The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER'S DECISION DEC-E2009-114
(Represented by INO)
(Represented by the HSE Employers Agency)
File reference: EE/2006/249
Date of issue: 9 December 2009
Employment Equality Acts, 1998-2008 Gender - Equal Pay.
1.1 This dispute concerns an equal pay claim by Ms Helen Buckley that she performs 'like work' in terms of section 7 of the Employment Equality Acts 1998-2008 with two named comparators and she is therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of the Acts. The claim is made on the grounds of gender and the named respondent is the Health Services Executive (HSE).
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 14 June 2006. On 24 October 2007, in accordance with her powers under section 75 of the Acts, the Director delegated the case to Raymund Walsh, an Equality Officer. Mr Walsh held a preliminary hearing on 26 February 2008 following which both parties were requested to make submissions in relation to 'like work'. The parties were subsequently requested to make submissions in relation to indirect discrimination. Consequent to Mr Walsh's move from the Equality Tribunal the Director, in accordance with her powers under section 75 of the Acts, delegated the cases to me, Hugh Lonsdale, an Equality Officer, on 26 August 2008 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. In the their submission on 'indirect discrimination' the respondent raised a preliminary issue. Due to the importance of this issue further submissions were requested from parties and in accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a preliminary hearing on 11 September 2009 and final information was received on 24 September 2009.
2. PRELIMINARY ISSUE
2.1 The complainant is employed by the respondent as an Assistant Director of Nursing in Naas General Hospital, whereas the two comparators are employed as Assistant Directors of Nursing, Mental Health Services. As set out in Labour Court Determination No DEP993, Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union, "In this case, the difference in remuneration between the claimants and the comparators derives from the grading structure operated by the respondent. Therefore a case of direct discrimination does not arise." I am therefore investigating a claim of indirect discrimination only.
2.2 The UK Court of Justice in Enderby v Frenchay Health Authority, C-127/92,  IRLR 43, stated;
"Where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer to show that the difference is based on objective justification unrelated to any discrimination on grounds of sex."
This was interpreted by the Labour Court in the Irish Aviation Authority case, as:
"The Court accepts that the degree of gender imbalance referred to in Enderby must be considered in the context of the material facts of that case as set out in the reference by the Court of Appeal in England and Wales. It does, however, indicate that the Court of Justice considered that the degree of gender imbalance in both the claimant and the comparator grade must be particularly marked before a prima-facie case of discrimination can arise."
2.3 The gender breakdown of the complainant's grade is approximately, 90% female and 10% male and is therefore carried out almost exclusively by females. The respondent contends that the comparators' grade is not predominantly male and the complainant is therefore unable to establish a prima facie case of indirect discrimination. The respondent provided statistics which showed the gender breakdown of the comparator group at the date of the claim, three years before the date of claim and April 2009:
Date Males Females
June 2003 50.56 49.44
July 2006 52 48
April 2009 50.29 49.71
The complainant did not dispute these figures, which show that the comparator group was not predominantly male either at the time of the claim or three years before or after that which is the 'relevant time' under section 19 (2) of the Acts which I may consider in an equal pay claim.
2.4 The complainant, however, contends that the 'relevant time' that I should consider is when the pay and grading structure for all nurse management grades was established, which they say is the 1995/1996 collective agreement known as the 'Blue Book Agreement'. They submitted statistics which showed that at this time the gender breakdown of the complainant grade was still around 90% female and 10% male, whilst the comparator group was 66% male and 34% female in 1995 and 68% male and 32% female in 1996. The complainant submits that these gender breakdowns satisfy the criteria set down in the Enderby case that the job in the comparator group is carried out "predominantly by men".
2.5 In deciding whether I can consider the statistical information relating to the comparator at the time of the 'Blue Book Agreement' I have to look at the 'relevant time' as defined in section 19.2 of the Acts, "the 3 years which precede, or the 3 years which follow" the date of the claim. The Labour Court determination in Midland Health Board and South Eastern Health Board v The Irish Nurses Organisation, Determination No. DEP051, stated "the Court takes the view that the discrimination must still have been continuing up to a period at least three years prior to the claim being made".
2.6 Therefore regardless of the situation prior to this I must be satisfied that the statistical information indicates that a prima facie case of indirect discrimination was occurring in June 2003. The undisputed figures for June 2003 show a 50:50 gender breakdown for the comparator group. This clearly cannot be taken to be predominantly male and I therefore find that the complainant is unable to establish a prima facie case of indirect discrimination.
I have investigated the above issues and make the following decision in accordance with section 79 of the Acts that as the complainant has failed to establish a prima facie case of discrimination her equal pay claim on the gender ground fails.
9 December 2009