INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008
THE COURTS SERVICE
(REPRESENTED BY MC CANN FITZGERALD SOLICITORS)
- AND -
29 NAMED COMPLAINANTS
(REPRESENTED BY CIVIL AND PUBLIC SERVICE UNION)
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Ms Ni Mhurchu
1. Appeal Under Section 83 of The Employment Equality Acts, 1998 to 2008.
2. This is an appeal of Equality Officer's Decision No: DEC-E2010-016 referred under Section83 of The Employment Equality Acts, 1998 to 2008. Labour Court hearings took place on 9th November 2010 and 9th June, 2011. The following is the Court's Determination:
This is an appeal by twenty-nine named employees, represented by the Civil and Public Services Union (CPSU) against a Decision of an Equality Officer. The claim is brought by the CPSU on behalf of male Court Messengers employed in the Courts Services (the Respondent) claiming equal pay with three named female Staff Officers. The Equality Officer held that ‘like work’ did not exist between the Court Messengers (the Complainants) and the Staff Officers (the Comparators).
The Union referred the claim under the Employment Equality Act, 1998 (the Act) on 5th August 2003. The case was investigated by an Equality Officer in 2005. He conducted a preliminary investigation into whether the Complainants had established facts from which indirect discrimination could be inferred and if so whether the impugned difference in pay could be objectively justified. For this purpose the Equality Officer assumed, without so deciding, that the Complainants and the Comparators were engaged in like work.
In 2007 the Equality Officer decided that there were objective grounds, which justified the difference in pay between the Complainants and the Comparators. This was appealed to the Court. The Court held a hearing in October 2007 and held that“issues relating to objective justification cannot be satisfactorily segregated from the overall factual matrix in which the claim of discrimination must be determined”.The Court at the time noted that the existence of like work was vigorously contested, and that both parties had indicated their desire to have the question of like work determined at first instance before the appeal should proceed. Therefore, the Court remitted the matter to the Equality Tribunal for a determination on the question of whether the Complainants and the Comparators were engaged in like work.
The Equality Officer undertook a series of work inspections agreed in advance by the parties in Court locations throughout the country. The work inspections and subsequent meetings between the parties concluded on 29th April 2009 when a final hearing took place.
In February 2010 the Equality Tribunal issued its Decision and found that the Complainants were not engaged in “like work” with the named Comparators in terms of section 7(1)(c) of the Act and were therefore not entitled to the same rate of remuneration as paid to the Comparators.
The Union appealed this Decision and the Equality’s Officer’s Decision that there were objective grounds to justify any difference in pay.
The Complainant’s Case
Mr. Des Fagan, CPSU on behalf of the Complainants submitted that the findings of the Equality Officer were based on inaccuracies and erroneous conclusions arising from the work inspection that took place. He contended that the Equality Officer attached insufficient weight to the duties carried out by the Court Messengers and that some of the deductions and conclusions arrived at as a result of the work inspections were questionable.
Mr. Fagan referred to the Equality Officer’s findings in terms of section 7(i)(c). Mr. Fagan highlighted that the Equality Officer found that the Complainants performed work of equal value in the areas ofskillandphysical requirementsand work of greater value in terms ofworking conditions.It was only in the areas ofresponsibilityandmental requirementsthat he found that the Comparators were performing work of greater value.
Mr. Fagan requested the Court to review the findings of the Equality Officer and determine that his Decision was based on factual errors. Mr. Fagan submitted details of seven areas where he alleged the Equality Officer based his Decision on factual inaccuracies on foot of the work inspections.
The Respondent’s Case
Ms. Cl�ona Kimber, B.L. instructed by McCann Fitzgerald Solicitors, on behalf of the Respondent, submitted that the Equality Officer conducted an extensive and detailed series of work inspections from 11th July to 19th November 2008, making nine separate work inspections in all areas of Ireland. She stated that detailed submissions in relation to six of the seven areas had been made to the Equality Officer prior and that he had carried out an extensive and detailed examination prior to him making his Decision. She stated that no new issues had been raised in the submissions before this Court. Furthermore, she submitted that none of the issues raised demonstrate any factual inaccuracies in the findings of the Equality Officer nor do they disclose any serious, manifest or obvious irrationality or unreasonableness in his Decision.
“Like work” is defined by section 7(1) of the Act. This provides as follows: -
- — (1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—
- (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,
(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or
(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
- (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,
1. skill- the Complainants’ work was equal to that of the Comparators
2. physical requirements- the Complainants’ work was equal to that of the Comparators
3. responsibility- the Comparators’ work was greater than the Complainants’ work
4. mental requirements -the Comparators’ work was greater than the Complainants’ work
5. working conditions -the Complainants’ working conditions were greater than those of the Comparators.
Findings of the Court
In this appeal the Union has requested the Court to review the complaint in light of the alleged inaccuracies recorded by the Equality Officer and the allegedly erroneous conclusions reached by him in his Decision. The Court will at the outset consider the seven areas where it is alleged the Equality Officer based his Decision on factual inaccuracies.
The Court notes that in deciding on the relevant Complainants and Comparators to be examined for the purposes of the Equality Officer’s work inspection, both parties agreed that :-
(i) the Complainants performed like work with each other in terms of the Acts and
(ii) that the Comparators performed like work with each other in terms of the Acts.
The Equality Officer in carrying out his work set out the job descriptions in respect of the posts of the Complainants and Comparators who were the subject of the inspection, based on the duties, role and responsibilities outlined by each. He then set out his analysis of each job across the five factors provided in the Section 7(i)(c). He then makes a comparison of both categories under each of the five headings and finally he reports on the decision he has reached taking into account the overall demands of the respective posts across the five factors prescribed.
Both Mr. Fagan and Ms. Serena Connolly, Solicitor on behalf of the Respondent took comprehensive notes during the work inspections; these were supplied to the Court.
(i) Comparator Ms. Patricia Ryan.
Mr. Fagan submitted when taking account of the Comparator Ms. Ryans’ work the Equality Officer makes the point that she provides assistance to personal applicants for probate and says‘In effect she replaces the role of a solicitor as regard the applicant’.He accepts that the Equality Officer qualifies this statement by advising that she does not provide legal advice and that this would be entirely consistent with the roles of all Court Services staff, he suggests that it does raise a concern that the Equality Officer seemed to accept that the professional duties of a solicitor were being undertaken by a Staff Officer in the Courts Service. He submitted that if this erroneous view informed the Equality Officer in his Decision on the balance of the level of skills between the parties it would be of serious concern.
Ms. Kimber held that it was preposterous to suggest the Equality Officer would come to the view that the professional duties of a solicitor were being undertaken by a staff officer in the Courts Service. She maintained that the Equality Officer’s record of the work undertaken by Ms. Ryan in handling personal applications for probate did not involve providing legal advice to them.
The Court notes the Equality Officer’s description of the post as follows:
- “The comparator also provides assistance to personal applicants for probate – normally the deceased person’s next of kin. In effect she replaces the role of a solicitor as regards the applicant. This involves a number of interviews/discussions with the applicant – either over the phone or face to face. She does not provide legal advice but merely explains the obligations/ requirements of the applicant and assists in the preparation of the necessary documentation, including preparation of a Schedule of Assets and the acquisition of the associated High Court Order. If any contentious legal issues arises she will inform the applicant to acquire personal legal advice.”
“The comparators also require comprehensive knowledge of the Court’s Practice and Procedures as well as the current fees schedule in operation. In the case of Ms. Ryan she must have a working knowledge of Practice and Procedures as well as a range of family law statutes.”
Mr. Fagan submitted when taking account of the Comparator Ms. Keenan’ work the Equality Officer referred to the volume of the “callover list” as running to up to 600 cases. The volume described gives the reader the impression that it is always at this level and it also may be misunderstood that all 600 cases require intense scrutiny. He said that it is the understanding of the Union that assistance can and is provided by Clerical Officers and other staff in this regard and that the examination of this list requires checking to determine what cases have been included and what cases are not required.
The Court notes the Equality Officer’s description of the post as follows:
- “The comparator is involved in the preparation of the List for Callover. This involves further documents in Word using the other Lists (above) as a base. The Comparator must ensure that all cases are included on the Callover List – this can run to around 600 cases. The Callover List is called between three-six times per year. The comparator prepares the List and passes it to the County Registrar for approval. The list is cleared by the Executive Officer and the comparator uploads it to the respondent’s website using a series of prompts from the computerised system. The comparator is also responsible for emailing the List to the appropriate Judges as well as the relevant solicitors. Lay litigants are advised by hard copy in the post, although given the volume of same this task is supported by Clerical Officer.”
In his analysis the Equality Officer finds as follows:
- “In creating and updating the Callover Lists Ms. Keenan must exercise significant concentration to ensure the List, which on occasion has run to 600 individual cases, contains only the information required. This is particularly relevant in Family Law cases where the identity of the parties cannot be published.”
He finds that the requirement to process legal documents requires significant mental effort on the part of the Comparators and that the volume of individual items is considerable. Furthermore, he finds that the Comparators must ensure that the documentation etc. is correct as errors can have considerable consequences.
The Union did not dispute the number of cases but disputed that the number was always at this level or that all 600 cases required intense scrutiny. The Union also asked the Court to note that assistance in this task is provided to her by Clerical Officers and other staff.
Ms. Connolly’s notes supply further details of the task, as follows:
- “Sylvia explained that there is a list called the “long list” which contains all of the active cases, family law, District Court, planning, civil actions etc. She updates this list on a monthly basis usually on the first day of each month. Sylvia said that this list is handwritten on an A3 sheet. She said that one of the other girls deals with Motions and writes these up and Sylvia updated the system. Someone else will deal with Notices of Trial and Sylvia will then update these in the system.” …
“Sylvia said that the call over process can happen every two months although it could be more often. She said that a call over happens for every sitting. …… the call over list that is published states what documents will be needed for the case (i.e. medical documents etc.) The County Registrar gives instruction as to what documents will be required and Sylvia inserts this on to the call over list.”
Having considered the point raised by the Union the Court is not satisfied that the Equality Officer recorded the facts incorrectly or that he failed to take account of the fact that the Comparator had assistance in carrying out this task. Neither does the Court consider his findings unreasonable or irrational where he found that incorrectly processing the document would have considerable consequences.
(iii) Ms. Keenan acts as a County Registrar
Mr. Fagan referred to the Equality Officer’s reference to Ms. Keenan acting as a “County Registrar” and stated that she was never a “County Registrar” but was in an acting up role as a “Court Registrar”. He stated that there was a major difference between the positions and that a County Registrar is appointed by the Government and has a position of responsibility that goes way beyond what would be expected of a Staff Officer.
He disputed the Respondent’s contention that this could be described simply as a typographical error. He contended that is was a serious error by the Equality Officer and was compounded in his assessment of the levels of skills required for the job.
Ms. Kimber submitted that the Equality Officer had comprehended that Ms. Keenan reports to the County Registrar and ‘is not a County Registrar’.
While it is clear that the Equality Officer referred to the role as “County Registrar” on a number of occasions however, the role he described was clearly one of Court Registrar:
- “The comparator acts as County Registrar (as necessary) when there are civil, family, criminal and County Registrar sittings. Her tasks vary depending on the type of sitting, but include swearing in of witnesses, recording details on cases at callover and taking down the outcome of judgements in family law cases. In this latter situation it is extremely important to record the judgement verbatim as it constitutes the official Court Record. The comparator states that she acts as County Registrar on a regular basis – in 2008 she acted in that capacity on sixty-eight occasions.”
In his analysis the Equality Officer stated that in discharging the role she had “sole responsibility for many tasks – the most important of which is recording theverbatimjudgement in family law cases as it constitutes the official Court Record in those cases.”
The Union agreed that this description describes the role of Court Registrar and not County Registrar. The Court can only conclude both from his description of the role and his analysis under the heading of “responsibilities” that the Equality Officer fully understood the role however, he made a typographical error in calling it “County Registrar”.
(iv) Reporting Structure
Mr. Fagan requested the Court to note that only one of the Complainants, the subject of the work inspection, reports to a Staff Officer. The five other complainants who were the subject of the work inspection report to a grade higher than Staff Officer, be it an Executive Officer or County Registrar. He said that the significance of this point is that in all but one case Court Messengers are supervised by higher grades than Staff Officers. He contended that the Court Service itself recognises that the Grade of Court Messenger is legally bound to act at the behest of the County Registrar and reports to that higher grade.
Mr. Fagan stated that Enforcement of Court Orders Act, 1926, supports the requirement that a Court Messenger reports to the under-sheriff or County Registrar, section 4 states:
- “Every under-sheriff shall, subject to the approval of the Minister, appoint such number of persons (who shall be styled and are hereinafter referred to as court messengers) as the Minister shall sanction to act for him and otherwise assist him in the execution of orders under this Act.”
Ms. Kimber submitted that the Equality Officer made no factual error with regard to the reporting structure of the Complainants. She said that it is very clear from the notes taken by Ms. Connolly that the Equality Officer was well aware of the reporting structure of the Court Messengers and indeed that he had gathered the information on the ground in the course of his work inspections as to exactly who the Court Messengers report to and the grade of person that they report to. This was taken into account in the Equality Officer’s decision.
The Court notes that for each of the Complainants and the Comparators the Equality Officer recorded details of the reporting structure, taken from the job description supplied. There was no suggestion that the details were factually incorrect. The details show that the Comparators report in the first instance to the Chief Clerk /Higher Executive Officer and in the second instance to the County Registrar.
The job descriptions for the Complainants outlined the reporting structure and show that while they report to the County Registrar; they liaise on a daily basis with the Executive Officer/Staff Officer/Clerical Officer in terms of their work schedule.
The Equality Officer in his comparative “Analysis under “responsibility” states:
- “Whilst the complainants can decide their own route and work schedule (by and large) and have some discretion on how they perform their core functions – the final decision on payment plans and repossessions etc. rests with someone else.”
The Respondent submitted a document entitled “Restructuring of Court Messenger Grade” 1999, which points to the requirement for flexibility in their reporting structure:
The Union agreed that:
�there will be continuing co-operation by Court Messengers in relation to flexibility of reporting relationships.
�there will be co-operation in relation to flexibility of duties with other grades.
The Court can see no factual error with regard to the reporting structure of the Complainants.
(v) Responsibility (Ms. Keenan in an acting up capacity)
Under the heading of “Analysis” of the Comparators’ “responsibilities”the Equality Officer’s found that:
“Ms. Keenan acts as County Registrar as necessary - in 2008 she acted in this capacity on sixty-eight occasions. In discharging this role the comparator has sole responsibility for many tasks - the most important of which is recording verbatim judgement in family law cases as this constitutes the official Court Record in those cases.
Ms. Kimber stated that Ms. Keenan was involved in duties, which were the subject of a demarcation dispute between PSEU and CPSU however; she held that the Complainants chose their Comparators and accordingly these duties were assessed as part of the work inspection.
The Court notes that Ms. Keenan took over the duties of Court Registrar when those duties were vacated by a worker graded as Executive Officer. The Union submitted that she should have been paid an acting up payment as the duties involved were graded at a higher grade than her substantive grade. Ms. Kimber informed the Court that when this issue became the subject of a dispute between the parties in 2011, the difference in value was calculated and found to be only €75 in respect of over one hundred occasions when Ms. Keenan carried out the Court Registrar duties. Ms. Kimber said that the matter was resolved to Ms. Keenan’s satisfaction without any payment being made.
In so far as Ms. Keenan carries out the role of Court Registrar in an acting up capacity on a number of occasions, it is evident from the details gathered in preparation for a Rights Commissioner hearing that although she was entitled to be paid marginally more than other Comparators cited, that margin was so small as to be insignificant in the overall scheme of things. Accordingly, the Court cannot find that the acting up role carried out by Ms. Keenan was so significant as to distort the role (Staff Officer) investigated by the Equality Officer.
Under the heading “Analysis” of the Complainants’ “skill” the Equality Officer’s found that:
“The complainants are involved in execution of Repossession Orders in respect of dwellings. However, they occur rarely - never more than three per year and sometimes only a couple of times over 2/3 years. Given the sensitive and emotional nature of this work the complainants must demonstrate significant communication and interpersonal skills when discharging this function. The complainant must be aware of the circumstances of the case and must ensure the proper authorities, personnel and support agencies are in attendance at the repossession. Whilst this entails considerable organisational skills, in all cases these tasks were shared with or routed through the relevant staff in the Circuit Court Office.”
Mr. Fagan contended that if the issue of repossessions is examined further then the Decision of the Equality Officer should be regarded as flawed and it may be found that the level of skill of the Complainants is greater than the level of skills required by the Comparators. He strongly contested the Equality Officer’s finding that when repossessions are undertaken, the considerable organisational skills involved are shared with the relevant staff in the Circuit Court office.
Ms. Kimber submitted that all the Union has done here is to disagree with the decision of the Equality Officer. She said that there was no factual error or irrationality identified with the Equality Officer’s report.
The Equality Officer’s Job Description described the Complainants’ role and responsibilities involved when repossessing a property. Each of the Complainant’s interviewed gave very similar descriptions and the details contained in the Equality Officer’s report are in line with those recorded by Ms. Connolly in her notes.
The Equality Officer described the role as follows: -
“If the person is not in a position to repay the arrears within a short period (a few weeks) the complainant will inform the County Registrar of the situation and a date for repossession will be agreed between them. He informs the Staff Officer of the agreed date and the Staff Officer writes to the local Garda� advising them of the repossession and seeking the presence of Garda� on the day. The Garda� will be aware if there is a possibility of violence on the day and whether or not there are firearms on the premises. The complainant notifies the plaintiff's solicitor, always in the presence of the Staff Officer, of the details for the repossession and requests the presence of a senior member of staff from the financial institution should some form of payment be offered on the day. The complainant also requests the plaintiff's solicitor to ensure the HSE and (in the event of an elderly person) appropriate medical assistance to be present on the day. The complainant will normally have had in excess of 10 visits with the person involved and is therefore in a position to make a judgement on the person's mental state and act accordingly. Repossessions are rare - less than 3 per year.”
The Court has examined the details recorded and cannot find any factual error or irrationality in the Equality Officer’s report.
(vii) Responsibility – Training Function
Under the heading “Analysis” of the Complainants’ “responsibility” the Equality Officer’s found that:“The complainants work alone and have no staff reporting to them. In addition, none of them perform staff training functions.”
Mr. Fagan contended that the Equality Officer was incorrect in that the Complainants have always trained newly appointed Court Messengers who take up posts in neighbouring counties. He disputed the Equality Officer finding that the level of responsibility of the Comparators was greater than the level demonstrated by the Complainants and said that if the Equality Officer had taken the above points into account the Determination would have been altered significantly.
Ms. Kimber disputed the Union’s submission and held that the decision of the Equality Officer on this point was accurately recorded in his report.
Having examined the Equality Officer’s report (i) under Job Description for the Comparators, he describes the training function as follows: -
- “None of the comparators have staff working to them - which is unusual given Staff Officer is the first rung of the staff management grades in the Civil Service. All three have been involved in training of staff, as necessary, during the period under review but the number of occasions in each case is small.
- “The complainants work alone and have no staff reporting to them. In addition, none of them perform staff training functions.”
In his comparison of both posts for the purposes of determining whether “like work” exists or not, the Equality Officer decides:
- “Neither the complainant nor comparator groups have staff management or training responsibilities. Large elements of the work of both groups are also subject to checking/clearance by another party.”
As is evident from his conclusion the Equality officer did not place any weight on training functions that either grade may be involved in, and accordingly this was not a deciding factor in his decision to find that the demands place on the Comparators in terms of responsibility exceed those placed on the Complainants. It is clear that there were other factors which lead him to that conclusion as outlined in his report.
Conclusions of the Court
Having examined each of the seven factors identified by the Union as
demonstrating inaccuracies and erroneous conclusions by the Equality Officer arising from the work inspection he carried out, the Court has not found any factual errors. Therefore, the Court cannot accept the Union’s contention that the Equality Officer placed insufficient weight on the duties carried out by the Court Messengers in comparison to those carried out by the Comparators.
The Court is quite satisfied that the inspection carried out by the Equality Officer was exceptionally thorough and is satisfied that no unreasonableness or irrationality has been shown to have occurred in his work which would justify the necessity for a further work inspection to be carried out. In all the circumstances, the Court must concur with the Equality Officer’s Decision that the Complainants and the Comparators did not perform like work in accordance with section 7(1)(c) of the Act.
Therefore, the Court does not propose to investigate the issue that there were objective grounds to justify any difference in pay.
The Court affirms the Decision of the Equality Officer and rejects the Complainants’ appeal.
The Court so Determines.
Signed on behalf of the Labour Court
29th July 2011______________________
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.