EQUALITY OFFICER'S DECISION NO: DEC-E/2007/012
PRELIMINARY DECISION UNDER SECTION 79(3) OF
THE EMPLOYMENT EQUALITY ACTS, 1998 AND 2004
HEALTH SERVICE EXECUTIVE WESTERN AREA
This dispute involves a claim by Mr. Brendan Murphy that he performs like work in terms of section 7 of the Employment Equality Act, 1998 with a named female comparator and is therefore entitled to the same rate of remuneration as paid to that comparator in accordance with section 19 of the Act.
The complainant was appointed to the position of Grade V - Regional Training Officer in the Drug Service - with the respondent on 1 September, 1998. He states that his comparator was appointed as Regional Training Officer in the respondent's Childcare Service in May, 2000 and was subsequently upgraded to Grade VIII level - a post which attracts a higher rate of remuneration. He contends that he performs like work with the comparator, an assertion which is disputed by the respondent. Notwithstanding this position the respondent submits that there are grounds other than gender for the difference in the rates of remuneration paid to the complainant and comparator. The Equality Officer decided to investigate that issue as a preliminary matter in accordance with section 79(3) of the Employment Equality Acts, 1998 and 2004. Submissions were received from both parties and Hearings took place on 7 December, 2005 and 22 March, 2006. A number of points required further clarification and this gave rise to correspondence between the Tribunal and the parties.
3. SUMMARY OF RESPONDENT'S CASE
The respondent states that the post of Regional Training Officer (RTO) in the Child and Family Care Area was a new post created in 2000 on foot of recommendations contained in the National Guidelines for the Protection and Welfare of Children. The respondent advertised the post and the rate of remuneration attached to it was at Social Work Team Leader (€34,632- €40,614). The respondent is unable to state with any degree of certainty how this rate of remuneration was arrived at but speculates that it was arrived at by Senior Management within the Health Board at the time in the context of the overall budgetary process. The comparator was appointed to the post on 2 May, 2000 on the 4th point of that incremental pay scale. The respondent states that in January, 2001 the comparator approached her Line Manager concerning the rate of pay she was on and sought a review of same. It adds that the comparator had previously worked for the respondent as a Public Health Nurse and her annual salary including allowances for that post would have been around €41,000. The comparator had therefore suffered a reduction in pay as a result of taking the RTO post. The respondent further submits that similar posts had been established in two other Health Boards and these were being remunerated at Grade VIII level. It states that in those circumstances, the fact that the Manager for the Service supported the comparator's position and having regard to the fact that the area developed with the introduction of the Children's Act, 2001, the respondent's Director of Human Resources approved the upgrade of the comparator's post to Grade VIII (€55,851-€68,118) on 21 January, 2002 and backdated it to the date of her original appointment, on the basis that it would not create a precedent. No formal evaluation process of the post was undertaken to determine whether or not it should be at that level.
4. SUMMARY OF COMPLAINANT'S CASE
The complainant states that he was appointed as Regional Training Officer in the respondent's Drug Service on 1 September, 1998. The post in remunerated at Grade V (€34,488-€41,598). In April, 2000 he made an application through his Line Manager for to have his post regraded to Grade VII in line with the Drug Training Officer post in Dublin, the only other place where such a post existed at that time. The complainant states that the respondent informed him it could not deal with his claim and that it was a matter for the Department of Health and Children. The complainant's post was evaluated by that Department in accordance with the "Evaluation of Executive and Clerical Jobs in Health Boards and Local Authorities Scheme" and his claim was rejected. However, it was subsequently confirmed by the Department to the respondent (April, 2006) that the evaluation process was incomplete because the Evaluation Panel did not appropriately assess the clinical supervisory duties attached to the post. The complainant agrees that the respondent appointed the comparator to the post of RTO in the Child and Family Care Area in May 2000 on the terms indicated and that it subsequently upgraded the post to Grade VIII as outlined. He submits that he was employed as an RTO and applied to have his post upgraded, with the approval of his Line Manager and that he was treated in a different fashion. He submits that this constitutes discrimination of him on grounds of gender. In addition he contends that he performs "like work" with the comparator and is therefore entitled to the same rate of remuneration.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not there are grounds other than gender for the difference in the rates of remuneration paid to the complainant and comparator which render that difference lawful in terms of section 19(5) of the Employment Equality Act, 1998. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me by the parties.
5.2 The respondent makes the argument that the rates of pay are not based on gender and the onus therefore rests with it to discharge that. It must therefore furnish an explanation which is sufficient to satisfy an Equality Officer, as a matter of probability, that this is the case. Since the facts necessary to demonstrate this can only be in the possession of the respondent an Equality Officer should expect cogent evidence to discharge that burden (1). The respondent is unable to state how the initial pay rate attached to the comparator's RTO post was set at Social Work Team Leader. It merely speculates as to how this was arrived at. Having assessed the documentation submitted by the respondent what is clear is that whilst some impetus to recruitment of RTO's in the various Regions flowed from Central Government, individual Boards had significant discretion to determine the terms and conditions attached to the post in their area and they exercised this discretion - six are Grade VIII, one is at Social Work Team Leader level and four have not filled the post. The respondent set the rate of remuneration for the post at Social Work Team Leader level and the comparator accepted the post on that basis, despite the fact that it resulted in a considerable reduction in her remuneration. She subsequently (in January, 2001) applied through her Line Manager for a review of her post on the basis that two other Health Boards had appointed people to RTO post at Grade VIII level. The respondent approved an upgrade of the comparator's post to Grade VIII level in January, 2002.
5.3 It is noteworthy that during this time the complainant was engaged with an evaluation process under the auspices of the Department of Health and Children in respect of his application to have his post upgraded to Grade VII in line with a similar post in a Health Board in Dublin. This process commenced as a result of the respondent's refusal to deal with the matter internally. In Finanzamt Koein- Altstadt v Schumacker (2) the European Court of Justice held as settled law that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations. I am satisfied that the complainant and comparator were in similar situations as regards their applications to have their respective posts regraded and I note that the two personnel appointed to Grade VIII in the other Health Boards were female. In the circumstances I find that the manner in which the respondent handled Mr. Murphy's application constitutes less favourable treatment of him on grounds of gender.
6. DECISION OF THE EQUALITY OFFICER.
I find that respondent has not furnished satisfactory explanation that there are grounds other than gender for the differences in the rates of remuneration between the complainant and comparator and the rates are not lawful in accordance with section 19(5) of the Employment Equality Acts, 1998 and 2004. It should be noted that this is a preliminary decision on this issue - under section 79(3) of the Acts - and the matter of "like work" under section 7 of the Acts remains to be decided. It does mean however, that should "like work" be established between the complainant and comparator in the future, the assertion that the rates of remuneration are unrelated to gender will not be examined again.
6 March, 2007
(1) BOM Ballinrobe Community School v Mary Walsh et al. EDA065
(2) Case C-279/93  ECR 1-225