Tracey(Represented by SIPTU) AND Uniphar plc, Limerick(Represented by IBEC)
1.1 This dispute concerns a claim by Ms Catherine Tracey, employed as a warehouse supervisor by Uniphar plc, that she is entitled to the same rate of remuneration as that paid to a named male comparator, also employed by the respondent as a supervisor, in accordance with the provisions of section 19 (1) of the Employment Equality Act, 1998.
1.2 The complainant referred a claim to the Director of Equality Investigations on 28 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 on 9 August 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 5 September 2003.
2. THE COMPLAINT
2.1 The complainant's case was referred under the provisions of section 19 (1) of the Act which provides:
It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
Section 18 states that "A" and "B" represent two persons of the opposite sex so that, where "A" is a woman, "B" is a man, and vice versa.
2.2 Section 19 (5) of the Act provides that:
...nothing in this Part shall prevent an employer from paying, on
grounds other than the gender ground, different rates of remuneration
to different employees.
2.3 In relation to the investigation of claims for equal pay, the Act provides at section 79 (3) that:
If, in a case which is referred on the ground that the complainant is not receiving equal remuneration in accordance with an equal remuneration term, a question arises whether the different rates of remuneration to which the case relates are lawful by virtue of section 19 (5)...the Director may direct that that question shall be investigated as a preliminary issue and shall proceed accordingly.
2.4 Such a question arose in this claim, and I therefore proceeded on the basis of investigating whether the different rates of remuneration were justified on grounds other than gender. Whether like work existed between the complainant and the comparator was therefore not at issue during the preliminary investigation, and work inspections were not carried out.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant was employed by the respondent as a warehouse supervisor in its Limerick warehouse since 1995. She worked shifts of 7am to 1pm, and 1pm to finish (8.30-9pm), in alternate weeks, with a male supervisor (Mr P) working the opposite shift. Mr P had previously been a representative for the respondent and retained his salary on a personal basis when he sought and was given a change of employment. The comparator, Mr B, worked straight days of 8am to 5pm.
3.2 The complainant said that she raised the issue of her salary with the respondent in 1998 and, following negotiation, she received a 5% increase, she was no longer required to clock in and she was allowed to fill her car at the respondent's petrol pump when working Saturday overtime. The complainant said she unsuccessfully raised the issue of her salary with the respondent again in 2001, and she said this occurred because she realised that both male supervisors were paid more than she was. She said that, while it was apparent that Mr P had retained his salary on a personal basis, the respondent could offer no satisfactory reason for Mr B's higher salary.
3.3 The complainant said that her union representative contacted the respondent to discuss the issue in 2002, and that the respondent asserted that Mr B was in fact a warehouse manager who was required to take responsibility for the premises in the event of management's absence. She said the respondent also said that Mr B's salary was an inheritance of an older pay structure which existed before the introduction of the split shift system operated by the complainant.
3.4 The complainant rejected the assertion that Mr B was a warehouse manager, and provided several internal documents showing that the complainant, Mr B and Mr P were all described as warehouse supervisors. She said that the introduction of the split shift resulted in the introduction of new part-time rates of pay, which did not affect existing staff. She said that she was therefore the only person among existing staff to be affected by the introduction of new rates, in the sense that she was employed at a lower rate of pay than a
3.5 The complainant said that the respondent's reasons for the higher salary paid to Mr B did not adequately address the pay anomaly, and that the only remaining factor was gender. She said that she was seeking equal pay with maximum retrospection.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent said that the history of the company was that a company called Allied Pharmaceutical Distributors (APD), established in 1972, amalgamated with United Pharmacist Cooperative in 1994 to form Uniphar. Staff employed in APD retained their pay and conditions of employment after the amalgamation took place. The comparator, Mr B, had been employed as the warehouse supervisor since 1980.
4.2 In February 1993, the comparator suffered an injury at work. As a result of this, he had high levels of absenteeism in 1993 and 1994. In October 1994 he went absent from work and did not return until June 1998 following the settlement of a personal injuries claim against the respondent. On his return, the comparator no longer had a company van, his phone bill was no longer paid by the respondent and he was no longer a key holder. However, his salary remained unchanged, in line with the respondent's policy.
4.3 The respondent said that the position of shift supervisor was introduced in 1995, and the complainant was the successful candidate. She was paid the rate considered appropriate at the time, and she received an increase in 1998 following a successful pay negotiation. Mr P, the other shift supervisor, was appointed as such in 1998 after the return of Mr B from his extended absence.
4.5 The respondent pointed out that Mr P was also paid less than the comparator. During the comparator's extended absence from work, Mr P carried out his duties but did not get paid the same salary. He continued to receive his rate of pay as a company representative on a personal basis. The respondent also pointed out that it employed male and female supervisors at different locations throughout the country, each of whom were paid according to the relevant rate for the location.
4.4 The respondent noted the complainant's reference to part-time rates of pay. It said these new rates were introduced in December 2001 as a result of the Protection of Employees (Part-time Work) Act, 2001. This Act required that part-time workers be paid the same hourly rate as full-time staff performing the same work, and the new rates had no relevance to the complainant's salary.
5. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
5.2 The procedural rule prescribed in cases of gender discrimination is that provided by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (SI NO 337 of 2000). In a recent claim the Labour Court said that this meant "...where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities." (Customer Perception Ltd and Leydon [EED0317]).
5.3 The requirement therefore is for the complainant to establish those facts from which an inference of discrimination may be drawn. If she successfully achieves this, the respondent must demonstrate that discrimination did not occur.
5.4 It is clear that the introduction of new rates for part-time workers following the commencement of the Protection of Employees (Part-time Work) Act, 2001 had no impact on the complainant's salary. The only matter to be considered is whether the complainant has demonstrated that the respondent's reason for the difference in salary between her and the comparator does not constitute grounds other than gender.
5.5 The position of shift supervisor was first introduced in 1995. The complainant was the successful candidate for the position and was paid the relevant salary. In 1998, Mr P was appointed to be a shift supervisor following the return to work of Mr B. The complainant accepted that Mr P had retained his salary on a personal basis
5.6 It was not disputed by the complainant that the comparator was employed as a supervisor by the respondent's predecessor company since 1980. She also did not dispute that former employees of APD retained their salary levels when Uniphar was established in 1994. The parties agreed that the comparator had suffered an injury at work in 1993, had been absent from work from 1994 to 1998 and had returned to work with altered conditions but the same salary in 1998 following the settlement of a personal injuries action. I am satisfied that there were grounds other than gender to explain the higher salary paid to Mr B.
5.7 I find that the complainant has failed to demonstrate a prima facie case of discrimination and that the respondent does not have to rebut the allegation of discrimination.
6.1 Based on the foregoing, I find that Uniphar plc did not discriminate against Ms Catherine Tracey on the basis of her pay in terms of section 19 of the Employment Equality Act, 1998.
29 March 2004