SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
IRISH ALE BREWERIES LIMITED TRADING AS DIAGEO EUROPEAN GLOBAL SUPPLY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY MARGUERITE BOLGER B.L. INSTRUCTED BY BECKER TANSEY & CO, SOLICITORS)
Chairman: Mr McGee
Employer Member: Mr Murphy
Worker Member: Mr Nash
1. Appeal under Section 83 of the Employment Equality Act, 1998 (Dec-E2005-026).
2. The Labour Court investigated the above matter on the 28th February, 2006. The Court's determination is as follows:
On 30th May, 2001, the Claimant, who was employed as a Cleaner/ Canteen Assistant at the Respondent’s premises in Ballyfermot, claimed that:
(a) She was entitled to the same rate of pay, in accordance with the provisions of Section 19(1) of the Employment Equality Act 1998 ("the Act"), as was paid to two male Comparators, one employed as a yardman by the respondent in Waterford but whose name was unknown to the Complainant and the other named Comparator employed as a Yardman in Dublin, and also a number of other unnamed and unidentified Comparators on the basis that she was performing like work with the Comparators as defined in Section 7(1) (c) of the Act; and
(b) She was victimised by the Respondent contrary to the provisions of Section 74(2) of the Act.
The case was delegated on 22nd April, 2002, to an Equality Officer. Having held a preliminary hearing, conducted a work inspection, received submissions from both parties and held a formal hearing, the Equality Officer found as follows on 14th June, 2005: -
“(i) the claim citing unknown comparators is not a valid claim under the 1998 Act;(ii) the claim citing the Waterford Yardman is not a valid claim under the 1998 Act;
(iii) Diageo did not discriminate against Ms Noeleen O'Sullivan on the ground of gender in relation to her pay, in terms of section 19 of the Employment Equality Act, 1998, in respect of her claim citing a named male comparator at the Ballyfermot location;"In this context, the Equality Officer, having carried out a work inspection, found that when considering whether there was “like work” within the meaning of the Act, the jobs of the Complainant and the Comparator were found to be comparable or equivalent under the headings of skill, mental effort and responsibility. However, she found that the Comparator’s working conditions were more difficult and that the physical requirements on the Comparator were greater.
"(iv) the respondent did not victimise the complainant.”
The Complainant appealed this Decision to the Labour Court on 21st July, 2005. A Labour Court hearing took place on 28th February, 2006.
(i) The Complainant seeks to compare herself to the “Waterford Yardman” whose name is not known to her but is known to the Respondent. Given that the Respondent has consistently failed to respond to questionnaires issued pursuant to Section 76 of the Act seeking information regarding this Comparator, the Complainant alleges that an inference of discrimination against the Complainant within the meaning of Section 81 of the Act should be drawn from this failure. The fact that the Respondent refused to provide the relevant information should be sufficient to shift the burden of proof to the Respondent.
- The refusal / failure to supply information on the Waterford Yardman is a fact from which it may be assumed that the Comparator is male, engaged in like work within the meaning of the Act and paid greater remuneration than that paid to the Complainant.
The Equality Officer found that there was equivalent skill, mental effort and responsibility involved in the jobs of the Complainant and the named Comparator. The Complainant contended that, in terms of the physical effort expended by her and her working conditions, the conditions were also equivalent.In regard to physical effort, the Complainant contended that the Equality Officer laid too much stress upon the lifting and rolling of a large number of heavy kegs each day by the Comparator. The facts, according to the Complainant, are that:
the Comparator only rolled and straightened kegs – he did not actually lift them. This, it is submitted, is no more demanding than the onus on the Complainant to lift buckets of very hot water and heavy cleaning equipment from location to location and to lift and rearrange furniture.
In general and taken as a whole, the Complainant felt that she was performing work of equal value to that performed by the named Comparator.
- In addition to pay, both the Complainant and the Comparator were paid allowances, not related to productivity. Both were paid an operating allowance, which, in November, 2000, was £151.99(€192.99) for the Comparator and £41.47(€52.66) for the Complainant. The Complainant submits that there were no non-discriminatory grounds for the difference.
The Comparator received a number of other additional payments. The Respondent asserts that these payments were dependent on the Comparator’s productivity. The Complainant disputed this assertion. These payments were either fixed or, if variable, were calculated based not on the Comparator’s productivity but on the depot’s productivity. Therefore, whether or not the Comparator was productive in a given week, he would receive these payments.Being part of the depot, and therefore integral to the depot’s productivity, the Complainant should also have received the payments based on the depot’s productivity. Furthermore, when the Comparator worked for any time on a Saturday he was paid for ten hours; whereas when the Complainant worked for any time on a Saturday she was only paid for the hours worked at overtime rates. The Complainant contends that there was no reason, other than her gender, for these differences in the composition of her pay.
In the above context it was contended on behalf of the Complainant that as in the case ofSusanna Brunnhofer v Bank den Osterreichischen Postsparrasse AG ECR 1 4961
- “that the burden of proof may shift when this is necessary to avoid depriving women who appear to be the victims of discrimination of any effective means of enforcing the principle of equal pay” and also that
“in particular, where an undertaking applies a system of pay with a mechanism for applying individual supplements to the basic salary, which is wholly lacking in transparency, it is for the employer to prove that his practice in the matter of wages is not discriminatory”.
- “that the burden of proof may shift when this is necessary to avoid depriving women who appear to be the victims of discrimination of any effective means of enforcing the principle of equal pay” and also that
- Her legal advisors had already contacted the Respondent regarding her rights under the Act when, between the relevant dates, derogatory references about her case under the Act, which served to ridicule her, were made. She was also threatened that an offer of £2,830(€3,593.36) by way of an ex-gratia payment for pension purposes would be withdrawn if she were to continue with her case under the Act. This threat in itself amounts to victimisation under the Act.
The Complainant was therefore penalised when ridiculed by one staff member and threatened by a manager. This penalisation occurred because of her having given notice that she would seek redress under the Act in regard to equal pay. She was upset and offended by these occurrences.
The Complainant contends that the Equality Officer erred in finding that the Complainant was not victimised because: -
(b) The fact that retirement benefits were agreed and were subsequently paid does not go to show that no threat was made to her in this regard; and
(c) The fact that the first allegation of victimisation was made on 1st May 2001 (five months later), even though correspondence was ongoing, is not relevant. The complaint was made of victimisation to the Complainant's Solicitors and Counsel immediately but was held because the Complainant's Solicitor was awaiting information.
1.Claim of Equal Pay with a named Comparator
The Respondent does not accept that work of equal value exists between the Complainant and this Comparator. It claims that:
(a) Skill: The Complainant’s job involved basic cleaning functions, unskilled in nature. Helpers /Yardmen, on the other hand, are trained in kinetic handling techniques, are skilled in identifying product types and batches, marshalling kegs and acting as an ambassador for the Company interfacing with customers.
(b) Physical Effort: There is a marked difference in the physical effort required. A Yardman / Helper must lift and move Kegs weighing 62.5 kg, handling 100-120 Kegs per day. A Canteen Cleaner would have none of this physical effort.
(c) Mental Effort: The mental effort required of a Yardman / Helper is considerably greater than that for a Cleaner. The Comparator needs a high level of organisational /planning skills and constant liaison with Hauliers and other depot staff. Different products must be correctly marshalled, there is a lot of teamwork and there are also stock control responsibilities. None of this would apply to the job of Canteen Cleaner.
(d) Responsibility: The job of a Cleaner does not contribute to output or productivity. It is a support service. The Yardman/Helper must be vigilant regarding keg tampering and fraud, is responsible for product delivery to customers, must guard against injuries to the public in the course of deliveries and the signing of consignment notes by customers.
(e) Working Conditions: - Whether in the depot or in traffic in the city, the working conditions of the Comparator are much more demanding than those of a Cleaner. The Comparator works outside all year round in all weathers in a stressful and exhausting job. The Cleaner is in an office / canteen environment and faces few, if any, hazards. She does not have to interface with customers.
2. Claim vis-�-vis the “Waterford Yardman”
The Respondent did not provide information sought because it did not have to do so. It is the Complainant’s responsibility to identify the Comparator. If she does not do so, the claim is not valid (as found by the Equality Officer). The onus of proof is on the Complainant. Comparisons are:-
- “confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same establishment/or service” –McCarthy’s Ltd –v-Wendy Smith  ECR 1275
- “ as a general rule, it is for employees who consider themselves to be the victims of discrimination to prove that they are receiving lower pay than that paid by the employer to a colleague of the other sex and that they are in fact performing the same work or work of equal value, comparable to that performed by the chose comparator; the employer may then not only dispute the fact that the conditions for the application of the principle of equal pay for men and women are met in the case but also put forward objective grounds, unrelated to any discrimination based on sex, to justify the difference in pay”)
Section 3(1) of the E.C. (Burden of Proof in Gender Discrimination Cases) Regulations, 2001, states: -
- “where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him on her, it shall be for the other party concerned to prove the contrary.”
3. Alleged Victimisation:
1. Both allegations made by the Complainant are out of time. The incidents allegedly occurred on November 10th and November 14th, 2000, but were not registered until May 30th, 2001. No application was made by the Complainant for an extension of the time limit for referral of her claim.
2. Without prejudice to (1) above, it is denied by the Respondent that either allegation amounts to victimisation under Section 74(2) of the Act or, in other words, that the Complainant was penalised solely or mainly because she was pursuing or threatening to pursue a claim under the Act.
With regard to the first incident the staff member concerned has no recollection of making such remarks. There is no evidence to show any hurt or offence on the part of the Complainant and no complaint was made to the Respondent at the time. Such remarks, even if made, would not amount to penalisation.
The Respondent did not publicise the fact that the Complainant was pursuing a claim for equal pay. The only person who discussed the claim was the Complainant.
With regard to the second incident it is alleged that a discussion took place between the Complainant and a manager about an ex-gratia pension contribution of €2,830(€3,593.36). The Manager did offer to give her the sum if she withdrew her equal pay claim, but there was no question of that, just an offer in the course of a meeting. The Complainant did not later withdraw her claim, but still received the €2,830(€3,593.36), so was not penalised in any way.
There is no evidence of victimisation or penalisation and the claim of victimisation cannot succeed.
Burden of Proof .
The first question which must be considered by the Court is how the burden of proof should be applied in this case. There are three statutory provisions which must be taken into account in considering this question, namely, Council Directive 97/80/EC on the Burden of Proof in Cases of Discrimination Based on Sex, and Sections 76 and 81 of the Employment Equality Act, 1998.
The Burden of Proof Directive, which is now transposed at Section 85A of the Act, as amended, provides, in effect, that the probative burden of establishing the absence of discrimination shifts to the Respondent where the Complainant proves facts from which discrimination may be inferred. The established test for applying this rule of evidence is that formulated by this Court inMitchell v Southern Health Board ELR 201. This requires the Complainant to prove the primary facts upon which they rely in asserting that an inference of discrimination should be drawn. It is then a matter for the Court to consider if those facts are of sufficient significance to raise the inference contended. There is no closed nor exhaustive list of factors which can be relied upon to shift the probative burden. What will be regarded as sufficiently significant for this purpose will depend upon the circumstances of the case.
In the instant case the Complainant contends that her post of Cleaner was uniquely excluded from the grading structure of the Respondent. She asserts, and the Court accepts, that had her post been so included her rate of pay could not have been less than that of her Comparator who was on the lowest grade within the structure. The argument was advanced on behalf of the Complainant that since cleaning is quintessentially a female occupation, the exclusion of her post from the grading structure evinced a disposition on the part of the Respondent to undervalue women’s work. In the Court's view the unexplained exclusion of the Complainant’s post from the grading structure is a fact from which discrimination may be inferred. In that regard it is settled law that an absence of transparency in an employer's pay determination system can be sufficient to raise a prima facie case of discrimination (seeHandels- og Kontorfunktionaerernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss ECR 3199. In that case, however, the question of like work was not at issue and the authority of the case is thus confined to situations in which men and women are engaged in like work.
Further, and more importantly, the Complainant relies on the failure of the Respondent to provide her with information concerning a prospective Comparator which she sought pursuant to Section 76 of the Act. In the Court’s view this aspect of the case is of considerable significance and requires careful consideration.
The relevant part of Section 76 of the Act states as follows: -
- "76. - (1) With a view to assisting a person ("X") who considers –
(b) that another person ("Y") who is responsible for providing remuneration to X is not providing that remuneration as required by an equal remuneration term, or
(c) that another person ("Y") with whom X has a contract of employment hasnot provided X with a benefit under an equality clause in that contract,,
- to decide whether to refer the matter under any provision of section 77 and, in the event of such a reference, to formulate and present X's case in the most effective manner, the Minister may by regulations prescribe forms by which -
(i) X may question Y so as to obtain material information, and
- (ii) Y may, if Y so wishes, reply to any questions.
- (ii) Y may, if Y so wishes, reply to any questions.
- a) information as to Y's reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,
(b) information, other than confidential information, about the remuneration or treatment of other persons who stand in relation to Y in the same or a similar position as X, or
(c) other information which is not confidential information and which, in the circumstances of the case in question it is reasonable for X to require.
The consequence of not providing the information requested pursuant to Section 76 are dealt with by Section 81, as follows:-
- "81. -If, in the course of proceedings on a reference under section 77(3) or of an investigation under section 79, it appears to the Circuit Court, the Director or the Labour Court, as the case may be-
(b) that the information supplied by the respondent in response to any such question was false or misleading or was otherwise not such as the complainant might reasonably have required in order to make the decision referred to in section 76(1),
- the Circuit Court, the Director or the Labour Court (as the case may require) may draw such inferences as seem appropriate from the failure to supply the information or, as the case may be, for the supply of information as mentioned in paragraph (b)".
In the instant case the Complainant sought information concerning the duties and remuneration of a Yardman employed by the Respondent in Waterford pursuant to Section 76 of the Act. Despite several reminders the Respondent failed or refused to provide that information. No explanation nor lawful excuse for this failure was provided to the Complainant or to the Court. Section 81 of the Act provides that in these circumstances the Court may draw such inference as seems appropriate.
Section 76 of the Act is modelled on Section 74 of the British Sex Discrimination Act 1975. The jurisprudence of the British Courts indicates that a failure of an employer to supply information requested pursuant to that statutory provision is a fact from which discrimination may be inferred for the purposes of shifting the probative burden under the Burden of Proof Directive. This was made clear by the Court of Appeal for England and Wales inIGEN LTD (formerly Leeds Careers Guidance) and Others (appellants) v. WONG IRLR 258. A similar approach was earlier taken by the EAT inBarton v Investec Henderson Crosthwaite Securities Ltd IRLR 332 EAT and by the House of Lords inGlasgow City Council v Zafar IRLR 36.
In support of its contention that the onus of proving like work always rests on the Complainant, the Respondent referred the Court to the Decision of the ECJ in Brunnhofer, and in particular to the answer given to the referring Court on this point as follows:
- “as a general rule, it is for employees who consider themselves to be the victims of discrimination to prove that they are receiving lower pay than that paid by the employer to a colleague of the other sex and that they are in fact performing the same work or work of equal value, comparable to that performed by the chosen comparator; the employer may then not only dispute the fact that the conditions for the application of the principle of equal pay for men and women are met in the case but also put forward objective grounds, unrelated to any discrimination based on sex, to justify the difference in pay”
It should first be noted that the Court referred to this principle applying as a “general rule”. It is thus clear that there are circumstances in which it is not applicable. Secondly, at paragraphs 52, and 53 of the report the ECJ states as follows :-
- "52 As to that point, it should be observed that it is normally for the person alleging facts in support of a claim to adduce proof of such facts. Thus, in principle, the burden of proving the existence of sex discrimination in the matter of pay lies with the worker who, believing himself to be the victim of such discrimination, brings legal proceedings against his employer with a view to having the discrimination removed (see Case C-127/92 Enderby 1993 ECR I-5535, paragraph 13).
53 However, it is clear from the case-law of the Court that the burden of proof may shift when this is necessary to avoid depriving workers who appear to be the victims of discrimination of any effective means of enforcing the principle of equal pay (see Enderby, cited above, paragraph 14)".
The Court accepts that it is normally for the Complainant to prove the existence of like work with her nominated comparator. However, the rigid application of this rule could impair the effectiveness of the protection afforded by the Directive and the Act. It follows that where a Complainant is obstructed by her employer in obtaining evidence which is in the employer's power of procurement, the employee cannot be thus deprived from an effective means of advancing her claim and the employer cannot derive an advantage from its own default. (see by analogyB.S. Levez v T.H. Jennings (Harlow Pools) Ltd.ECR 7835.
In the instant case the Respondent has failed to provide any explanation for its failure to provide the information sought pursuant to Section 76 of the Act. This, together with the unexplained exclusion of the Complainant from the grading structure, makes it fair and equitable for the Court to infer that the information, if given, would have provided evidence of like work as between the Complainant and the Waterford Yardman. In these circumstances the Court is satisfied that it should proceed on the basis of a rebuttable inference that the Complainant and this Comparator were engaged in like work for the purposes of the Act. The Respondent has offered no evidence whatsoever to rebut this presumption and the Court must accordingly accept as a matter of fact that the Complainant and the Comparator were engaged in like work at all material times.
This would be sufficient to dispose of the case in the Complainant's favour. However, for the sake of completeness, the Court has considered the evidence concerning the existence of like work as between the Complainant and the Dublin Yardman. In that regard the Court could not conduct a work inspection because the premises at which the Complainant and her Comparator worked has since closed and the functions which they each performed are no longer available for inspection. Nevertheless the Complainant has put in issue the finding of the Equality Officer that she was not engaged in like work with this Comparator. The Court must come to its own independent view of this aspect of the case and must do so on the basis of the best available evidence. In the instant case this involves the testimony of the Complainant concerning her own job and her observations of the job performed by the Comparator. The Court was also provided with job descriptions for the respective positions. The Comparator was not called to give evidence nor was there any testimony given on behalf of the Respondent as to the work actually performed by the Comparator. While the representative of the Respondent did make submissions and assertions concerning the work performed by the Comparator, on the best evidence rule this could not be relied upon to rebut the direct evidence of the Complainant.
Findings of Fact
On the evidence adduced the Court is satisfied that the following job descriptions are correct:
(a)Job Description of the Complainant
- Title: Cleaner/Canteen Assistant.
Salary per week: £400.92(€509.06), plus service pay of £1.90(€2.41) and daily operational allowance of £8.30(€10.54).
Hours: 9am to 4pm, Monday to Friday.
Qualifications: None required.
•Cleaning ladies toilet;
•Cleaning doctor’s surgery;
•Vacuuming offices and hallways;
•Washing and sweeping and polishing floors;
•Cleaning bain-marie, cooker hoods etc on a weekly basis;
•Cleaning paintwork, mirrors, walls etc as necessary;
•Ordering cleaning materials and condiments;
•Assisting with serving food, as required.
(b)Job Description of the Named Comparator
- Title: Yardman.
Salary per week: £557.03(€707.28), plus service pay of £2.54 (€3.23)and daily operational allowance of £30.40(€38.60), annual stay-back allowance of £409.93(€520.50) and weekly turnaround allowance of £83.62(€106.18).
Hours: 8am to 3pm, Monday to Friday.
Qualifications: None required.
•Organising kegs into manageable groups for lifting by forklift;
•Supervising off-loading of returned kegs and detecting product tampering;
•Ensuring the integrity of the batch system;
•Recording key batch numbers to faciliate stock control and administration records;
•Sweeping yard and cleaning up dirt/rubbish;
•Cleaning men's toilet.
1. The Court accepts that the Complainant was exposed to dirt and hazards in having to clean toilets, deal with boiling water, hot foods and utensils and operate kitchen machinery. The Yardman also came into contact with dirt, waste, heavy machinery and sometimes inclement weather through which he had to work. However, having carefully reviewed the available evidence, the Court is of the opinion that the working conditions of the Complainant are not greatly different to those of the Comparator, while occasionally less onerous.
2. Even if the Comparator was only rolling and straightening kegs, as the Complainant’s evidence indicated, rather than actually lifting them as contended by the Respondent (and the only direct evidence on this point is that of the Complainant), this actual physical effort required of the Comparator would be greater than that required by the Complainant in lifting buckets of water and cleaning kitchen machinery. However, the Court is of the view that, when making comparisons of this type, it is not sufficient to compare just the actual physical effort involved but the relative physical effort involved. For instance, a woman lifting 30% of her body weight may expend the same physical effort as a man lifting 30% of his body weight. Given the different physical demands which can be placed on men and women, the Court finds that in this case the relative level of physical effort is overall roughly equivalent.
3. In terms of responsibility, the Complainant was responsible for cleaning the canteen and the Doctor's surgery. The Court is satisfied that the need to ensure a high standard of hygiene in both locations places a degree of responsibility on the Complainant that has no parallel in the case of the Comparator.
4. The Court is further satisfied that the other elements of the two jobs – skill and mental effort are roughly equivalent and, overall, the similarities outweigh the differences. (See the recent decision of the House of Lords inMatthews & Others V Kent & Medway, Towns Fire Authority, IRLR 367, per Baroness Hale).
5. The Court is therefore satisfied that the Complainant was engaged in work of equal value with that of the Dublin Yardman within the meaning of Section 7(1)( c) of the Act. It follows that the Court must hold that the Complainant and the Comparator were engaged in like work within the meaning ascribed to that term by Section 7.
6.Bonuses:No evidence was put before the Court as to why the non-productivity based allowances paid to the Complainant and to the Comparator amounted (in November 2000) to £151.99(€192.99) for the Comparator and £41.47(€52.66) for the Complainant, an unexplained difference of almost £110.00(€139.67). This in itself could give rise to an inference of discrimination.
8.Grading:No satisfactory evidence was given as to why the Complainant was not graded on the Company’s grading system but was paid £156.00(€198.08) less than a Comparator who was on the lowest grade on the system. This again would give rise to an inference of discrimination.
On the evidence as presented to it: -
(i) The Court finds that the allegations are out of time and that no time extension was sought. The matter can be disposed of on that basis.
(ii) However, for the sake of clarity, the Court finds that there is no evidence to support the Complainant's allegation that a derogatory remark was made against her. Equally, there is no evidence to support her claim that the respondent threatened to withdraw from her the sum of £2,830(€3,593.36). In consequence, the Court can find no evidence of victimisation or penalisation of the Complainant.
For the reasons set out above the Court is satisfied that the Complainant’s claim for equal pay is well-founded. To that extent she is entitled to succeed in this appeal and the Decision of the Equality Officer should be reversed.
There is a number of remedies open to the Court under Section 82 of the Act. Having carefully reviewed the evidence and the circumstances of this particular case and having regard to the time at which this matter was first raised by the Complainant the Court is of the view that the appropriate remedy in this case is an award of compensation for the effects of the discrimination. In all the circumstances of this case, the Court has determined that the compensation which is fair and equitable should be measured at €25,000. An award in her favour is made in that amount.For the reasons set out elsewhere in this Determination the Court is satisfied that the Complainant's claim of victimisation is not well- founded. The Decision of the Equality Officer on that point is affirmed.
Signed on behalf of the Labour Court
18th August, 2006______________________
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.