SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Appeal Under Section 83 of The Employment Equality Act, 1998 Dec-E2005-031
2. A Labour Court Hearing took place on 27th January 2006. The following is the Court's Determination:
This is an appeal by Ms. Geraldine Walsh Assistant Cook/Housekeeper, against the decision of an Equality Officer in a claim for equal pay with named male comparators employed as General Operative Dayworkers at ESB Power Generation Station at Bellacorrick.
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 mental effort required by the complainant and the comparators in the performance of their duties was similar. However, she found that the skill, physical requirements and responsibilities required by the comparators were greater than that required by the complainant and that their working conditions were not comparable. Having so concluded she found that the complainant did not perform ‘like work’ with the named male comparators in terms of Section 7 of the Employment Equality Act, 1998.
Conclusions of the Court
The Complainant contended that the daily duties of the comparators involved cleaning and tidying the station and hoovering, duties which were similar to her own. When they were required to work in the boiler and tippler area they were paid “conditions money” and provided with free milk. She disputed the respondent’s contention that the comparators were required to carry out scaffolding and lagging duties and maintained that contractors were employed to do this work. She also stated that the comparators were required to carry out her duties in the kitchen during periods when she was absent.
The respondent outlined to the Court that Dayworkers were an integral part of generating station operation and maintenance, working in a heavy industrial environment. By contrast, Canteen staff provided an ancillary service.
The comparators were required to carry out physically demanding duties; de-arching the bunker and cleaning the boilers, hoovering the dry dust, work which was carried out in very confined spaces. Their duties involved: removing stones, planks etc. from the peat and shoveling peat onto the belts; to handle the peat under the tipplers, in steel cells which due to the danger of combustion had to be handled manually. They were required to remove the ash, which was very dirty and dusty work and for which they were paid “dirty money” and received a free glass of milk. They were required to erect scaffolding, pull cables, carry out civil works and ground maintenance as part of their normal duties.
The complainant was required to handle heavy pots of soup and mashed potatoes and lift 5-gallon drums of cooking oil. Her duties included food preparation, cooking, serving approximately 20/30 persons per day and cleaning the kitchen and canteen areas. She was also required to keep records of cash, hygiene compliance, and fridge temperatures and to make out orders for supplies and carry out regular stock takes of food.
Ms. Walsh expressed her dissatisfaction with the work inspection carried out by the Equality Officer on the basis that the Power Station had ceased production three days prior to the inspection. In particular, Ms Walsh referred to the fact it was not possible to assess noise and vibration levels, which normally prevailed.
She gave details to the Court of the duties she carried out in the Daywork section. However, these duties were carried out after she was successful in her application for a position as a Dayworker in January 2004.
As this occurred after the date of claim – May 2003, the Equality Officer dismissed it relevance to the claim. The Court concurs with this conclusion.
The Power Station ceased production on 1st March 2005 and closed on 31st December 2005. The Equality Officer’s inspection was carried out on 4th March 2005. It is accepted by both sides that the canteen was working at its normal full output on the day, however, it is accepted that there were no noise or vibration due to the cessation of production. The respondent disputed that the normal noise and vibration levels were not as strong as that claimed by the complainant. Ms. Walsh contended that the noise and vibration levels were so strong that sugar bowls would occasionally fall over.
The respondent gave a detailed report to the Court of how the inspection was carried out by the Equality Officer. Despite her objection to the timing of the inspection, the complainant did not contest the details supplied by the respondent. The report of the Equality Officer gave detailed job descriptions for both the complainant and the comparators. Both parties confirmed to the Court that these were an accurate description of the duties and functions of the jobs. The report also included her analysis of the work of both the complainant and the comparators. This was complied following the work inspection and took account of the work as it was performed at the time of the referral of the claim – May 2003.
The Court notes that the timing of the Equality Officer’s inspection was decided at her discretion and was carried out three days after production had ceased. As the Power Station at Bellacorrick (the last such power station to close in the country) closed on 31st December 2005 and the Court heard the appeal on 27th January 2006, it was not possible for the Court to conduct its own inspection.
In reaching its conclusion, the Court has given careful consideration to the oral and written submissions of both sides and to the Equality Officer’s report. The Court is satisfied that the Equality Officer carried out a thorough investigation and completed an extensive report on the results. Therefore, taking account of the submissions of both sides and in the absence of its own inspection the Court places considerable weight on the findings of the Equality Officer.
The Equality Officer examined the work and conditions of both the complainant and the comparators under the relevant criteria outlined by legislation and gave detailed descriptionsof all aspects of the jobs involved, under the following headings;
While both the work of the complainant and the comparators involved cleaning duties the Court is satisfied that there were significant differences in the duties of both. The complainant was based indoors in the kitchen/canteen area, she was required to keep these areas clean and was on occasions required to clean the toilets.
Whereas the working environment the comparators were required to work in was dirty, confined and required the operation of heavy industrial equipment/machinery.
The Court is satisfied that contractors were employed to carry out scaffolding duties as claimed by Ms. Walsh, however, it is equally satisfied that the comparators were also required to do this work on occasions, often in very confined areas and that they were required to do lagging duties.
Having examined the detail, the Court is satisfied that the comparators’ duties involved a degree of skill and responsibility which went beyond that expected of the complainant, particularly in the area of Safety and Environment where they were required to have independent certification due to the very hazardous nature of the work - handling concentrated hazardous chemicals, forklift driving, crane operation, rigging etc.. In contrast, the complainant had responsibility for hygiene in the canteen area to ensure the safety of staff, e.g. spills on floor, use of electric slicer, steam from boiler etc. - for which she required certification and training, including chef certificate (N.C.T.B.), hygiene course, first aid, manual handling, environmental awareness, safe pass course, computer ECDL.
Ms. Walsh referred to the interchangeability requirements between both jobs. The comparators were required to fill the boiler with water in the tearoom and the canteen and to help out in the kitchen when kitchen staff were absent. Having examined this contention, the Court is satisfied that this latter requirement was not part of their core activities and there was no interchangeability requirement between the duties of the complainant and the comparators.
Taking the evidence as a whole the Court agrees with the conclusion of the Equality Officer that the demands made on the comparators in relation to skills, physical requirements, responsibilities and working conditions were greater than those required of the complainant.
Having so concluded she found that the complainant did not perform “like work” with the named male comparators in terms of Section 7 of the Employment Equality Act, 1998 and had no entitlement to equal pay in terms of Section 19 of the Act.
In term of mental requirements the Equality Officer found that the demands on the complainant and the male comparator were the same. The Court finds it difficult to concur with this view since the Equality Officer found that failure by the comparator to monitor the level of amps on the pumper could result in the station having to shut down. The Court is of the view that this is a greater mental requirement than that placed on the complainant, who had the responsibility to ensure that meals were cooked properly and on time.
In conclusion, the Court is satisfied that the duties which the complainant was required to undertake did not involve a degree of skill and responsibility which was equal to or went beyond that expected of the comparators.
The Court takes the view that the differences that existed between the complainant and the comparators were sufficient to justify the maintenance of different levels of pay between the complainant and the comparators.
Having regard to all the circumstances of this case the Court has concluded that the complainant and the comparators 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
16th February 2006______________________
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.