SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Ms Ni Mhurchu
1. Appeal against Equality Officer's Recommendation EP4/99.
2. The worker concerned is employed by the Company as a Cr�che Supervisor at its branch in Lucan.
The Union submitted a claim to an Equality Officer on behalf of the named female worker that she is entitled to the same rate of pay as that paid to fourteen named male comparators in terms of Section 3(c) of the Anti-Discrimination (Pay) Act, 1974.
The Equality Officer issued her Recommendation on the 26th of May, 1999. She found that the named female worker performs "like work" with that performed by each of the named male comparators in terms of Section 3(c) of the Anti-Discrimination (Pay) Act, 1974. She recommended that the Company pay the claimant the same rate of remuneration as that paid to each of the named male comparators i.e. the 7.5% differential. Payment should be made for three years in advance of the date of the claim i.e. 27th March, 1998.
The Company appealed the Recommendation to the Labour Court on the 29th of June, 1999, on the following grounds:
(a) The Equality Officer erred in law and in fact in concluding that "like work" as defined by the Anti-Discrimination (Pay) Act, 1994 exists between the jobs of Ms. O'Toole and the valued comparators.
(b) Any other grounds which arise in the course of this appeal.
The Union also appealed the Recommendation to the Labour Court on the 2nd of July, 1999, on the following grounds:
(a) The Equality Officer erred in law and in fact in concluding that the demands made on both the claimant and the named male comparator in terms of skill, are equal.
(b) The Equality Officer erred in law and in fact in concluding that the demands on both the claimant and the named male comparator, in terms of physical effort, are equal.
(c) The Equality Officer erred in law and in fact in concluding that the demands placed on the named male comparator, in terms of mental effort, are greater than those placed on the claimant.
(d) The Equality Officer erred in law and in fact in concluding that the demands made on the named male comparator and the claimant are equal in terms of working conditions.
(e) The Equality Officer erred in law and in fact in recommending that the claimant be paid the same rate of remuneration as that paid to each of the named male comparators i.e. the 7.5% differential.
The Court heard the appeals on the 9th of November, 1999. A work inspection was carried out on the 14th of July, 2000, and further Labour Court hearings took place on the 5th of October, 2000 and on the 10th of May, 2001. The following is the Court's Determination:
This is a claim by MANDATE (the Union) on behalf of the female claimant for equal pay with fourteen named male comparators. The claimant is employed by the respondent as a Cr�che Supervisor. The comparators are designated as Chargehands, and are employed in a managerial capacity in various departments of the respondent's stores.
In the investigation by the Equality Officer, and again in the course of this appeal, the parties agreed that each of the comparators were engaged in like work inter-se. Thus, the Equality Officer and the Court proceeded on the basis that if the claimant was engaged in like work with any of the comparators, she was engaged in like work with each of them. It was, therefore, agreed that a single comparator would be selected for the purpose of comparing the claimant's work. The Court, in its work inspection, adopted the same approach.
The Equality Officer found that the claimant was engaged in like work with the comparators within the meaning of Section 3 (c) of the Act. She recommended that the respondent pay the claimant a differential of 7.5%, being the responsibility allowance payable to the comparators.
The respondent appealed against the finding of like work. They also contended that, even if the claimant was engaged in like work with the comparators (which was denied), there were grounds other than sex for the differences in pay. The Union cross-appealed on the basis that the award recommended by the Equality Officer did not constitute an award of equal pay since, it was claimed, the difference in remuneration between the claimant and the comparators was more than the 7.5% recommended.
The Court has compared the work of the claimant with that of the comparators in terms of the demands which it makes in relation to skill, physical or mental effort, responsibility and working conditions. On the basis of its own inspection of the work in question, and having considered the submissions of the parties in relation thereto, the Court has come to the conclusion that the Equality Officer is correct in her finding that the claimant and the comparators are engaged in like work.
In relation to each of the matters referred to at Section 3(c) of the Act, the Court has concluded as follows:
The Court is satisfied that the demands made on both the claimant and the selected comparator in terms of skill is equal.
The Court is satisfied that the demands made on both the claimant and the selected comparator in terms of physical effort are equal.
The Court is satisfied that the demands made on both the claimant and the selected comparator in terms of mental effort are equal.
The Court is satisfied that the demands made on the claimant in terms of responsibility are greater than those made on the selected comparator.
The Court is satisfied that the demands made on both the claimant and the selected comparator are equal.
Pay of the Comparators.
In the course of the hearing of the appeal, it emerged that, while each of the named comparators were engaged in like work inter-se, there are significant differences in the total remuneration paid to them. Information supplied to the Court by the respondents indicated the claimant and each of the comparators are paid a common basic rate. However, in the case of the comparators, various addition payments or allowances are paid to some of them.
It appears that some, but not all, of the comparators are paid allowances described respectively as post-of-responsibility allowance and pay adjustments. Some comparators are also paid fixed sums described as overtime. Responsibility allowance is paid where the post in question is one which has been designated by the respondent as meriting the allowance. The respondent says that pay adjustments are paid on an ad-hoc basis in consideration of such matters as transferring to another store, taking on extra responsibility or providing cover for other staff over a prolonged period.
In relation to overtime payments, it is accepted that the recipients work fixed-hours in excess of standard hours and receive a fixed salary. It was pointed out by the respondent that the element in their pay described as overtime relates to the value of what they would have received by a combination of standard and premium payments had they been employed on a normal 39 hour week, and worked overtime up to the number of hours for which they are now contracted to work. For her part, the claimant works a 39 hour week and does not work overtime, but if she did so she would have an entitlement to payment at premium rates.
Grounds other than Sex.
It is the respondent's case that all additional payments made to the comparators above their basis pay are made on grounds other than sex. Thus, they contend that these payments should not be reckonable for the purpose of determining the level of remuneration to which the claimant is entitled, should it be found that she is engaged in like-work with the comparators.
In support of this proposition, the respondent argued that, since some of the male comparators do not receive the additional payments in question, it is axiomatic that they relate to factors other than sex. Whilst the Court accepts that there is some logic in that line of argument, it cannot conclusively dispose of any claim which the claimant may have to these allowances. If the allowances are paid to the male comparators in respect of some consideration which applies equally to the claimant, then the reason for withholding the allowance from her would, prima-facie, be gender based. In such circumstances, it is of no consequence that some male employees, who may not meet the criteria for payment, are also denied the allowance.
Section 2(3) of the Act (which allows for the payment of different remuneration to men and women engaged in like work on grounds other than sex) provides a defence to an equal pay claim. It is, however, clear that an employer seeking to rely on that defence must prove that the differentiation is genuinely attributable to grounds other than sex (SeeIrish Crown Cork Co. v Desmond and Ors.  ELR 180). This requires that the respondent establish to the satisfaction of the Court the actual reasons why the comparators are paid the particular allowances, that those reasons are genuine, and that they do not apply in the case of the claimant. Further, as appears from the judgement of Mr Justice Barron inFlynn v Primark  ELR 218, it is not sufficient to explain the origin of a pay differential in gender-neutral terms. The respondent must show that there is objective justification for the differential, and that the justification is not merely historical but exists at the date of the determination.
It is against those general principles that the Court has considered the respondent's submissions on the applicability in this case of Section 2(3) of the Act.
In relation to the responsibility allowance, the respondent contends that the posts occupied by those comparators who receive this allowance were designated as posts of responsibility, whereas the posts occupied by those who do not, including the claimant, were not so designated. This, they say, constitutes grounds other than sex.
This submission amounts to an assertion that those comparators who receive the allowance are paid more than the claimant because the respondent values their work more highly than that of the claimant. As was pointed out by the High Court inC&D Foods v Cunnion  IR 147, even where an employer genuinely believes that the work being carried out by a comparator is higher in value to that being carried out by a claimant, he/she cannot avail of that belief because what is like work is a matter not for the employer but for an Equality Officer or the Court on appeal.
In this case, the Equality Officer and the Court have found that the work of the claimant is equal in value to that of the comparators who carry the allowance. It follows that there can be no objective justification for the respondent's belief that the work of the claimant should be valued lower that that of the comparators who are paid responsibility allowance.
The Court is satisfied that the claimant should be paid a responsibility allowance equal to 7.5% of her basic pay.
In relation to the allowance described as adjustments, the position is somewhat different. Unlike responsibility allowance, this payment relates to the individual rather than to the job. These payments are, in effect, supplements which are paid to individuals for various reasons. In its initial submissions to the Court, while giving a general outline of the type of criteria on which these payments were made, the respondent was unable to identify the precise reason why any of the individual comparators was awarded the supplement. They merely argued that they must be based on gender-neutral criteria since not all of the male comparators receive them.
Subsequently, and after the final oral hearing, the respondent sent to the Court statements made out by certain of the comparators which purported to explain the reasons why they received the adjustments. In correspondence, the Union strenuously objected to these statements being accepted by the Court as evidence in circumstance in which they had no opportunity to test the veracity of what they contain.
The Court does not believe that this material, which was submitted after the case had closed, could be accepted as evidence on which it could safely reach findings of fact. Accordingly, the Court did not take account of this material in formulating its determination.
The Court is satisfied that the practice of the respondent in relation to the awarding of these pay adjustments is wholly lacking in transparency. The information available leads the Court to conclude, as a matter of probability, that the decision to award or not to award an adjustment turned on the subjective judgement of a particular manager at a particular time. Given this lack of transparency, it would be practically impossible for the claimant to prove that she in fact qualified for a pay adjustment on the same basis as the male comparators. In these circumstances, the claimant would be deprived of any effective means of enforcing the principle of equal pay if the onus of proving the absence of discrimination did not fall to the respondent.
This approach is consistent with the established case-law of the ECJ in cases involving the application of Article 141 of the E.C. Treaty and the Equal Pay and Equal Treatment Directives. Moreover, this reversal of the evidential burden is in line with the requirements of Council Directive 97/80EC on the Burden of Proof in Cases of Discrimination Based on Sex, which has previously been taken into account by this Court (see Order No.EEOO12,
A Worker v A Retailer, 9th March 2001).
The respondent has failed to adduce any admissible or reliable evidence showing objectively justifiable and subsisting grounds other than sex for the pay differential between the claimant and the comparators in receipt of adjustment. Accordingly, the Court accepts that the claimant is entitled to a pay adjustment.
The breakdown of the salaries paid to seven of the comparators shows an element described as overtime. The respondent told the Court that each of the comparators concerned has a contractual liability to work varying hours in excess of standard hours, over various time of the day and various days of the week. The salary paid to them takes account of the hours which they are required to work and the premium rates which those hours would attract had they been worked as overtime. Having examined the figures in question, the Court is prepared to accept, as a matter of probability, the respondent's explanation for this element of the comparators' remuneration.
The claimant worked a standard working week of 39 hours. Any element of remuneration paid to the comparators in respect of hours in excess of 39 is not reckonable for the purpose of measuring equal pay in the case of the claimant.
The majority of the comparators are in receipt of service-related pay. It is agreed between the parties that this element of remuneration is not applicable in the case of the claimant.
In this case, the claimant brought her claim for equal pay citing 14 men with whom she performed like work. It subsequently transpired that the comparators were on disparate rates of pay. The case is further complicate by the fact that, on the Courts findings, some elements of the comparators’ remuneration are not reckonable in the case of the claimant.
It is clear that, given the scheme of the Act, the claimant must be regarded as having submitted 14 alternative claims, each of which could be pursued individually. The findings of the Court in relation to like-work must mean that each of these claims has succeeded. The Union submitted that, in the circumstances of this case, the claimant is entitled to elect as between the comparators and to obtain equal pay with the highest paid amongst them. The Court accepts the validity of this submission. It is also accepts that each element of the claimant and the comparators' pay must be separately considered.
Having separately considered each component of the remuneration paid to the comparators, the Court has concluded that the respondent has not established that the responsibility allowances and pay adjustments paid to the comparators are attributable to grounds other than sex, within the meaning of Section 2(3) of the Act. In relation to overtime payments and service pay, the Court accepts that the defence of grounds other than sex has been made out.
The Court, therefore, determines that the claimant is entitled to a responsibility allowance equal to 7.5% of her basic rate, plus a pay adjustment equal to that paid to comparator E (who is in receipt of highest rate of pay adjustment), namely £20 (25.39 Euros) per week. The resultant arrears should be paid retrospective to the 27th of March, 1995.
Signed on behalf of the Labour Court
25th June, 2001______________________
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.