THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013- 091
(represented by Richard Grogan & Associates)
File Reference: EE/2011/682
Date of Issue: 9th August 2013
Employment Equality Acts 1998-2008 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(a), gender - conditions of employment - section 8, Section 7 & 19 - equal pay, like work and work of equal value, prima facie case.
This dispute concerns a claim by the complainant that she was discriminated against by the above named respondent on the race ground, in terms of section 6(2)(a) and 7(1) and contrary to section 19 of the Employment Equality Acts. She is claiming that she is entitled to equal pay in terms of section 9(1) of the Acts in that she performed "like work" with a named male comparator in accordance with section 7(1) of the Acts. Complaints of discriminatory treatment in relation to conditions of employment were withdrawn at the hearing.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 27th September 2011 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 19th of March, 2013 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 1st of March 2012 and no response was received from the respondent. A hearing was held on the 24th of April 2013 and final correspondence in the matter was received 21st May 2013.
2 Summary of the Complainant's case
2.1 The complainant was employed as a cleaner. She states that she was employed by the respondent as a cleaner on the 5th of February 2007 and she was paid €8.50. Her comparator Mr. A was employed as a cleaner on the 12th of February 2007 and was paid €9.20 per hour. Her hourly rate was eventually increased to €9 per hour and her comparators rate remained the same. The complainant submitted that they both worked cleaning a shopping centre in Moore Street and they carried out the same work. She submitted that they both did the following duties:
Cleaned the toilets, cleaned the windows, escalator, changed the bins, cleaned presses, swept the premises, removed rubbish, compacting empty boxes, scraping chewing gum from the floor, cleaning tiles in the toilets, using a cleaning machine with special brush to clean the floor, cleaning the skirting and removing the bins from the toilets. The complainant states that she is doing "like work" and is entitled to the same rate of pay as Mr. A. The complainant said that when she returned from maternity leave in September 2012 that the comparator had left the employment.
3. Summary of the Respondent's case
3.1 The respondent did not engage with the investigation and did not respond to any communication issued to him either by either ordinary or registered post by the Tribunal.
4. Conclusions of the Equality Officer
4.1 In this case, I must consider the complainant's claim that the respondent discriminated against her on the gender ground in terms of section 7(1) of the Employment Equality Acts, in contravention of section 19(1) of the Acts in relation to equal pay. I must also decide if the complainant was engaged in like work under section 7 of the Acts with Mr. A. a named comparators and entitled to equal pay in accordance with section 19 of the Acts.
Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. The complainant submitted evidence of her pay and that of her named comparator. She contends that he performs "like work" with named male comparator in terms of section 7(1) of the Acts.
Section 9 (1) of the Acts states: "It shall be a term of the contract under which A is employed that, subject to this Act, B shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer".
4.2 The existence of "like work" between a complainant and a named comparator is required to establish any entitlement to equal pay under the Acts. For the purpose of establishing whether there was like work, I interviewed the complainant and I sent a copy of the job description to the respondent for a response. The respondent did not respond or take part in the hearing so it was not possible to establish a job description for the named male comparator. I can only make a decision based on the evidence of the complainant.
4.3 Like work is defined in Section 7 of the 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 regards to such matters as skill, physical or mental requirements responsibility and working conditions
4.4 I am satisfied that the complainant has established a prima facie case of discriminatory treatment on the gender ground in relation to pay. On the uncontested evidence of the complainant, I am also satisfied the complainant has established "like work" within the meaning of Section 7 of the Act. The respondent must demonstrate that the difference in pay is on grounds other than the discriminatory grounds as per Section 19 (5) of the Act. As I have found like work between the complainant and the named male comparator, the respondent bears the burden of proof that the difference in pay is not connected to gender and the respondent has not responded to the complaint. Having evaluated the evidence presented to me by the complainant, I find there are not grounds other than gender for the pay disparity.
5.1 I have concluded my investigation of the complaint and I hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) The complainant was engaged in "like work" with the named comparator in terms of Section 7(1)(a), (b) and (c) of the Acts and therefore she is entitled to the same rate of remuneration as the comparator in accordance with Section 19 of the Acts.
ii) Under Section 82, I hereby make the following order:
that the complainant is entitled to equal remuneration with the named comparator from the 27th of September 2008 (the date of referral to the Director is the 27th of September 2011). As this redress is in relation to remuneration, it constitutes income for the purposes of the Income Tax Acts.
9th August 2013