SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
ANTHONY RYAN & SONS LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Equality Officer's Recommendation DEC - E - 2001/009
2. The Union appealed the Equality Officer's recommendation to the Labour Court on the 8th of March, 2001, on the following grounds:
1. The Equality Officer erred in law and fact when he concluded that "like work" as defined by the Act did not exist between the jobs of the claimants and the comparators.
2. Any other grounds which arise in the course of this investigation.
A Labour Court hearing took place on the 23rd of November, 2001, in Galway and a work inspection took place on the 25th of November, 2002, at the shop's premises, also in Galway. The following is the Court's determination:
The claimants who are female and the comparators who are male are employed as buyers in the respondent Company. In addition to their normal weekly rate plus commission, the comparators are paid an additional allowance of £36.23 (€46.00) in respect of security and locking up duties. The Union contends that the additional work carried out by the comparators for this allowance is so small and infrequent as to be irrelevant. They argue that the responsibility, skills, working conditions, and mental effort demanded of the claimants and the comparators were the same taken in an overall context. The Equality Officer found that the allowance given to the comparators in respect of the security and locking up duties was, in fact, an allowance for extra responsibilities that the claimants did not have and, therefore, the claimants and comparators did not undertake like work.
The Union has appealed Equality Officer’s Recommendation DEC-E2001-009 on the basis that:
1. The Equality Officer erred in law and in fact when he concluded that like work as defined by the Act did not exist between the jobs of the complainant and the comparator.
The Union contends that the claimants perform like work with the named comparators, within the meaning of Section 3 of the Anti Discrimination (Pay) Act 1974 and are, therefore, are entitled to receive the same rate of remuneration.
The comparators are paid a normal weekly rate plus commission, and are also paid an additional allowance of €46.00 in respect of security and locking-up duties. It is this additional allowance that is being sought on behalf of the claimants.
The Union contends that any additional work carried out by comparators is so infrequent and of small importance as to be irrelevant. It further argues that the requirements of the job for male and female buyers, in the areas of Responsibility, Skill, Working Conditions and Mental effort, are the same.
The Union strongly refutes the Company’s argument that the comparators responsibility for security warrants payment of €46.00. This figure, the Union claimed, was equated to an overtime premium of 6 times. The Union has also made the point that one of the female buyers has daily security duties in relating to locking a door and securing a shutter.
The Union also disputed the Company statement that the extra work is required on as many as six or seven occasions a week and claims that the two comparators, at best, would have to lock up approximately three evenings per week.
The Union’s case is based on the argument that the claimants perform similar end-of-day duties as the comparators. Any differences in the work performed, or under which it is performed by each, occur infrequently and are of a small importance to the work as a whole.
The Union argues that the disputed payment is made on the basis of the difference in sex between the claimants and the comparators.
The Company case is that this is a small family run business and is spread out over two separate buildings. The newer building, in which the comparators work, requires separate security arrangements from the original one.
The Company accepts that in relation to the core duties of the buyers like work exists between the claimants and the comparators. This, it is claimed, is reflected in the fact they are on the same basic rate of pay and that their bonus is calculated in the same way.
However, in addition to basic pay and commission, the comparators are also in receipt of a weekly allowance of €46.00 for security/locking-up of the Man’s Shop.
The Company argues that originally all the security and locking up was done by one person but, on his promotion in 1997 and the restructuring of the organisation into three divisions, three buyers were appointed to each individual department. These three buyers were given the responsibility for security/locking up and they received an extra allowance for these duties. This allowance has been increased in line with pay increases since that date.
The Company is adamant that the reason for this allowance being paid is centred on the extra responsibilities that the named comparators have in the locking up and securing of the Man’s Shop each evening.
When one of the named comparators retired in 1999 his replacement was not asked to carry out the locking-up duties, and he is paid the same rate as the claimants.
The Company contends that there are objective justifications to justify the payments to some male buyers under the security and locking-up duties. There is a real need on the part of the undertaking to ensure that the premises are properly secured at the close of business. This function can take up to 20 minutes and gives the comparators added responsibility and longer working hours.
The Company's case is that the introduction of a payment for the performance of this function is similar to other payments made to others for extra duties and responsibilities undertaken.
The Company stated categorically that the claimants are not required to lock-up as they work in the main shop and senior management carry out this function.
The Union's case is that the complainants are entitled to receive the same remuneration as the comparators as they perform “like work” within the meaning of Section 3 of the Anti Discrimination (Pay) Act 1974.
Section 3 of the Act states that:
Two persons shall be regarded as employed on like work-
(a)where both parties perform the same work under the same or similar conditions, or where each is in every respect interchangeable with the other in relation to the work, or
(b)where 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 occur only infrequently or are of small importance in relation to the work as a whole, or
(c)where the work performed by one is equal in value to that performed by the other in terms of the demands it makes in relation to such matters as skill, physical or mental effort and conditions.
The Court, therefore, examined the work of the comparators and the claimants under the headings set out in Section 3(c) of the Act and carried out a work inspection and found as follows:
The Court agrees with the Equality Officer’s findings that the skill requirements relating to the addition duties of the comparators are not significantly higher than those of the claimants in their job.
While there is obviously some physical effort required by the comparators in the additional duties, they are insignificant in making assessment between the two jobs.
The Court is satisfied that greater mental effort is required in the comparators job, based on the responsibility to ensure the premises are secured at night time and in being alert to security matters when locking-up the premises.
The Court is satisfied after the work inspection that responsibility for security and locking up of the premises places more responsibility on the job of the comparator than the claimant.
The Court agrees with the Equality Officer that the working conditions of the comparators are more onerous than the claimants, as they are required to stay on after closing time in order to secure the building.
The Court is satisfied that the additional duties carried out by the comparators represents an additional area of responsibility, carried out on a regular basis, that is not requested of the claimants.
The Court is also satisfied that the security duties in relation to locking-up and securing a shutter undertaken by one claimant, and the securing of an outer door by one other claimant, are not significant and are not on the same level of responsibility as duties undertaken by the comparators.
Having considered the information available the Court, taking into account the extra duties required of the comparators, is not satisfied that the claimants duties are interchangeable with the comparators as required under Section 3(a) of the Act.
The Court equally does not accept that the tasks in question performed by the comparators are performed infrequently or are of small importance in relation to the work as a whole, as defined by Section 3(b) of the Act.
Having considered the demands required of the claimants and comparators under the headings above, the Court is satisfied that the work of the comparators is of a greater value than that of the claimants. Consequently, the claimants and the comparators are not engaged in like work as defined in Section 3 of the Anti Discrimination (Pay) Act 1974. The appeal is rejected and the recommendation of the Equality Officer is upheld.
Signed on behalf of the Labour Court
22nd January, 2003______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.