Mr. Jonathan Langan (Represented by MANDATE) V C-Town Limited
1.1 This dispute concerns a claim by the Union, on behalf of Mr. Jonathan Langan, who was employed by C-Town Limited t/a SuperValu that he was entitled to equal pay on the grounds of age with the named comparator (Mr. Gerard Langan) in terms of Section 29 of the Employment Equality Act, 1998.
2.1 The complainant was employed as a store man with C-Town Limited t/a SuperValu. The named comparator is currently employed by the respondent as a store man. It is the complainant's contention that he performed 'like work' with the named comparator in terms of Section 7 of the Employment Equality Act, 1998 and that the reason for the difference in pay was on the grounds of age. The respondent does not accept that 'like work' existed between the complainant and the named comparator.
2.2 Consequently, the Union, on behalf of the complainant, referred a complaint to the Director of Equality Investigations on 17th June, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 9th September, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A preliminary joint hearing took place on 22nd October, 2002 and written submissions were subsequently received from both parties. Following work inspections a final joint hearing took place on 3rd January, 2003. Additional information was submitted by both parties and the final piece of information was received on 10th February, 2003.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant commenced employment with the respondent organisation on 8th December, 2000. His hourly rate of pay was £5.50 (€6.98) and he was obliged to work a 45 hour week between Monday and Friday resulting in a weekly gross salary of £247.50 (€314.26) and a net salary of £215.50 (€273.63). According to the complainant he was informed by the Tax Office that it had no record of his employment prior to May, 2001 and he never received a payslip until January, 2002. The complainant states that he never received his terms and conditions of employment in writing. Despite several attempts to resolve these issues with the respondent the complainant and his Union have failed to do so. The complainant further notes that the respondent failed to respond to the questionnaire ODEI3.
3.2 According to the complainant he transferred to part-time work in late September, 2001. These part-time hours were at a minimum 22 a week. This agreed reduction was in relation to the complainant's studies in college. For sometime afterwards the respondent requested the complainant to come in for extra half days as they had no replacement for the complainant's job. The complainant states that this extra help resulted in an average 30 hours a week and the hourly rate was £5.50 (€6.98).
3.3 The complainant says that the respondent hired a Mr. Gerry Langan (the named comparator) and he received an hourly rate of £8 as compared to the complainant's £5.50 (i.e. €10.16 and €6.98 respectively). The comparator is 19 years older than the complainant. According to the complainant the comparator was not employed as a manager as contended by the respondent. Rather he was employed to replace the complainant, is paid by the hour, is on a rota and the complainant trained him into his job.
3.4 The complainant notes the respondent's claim that the position of warehouse manager was created as a result of the increase in storage facilities at the store and the comparator was employed because he held such a position in his previous employment. It is the complainant's contention that when the comparator was offered the position in the respondent organisation he was offered a position in the Deli Department which he did not accept as his background was in this area and he was seeking work in a different area. Subsequently he was employed in the back stores and trained into the job by the complainant.
3.5 The complainant states that the old back stores consisted of three containers and a large warehouse. The new warehouse is under one roof and minimises the amount of outdoor work e.g. yard cleaning duties. The complainant states that he worked the bulk of his employment in the old stores.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 According to the respondent the complainant commenced employment on 8th December, 2000. He was recruited to the position of General Sales Assistant and was paid £5.50 (€6.98) per hour. The respondent states that the complainant had some experience as a general sales assistant with Dunnes Stores prior to joining the respondent organisation. It is the respondent's submission that the complainant, as a General Sales Assistant carried out many duties on the shop floor and back stores area. The respondent says that the complainant was never employed exclusively for the purpose of operating the back store/warehouse.
4.2 It is the respondent's submission that the named comparator (Mr. Gerard Langan) commenced employment on 15th October, 2001 as a Warehouse Manager. His rate of pay was £300 (€380.92) per week based on a minimum of 45 hours per week inclusive of all premium. According to the respondent the comparator worked as a Department Manager with Roches Stores from March, 1980 to May, 2001 and he has a Certificate of Achievement and Recognition in HACCP awarded in November, 1999. The respondent says that the comparator was at all times responsible for the warehouse area and never was or is required to carry out any duties on the shop floor.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the respondent discriminated against the complainant in terms of pay. In making my decision in this claim I have taken into account the written and oral submissions of the parties and the work inspections carried out during the course of the investigation. Job descriptions for the complainant and the named comparator are set out in Appendices A and B respectively.
5.2 It should be noted that when the complainant was employed full-time with the respondent organisation he worked in a store which was subsequently demolished and a new store was built on a new site next to where the old store had been. The named comparator who is alleged to have replaced the complainant never worked at the old store. The old store where the complainant worked while in full-time employment with the respondent organisation did not have a back stores area. Rather extra supplies were stored in three containers and a shed at the back of the stores. However at the new store there is a large stores area at the back of the store.
5.3 Having undertaken work inspections I find that the complainant and the named comparator did not perform the same work as each other in accordance with the provisions of Section 7(a) of the Employment Equality Act, 1998 both when the complainant was working full-time and when working part-time. The named comparator undertook a quarterly stock take which was not done by the complainant. Furthermore the named comparator had a greater role than the complainant in the organisation of the delivery of customer groceries to their homes. The named comparator recorded dockets in a record book and this task was not undertaken by the complainant. At my work inspections I found that the named comparator separated rubbish into bins for plastic, cardboard and other to facilitate recycling. This was not done by the complainant. The comparator did not have to open/unlock store access areas or indeed the storage containers and shed which the complainant did on a daily basis. When working part-time the complainant was stacking shelves on the shop floor and this task was not undertaken by the comparator at all during the course of his employment.
5.4 Section 7(b) of the Employment Equality Act, 1998 states as follows:
"in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a
When the complainant was working full-time I am satisfied that the work performed by him and the named comparator was of a similar nature given that they were both employed as Store men and their duties revolved around the stores area i.e. checking in deliveries, rotating stock, organising surpluses and credits, etc. There were differences in the work performed by the complainant (opening/unlocking of stores access areas and the containers and shed; counting of products for the ADM order and the temperature check of all vans delivering dairy and frozen foods) and the named comparator (quarterly stock take; organisation of the delivery of groceries to customer homes; recording of all dockets received; the separation out of waste for recycling purposes). However, I am satisfied that the differences were of small importance to the work as a whole and, therefore, I find that the complainant, when he worked fulltime, performed 'like work' with the named comparator in terms of Section 7(b) of the Employment Equality Act, 1998 and is, therefore, entitled to equal pay with the named comparator in terms of Section 29(1) of the Act.
5.5 When the complainant worked part-time he spend part of his time on the shop floor and part of his time in the stores area. It is clear from my work inspections that the work performed by the complainant and the named comparator was not similar in nature and, therefore, I find that the complainant did not perform 'like work' with the named comparator in terms of Section 7(b) of the 1998 Act.
5.6 In terms of the work performed by the complainant when he was part-time and the work performed by the full-time named comparator I undertook an analysis of their jobs in terms of skill, physical requirements, mental requirements, responsibility and working conditions which is set out in Appendix C. From this analysis I conclude that the demands made on the named comparator were greater in terms of mental requirements and responsibility. In terms of skill, physical requirements and working conditions I find that the demands made on the complainant and the named comparator were equal. Therefore, taking into account the overall demands made on both the complainant and the named comparator I find that the complainant did not perform work of equal value with the named comparator in terms of Section 7(c) of the Employment Equality Act, 1998 when he was employed part-time and is, therefore, not entitled to equal pay with the named comparator in accordance with Section 29(1) of the Act.
5.7 The respondent made no argument on grounds other than age in terms of Section 29(5) of the Employment Equality Act, 1998. The complainant was 21 years old on 15th December, 2002 whereas the named comparator was 40 years old on 7th October, 2002. The age difference between the complainant and the named comparator is some 19 years which is substantial.
5.8 There was an issue raised by the complainant over the number of hours worked by the named comparator. According to the respondent the named comparator was employed to work a 45 hour week and the complainant stated that he was paid £300 (€380.92) per week to work less than 45 hours. It is the complainant's contention that the named comparator worked 42½ hours per week and received £300 (€380.92) per week for having worked less than the 45 hours that he was originally employed to work. On this basis the complainant is arguing that he is entitled to equal pay with the named comparator having regard to the fact that the named comparator receives £300 (€380.92) per 42½ hours worked and the complainant worked a 45 hour week when he worked full-time. The respondent accepted that the named comparator was employed to work a 45 hour week but stated that he was not in receipt of an hourly rate of pay and the fact that he left early was a local arrangement between him and the store manager.
6.1 In view of the foregoing I find that Mr. Jonathan Langan is entitled to equal pay with the named comparator (Mr. Gerard Langan) when he worked full-time for C-Town Limited t/a SuperValu (i.e. from 8th December, 2000 until late September, 2001) on the grounds of age. Equal pay is to be determined on the basis of the named comparator's weekly pay and not on the hours worked.
6.2 In relation to Mr. Langan's part-time employment with the C-Town Limited t/a SuperValu I find that the complainant did not perform 'like work' with the named comparator and is, therefore, not entitled to equal pay with the named comparator.
21st February, 2003
Job Description for the
Name: Mr. Johnathan Langan
Job Title: Store man
Reports to: Store Manager
Employer: C-Town Limited t/a SuperValu
Hours of Work: 8.00a.m. - 6.00p.m. (Monday to Friday)
Rate of Pay: £5.50 (€6.98) per hour
Note: The complainant worked full-time (i.e. 45 hour week) with the respondent from 8th December, 2000 until late September, 2001.
For a period of one month (from September to October, 2001) the complainant worked part-work working 30 hours per week.
From October, 2001 to May, 2002 when the complainant ceased employed worked 22 hours per week.
The complainant is given keys on his arrival at work and he unlocks the main door of the store, the side gate to the store and the back shutters of the store. The complainant would then unlock the three containers and shed (warehouse) which were used for stores. The complainant would then tidy up the yard and the warehouse and if necessary he would sweep them. The complainant would then check the deliveries of fruit and vegetables which would have been delivered before the store opened. The complainant would check if there were any shortages, surpluses or if there were any products left in substitute. Shop floor staff would come and take what is required for the shop floor and the complainant packs the rest away. (There was one container strictly for fruit and vegetables).
At 8.30a.m. approximately the bread deliveries would arrive. The complainant would check these deliveries and make sure that returns were received from the previous week and that the credit was received for anything left over from the previous week. An example of what happens in relation to returns is in the case of say three loaves of damaged bread, the complainant returns them and makes sure to get three fresh ones in exchange or have the supplier deduct three loaves from the docket.
The complainant would rotate the stock in the containers by putting the older stock to the front and the newer stock to the back. The complainant checks the temperature on all vans delivering dairy and frozen foods and he records the temperatures on record sheets which he signs and passes to management.
The complainant would ensure that all delivery dockets were placed in a box specifically for delivery dockets and passed to office staff for record purposes. The complainant would check stock levels in each container and where there was a shortage of a product the complainant would ask the sales representative to send in more of the product. Where there is an excess of a product the complainant would return it to the supplier. The complainant would count all the products for the ADM order on a weekly basis. This entailed counting up the products manually, recording them and passing the information to management who make the order.
DUTIES (while part-time)
When working part-time the complainant worked the following hours:
2 evenings midweek from 4-9 or 5-9p.m.
Weekends - (Saturday and Sunday) from 8a.m.-3p.m.
When working in the evening the complainant worked on the shop floor until 8.00p.m. and then he would spend his last hour of work in the stores area making sure that it was tidy and swept for the next day.
When working on the shop floor the complainant would make a list of product items which were missing on the floor. He would then get the products from stores and stack them on the shelves.
At weekends the complainant would count products for the ADM order. He would then pass these details to management who would decide on what quantities of the products to order. The complainant would check in the deliveries of fruit and vegetables and also bread. He would note shortages and seek credits if necessary.
Job Description for the
Name: Mr. Gerard Langan
Job Title: Store man
Reports to: Store Manager
Employer: C-Town Limited t/a SuperValu
Hours of Work: 8.00a.m. - 5.30p.m. (Monday to Friday)
Rate of Pay: £300 (€380.92) per week
The general tidy up of boxes and he puts them into the bin in the back yard.
The comparator checks in all the deliveries which are made throughout the day up until 3.00p.m. Those deliveries which are made before 8.00a.m. are checked in by the Assistant Manager. Checking deliveries is a counting exercise to see if the quantity delivered is correct. Dockets with deliveries are recorded in a daily record book. The comparator introduced this logging system for dockets since joining the respondent organisation. The comparator writes out a claim note for goods not supplied but which should have been supplied i.e. where there is a shortfall in the delivery. He then faxes this to the supplier. All such claims must be faxed by 5.30p.m. The comparator also completes claim forms for damaged goods and in cases where an excess of goods is supplied. Every evening the comparator hands in all the dockets into the office and the bookkeeper contacts the comparator if there are any queries re: shortages.
Having checked the deliveries the comparator puts away the stock.
The comparator is responsible for looking after customer deliveries i.e. customers have groceries delivered home. A customer indicates the time which would suit for the delivery to be made and the comparator must ensure that the delivery is made as close as possible to that time.
The comparator carries out temperature checks on supplier's vans. He selects one van every morning e.g. a van supplying fresh fruit and he checks the temperature. The comparator then keeps a record of the temperature and this record is kept in the Manager's Office.
The comparator keeps the yard tidy. He separates plastic, cardboard and other waste into three separate bins so that plastic and cardboard waste can be recycled.
The comparator makes sure that the stock is rotated in the Stores with older stock at the front and newer stock at the back.
The comparator keeps the stockroom tidy.
Before leaving every evening the comparator sweeps and mops the floor.
The comparator undertakes a quarterly stock take. This takes a day to complete.
The comparator reduces the stock in the Stores area prior to the stock take. He uses a machine to scan the various products. The comparator keys in the quantity of each product to the machine and this information is then given to office staff to feed into the computer.
Analysis of the Jobs of the
Complainant when he worked part-time and the full-time named Comparator by the Equality Officer
Mr. Jonathan Langan (Complainant) vs Mr. Gerard Langan (Comparator)
The complainant had to be able to count for the ADM order. At weekends he would check in deliveries. He also had to have the ability to keep the back stores and back yard tidy. The complainant had to know how to carry out van temperature checks. The named comparator must be able to count to enable him to check deliveries. He must be able to carry out temperature checks on supplier's vans. The named comparator must have the ability to keep the stockroom and the back yard tidy. To undertake a stock take the named comparator must be able to use the scanning machine.
I am satisfied that the demands made of the complainant and the named comparator in
terms of skills are equal.
The complainant brought stock from the storeroom and stacked it on shelves on the shop floor. If necessary the complainant swept the floor of the stores room. The named comparator empties waste into the bin in the back yard. He puts the stock away in the store room. This can entail the lifting of heavy stock items onto shelves. The named comparator exerts physical effort in keeping the back yard and the store room tidy. He sweeps and mops the floor daily.
I find that the demands made of the complainant and the named comparator in terms of physical requirements are equal.
The complainant had to know how much stock to display on the shop floor. He had to check deliveries and identify shortages/surpluses and act upon them. The complainant undertook temperature checks on supplier vans supplying dairy and frozen foods.
The named comparator is responsible for checking the accuracy of deliveries. He must record delivery dockets in a record book and where there are inaccuracies (e.g. excess products supplied, damaged products, shortfall in supply, etc.) he completes a claim form and faxes it to the supplier. The named comparator is responsible for organising the delivery of customer groceries to their homes and ensuring that they are delivered as near as possible to the time agreed with the customer. The named comparator undertakes temperature checks on supplier's vans. It is the named comparator's duty to monitor stock and rotate it so that older stock is placed at the front of shelves in the stock room and newer stock is placed at the back of the shelves. The named comparator must separate out plastic, cardboard and other waste for recycling purposes.
On balance I find that the demands made of the named comparator in terms of mental
requirements are greater than those made of the complainant.
The complainant was responsible for checking in deliveries and making sure that inaccuracies in supplies were rectified. He had a responsibility for ensuring that the back stores area and the back yard were left tidy in the evening. The complainant undertook temperature checks on supplier vans and he recorded the temperature on log sheets. The complainant was responsible for stacking products onto shelves on the shop floor.
The named comparator is responsible for maintaining the store room in an orderly fashion. He must ensure that it is tidy, products easily accessible with older stock towards the front of shelves and newer stock at the back of the shelves. It is the named comparator's responsibility to check all deliveries made while he is on duty. He must check the accuracy of deliveries and complete claim forms where inaccuracies occur and fax to suppliers before close of business. He must also record all delivery dockets in a record book. The named comparator is also responsible for looking after the delivery of customers' groceries to their homes and ensuring that the deliveries are made as near as possible to the time specified by customers for delivery. There is an onus on the named comparator to undertake temperature checks on supplier vans and to record this information in a log book. The named comparator is responsible for undertaking quarterly stock takes. Being employed full-time the named comparator is charged with a higher level of responsibility for the stores area than the part-time complainant who only worked in the area at weekends.
I find that the demands made of the named comparator in terms of responsibility are higher than those made of the complainant.
At weekends the complainant worked in the stores area and in the back yard which could be cold during the winter months. The named comparator worked in the stores area all the time. This area of the store tended to be cold. He also had to work in the back yard in all weather conditions. I find that the demands made of the complainant and the named comparator in terms of working conditions are equal.