THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2013 – 174
A Lecturer (represented by Ms Mary Honan, B.L., instructed by the Equality Authority)
A Third Level Institution (represented by Mr Tom Mallon, B.L., instructed by Arthur Cox Solicitors)
File References: EE/2011/001
Date of Issue: 9th December 2013
Table of Contents
1. Claim.. 3
2. Summary of the Complainant’s Written Submission. 3
3. Summary of the Respondent’s Written Submission. 5
4. Conclusions of the Equality Officer 5
5. Decision. 8
Keywords: Gender – equal pay – like work – grounds other than gender for difference in remuneration – starting pay on appointment to a permanent post
1.1. The case concerns a claim by Dr A. that the Third Level Institution which employs her discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms of her right to equal remuneration with three male comparators pursuant to S. 19 of the Acts. The respondent accepts that the complainant and her comparators perform “like work” within the meaning of S. 7(1) of the Acts, but contends that reasons other than gender are responsible for the pay differential between the complainant and her comparators.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 23 December 2010. A submission was received from the complainant on 6 December 2011. A submission was received from the respondent on 19 January 2012. On 16 January 2013, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 14 October 2013. Additional evidence was requested from the respondent at the hearing of the complaint and received on 6 November 2013. The last piece of correspondence relating to the complaint, being the complainant’s response to the respondent submission, was received on 3 December 2013.
2. Summary of the Complainant’s Written Submission
2.1. The complainant is employed by the respondent as Head of Humanities. She was promoted into this position, which is remunerated on the Senior Lecturer 2 (SL2) scale, from a position on the Senior Lecturer 1 scale. She was placed at the bottom point of the SL2 scale upon her promotion, despite her request to be placed higher due to her qualifications and experience.
2.2. The complainant states that three named male comparators, two of whom (Mr A. and Mr B.) were hired as external candidates and one of whom (Mr. C) was promoted internally like herself, were all placed at higher points of the SL2 scale.
2.3. The respondent, in following the relevant circular from the Department of Education and Skills IT01/05 Conditions for Determining Salary and for the Award of Increments on Appointment or Promotion to Permanent, Temporary, Wholetime or Pro-Rata Part-Time Lecturing Positions in Institutes of Technology, has considerable discretion in determining the salary of staff hired as external candidates: it can award up to five increments on the scale where an appointee has “relevant experience over and above the minimum required for appointment” and “in exceptional circumstances, where an appointee […] has more than five years relevant experience over and above the minimum required for appointment and where the application of [the first six points of the scale] would result in less than current salary being achieved, s/he may enter the scale at a point higher than the sixth point, at the discretion of the Institute…” [Emphasis in complainant submission].
2.4. In case of internal appointments or promotions, the circular stipulates that where the appointee’s pre-promotion salary is lower than the minimum of the new scale, s/he be placed at that minimum; where it is higher, that s/he be placed at a point equal or “immediately above” than the pre-promotion salary. This last point also applies where the appointee has been at the top of his/her old salary scale for three years or longer.
2.5. Especially with regard to Mr C.s appointment, it is the complainant’s contention that he was eligible to apply for his position as an internal candidate because he worked for the respondent as a part-time Assistant Lecturer, but that on his appointment as Strategic Academic Project Manager, a HOD/SL2 position, in 2005, he was treated like an external candidate and placed on point 4 of the SL2 salary scale.
2.6. Mr B., who was an external hire from the UK, was placed on point 6 of the SL2 salary scale when appointed Head of the Department of Art and Design in 2006. Mr A., who was an external candidate from Irish print media, was placed on the maximum point of the SL2 scale when he was appointed Head of the Department of Film and Media in 2008. The complainant contends that the respondent uses the discretion given to it in the relevant circular in a discriminatory fashion in favour of male staff.
3. Summary of the Respondent’s Written Submission
3.1. The respondent accepts that the complainant performed “work of equal value” to that of her comparators within the meaning of S. 7(1)(c) of the Acts.
3.2. However, it disputes applying discriminatory practices in the fixing of salaries, and states that it strictly applies the relevant circulars from the Department of Education and Skills, as they apply to the Institutes of Technology sector. It states that this has nothing to do with the gender of the complainant and her comparators, and in particular, points out that several men who obtained internal promotion in the same manner as the complainant, were treated the same as the complainant when their starting salary in their new position was fixed.
4. Conclusions of the Equality Officer
4.1. The respondent accepts that the complainant performed “like work” within the meaning of the Acts, with her comparators. The issue for decision in this case is therefore whether there are grounds other than gender, pursuant to the provisions in S. 19(5) of the Acts, for the difference in the remuneration between the complainant and her comparators.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. At the beginning of the hearing, the complainant withdrew Mr B. as a comparator.
4.4. The respondent referred again to the relevant circulars from the Department of Education and Skills, which it had already submitted in evidence, and stated again that these circulars gave it no flexibility with regard to internal candidates for promotion. Essentially, salary is negotiable only once – when someone is first appointed to a salaried, superannuated, permanent position. A candidate who is successful in such a competition can then make a case for a higher starting salary, based on external experience and their previous salary. For this, the successful candidate must provide their salary details. Experience can rate up to five points on the relevant salary scale, whereas there are fewer limitations for taking into account external salary. This explains how Mr A., who had earned a very substantive salary in the private sector prior to taking up employment with the respondent, was permitted to start at the top of the scale when he joined the respondent institute.
4.5. Dr B., who is a woman and currently the President of the college, gave evidence how when she was hired by the respondent in the role of registrar, she came from the UK, and had earned more in her previous employment. She also had additional experience as an equal opportunities adviser for a UK local authority. She made a case for a higher starting salary which was granted. She stated that two other women who were external hires likewise started on higher points on their respective pay scales. Conversely, Mr E. and Dr. F, who were both promoted internally from Head of Department (Senior Lecturer 2 scale) to Head of School (Senior Lecturer 3 scale), they started their new positions on the first point of that scale. The complainant did not challenge this evidence.
4.6. However, the complainant challenged the appointment of Mr C. as an external one, both during the hearing of the complaint, and again in its response. Mr C. had been a teacher at the respondent college, and was paid on an hourly basis with no superannuation. He was permitted to compete in an internal competition for a permanent lecturer position and was successful, and appointed as a part-time permanent lecturer. The respondent’s Head of HR, Mr G., explained that since this was Mr C.’s first appointment to a permanent lecturer position, the rules for external appointments were applied to him. When it came to the award of incremental credits for his starting salary, regard was had to what the respondent regarded to be Mr C.’s considerable industry experience, which, as Mr G. stated, was of particular value to the institution. Mr G. also noted that this was the case throughout the Institute of Technology sector.
4.7. Mr C.’s route to his appointment as a permanent part-time lecturer, and his eligibility to compete for such a position in an internal competition, would be a matter for a complaint about access to employment. The salient point is that this was Mr C.’s first appointment to a permanent position with the respondent, not a promotion from another permanent position to a more senior one. I am further satisfied that the respondent’s evidence with regard to how Mr C.s starting salary was fixed is cogent and not dependent on his gender.
4.8. The respondent further stated in its additional submission that it had three female staff, who prior their appointment to reckonable posts had been hourly-paid associate lecturer, who were subsequently given incremental credit on their permanent appointments. According to the respondent, Ms. C., who was permanently appointed in 2003, received six incremental credits, while Ms. D and Ms E., who were both permanently appointed in September 2007, received four incremental credits each. The complainant did not challenge this evidence in their replying submission, except to note that these three women had been long-time hourly paid staff and where therefore, it was contended, in a unique situation. However, the same principle as stated in the preceding paragraph applies: for an investigation of equal remuneration, the specific route from an hourly paid position to a permanent position does not matter – what matters is that incremental credit on appointment to the permanent position was given regardless of gender. What further matters for the case on hand is that this was not the position the complainant found herself in. The reason the complainant did not receive any incremental credit on her promotions is because these were internal promotions and she was therefore not entitled to same in line with the relevant circulars.
4.9. Overall, I am satisfied that the respondent’s pay system, under rules set by the Department of Education and Skills, by which the respondent fixes starting salaries of appointees to permanent positions, is coherent, transparent, and not dependent on anyone’s gender. Accordingly, the respondent has succeeded in rebutting the presumption that it discriminated against the complainant in terms of her right to equal remuneration, on the ground of her gender.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent Third Level Institution did not discriminate against Dr A. with regard to her right to equal remuneration pursuant to S. 19 of the Acts.
9 December 2013