Rainwater AND University College Dublin (Represented by John J McDonald & Co, Solicitors)
1.1 This dispute concerns a claim by Dr Mara Rainwater, employed in a temporary post as an Assistant Lecturer in philosophy by University College Dublin, that she was entitled to the same rate of pay as a male comparator, in accordance with the provisions of the Anti-Discrimination (Pay) Act, 1974.
1.2 The claimant referred a claim under the Anti-Discrimination (Pay) Act, 1974 to the Labour Court on 23 December 1996. At the same time she lodged a claim under the Employment Equality Act, 1977 (see DEC-E2004-005). The Labour Court referred both matters for investigation and recommendation by an Equality Officer on 13 January 1997. For various operational reasons, the claims were dealt with by three different Equality Officers over a period of six years, and moved from the Equality Service of the Labour Relations Commission to the Office of the Director of Equality Investigations following the establishment of the latter body on 18 October 2000. Finally, on 9 December 2002 the claims were delegated by the Director to Anne-Marie Lynch, an Equality Officer, for investigation and recommendation.
1.3 Over the period of time between the lodgement of the claims and their final delegation, both parties made extensive written submissions. The parties were notified on 13 February 2003 that a hearing of both claims would take place on 27 June, and were further notified on 22 May that it was necessary to reschedule the hearing for 20 June. The claimant failed to appear and no reason was provided for her absence. A letter to the claimant on 23 June advised that unless she provided a reason for her non-attendance within ten days, decisions would issue based on the available information. The claimant made no subsequent contact with the Equality Tribunal. Correspondence with the respondent, which was copied to the claimant, concluded on 8 August 2003.
2. SUMMARY OF THE CLAIMANT'S CASE
2.1 The claimant was employed as a temporary Assistant Lecturer in philosophy at University College Dublin, on two separate contracts covering the academic years 1993-1994 and 1994-1995. She claimed that she was engaged in the same work as a male colleague who was also employed in a temporary post during the academic year 1994-1995, but that he received significantly higher remuneration than she did.
2.2 The claimant based her claim for equal remuneration on section 3 of the 1974 Act, which provides that:
[t]wo persons shall be regarded as employed on like work-
(a) where both 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 where 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, responsibility and working conditions.
2.3 The claimant asserted that she and the comparator actually taught the same course in Critical Theory in alternate years. She pointed out that they were both referred to as Assistant Lecturers in their employment with the respondent. She said that she was engaged in departmental work that included lecturing, publishing in her field, supervising students, monitoring library acquisitions and participating in the activities of the University Teaching Committee. She claimed that her work in fact had been deemed superior to that of her comparator.
2.4 The claimant noted that the respondent had asserted that her claim for equal pay had been compromised as part of a settlement dated 11 June 1996. She agreed that such a settlement had been reached between the parties, but denied that it had included her equal pay claim. She said that the matters settled were a claim under the Unfair Dismissals Acts, 1977-1993 instigated by her in December 1995 and a claim under the Employment Equality Act, 1977 instigated by her in February 1996. As the claimant had not instigated the claim under the Anti-Discrimination Act, 1974 until December 1996, she said it could not be encompassed by a settlement concluded six months previously. She also pointed out that, as the written settlement had been mislaid by the respondent's solicitor, no evidence existed for the respondent's assertion of what was included.
2.5 In any case, the claimant argued that settlement of her equal pay claim would not have been possible under law. In support of this contention, she cited the Labour Court determination in the 1974 Act case of Data Products (Dublin) Memories Ltd v Simpson (DEP-1-1979). The Court said "In relation to the argument that the severance payment was in final settlement of all money claims on the Company, the Court finds that even if there were an express term in that agreement waiving the right to equal pay remuneration it would be over-ridden by virtue of section 4 of the Act."
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denied that the claimant and the comparator were engaged in like work. It said that the claimant's primary degree was not in philosophy, so that she was ineligible for the MA programme. She was however eligible for the PhD programme, and her philosophy doctorate was awarded in 1995. Therefore at the time of her employment with the respondent she did not have any degree in philosophy. The comparator, on the other hand, had achieved first class honours in both his BA in philosophy and politics and his philosophy MA. He delivered more lectures than the claimant and had more onerous administrative duties, including duties as co-ordinator of post-graduate students.
3.2 The respondent further claimed that the nature of the posts held by the claimant and the comparator demonstrated that there were grounds other than sex for the difference in remuneration. The claimant was employed in the academic years 1993-1994 and 1994-1995 on temporary contracts to fill vacancies caused by leave of absence. Such leave for research purposes is considered part of the job of a lecturer and the respondent had arrangements with Revenue to reconstruct the salary to include subsistence. These arrangements mean there is an amount left over for the department budget, and a temporary post is funded by this surplus. The comparator's post came about as a result of a competition to fill a temporary post and a three-year contract. The comparator was recommended for the temporary post and named as reserve for the three-year post. When the recommended candidate declined, the comparator was offered the three-year contract. Such a post is paid in accordance with the relevant salary scale.
3.3 Notwithstanding its other arguments, the respondent insisted that the claimant had settled her equal pay claim in June 1996. Acknowledging the mislaying of the original signed settlement, it asserted that the fact that the claimant had not referred the equal pay claim to the Labour Court until December 1996 was not relevant. The respondent said that the Employment Equality Agency (EEA) had written, on behalf of the claimant, to University College Dublin in February 1996, citing the 1974 Act and seeking equal pay with the comparator and another male. The respondent's legal adviser had given advice in May 1996 which made specific reference to the claimant's complaint of discrimination under the 1974 Act. The legal adviser had also drafted a note of his recollection of the settlement in July 1996, following the loss of the original, which included the stipulation that an agreed sum be paid without admission of liability and "in full and final settlement of all claims I have against UCD...arising out of my employment...including all claims under the Employment Equality Act, 1977 and the Anti-Discrimination (Pay) Act, 1974, to the Labour Court and/or Equality Officer, and I agree that all such proceedings (if commenced) will be
3.3 The respondent said that the word "claims" in the settlement was employed in its ordinary dictionary meaning, that is "demand as one's due or property" (Oxford English Dictionary. It said the letter from the EEA in February 1996 clearly constituted such a claim, and that the equal pay case was one of the claims settled in June 1996. The respondent said that there was no basis to attach a technical meaning to the word "claim" by asserting there was no claim until the claimant formally referred one to the Labour Court. The manifest intention of the text of the settlement was to include all claims and outstanding issues so that they would all be liquidated. In support of this assertion, the respondent provided a copy of a letter received in August 1996 from the claimant's then solicitor, which stated "You are aware that Dr Rainwater has, over the past twelve months, issued proceedings against UCD, under the Employment Equality Act, 1977, the Anti-Discrimination (Pay) Act, 1974 and the Unfair Dismissals Acts, 1977-1993. Those cases were all compromised...".
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 There are three points at issue in this claim: (i) was the equal pay claim included in the June 1996 settlement as argued by the respondent?; (ii) if not, was the claimant performing like work with the comparator?; (iii) if so, were there grounds other than sex for the difference in remuneration? If the equal pay claim was part of the settlement, then the other two points do not require consideration.
4.2 There is no dispute that a settlement was reached between the parties on 11 June 1996. The occasion was a hearing at the Employment Appeals Tribunal to deal with a case referred by the claimant under the terms of the Unfair Dismissals Acts, 1977-1993. The hearing was adjourned to allow settlement talks between the parties. A settlement agreement was signed and taken by the respondent's solicitor with the intention of providing a copy to the claimant's solicitor, but the original was mislaid before this was done. The settlement therefore cannot be produced as evidence of its contents, which are disputed by the parties.
4.3 The claimant argued that she could not have settled her equal pay claim as she did not refer it to the Labour Court until December 1996. However, I agree with the respondent's contention that this is to attach a technical and unnecessary meaning to the word "claim". The EEA, on her behalf, sought equal pay under the provisions of the 1974 Act in February 1996. On 12 April 1996, the EEA wrote to the respondent under the heading Anti-Discrimination (Pay) Act, 1974, using the words "...in relation to a complaint of alleged discrimination by Ms Mara Rainwater under the above Act". The respondent's legal adviser advised the respondent regarding the equal pay issue. It is clear that a claim for equal pay existed at the date of the settlement.
4.4 The legal adviser's note of his recollection of the settlement (at 3.3 above) is not in itself proof of its content. However, since I am satisfied that a claim under the 1974 Act existed at the date of the settlement, I am also satisfied that the intent of the parties would have been to settle all issues between them. Further, the complainant's solicitor also acknowledged the "compromise" of all claims, including the 1974 Act claim. On the balance of probabilities, I find that the settlement agreement included the claimant's claim for equal pay with the named comparator.
4.5 Regarding the claimant's assertion that a settlement of her equal pay claim was not possible under law, I am satisfied that is incorrect. Section 4 of the 1974 Act automatically inserted an entitlement to equal pay into contracts of employment, and an employee may not agree to take this entitlement out of his or her contract. A written agreement to that effect would be invalid and unenforceable. However, an employee may validly reach a settlement with an employer specifying what s/he will accept in settlement of past entitlements under the Act. In the 1974 Act case PMPA Insurance Company Ltd v Keenan and others  IR 330, Carroll J in the High Court said "...I can see nothing contrary to public policy in allowing the parties to compromise, in such a fashion, what is a claim for a liquidated sum", as long as the agreement is supported by consideration.
4.6 In this context, it is also worthy of note that the Employment Equality Act, 1998, which repealed the 1974 Act, introduced the concept of mediation of claims. Under the provisions of section 78 of the 1998 Act, any claim may be referred for mediation, as long as both parties agree and it appears to the Director that it could be resolved by mediation. There is no exclusion for claims for equal pay. It is apparent that the concept of a mediated settlement is acceptable in the context of such a pay claim. Logically, a settlement reached by other methods must also be acceptable.
5.1 Based on the foregoing, I find that the claimant is prevented from pursuing her claim under the 1974 Act because both parties agreed to settle the matter in June 1996.
11 February 2004