INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
BRANDON HOUSE HOTEL
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY COUGHLAN KELLY SOLICITORS)
Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Ms Tanham
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
2. The Employer appealed the decision of the Equality Officer to the Labour Court on the 27th September, 2013. A Labour Court hearing took place on the 30th January, 2014. The following is the Court's Determination:
This is an appeal by the Brandon House Hotel against the decision of the Equality Tribunal in a claim for equal pay and redress for discrimination in the filling of a promotional vacancy by Joanna Barksa. The claims are taken under the Employment Equality Acts 1998-2011 (the Act). Both claims are on grounds of gender. At first instance Ms Barksa also pursued a claim of victimisation.
In this Determination the parties are referred to as they were at first instance. Hence, Brandon House Hotel is referred to as the Respondent and Ms Barksa is referred to as the Complainant.
The Equality Tribunal found for the Complainant in relation to her discrimination claim and in relation to equal pay. The Equality Officer found against the Complainant on her claim of victimisation. There is no cross-appeal. Consequently the only issues arising in the appeal are the equal pay claim and the discrimination claim.
The factual background of the case is relatively straightforward. Both the Complainant and her male comparator were originally employed as leisure centre attendants by the Respondent. The Complainant commenced her employment in May 2004. The comparator was employed in June 2006. Initially the Complainant was paid more than the comparator but the comparator’s pay was subsequently adjusted to a level above that of the Complainant. The Complainant was promoted to the position of supervisor on or about 19th June 2006. Her pay was then fixed at €10 per hour.
The named comparator was employed on or about 12thJune 2006, initially in a part-time capacity. His pay was then fixed at €8.50 per hour. In or about February 2007 the comparator became a full-time employee of the Respondent. His rate of pay was then increased to €11 per hour. On or about 2ndJuly 2007 the Complainant’s rate of pay was increased to €10.43 per hour. In September 2007 the comparator’s rate of pay was further increased to €11.50 per hour.
It appears that in April 2008 the Complainant became aware of the disparity in pay as between her and the comparator. In response she indicated to the Respondent her intention to resign. In consequence the general manager of the Respondent agreed to adjust the Complainant’s pay so as to bring it into line with that of the comparator. This adjustment was made retrospective for a period of six weeks.
The claim was presented to the Equality Tribunal on 18thJanuary 2010. Section 82(1)(a) of the Act, in effect, limits an award of equal pay to a period of three years from the date of the referral of the claim. Hence the cognisable period for the purpose of the present claim is the period beginning on 19thJanuary 2007. However the Equality Officer found that the period during which the comparator was being paid more than the Complainant was 5thFebruary 2007 to 3rdMarch 2008. The findings of the Equality Officer on this point are set out at paragraph 7.2 of his decision as follows:
- •Difference between 5thFebruary 2007 and 1stJuly 2007 = €1.00 per hour
•Difference between 2ndJuly 2007 and 9thSeptember 2007 = €0.57 per hour
•Difference between 10thSeptember 2007 and 3rdMarch 2008 = €1.07 per hour
It is accepted that the Complainant and the comparator were engaged on like work at all material times. The Respondent contends that there are grounds other than sex for the differences in pay. In effect the Respondent submits that it does not have a settled pay determination system and that rates of pay are negotiated with individuals. It further submits that the comparator was unwilling to work for less than that which he was paid in his then current employment. In its written submission to the Court the Respondent contended that the comparator is an accomplished sportsman and highly successful in road cycling. It was further stated in the written submission that the comparator had agreed that he would cycle on behalf of the Respondent and thus present promotional and publicity opportunities. These factors were relied upon in advancing the contention that the difference in the pay of the comparator was on grounds other than his gender.
On the question of promotion, the facts as agreed are that the Respondent chose the comparator for promotion without affording the Complainant an opportunity to apply for the post. Here again the Respondent seeks to defend its decision in reliance on its contention that the difference in treatment was not on any of the discriminatory grounds.
What is alleged by the Complainant is that she was paid less and treated less favourably because she is a woman. Therefore, both aspects of her claim are of direct discrimination on grounds of her gender.
It is trite law that direct discrimination, unlike indirect discrimination, can never be justified (except in relation to age). That is to say, there are no circumstances in which it is lawful to treat a woman less favourably than a man because she is a woman. Consequently, the only defence available to the Respondent in this case is to show that the difference in pay, and the difference in treatment, complained of was on grounds wholly unrelated to the Complainant’s gender.
The Court heard evidence from four witnesses called by the Respondent. Their evidence can be summarised as follows: -
Ms Mary Walsh
This witness is employed by the Respondent as financial controller. Ms Walsh told the Court that the Respondent does not have any established policy on pay determination. This witness was not directly involved in fixing the comparators rate of pay nor that of the Complainant. She said that she was informed by the leisure centre manager, Mr Doherty, of the rate agreed with the comparator. She said her only concern was to ensure that the rate agreed was one that the Respondent could afford to pay. The witness said that it had never crossed her mind to check the rate agreed against that paid to others doing similar work. Ms Walsh confirmed that the position to which the comparator was appointed was not advertised. The witness told the Court that there was some difficulties at the time finding suitable candidates to fill vacant positions. However she accepted that she had no details of those difficulties.
The Court was told that the Respondent did not have any formal policy on promotions. She said that employees were promoted on the basis of an assessment of their suitability by individual managers. Promotions were not by competition.
The witness told the Court that the Complainant had commenced working a three day week in or about April 2009. This, according to Ms Walsh, caused some difficulties for the Respondent in terms of covering the duties that she performed.
Mr Emmet Doherty
Mr Doherty is currently employed by the Respondent as assistant manager of its leisure centre. He has previously been manager of this facility. He recalled the circumstances in which the Complainant was originally employed by the Respondent in 2004. He said that she had the necessary qualifications and she was very eager to get into the leisure industry. She was an employee of high quality and was promoted to the position of supervisor some two years after she commenced her employment. He said that it was not the practice of the Respondent to advertise promotional positions and it was done by selection.
Mr Doherty told the Court that he first came to know the comparator as a user of the leisure facility. He said that there was a vacancy for an attendant in the leisure centre and he asked the comparator to consider taking up employment in that position. The comparator agreed to do so, initially on a part-time basis. On commencing employment he was paid the minimum wage. The comparator had no formal qualifications at that time but he subsequently obtained qualifications while working for the Respondent.
Mr Doherty told the Court that he subsequently asked the comparator to take up full-time employment with the Respondent. The comparator agreed to do so and the witness negotiated with him on a revised rate of pay. According to Mr Doherty, the comparator told him that he was then working elsewhere as a supervisor on a part-time basis and was in receipt of €11 per hour. He looked for a matching amount from the Respondent. The witness agreed to pay the amount sought subject to Ms Walsh’s approval, which was given.
It was Mr Doherty’s evidence that the only consideration taken into account in fixing the comparator’s rate of pay was what he had looked for. He did not know what the Complainant was then paid nor did he enquire. It was also his evidence that he did not discuss the matter with anyone other than Ms Walsh.
The witness recalled that in or about April 2008 the Complainant gave him a prepared letter containing her resignation. She told him that she was leaving the employment because she was unhappy with her rate of pay. He said that he wanted her to remain in the employment because she was a strong member of the team. He suggested that she should not rush into a decision and that she should discuss the matter with the general manger. He understood that the matter was discussed with the general manager and a satisfactory resolution was reached as a result of which the Complainant remained in the employment.
Turning to the circumstances surrounding the promotion of the comparator in September 2009, Mr Doherty recalled that in or about April of that year the Respondent experienced a serious downturn in business, including a fall-off in membership of the leisure centre. A meeting of all staff was convened by the general manager. A number of options were discussed including a proposal that all staff agree to a 10% reduction in pay as an alternative to redundancy. The possibility of a three day working week was also discussed. Staff were advised to contact the office of the Department of Social Protection so as to ascertain the entitlements they might have in that event. In his own case it transpired that he would be significantly better off financially by working a three day week and drawing unemployment benefit for the remaining days. He said that the Complainant decided to apply to work three days per week and that was agreed to by the Respondent. The witness also applied to work a three day week but his application was refused because of the position that he held.
In August 2009 the witness again asked the general manager for permission to reduce his working week to three days. A restructuring of the management function was agreed so to facilitate him is so doing. Under the new arrangements, Mr Doherty was to be demoted to the position of assistant leisure centre manager and a second position of assistant leisure centre manager was to be created. He selected the comparator for this second assistant manager position. He said that this decision was taken after what he described as a ‘brain storming session’ with the general manager.
It was Mr Doherty’s evidence that he selected the comparator for promotion because he considered him the best candidate for the position. He said the he was impressed with how hard the comparator trained and he got on well with him. He said that he had considered the Complainant for promotion but that in his opinion the comparator had the edge. He said that he was not in any way influenced by the fact that the Complainant was then working part-time. Mr Doherty said that he knew that at the time in question the Complainant wanted to return to work full-time and he informed the general manager of this.
Mr Doherty agreed with Counsel for the Complainant that all staff were encouraged to consider working a three day week and to make enquires of the Department of Social Welfare as to the implications of so doing.
Ms Monica Siupa
Ms Siupa is currently restaurant manager with the Respondent. In 2008 she was a duty manager and had responsibility for human resources issues. This witness told the Court of the events leading to the introduction of a three day week. She said that the Respondent was experiencing serious financial difficulties arising from a fall-off in business due to the general economic recession. A 10% pay cut had been agreed collectively but further savings were needed. There was also insufficient work available for some staff. Ms Siupa told the Court that she had a meeting with the Complainant who explained that the difference in her case between working full-time and working a three day week, taking account of social welfare payments, would be €20 per week. On that basis she wished to reduce her working week. The witness was surprised that the Complainant was proposing to reduce her hours having regard to her position and the fact that there was sufficient work available to retain her in a full time capacity. She advised her to think about what she proposed.
Asked about the Respondent’s policy on promotions, the witness said that promotion was used to reward those who made an extra effort in undertaking their duties. According to the witness promotional vacancies were never advertised or filled by competition.
Ms Betti-Marie Burger-Smit
Ms Burger-Smit is general manager with the Respondent and has held that position since 2007. She has considerable experience of the hotel sector in Ireland having worked in five hotels in various capacities. She told the Court that the Respondent does not have any fixed pay determination system and rates are always a matter for negotiation. The only exception was in respect of grades formally covered by the JLC system or those on the minimum wage. The Court was told that there were many differences in the rates paid to those doing similar jobs. According to Ms Burger-Smit, that is a common approach to pay determination in the hotel sector in Ireland.
It was Ms Burger-Smit’s evidence that she did not know what individual members of staff were paid. She became aware of the Complainant intention to resign in or about April 2008 as a result of a conversation that she had with Mr Doherty. She also became aware of what the comparator was paid. In order to retain the Complainant she agreed to bring her rate of pay up to that of the comparator. Ms Burger-Smit told the Court that her decision in that regard was in no sense an admission that the Complainant had a right to the same rate as the comparator. She adjusted the Complainant’s rate solely for the purpose of retaining her in the employment. The witness agreed that the Complainant had sought a pay increase in January 2008 and this was refused whereas her request in April was accepted.
Ms Burger-Smit gave evidence on the events leading to the Complainant going on a three day week. She said that she was surprised that the Complainant did not see her role within the hotel as a full-time commitment. When she asked the Complainant why she wanted to work reduced hours she was told that it would provide time for shopping and other such activities. She said that the Complainant insisted on going on a three day week and she agreed to that.
In relation to the claim concerning promotions, Ms Burger-Smit told the Court that it was not the practice of the Respondent to advertise promotions. She said that around Christmas 2008 she considered restructuring the management positions in the leisure centre and creating two assistant manager posts while retaining overall management responsibility for the centre herself. One of these positions was to be filled by demoting Mr Doherty and facilitating him with a three day week. She said that the comparator was appointed to the additional post because he was more committed than the Complainant.
Ms Burger-Smit told the Court that gender was not a factor that she had ever taken into account in determining pay or promotions. She told the Court that in her time as general manger a disproportionate number of women relative to men were promoted.
Since the conclusion of the Treaty of Rome that established the then EEC the right of men and women to equal pay for work of equal value has been embedded as a fundamental social right in the legal order of the Community. It now finds expression in the EU Charter of Fundamental Rights and in Article 157 of the Treaty on the Functioning of the European Union. That article provides: -
- 1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purpose of this Article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
- (a)that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
- (a)that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
The High Court has held inC & D Food Limited v Cunnion and Others 1 IR 147 that even where the employer genuinely believes that the value of the work being carried out by one employee is higher than the value of work being carried out by another employee he or she cannot avail of that belief because ultimately what is like work is a matter not for the employer but for an Equality Officer or Labour Court on appeal. However, in this case the existence of like work as between the Complainant and her comparator is conceded.
Section 19(5) of the Act provides that an employer may pay different rates of remuneration, on grounds other than gender, to different employees. But the right to equal pay is one of substance rather than form. The saver provided by s.19(5) of the Act does not mean that an employer is free to circumvent the right to equal pay by finding ostensibly gender neutral reasons to explain what is in reality the placing of a greater value on work when it is performed by an employee of one gender and a lower value on that work when it is performed by an employee of the opposite gender.
It is settled law that where men and women are engaged in like work and there is a difference in pay, there is prima facie discrimination (see dicta of Barron J to that effect inFlynn v Primark ELR 218). It is then for the employer to prove that the disparity is wholly unrelated to the difference of gender and that it does not amount, whether consciously or subconsciously, to the placing of a different value on the work of a woman as compared to that of a man. That normally requires the employer to show that an apparently gender neutral reason relied upon for the disparity in pay is genuine and compelling and worth the difference to the employer on an objective standard.
Conclusion on the Equal Pay Claim
All of the evidence adduced in the course of the appeal indicates that the process followed by the Respondent in determining the pay of the Complainant and that of her male comparator was opaque and subjective in every facet of its application. On that account, it was inherently vulnerable to conscious or subconscious discriminatory attitudinal influences. That, combined with the outcome of the process (which resulted in a man and a woman receiving unequal pay for equal work) is sufficient to shift the probative burden to the Respondent. It is thus for the Respondent to prove on the normal civil standard that the principle of equal pay for work of equal value was not infringed in relation to the Complainant.
In its written submission to the Court and, it would appear, in advancing its case at first instance, the Respondent claimed that the reason for the impugned difference in pay was explained by certain attributes of the Complainant such as his capacity to promote the hotel by his athletic achievements. The evidence adduced disclosed that no such considerations were taken into account in deciding on his rate of pay. Rather, the evidence established that he was given the rate of pay because that was what he sought. But, like all employees, the comparator could not determine his own level of pay. Ultimately, he was paid a higher rate than that paid to the Complainant because the Respondent decided to pay him that rate. That, in practice, amounted to the placing of a higher value on the job when it was to be performed by a man than the value placed on the same job that was being performed by a woman.
Having regard to all the evidence the Court is not satisfied that the Respondent has rebutted the presumption of discrimination that arises on the facts of this case. In these circumstances the Court must hold that the Complainant’s right to equal pay with her male comparator was infringed. Accordingly the decision of the Equality Tribunal on this aspect of the claim is affirmed.
It is not uncommon for an employer to promote employees without opening the post to a competition. There is no clear authority for the proposition that an employer must always fill promotional opportunities through an open selection process. However, on the facts of a particular case, the failure to consider an equally or better qualified woman for a promotional position to which an equally or less qualified man is appointed can, in and of itself, raise an inference of discrimination. In such a case it is for the employer to prove on cogent evidence that the decision was in no sense whatsoever tainted by discrimination (Wong v Igen Ltd EWCA Civ 142).
Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. InA Worker v A Hotel 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: -
- The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health BoardE.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court inKieran McCarthy v Cork City CouncilLabour Court Determination EDA082 (December 16, 2008).
In Determination EDA077-O’Halloran v Galway City Partnershipthe Court pointed out that the qualifications or criteria which are to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate isclearly better qualified against the chosen criteria that an inference of discrimination could arise. That approach is consistent with the decision of the Northern Ireland Court of Appeal inWallace v. South Eastern Education and Library BoardIRLR 193. Here, Lowery LCJ held that the appointment of a less qualified man to a position in the Respondent Library Board in preference to a more qualified woman was in and of itself sufficient to raise an inference of discrimination.
These authorities indicate that it is the prerogative of an employer to make selections for promotion and that it is not the function of this Court to decide who should be promoted. But it is the duty of the Court to ensure that the employer exercise that prerogative lawfully and in full adherence to the principles of equality that the law prescribes.
In the exercise of its duty the Court must be alert to the possibility of a process of selection becoming tainted with discrimination by subjective attitudinal considerations. This was adverted to by Lord Browne-Wilkinson in the UK House of Lords Decision inGlasgow City Council v Zafar 2 All ER 953,at p. 958, in which he quoted with approval the guidance given to Employment Tribunals by Neill LJ in the Court of Appeal inKing v Great Britain China Centre I.C.R. 516. At point 2 of the guidelines the following appears: -
- It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in".
This line of reasoning was again adopted by the House of Lords inNagarajan v London Regional Transport UKHL 48. Here Lord Nicholls of Birkenhead said the following: -
- I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.
A similar approach was taken by this Court inNevins, Murphy, Flood v Portroe Stevedores Limited 16 E.L.R. 282. Here, in a case involving age discrimination, the Court held: -
- Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.
Conclusion on Claim of Discrimination
In this case there were no discernable objective criteria applied by the Respondent in deciding who should be selected for promotion. The Complainant had longer service and greater experience in a supervisory capacity than the comparator. On the face of it she was, on that account, better qualified for promotion than the comparator. These are facts of sufficient significance to raise an inference of discrimination. Consequently the onus of proving the absence of discrimination is on the Respondent.
In its written submission to the Court, and before the Equality Tribunal, the Respondent claimed that the reason for not promoting the Complainant was that she had opted to work a three day week. Ms Burger-Smit was of the opinion that the Complainant demonstrated a lack of commitment by so opting. However, Mr Dohery, who was the prime mover in selecting the comparator, told the Court that this was not in any sense a consideration in the decision. Moreover, the evidence disclosed that at the material time the Complainant was anxious to return to full-time work. The only explanation for the decision proffered by Mr Dohery was that he preferred the comparator over the Complainant. He appeared to be influenced in his preferment by the comparator’s athletic qualities although there was no suggestion that this was a necessary requirement for the post.
In all the circumstances the Court is satisfied that the Respondent has failed to establish, on the balance of probabilities, that the decision to exclude the Complainant from consideration for the promotional post was in no sense whatsoever influenced by her gender. Accordingly, the Complainant is also entitled to succeed in this aspect of her claim
The decision of the Equality Tribunal is affirmed including the award of arrears of equal pay and the award of compensation in the amount of €10,000 for the effects of the discrimination found to have occurred. For the avoidance of doubt, the latter award is not in the nature of remuneration.
The Respondent’s appeal is disallowed.
Signed on behalf of the Labour Court
24th February, 2014______________________
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.