SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
DUBLIN INSTITUTE OF TECHNOLOGY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
KAY MC EVOY
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Mr Duffy
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Appeal against the Director of Equality Investigations Decision DEC-E2001-038
2. The background to this case is set out in the Equality Officer's Recommendation (details with the Court).The Equality Officer in her Recommendation, which issued on the 5th, December, 2001, found that the Company did not discriminate against the worker on the basis of her pay in terms of Section 19 of the Employment Equality Act, 1998.
The Union appealed the Decision to the Labour Court on the 21st, December, 2001, on the grounds that the Equality Officer erred in law and in fact and drew incorrect conclusions in relation to the Decision.
The Court heard the appeal on 2nd, May, 2002 and carried out a work inspection on 10th, October, 2002.
This is an appeal by IMPACT, on behalf of Ms Kay McEvoy, against the decision of an Equality Officer in a claim for equal pay with a male technician employed by the Dublin Institute of Technology. Both the claimant and the comparator are employed by the Institute at the College of Catering in Cathal Brugha Street, Dublin.
The background to the case is fully and accurately recited in the decision of the Equality Officer. In her decision the Equality Officer found that the physical and mental effort required by the complainant and the comparator in the performance of their duties were similar. However, she found that the skill and responsibility required by the comparator is greater than that required by the complainant and that their working conditions were not comparable. Having so concluded she found that the work performed by the complainant is not of equal value to that of the comparator with in the meaning to Section 7 (1)(c) of the Employment Equality Act, 1998.
Conclusions of the Court
While there are many similarities between the work of the complainant and the comparator the principal difference between both jobs is that the comparator is a trained chef and, it is claimed, he uses his skills in the course of his employment in carrying out cooking duties. There was, however, significant disagreement between the parties as to the extent to which he carries out those duties.
It is the respondents case that cooking is an integral part of the comparators job and that he could have not been appointed as a technician if he did not have those skills. They point out that the comparator was originally employed as a craft assistant, the qualifications of which included a completed apprenticeship together with a senior trade certificate or equivalent qualification. He was also required to have 5 years post apprenticeship experience with particular application in the handling of meat, poultry and game. As a result of an agreement made between the comparator’s Trade Union and the Institute the post of craft assistant was upgraded to that of technician.
The respondent contends that the comparator is required to cook for private functions within the Institute on a regular basis. They also contend that the comparators skill and training as a chef is a necessary requirement for the safe storage and handling of raw meat, poultry and fish.
The Union contend that the cooking duties undertaken by the comparator occur with such irregularity as not to be significant to the work in general and are of small importance in relation to the work as a whole. They therefore contend that in accordance with Section 7(1)(b) of the Act this work should be disregarded. They also point out that the complainant is, inter-alia, responsible for the handling and storage of eggs and dairy produce and this entails as much responsibility as the handling of raw meat and fish.
The Union further contends that the comparator carries out cooking duties on a voluntary basis and in addition to his duties as a technician. They say that he is rewarded in so doing with additional overtime.
The Court has taken full account of all submissions made by the parties and has conducted an inspection of the work performed by both the claimant and the comparator.
The Court is satisfied that the comparator would not have been appointed to the position he holds if he was not a qualified chef. However, in deciding whether or not the work of the comparator is of equal value to that of the complainant it is the actual duties performed which are relevant and not the qualifications held by the respective parties.
Having interviewed the comparator and having observed the work that he performs, the Court agrees with the conclusion of the Equality Officer that cooking is an integral part of his job. Whilst cooking may be a minor part of the comparators duties overall, the Court cannot accept that the evidence bears out the Union’s contention that it occurs with such irregularity as not to be significant to the work in general and is of small importance in relation to the work as a whole.
The comparator told the Court that he carries out cooking duties regularly and would do so practically every week during the normal academic term. Like the Equality Officer the Court had the opportunity to observe the comparator working in the kitchen when cooking for a college function and is satisfied that his role involves the supervision and direction of other kitchen staff as well as cooking himself.
Taking the evidence as a whole the Court, on balance, agrees with the conclusion of the Equality Officer that these responsibilities are significant and are not mirrored by any comparable responsibilities on the part of the complainant.
The Court has also examined the other criteria considered by the Equality Officer namely, skill, physical effort, mental effort, responsibility and working conditions.
As already indicated the Court is satisfied that the cooking duties which the comparator is required to undertake involves a degree of skill and responsibility which goes beyond that expected of the complainant. The Court further accepts that the comparator carries greater responsibilities in relation to the storage and handling of raw meat, poultry and fish. The Court accepts that the complainant is responsible for the safe storage of dairy produce and eggs. However, the amount of such produce for which she is responsible is small in overall terms. In the case of the comparator the storage and handling of foodstuffs vulnerable to contamination constitutes the bulk of his work.
As regards the other matters the Court concurs with the conclusions of the Equality Officer. However, were it not for the skill and responsibility carried by the comparator in relation to cooking and in the handling and storage of fresh meat, poultry and fish the Court would not take the view that any differences that exist would be sufficient to justify the maintenance of different levels of pay between the complainant and the comparator.
Having regard to all the circumstances of this case the Court has concluded that the complainant and the comparator are not engaged in like work. Accordingly the decision of the Equality Officer is upheld and the appeal is disallowed.
Signed on behalf of the Labour Court
21st January, 2003______________________
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.