THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009-092
Ms. Theresa Connolly
(represented by GJ Moloney Solicitors)
Dairygold Co-Operative Society Ltd. & Reox Holdings
(represented by Marcus Dowling acting on instructions from Meaghers Solicitors)
File Reference: EE/2006/257
Date of Issue: 20th October 2009
1.1 Ms. Theresa Connolly referred a claim alleging that she was subject to discriminatory treatment in respect of non-payment of salary while on sabbatical in circumstances where another employee was paid for a sabbatical. She also claims equal pay with another comparator. She alleges she was discriminatorily treated in respect of her conditions of employment and her claim is based on the gender, marital status, family status and age grounds.
2.1 The complainant referred her complaint to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004 on 20th July 2006. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, 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. The case was delegated on 4th July 2008 and my investigation began on that date.
2.2 A preliminary hearing of the matter took place on 4th November 2008. This hearing was interrupted three times while attempts were made to settle the case. A number of aspects of the complaint were indeed settled and withdrawn. The complainant's representative indicated that agreement had been reached in relation to sabbatical leave and in relation to her conditions of employment and all that remained was a claim for equal pay and undertook to confirm this in writing. As the respondent disputed that like work existed between the complainant and the comparator both parties were asked to provide the relevant job descriptions in accordance with the standard practice of the Tribunal. The respondent was also asked to provide a submission in relation to the grounds other than the discriminatory grounds for the agreed difference in pay.
2.3 There was substantial correspondence following the preliminary hearing focusing inter alia on the respondent's contention that the complainant's continued retention of her official laptop prevented them from completing job descriptions. Subsequently, it initiated court proceedings for the return of the laptop. The complainant then lodged a new complaint of victimisation, on 31st March 2009 in respect of the court proceedings. This new claim was associated with the complainant's previous claim. At the hearing the Tribunal indictaed that it has no function in relation to a person's right to initiate court proceedings and that the claim of victimisation would not be addressed further. This was accepted.
2.4 Finally, it was decided to progress the case in accordance with section 79(3) and the hearing was scheduled for 6th July 2009. At the opening of the hearing the respondent indicated that for the purposes of the proceedings before the Tribunal it conceded like work.
2.5 As like work was conceded the only aspect of the claim remaining to be addressed is the issue of grounds other than discriminatory grounds for the difference in pay. The respondent, in correspondence, indicated that the comparator was of the same marital and family status and age as the complainant and this was not disputed by the complainant. The complaint remaining for investigation by this Tribunal therefore was whether or not the rates of remuneration paid to the complainant and comparator was lawful in accordance with section 19(5) of the Acts. As like work has been conceded for the purposes of the proceedings before the Tribunal, this Decision is in accordance with section 79(6).
3 Summary of the Respondent's case
3.1 The respondent conceded that like work existed between the complainant and the comparator. The reasons presented for the difference in pay varied from time to time but included the following:
- The fact that the comparator was on a contract for service
- The fact that he would not receive the usual benefits such as income continuance
- The fact that prior to her appointment to HR in CFI the complainant received the same rate of pay as another employee. As that other employee was a man the respondent asserted "Two persons in the respondent were paid that level of salary, one man and one woman. As a matter of logic and common sense this demonstrates that the claimant's rate of pay was based upon "grounds other than the gender ground." If this submission is correct than the respondent is not obliged to justify the rate of fees paid" to the comparator.
- Market forces.
4 Summary of the Complainant's Case
4.1 The post of HR Director was held by an employee of the respondent in a Division known as CFI. Prior to that employee leaving the post the respondent set about recruiting a replacement. The employee was dismissed, apparently redundant, and immediately replaced by the comparator. The comparator was paid each month on foot of an invoice raised by his consultancy business. The comparator was paid €10,500.55 per month plus VAT. The comparator's services were dispensed with after three months and the respondent asked the complainant to fill the vacancy created - which she agreed to do in a temporary capacity - without any change to her remuneration of €80,000 per annum. She worked there from the end of June 2005 until 13th March 2006 when she returned to her former post of Employee Relations Manager. She has been on sick leave since May 2006.
5 Conclusions of the Equality Officer
5.1 What has to be decided is (i) whether or not the comparator selected by the complainant is an employee for the purposes of the Acts and therefore a valid comparator and (ii) whether or not the respondent has presented sufficient evidence to establish that the difference in pay between the complainant and the comparator was based on grounds other than gender.
5.2 The burden of proof required of the complainant is detailed in section 85A of the Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination, it is for the respondent to prove the contrary. In EDA0713, Department of Justice, Equality & Law Reform and CPSU, the Labour Court stated: "In any equality claim the Complainant must first raise an inference of discrimination by proving facts from which discrimination can be inferred. Where men and women are engaged in like work and are paid different rates such an inference arises. This is clear from the Judgment of Barron J. in Flynn v Primark  ELR 218. It is then for the employer to explain the difference in gender-neutral terms." In the instant case, it is established that a man and a woman were performing like work and were paid different rates of remuneration. Therefore an inference of discrimination arises. It is now for the respondent to indicate gender neutral reasons for that difference.
5.3 In Portroe Stevedores and Nevins, Murphy and Flood, EDA051, the Labour Court stated: "The quality of evidence necessary to discharge that burden was recently considered by the Employment Appeals Tribunal for England and Wales, in Barton v Investec Henderson Crostwaite Securities Ltd  IRLM 332. Here it was held that since the facts necessary to prove an explanation would usually be in the possession of the respondent, a tribunal should normally expect cogent evidence to discharge that burden. That decision is of persuasive authority and the Court has adopted a similar approach in the instant case."
5.4 In the instant case, the provision in section 19(5) provides an absolute defence to the respondent and in order to avail of that defence it must present cogent evidence. In Minister for Transport, Energy and Communication v Campbell & Others  ELR106 Keane J, addressing 'grounds other than', stated "the Labour Court is entitled and indeed bound to approach such an issue on the basis that the employer must prove that the differentiation is genuinely attributable to grounds other than sex. In other words, the subsection cannot be used to uphold a practice which seeks to conceal discrimination on sexual grounds".
5.5 Having considered both the information provided in relation to the comparator and the definitions contained in section 2 relating to 'employee' and 'contract of employment' and subsection (3)(d) of section 2 I am satisfied that the comparator was an employee for the purposes of the Acts for the duration of his contract with the respondent. To accept that the mere existence of what appears to be a contract for services is sufficient as a ground for a difference in pay would mean that the provisions in section 2 in this regard were of no consequence. I am satisfied that the existence of what appears to be a contract for services is insufficient, of itself, to establish a ground other than gender in this case.
5.6 The respondent asserted that one reason for the difference in pay was that as his contract was one for service he would not be in receipt of the usual employee benefits such as income continuance. The respondent was asked for information in support of this assertion numerous times and at all times failed to supply it. It was asked for a list of benefits and their costs for employees such as the complainant. At the initial hearing, the respondent was also asked to indicate what were the various payments that contributed to the monthly total on each invoice in respect of the comparator as follows:
One twelfth of €100,000 €8333.33
One Twelfth of €12,700 €1,058.33
One Twelfth of €5000 €416.66
Miscellaneous (1.8 holidays per month) €692.23
Total per month €10,500.33
At the hearing the respondent stated that its best guess as to what the second and third payments above might relate to was pension and car allowance. No other evidence was adduced by it in support of this assertion. If these payments are indeed the costs of benefits being added then logically they are not included in the base rate of remuneration paid to the comparator which is €20,000 more per annum than the complainant was receiving.
The respondent has failed to present any evidence whatsoever to indicate that consideration was given contemporaneously to these issues. I am satisfied, based on the evidence presented, that this argument fails to establish a ground other than gender for the difference in pay. In any event, I am not satisfied that an increase of 57.5% on the complainant's salary can be explained by the cost of benefits to employees.
5.7 The respondent's third argument relates to a comparison of the complainant with an employee other than the complainant's chosen comparator. It is asserted that as she was receiving the same salary as the employee who was the only equivalent person employed by the respondent pursuant to a contract of service, and as that employee was a man, therefore the complainant's rate of pay was based on grounds other than gender. This argument however, fails to take account of the complainant's right, subject to the findings in National University of Ireland Cork -v- Ahern & Ors  IESC 40, to select her own comparator(s). In addition, it fails to take account of the provisions in section 2 of the Acts discussed above which provide that those on a contract for services who undertake to provide the services personally are considered as an employee with a contract of employment for the purposes of the Acts. The complainant has indicated the relevant role and period in respect of which she has claimed equal pay and it is not for the respondent to point at a different person, a different period and a different role to suggest grounds other than gender existed. I find this argument fails to establish grounds other than gender for the difference in pay.
5.8 Finally, the respondent has argued that market forces can explain the difference in pay. This was first mentioned by the respondent at the hearing on 6th July 2009. The named comparator indicated to the respondent in 2005 that his salary expectation was €95,000 per annum. No argument has been presented that would explain why only the comparator was considered or whether or not the recruitment agency, or the respondent, was unable to source another suitable candidate at that time. There is also no evidence adduced as to what the standard rate for such a position was at that time.
5.9 The respondent presented a photocopy of a note from the person who was Head of HR for Dairygold at the time of the comparator's selection dated 10th April 2007 indicating that the comparator was hired as a consultant HR Manager when the previous post-holder's employment ceased. A named recruitment agency was "engaged to hire a suitable permanent HR Manager for the Consumer Foods Division but the search proved difficult and we appointed [the comparator] on an interim basis as he was working self employed at the time. The reason for hiring [the comparator] on a temporary basis was that I worked with [the comparator] previously and I had some concerns that he would be able for the cut and thrust of the role and I wanted to be sure he could fulfil the role before appointing him permanently." This note is a photocopy and was unsupported by direct evidence from the author. Therefore, the evidential weight that may be attached to it is limited. It is the only suggestion that there was any difficulty in procuring a permanent HR Manager. What is clear is that it was always the intention of the Head of HR to appoint the comparator to the position on a permanent basis once he was considered capable to undertake the role.
5.10 In Equality Officer's Decision, DEC-E2004-020, Glen v Ulster Bank, the Equality Officer found that the complainant had no choice but to agree to the comparator's stipulated rate of pay because of the urgency surrounding the appointment of an extra lawyer for a particular job and the necessity to appoint a person with specific experience. In that situation the comparator was in a position to command a particular rate of pay. In the instant case the respondent has not indicated any urgency in relation to the filling of the post that might have necessitated the acceptance of market forces in determining the level of remuneration to be offered or awarded to the comparator. As the complainant was appointed to the post immediately after the comparator left the respondent's employment it cannot be argues that the comparator was the only suitable candidate available. The complainant was available to the respondent at all material times.
5.11 No evidence was presented that would explain the necessity to accept the rate of pay required by the comparator. He held no particular experience which was essential and which singled him out from other potential candidates. In addition, there is no evidence to show that market forces, or indeed anything else, dictated that he should be paid more than he required, amounting ultimately to a total of circa €126,000 or circa €153,000, including VAT - as against the €95,000 expectation he had indicated to the respondent previously.
5.12 Due in the main to a lack of evidence, cogent or otherwise, to support an argument of grounds other than gender for the difference in pay, the respondent's assertions that grounds other than gender existed remain exactly that, mere assertions which the Labour Court stipulated "cannot be accepted as evidence on which the Court can make findings of fact" . I am satisfied, and find as a fact, that the respondent has failed to discharge its burden of proof.
6 Decision DEC-E2009-092
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the respondent has failed to show that there were grounds other than gender for the difference in pay between the complainant and the comparator.
6.2 I hereby order the respondent to pay the complainant compensation for the discrimination in the form of arrears of remuneration for the period during which she served in HR in CFI. The arrears relate to the period from the her first day in the role at the end of June 2005 until she returned from her sabbatical on 13th March 2006 when she returned to her previous role.
6.3 This amounts to €3833.66 per month. From this figure the company may deduct the amount it paid towards the complainant's pension per month at that time and whatever car allowance she was paid, if any. For clarity, any deduction must relate only to the normal payments by the respondent in relation to pension and car allowance, made outside of the complainant's €80,000 per annum and must be at the rates applicable to the complainant.
6.4 As this is arrears of pay it is subject to PRSI and PAYE.
6.5 In accordance with section 82(5) I hereby order the payment of interest in respect of the period beginning on the complainant's start date as HR Manager in CFI and ending on the date of payment. This interest is payable on the whole amount payable in accordance 6.3 above.
20th October 2009