passage in the judgement of Lord Denning in Clay Cross (Quarry Services) Limited -v- Fletcher (1978 IRLR 361:
"The issue depends on whether there is a 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 to her and him - to the personal equation of the woman as compared to the man, in respect of any extrinsic forces, which led to the variation in pay. As I said in Shields v E. Coomes Holdings Limited (1978) IRLR 163, 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 higher rate than the woman". Thus the personal equation of the man may warrant a wage differential if he has much longer 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 others circumstances personal to him."(Emphasis added).
In quoting Lord Denning above, Keane J. stated, "I would accept that passage mutatis mutandis, as a correct statement of the law applicable to Section 2 (3) of the 1974 Act".
Keane J also held that it was not necessary for an employer to prove that a reassignment in a protected pay category was recognized and acknowledged.
He further stated that in arriving at a conclusion as to whether persons were being genuinely reassigned to the protected pay posts on compassionate health grounds, that the Labour Court is entitled to take account of all the facts surrounding the reassignment.
The Court accepts that in these particular circumstances the red circling of the comparator's pay was justified as an industrial relations practice.
However, the Court would strongly advise parties that such measures should not be taken in an ad-hoc manner, but after due consultation with all relevant parties in order that the policy and its implication be clearly understood by both management and workers.
The Court considered the case of MacPherson V Rathgael Centre for Children and Young People and Northern Ireland Office (Training Schools Branch) 1991 IRLR 206.
In that case, the comparator had been employed on a higher rate because of an initial mistake about his qualifications. The Industrial Tribunal found that this genuine error constituted a defence. The Northern Ireland Court of Appeal, however, stated that there must be objectively justifiable reasons for the variation between the man's pay and the woman's pay and remitted the matter to the Industrial Tribunal to consider this aspect.
Lord Hutton discussed at some length the question whether the defence of the anomalous comparator exists, but, having extensively reviewed the relevant authorities, came to no formal conclusion.
This Court, having already decided that due to his personal circumstances, the pay of the comparator has been "red circled" makes no findings on this point.
The final question, therefore, which this Court must consider is whether the policy of the Company is objectively justifiable. In this case, uncontradicted evidence has been given that it was the policy of the Company at the relevant time that, where workers were incapable for health reasons of completing the tasks associated with their grade, they would be given much reduced duties but retained on their old pay scale in order to ensure that they did not suffer financially. This policy was applied equally to both male and female workers and indeed more female than male workers benefited from it. This policy has continued and there is no reason to believe that in the event of a similar position arising again, the Company would not treat that case in an identical manner.
This Court accepts that in the circumstances, the Company's objective:
- of retaining an employee in an employment position where it has been found that that person, due to a disability, is incapable of carrying out the full range of duties associated with that job,
- retaining him/her on the rate of pay that he/she was recruited on,
- thereby allowing the person to retain his/her dignity instead of terminating his/her employment when it was discovered that he/she was incapable of carrying out the full range of duties of that job constitutes a legitimate economic goal on the part of the Company and that a policy such as this would constitute objective justification for the differences in pay between the comparator and the claimants.
The Court, therefore, finds that the pay of the comparator has been red circled and that there is objective justification for that decision. The Court, therefore, concludes that there are grounds other than sex within the meaning of Section 2 (3) of the Act for the difference in pay between the claimants and the comparator.
The appeal is upheld and the recommendation of the Equality Officer is overturned.
Signed on behalf of the Labour Court
29th November, 2001______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.