SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
UNIVERSITY COLLEGE CORK
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Appeal against Equality Officer's Recommendation EP09/1999 and appeal for Determination that Equality Officer's Recommendation EP09/1999 has not been implemented.
2. In September, 1998, the Union submitted a claim on behalf of 42 named male Services and Security Operatives (SSOs) for equal pay with 5 named female comparators who were employed as Laboratory Aides and Switchboard Operators, in terms of Section 3(a), 3(b) and 3(c) of the Anti-Discrimination (Pay) Act, 1974. The Union subsequently withdrew its claim under Section 3(a) of the Act.
An Equality Officer investigated the claim and carried out work inspections on the 21st, 22nd and 23rd of April, 1999. She issued her Recommendation on the 3rd of August, 1999. The Equality Officer found that the claimants did not perform 'like work' with the named female comparators in terms of Section 3(b) of the 1974 (Pay) Act. However, she found that 'like work' existed between the claimants and three of the named female comparators in terms of Section 3(c) of the Act. Two of the comparators were employed as Switchboard Operators in a job sharing capacity, while the third comparator was employed as a Laboratory Aide.
Under Section 2(3) of the Act, the Equality Officer found that there were reasons other than sex for the difference in pay between the claimants and the female comparator employed as a Laboratory Aide. In terms of the other two named female comparators, she found that a prima facie case of indirect discrimination existed.
The Equality Officer found that the claimants were indirectly discriminated against in relation to pay and she recommended that University College Cork pay each of the claimants the same rate of remuneration as that paid to the named comparators who were employed as Telephone Switchboard Operators. She recommended that payment be made for three years in advance of the date of the claim or from the date each of the claimants commenced employment with the University, whichever was the later. Each claimant was to be entitled to the full range of the incremental scale according to their service.
On the 6th of August, 1999, the Labour Court received a notice of appeal from the University. It appealed the Equality Officer's Recommendation on the following grounds:-
" (1) The Equality Officer erred in law and in fact in concluding that 'like work' exists between the jobs of the claimants and the comparators employed as switchboard operators in a job sharing capacity.
(2) Any other grounds which arise in the course of this appeal."
On the 12th of August, 1999, the Court received a request from the Union for a Determination for the implementation of the Equality Officer's Recommendation. The Court investigated the issue in accordance with Section 8(1)(A) of the Anti-Discrimination (Pay) Act, 1974 on the 22nd of November, 2000, the earliest date suitable to the parties. The Court carried out work inspections on the 17th and 18th of October, 2001. The following is the Court's Determination:-
The College appealed against an Equality Officer’s recommendation EP9/99 which concluded that the claimants employed as General Attendants (Security Services Officers) performed "like work" in accordance with Section 3(c) with three of the named female comparators. Two of the comparators were employed as Telephone Switchboard Operators in a job-sharing capacity while the third was employed as a Laboratory Aide. The Equality Officer accepted that there were reasons other than sex for the difference in pay between the claimants and the female comparator employed as a Laboratory Aide. The Equality Officer concluded that there was a prima facie case of indirect discrimination between the claimants and the two named female comparators employed in a job-sharing capacity as Telephone Switchboard Operators.
The College appealed this recommendation on the following grounds: -
• that "like work" as defined by Section 3(c) of the Anti-Discrimination (Pay) Act, 1974, does not exist between the jobs of the claimants and those comparators employed as Switchboard Operators in a job-sharing capacity, and
• any other grounds which arise in the course of the appeal.
The Court was asked to consider only one matter - that of the job of the appellants versus the job of the comparators and, therefore, the Court has not considered the red-circling of the Laboratory Aide.
An inspection of the workplace of both the appellants and the comparators was carried out on the 17th and 18th of October, 2001. The Court is satisfied that the inspection carried out was in accordance with the wishes of both parties who indicated that they were satisfied that all aspects of the work of the appellants and the comparators were thoroughly inspected. Every opportunity was given to both sides to highlight any detail which could be considered
relevant in the determination of this case.
The Equality Officer found that the job of the Security Services Officer involves significantly more skill, physical effort, mental effort, responsibility and more difficult working conditions than that of job-sharing Operators.
From its inspection, the Court is satisfied that the Equality Officer's findings of "like work" under Section 3(c) of the Act is a correct one.
The Court is satisfied that:-
in terms of skill, the job of the Switchboard Operators involves greater skill than the
job of the Security Services Officer;
in terms of physical effort, the job of the Security Services Officer involved greater
in terms of mental effort, the job of the Switchboard Operator involves greater effort
than the job of the Security Services Officer;
in terms of responsibility, the Court is of the view that the job of the Security Services
Officer is greater than that of the Switchboard Operator;
the working conditions of the Security Services Officer are more onerous than those of
the Switchboard Operator.
On balance, the Court is of the view that the work performed by the Security Services Officer is equal in value to the work performed by the Switchboard Operators within the meaning of "like work" under Section 3(c) of the 1974, Act.
Grounds other than Sex
Section 2(3) of the 1974, Act states that:-
"nothing in this Act shall prevent an employer from paying to his employees who are employed in "like work" in the same place different rates of remuneration on grounds other than sex ".
The Court proceeded to investigate whether there were grounds other than sex for the differences in pay of the appellants and the comparators.
The comparators are paid on the lowest clerical grade. Due to different bargaining structures, negotiating on behalf of the appellants and the comparators, different terms and conditions of employment for each group have emerged, e.g. the appellants work a 39 hour week and the comparators work a 33 hour week.
One of the comparators was recruited in December, 1977, and the second in September, 1978. Initially both were employed on a full-time basis, from 9.15am to 5.00pm, the same hours as other administrative staff. In 1991, the two comparators, for family reasons, applied for job-sharing under the UCC Job-Sharing Scheme. The University facilitated this and they commenced a job-sharing arrangement in August, 1992. Each comparator works every second week, from 9.15am to 5.00pm.
In February, 1998, the UCC switchboard was relocated and extended hours of operation were introduced, from 8.00am to 6.30pm. Due to the difficulties this created for the two job-sharers in relation to family arrangements, they were unwilling to alter their hours. The University was willing to negotiate a satisfactory arrangement to facilitate the job-sharers.
Up to this time, the comparators did all of the work of a full-time Switchboard Operator. The job-sharers, when resisting the extension of working hours, were required by the University to forfeit accounts duties, a task which is currently performed by full-time operators.
The job-sharers sought to retain the right to perform accounts duties. The issues were referred to the conciliation service of the Labour Relations Commission. Following a conciliation hearing, it was agreed that the job-sharers could undertake accounts duties, should they at some time in the future choose to work the extended hours. It was pointed out by the University that as the job-sharers were not willing to work the extended hours, certain functions could not be performed by them. Any attempt to force the two job-sharers to do so would have resulted in a breach of their employment contract.
The Court is satisfied that the terms and conditions of employments for the comparators remained the same, both before and after the introduction of job-sharing arrangements. Therefore, the Court is satisfied that the argument that a difference in pay between the pay of the appellants and the comparators is based on grounds other than sex does not hold up - staying in the same job on the same terms does not constitute grounds other than sex. The fact that some employees in the same grade have different duties is of no relevance. The Union has chosen them as valid comparators.
It was the University who insisted that the job-sharers did not carry out the accounts duties. Their different hours of work may mean that their working conditions under Section 3(c) are somewhat different, but overall their duties are similar.
The Court does not accept these arguments as valid arguments under Section2 (3)and finds that the appellants were directly discriminated against.
Even if the Court had been disposed to find grounds other than sex for the direct discrimination, the question of indirect discrimination would then have arisen.
In Flynn V Primark 1997 ELR 8 218 Barron J. summarised the law in this area as follows:-
- "Once as between workers doing like work there is a difference in pay which prejudices significantly more women than men(and vice versa), then, whatever the reason there is a prima facie case of discrimination and an onus rests on the employer to establish that this difference is not gender based but that the reasons for such difference are objectively justifiable on economic grounds".
(a) correspond to a real need,
(b) be appropriate,
(c) be necessary for the achievement of that objective
It is common case that the Security Officer grade is overwhelmingly male while the Switchboard Operator grade is overwhelmingly female.
The claimants, therefore, have established a prima facie case that they have been indirectly discriminated against. The onus then switches to the respondent to justify this discrimination on the grounds outlined above.
This Court is of the view that the arguments advanced by the University do not constitute objective justification for the indirect discrimination.
The Court upholds the Equality Officer’s recommendation and finds that the appellants have been discriminated against in relation to pay, and the Court hereby determines that the University pay each of the appellants the same rate of remuneration as paid to the two job-sharing Switchboard Operators. Payment should be made for three years in advance of the date of the claim or from the date that the appellants commenced employment with the University, whichever is the later and they are entitled to the full range of the incremental scale according to their service.
Signed on behalf of the Labour Court
25th January, 2002______________________
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.