Ms. Valerie Glennon (Represented by SIPTU) vs Dublin Bus
1.1 The dispute concerns a claim by SIPTU, on behalf of Ms. Valerie Glennon, that, in terms of Sections 7 of the Employment Equality Act, 1998, she performs 'like work' with Mr. Mooney, Mr. Rooney and Mr. Conway and therefore is entitled to the same pay as these named male comparators.
2.1 The complainant commenced employment with the respondent organisation in 1986 in a YO2 position and she was assigned to cleaning duties. In 2000 an Agreement was reached to amalgamate the YO1 and YO2 grades. As a result of this Agreement the complainant was awarded an increase of £42 per week. To move YO1 staff to the amalgamated group would have resulted in an increase of only £31 per week for these employees hence it was agreed that these employees should be paid a personal allowance of £11 per week to ensure that they enjoyed the same increase as that paid to other employees. As part of the Agreement it was agreed to pay the personal allowance to those staff who had undertaken the higher duty for 50% or more of the previous year (i.e. 120 full days or 960 hours). It is the complainant's contention that she has been treated less favourably in relation to remuneration than three named male comparators on the grounds of her age. The respondent has denied this allegation and contends that there are grounds other than gender for the difference in pay between the complainant and the named male comparators.
2.2 Consequently the complainant referred a complaint to the Director of Equality Investigations on 20th May, 2003 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 26th January, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A preliminary hearing of this claim took place on 18th March, 2004. Following receipt of submissions from both parties a joint hearing took place on 3rd November, 2004. Further additional information was received from the parties with the final information being received on 3rd December, 2004.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 In December, 1999 the respondent concluded a Productivity Agreement with the Engineering Operative Group. Prior to this Agreement two grades existed for Engineering Operatives namely the higher group or Group 1 Operative (YO1) and the lower Group 2 grade (YO2). According to the respondent these grades were designated according to the duties attached to them i.e. certain duties such as shunting, fuelling, oiling, greasing, etc. were designated Group 1 while other duties such as bus cleaning, premises cleaning, etc. were designated Group 2. The respondent says that promotion from Grade 2 to the Grade 1 position was achieved on the basis of seniority. During the course of the negotiations a desire was expressed by both sides to amalgamate the existing two grades so that ultimately only one grade would exist in the future.
3.2 The respondent states that the Agreement provided that a new engineeringoperative grade would be created (YO6) and that all future recruits and all existing grade 2 operatives would be moved to this grade. This provided, at that time, an average increase for all grade 2 operatives including the complainant of £42 per week. According to the respondent a difficulty existed in moving existing Group 1 operatives to the new grade, as this would have resulted in an average increase of only £31 per week for these employees. Consequently a personal allowance of some £11 per week was paid to this group (YO5) to ensure that they enjoyed the same pay increase (£42) from the Agreement as the other Group.
3.3 In deciding which staff were entitled to the personal allowance the respondent agreed that in addition to appointed Grade 1 Operatives, any Grade 2 Operatives who received higher duty for 50% or more of the previous year would qualify for the allowance. This, the respondent says, equated to 120 full days or 960 hours. A list of staff qualifying under this criteria was produced from the payroll and paid the allowance. In addition to this a number of special cases were raised at various levels and were dealt with on their individual merit resulting in a number of staff receiving the additional allowance. The respondent says that cases which were not agreed were referred to an independently chaired tribunal set up under the auspices of the Agreement. According to the respondent the complainant's case was referred to this tribunal and was unsuccessful.
3.4 The respondent notes that the complainant has, at no time, worked at the higher grade in the previous year. A number of YO1 positions became vacant prior to 1999 for which the complainant could have applied but failed to do so. Accordingly these positions were filled by less senior staff. The respondent states that the practice prior to 2000 was that staff engaged on specific "marked in" duties, were not generally allocated to relief work as long as spare staff were available. The complainant was on such a specific duty i.e. premises/bus cleaning. The respondent says that the complainant was unhappy about the allocation of relief YO1 duties during the period 1986 to 1999, this could have been raised and based on seniority the complainant would have been satisfied. Some, but not all of YO1 vacancies, require the ability to drive and shunt buses. The respondent says that it encourages all staff to obtain the necessary qualifications and competencies. According to the respondent the complainant was set to the training school for driver training on more than one occasion but each time returned without completing the training course. By having this training the complainant's ability to undertake YO1 duties would have been significantly increased. The respondent notes that the vast majority of the grade 2 operatives, of both genders, who received the additional allowance qualified for this through time spent driving.
3.5 According to the respondent the Collective Agreement facilitated a £42 increase to both grades including the complainant. As a result of the Agreement there are both males and females in either grade doing 'like work' as can be seen from the figures below and the respondent notes that this Agreement was the result of a full participative consultancy process.
YO1 (Higher) Grade -
YO2 Grade -
YO5 (Higher) Grade -
YO6 Grade -
According to the respondent the difference in pay has no relation to the gender or any of the other 8 grounds for discrimination and this is clear from the statistics above showing that males and females qualified for both the pay scales. The respondent states that this difference in pay is a result of a Collective Agreement and applies primarily to people who enjoyed an existing differential prior to this Agreement. It is the respondent's submission that this differential will cease at the retirement of these individuals.
4. SUMMARY OF THE COMPLAINANT'S SUBMISSION
4.1 According to the complainant the "practice" in the Clontarf garage where she was employed was that women worked on premises cleaning and bus cleaning and when vacancies occurred the only people trained for those jobs were male. The complainant states that it is very important to note that premise/bus cleaning was not a "marked in" position as claimed by the respondent. According to the complainant all new recruited staff were to be trained on all duties. However the practice in Clontarf was to only train the male members of staff. The complainant says that when relief work became available at short notice the female members of staff, including herself, were not asked or trained to carry out the functions. Rather the practice in Clontarf was to afford the male staff members the relief work and they were then given the allowance for doing this work. Female staff members did not request this work because it would not be normal for females to request it and as they were not trained, they would not be able to do this work.
4.2 The complainant says that the allowance for this work, when it became available, was never achievable for females in Clontarf and a driving qualification was not a necessity to achieving the higher payments. The complainant notes that two of the three core duties that attracted the higher payment did not require these competencies. According to the complainant the named male comparator (Mr. Conway) received the higher payment yet he did not possess the driving competencies. The complainant states that night duties are rotated making it easier for individuals to get other duties and achieve the higher payments. It is the complainant's submission that this is the only reason why a fellow female in Clontarf achieved the higher payment after approximately five years service.
4.3 According to the complainant the substance of her claim is that, although females were facilitated to do like work in some locations in Dublin Bus as their male peers, that practice was not the practice in Clontarf garage. The complainant says that the fact that the difference in pay is a result of a Collective Agreement is not genuine as members in other garages (i.e. Conyngham Road) were accommodated with the knowledge of the respondent to achieve the payments. It is the complainant's submission that the Engineer Manager in Clontarf, by letter dated August, 2000, acknowledged that she was about to commence to undertake all the duties of the post as outlined in point 8 of a 1992 Productivity Agreement. This, according to the complainant, is an admission by management that she was only at that time being afforded the right to undertake all duties, some eight years after the Agreement. Had this been implemented sooner the complainant contends that she would have received the appropriate training and be in receipt of the higher payment.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant is entitled to equal pay with the named male comparators. The respondent accepted that the complainant performed 'like work' in terms of Section 7 of the Employment Equality Act, 1998 with the named male comparators and held that there were 'grounds other then gender' in terms of Section 19 of that Act for the difference in pay between the complainant and the named male comparators. In making my decision in this claim I have taken into account all of the submissions, both written and oral, made to me by the parties.
5.2 The complainant commenced employment with the respondent organisation based in the Clontarf garage in 1986. She was recruited into the YO2 position and was assigned the task of Bus and Building cleaning. In the garage there were a number of YO1 positions which commanded a higher rate of pay to the YO2 positions. When YO1 positions became vacant they were allocated to staff on the basis of seniority following an expression of interest in the position by staff members. A number of positions of both YO1 and YO2 ranking were deemed to be "marked in" positions. What was meant by the term "marked in" was that persons assigned to these positions were permanently on these duties. Staff members not filling "marked in" positions were known as spare staff or relief staff and they slotted into duties as required. For example if a person filling a "marked in" duty was on leave a relief staff member would undertake this duty. A relief staff member may be required to undertake YO1 or YO2 duties.
5.3 At the hearing of this claim the respondent stated that when a YO1 position became vacant it was advertised within the garage and employees were invited to apply in writing. The respondent submitted for examination a copy of an application by an employee for a YO1 position. On receipt of all the applications the respondent offered the position to the most senior applicant. It was the respondent's contention that the offer of a YO1 position was always based on seniority and that no other factors influenced that decision. Having
said that the respondent did accept that a number of the YO1 positions required the holders of those positions to have a driving licence. Hence if the vacant YO1 position had a driving requirement then the position would be offered on the basis of applicants having the driving licence in the first instance and then on the basis of seniority. Hence if two applicants with driving licences applied for such a position then the applicant with the greater seniority would be given the position. At the hearing of this claim the complainant argued that she had not received any training in YO1 duties and, for that reason, it would have been pointless for her to apply for a YO1 position. The respondent denied that the complainant would not have been offered the YO1 position just because she was not trained in YO1 duties. The respondent also noted that the complainant had on two occasions attended the Training School for the purposes of acquiring a driving licence but had failed to obtain it on both occasions. According to the respondent had the complainant applied for a YO1 position which did not require a driving licence when one was advertised she would have been offered the position because of her seniority and she would have been given the required training.
5.4 At the hearing of this claim the respondent re-iterated its view that the task undertaken by the complainant was a "marked in" duty in the Clontarf garage. Because it was deemed a "marked in" duty the complainant was not regarded as a spare/relief staff member and was not, therefore, assigned other duties on a relief basis. As a consequence the complainant never had the opportunity to carry out any YO1 duties and, therefore, did not meet the requirement of having undertaken 120 full days or 960 hours of the higher YO1 duties in the previous year to allow her avail of the higher payment in accordance with the 2000 Agreement. The complainant denies that her position was a "marked in" position. As she was not in a "marked in" position the complainant alleges that she should have been afforded the opportunity of carrying out YO1 duties like other spare/relief staff. The respondent was unable to furnish any evidence to show what tasks were deemed "marked in" and what were not. I note that what determined what was "marked in" was the fact that a staff member was permanent on the particular duty. From her recruitment to the respondent organisation I note that the complainant always worked in the cleaning area. There was no evidence that the complainant ever expressed her dissatisfaction to the respondent that she was not being assigned relief duties or that the respondent refused to assign her to YO1 duties on a relief basis.
5.5 In conclusion therefore I am satisfied that there is no evidence that the complainant would not have been offered the YO1 position had she applied for it. I note that there is a conflict between the parties on whether or not the complainant's job was "marked in". If the complainant had not considered her position to be "marked in" then one would have expected her to raise with the respondent its failure to assign her to relief duties, including YO1 duties. I note that the complainant never raised this with the respondent and as a result was unable to meet the requirement of 120 full days undertaking YO1 duties in the previous year as set out in the 2000 Agreement. In these circumstances, therefore, I am satisfied that there are reasons other than gender for the difference in pay between the complainant and the named male comparators.
6.1 In view of the foregoing I find that Dublin Bus did not discriminate against Ms. Valerie Glennon in relation to her remuneration in terms of Section 19 of the Employment Equality Act, 1998.
9th December, 2004