ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014991
A Third Level College
Represented by SIPTU
Represented by Mairead McKenna BL, instructed by Arthur Cox Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 13/11/2018
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant is alleging that she is being discriminated against on grounds of her gender in relation to equal pay vis a vis a named male colleague, Mr. DG. The complainant also alleged that she was treated less favourably in relation to a refund of fees in that her male comparator was issued a refund of fees in 2013 and received 100% reimbursement but that she only received 50% reimbursement. Following the hearing, the respondent stated that on checking the records an oversight occurred in the treatment of Mr. DG’s PhD fees for 2013 and the respondent stated that it would make the relevant payment to the complainant to remedy this situation.
Summary of Complainant’s Case:
The complainant is employed with the respondent since 2006 following a competition. The post was that of Lecturer in Human Resource Management. From 2006 to 2008, she was placed on the Assistant Lecturer scale where she earned €47,254. In September 2008, she was appointed to the position of Lecturer where her remuneration was €63,203. The complainant states that her salary is €79,491 and her comparator’s is €86,400. The complainant submits that wages for the role of Lecturer II range from €52,780 - €86,400.
The complainant submits that she has significant experience as a senior manager in HR and was an employee development manager and trainer for circa 30 years, working and teaching in the field of HR with a number of publications in this area. The complainant states that she also has a PhD which was part funded by the respondent (50%). The complainant submits that in or around 2014, the complainant became aware that the person working alongside her doing like work was at the top of the pay scale of the academic II salary scale earning €86,400. The complainant asserts that because of the pay differential, the complainant has a total difference of €141,666 in pay vis a vis Mr. DG since 2009. The complainant states that she raised this matter through the internal grievance procedures but she did not receive a satisfactory outcome to her complaint.
The complainant believes that she is being discriminated against on grounds of gender regarding the differential in pay between her and her male comparator. The complainant outlines that at no point during the internal grievance procedure did the respondent dispute that she and the comparator are doing like or equal work. The complainant states that on appointment, the comparator was placed on the top of the Lecturer scale (€85,118), the complainant on appointment was being paid €63,203 despite both of them being equally experienced with significant relevant previous industry experience and doing like work.
In addition to lecturing/teaching duties, the complainant was doing the broader duties of a lecturer including designing and was co-programme director of the Postgraduate Diploma in HRM. The complainant states that she was the director for all CIPD degree programmes. The complainant submits that on qualifying with a PhD, this made her significantly more qualified than her comparator, yet in 2014, she was earning circa €14,000 less than her comparator.
The complainant states that during the grievance procedure, the respondent failed to give objective reasons for the difference in pay and/or failed to show that the difference is appropriate to achieving an objective aim and that it was necessary to that end. The complainant contends that the respondent also failed to show that the difference conformed to the principle of proportionality. The complainant submits that she has established facts from which it may be presumed that the principal of equal treatment has not been applied to her and that the primary facts on which she is seeking to rely upon raises a presumption of unlawful discrimination.
In relation to indirect discrimination, the complainant makes the following points;
· different standards and criteria were applied to the complainant that made her role more stressful and arduous than her comparator, for example PhD and publications and certain scores on student surveys. None of these were applied to the comparator. (PhD was not in the job advertisement)
· The complainant had to pay fifty percent of PhD fees and all expenses for studying. She completed the PhD in 2014 and a new policy was brought in that would pay fully for PhD fees. The complainant looked to have the fees reimbursed but this request was refused. It is the complainant’s understanding that the fees were backdated for the comparator who voluntarily commenced a PhD in 2013 which is ongoing.
· In 2012, the complainant states that she had to take unpaid leave to get time to focus on her PhD nearing the final stages of it and this had a significant financial impact on her. However, she states that in 2016 the comparator was offered a semester without teaching on full pay so that he could focus on his PhD.
· The complainant states that she had to take on the full role of Lecturer including significant programme development and directorships yet she is still put on lower pay.
· The complainant contends that she was also put on various committees and required to manage the programme directorships of additional master level programmes.
The complainant submits that for the reasons outlined above, she has demonstrated that she has been directly and indirectly discriminated against regarding her pay vis a vis a named male comparator on grounds of her gender.
Summary of Respondent’s Case:
The respondent states that it is a third level education college in Dublin. It was founded in 1951 and offers full and part-time courses from certificate to degree and post-graduate level in areas related to computing, business and psychology. It states that there are currently 5000 students and 200 staff of whom 52 are academic staff or faculty. The respondent states that in addition, there are approximately 150 part-time Associate Faculty. The respondent states that the complainant commenced employment with the College on 18 September 2006 in the role of Assistant Lecturer. It submits that she was placed on the pay scale at the level of Assistant Lecturer. The respondent maintains that she now works as a Lecturer at the College since 2 January 2008 and is placed on the pay scale at the level of Lecturer.
The respondent submits that it has a comprehensive grievance policy in place which provides a robust mechanism for employees to raise and effectively resolve any complaints in relation to their employment. The respondent states that in early 2018, the complainant requested a grievance meeting with Dr. D, (Dean of the School of Business). This meeting took place on 4 March 2018 under stage 1 of the Policy. The respondent states that at this meeting, the complainant raised a complaint about her pay and advised Dr. D that she was raising a formal grievance as she believed she was being discriminated against on the ground of gender. The basis of her grievance was that she was doing the same work as a male colleague Mr. DG but that he was being remunerated at a higher level than her. It states that she contended that this situation had pertained for some time and approximately €140,000 was due to her in retrospective pay.
Following this meeting on 6 April, Dr. D e-mailed the complainant with a response to a decision on her grievance. In the e-mail, Dr. D noted that Mr. DG and the complainant were on the salary band for faculty appointed to a Lecturer II role and acknowledged that both were on different salaries within this band. Dr. D noted that faculty within the School of Business, both male and female were positioned at different points of the band. This included other males that were not remunerated at as high a level at Mr. DG. Dr. D noted that several factors influence where someone is positioned within the band, for example, “subject specialism, length of service, salary pre-employment”. Dr. D explained that one reason for the salary differential was that Mr. DG had longer service with the respondent than the complainant. Mr. DG had lectured as a member of Associate Faculty for 14 years prior to his appointment to a full-time Lecturer position. The e-mail also noted that there were more reasons, also unrelated to gender why Mr. DG’s appointment was on a higher salary. However, the e-mail noted that Mr. DG’s consent would be needed in order to discuss this matter further with the complainant.
The respondent states that the complainant was not satisfied with this response and invoked stage 2 of the grievance process. The complainant highlighted that there was a pay disparity between the complainant and Mr. DG which was “significant and ongoing since 2009 when he was appointed as a Lecturer”. The complainant set out the similar roles she and Mr. DG undertook and areas where they had similar experience. She noted how they both were employed as Lecturers, they both delivered HR modules to students on programmes at levels 7,8 and 9 and they were both Fellows of the CIPD and were both very experienced. The complainant also mentioned that she has a significant level of experience as a Lecturer, Programme Director and Developer in addition to having publications.
The respondent states that the complainant noted that on her initial appointment, she was set criteria and measures including that she had to complete a PhD for which she mentioned she had to pay half of the fees and all other expenses. The respondent contends that the complainant stated that her comparator’s appointment was not conditioned on his securing a PhD and stated that he voluntarily commenced a PhD and it was agreed that all of his fees and expenses would be paid for. The respondent submits that the complainant stated that on his appointment to a full-time position in January 2009, Mr. DG was appointed to the top of the Lecturer salary scale and in comparison to her starting salary, was paid over €37,000 more despite her belief that they were equally experienced with significant relevant previous industry experience according to her and also doing “like work”.
The respondent submits that a grievance meeting under stage 2 of the policy took place on 23 April 2018. The HR Director Ms. N in an e-mail stated that Mr. DG commenced employment with the respondent on 30 September 1995 and consequently, at the time of the complainant’s appointment in September 2006, Mr DG was an employee with 14 years’ service in an academic environment. He commenced with the respondent on 30 September 1995 on a part-time fixed-term contract. His appointment changed in September 2005 to a part-time contract of indefinite duration and Mr. DG was appointed on a full-time basis from January 2009. With this appointment change, Mr. DG’s title changed from Associate Faculty to Lecturer. At the meeting, Ms. N explained how in the years immediately prior to 2009;
a. Mr. DG’s hours of work exceeded the norm of 35 hours per week worked by the staff of the respondent.
b. Mr. DG’s lecturing hours were in excess of the norm of 12 hours lecturing per week undertaken by colleagues in his faculty, and
c. Mr. DG’s earnings on his part-time contract arrangement exceeded the top point of the Lecturer II scale, €85,118.
Ms. N also stated that for these reasons, on 1 October 2008, Mr. DG was offered and accepted a contract based on the normal full-time hours of 35 hours per week, remunerated at the top of the Lecturer II scale with an effective date of 1 January 2009. She stated that this was to bring his contractual arrangements into line with his actual working arrangements. Ms. N also noted that at the time of Mr. DG’s contract change in 2009, there were three other members of faculty in the School of Business at the top point of the Lecturer II scale, one commenced employment with the respondent in 1996 and two commenced in 1999. Therefore, all of the individuals at the top point of the salary scale had significantly longer service with the respondent than the complainant. The respondent stated that it is also noteworthy that three of the four individuals at the top point of the salary scale were female and only one was male, namely Mr. DG.
The respondent stated that Ms. N then addressed the complainant’s point that the respondent required her to undertake and complete a PhD at the time of her appointment to Lecturer. Ms. N emphasised that at the time of Mr. DG’s appointment in 1995, a PhD was not a requirement for a lecturing appointment with the respondent. The respondent contends that none of the three other individuals at the top of the salary scale all of whom are female, had a PhD. This policy changed in the intervening years and by 2006, there were discussions with the complainant following her appointment advising that she undertake a PhD to assist her progression to Lecturer. The respondent states that Ms. N then clarified how a PhD is now a standard requirement for new employees in these types of roles. The respondent submits that it is important to note that the complainant claimed that obtaining a PhD was a requirement for her but not for her comparator, Mr. DG. However, the respondent states that the complainant in fact achieved Lecturer status in April 2008 without having completed a PhD, she received her PhD 6 years later in 2014 and therefore secured Lecturer status without a PhD, i.e. the same as her male comparator Mr. DG.
The respondent submits that with respect to the funding of PhD’s, Ms. N explained that when Mr. DG applied for PhD funding, the 50% funding arrangement was in place, i.e. the same arrangement as was in place for the complainant. The respondent asserts that the financial position of the respondent was later such that it was able to change the policy from 1 January 2014 to provide for 100% of funding for PhDs and this applied to both male and female PhD applicants. The respondent states that Ms. N concluded by clarifying that factors other than gender contributed to the salary differential between the complainant and Mr. DG. The respondent states that similarly, policy changes that occurred over time were due to changing and evolving academic requirements and financial issues, i.e. are unrelated to gender. The respondent submits that the complainant wrote to Ms. N on 18 May 2018 requesting that her grievance be moved to stage 3 of the policy and requested a further meeting in accordance with the policy. A meeting was held under stage 3 of the policy on 30 May 2018. The complainant was represented by her SIPTU representative. The complainant stated that her grievance had not been resolved to her satisfaction. Therefore, the parties agreed that the matter would proceed to the next stage of the policy, namely that it would be referred to the WRC.
The respondent submits that without prejudice to the foregoing, the complainant has not selected an appropriate comparator for the purpose of her claim for discrimination. The respondent states that there are a number of preliminary requirements that the complainant must satisfy before she can ground an equal pay claim for the purposes of section 19 of the Acts;
(i) There must be a comparator and that comparator must be a real individual and not a hypothetical member of the opposite sex
(ii) The complainant must be employed by the same or an associated employer as the comparator; and
(iii) The complainant must be employed to do “like work” as the comparator
The respondent states that points (ii) and (iii) above are not disputed. It acknowledges that both the complainant and Mr. DG work for the same employer and that they have since January 2009 performed “like work” insofar as they perform the “Lecturer” role, teaching students at levels 6,7,8 and 9 in the School of Business at the College. However, the respondent disputes that point (i) above is satisfied in this case. The respondent states that the Court of Justice of the EU has consistently stated that in equal pay claims, there is a need for a real identifiable comparator who must also be in an identical situation to a claimant. The respondent submits that the Court of Justice has rejected attempts to cherry pick a comparator group for the purpose of an equal pay claim. The respondent states that a similar view was expressed by the Court of Appeal in the UK Cheshire and Wirral Partnership NHS Trust v Abbott and others where it held that an employee is not permitted to artificially limit the pool of comparators in order to improve his or her chances of success.
The respondent outlines that the complainant and Mr. DG are dissimilar in terms of tenure, qualifications, experience and publications record. The respondent states that in order to get an accurate “comparator” for the purposes of this claim, it is more appropriate to look at Lecturers in the business school who have similar experience, qualifications and tenure to the complainant. The respondent submits that the complainant has such comparators available to her and they are the appropriate comparators to her for the purpose of this claim. The respondent contends that Mr. DG is not an appropriate comparator for these purposes. It submits that to choose any other comparator amounts to cherry picking a comparator and creating an artificial grouping to skew statistics in the complainant’s favour. The respondent maintains that there are two males within the School of Business who serve as appropriate comparators to the complainant.
(A) Comparator One (Academic & Subject Area Comparator) The first individual is a male Lecturer in the School of Business. This individual lectures in the same subject areas as the complainant. He receives a similar salary to the complainant. There is a slight disparity in pay, he is currently paid €3,638 more per year than the complainant. The respondent states that this disparity is attributable to his length of service. He began his employment with the respondent in September 2003 and therefore has longer service than the complainant. It states that in addition, he joined the respondent having already completed his PhD and therefore held his PhD for longer than the complainant.
(B) Comparator Two (Industry Experience Comparator) The second individual is another male Lecturer in the School of Business. He joined with a Doctorate in Education (an equivalent to a PhD). On commencing employment with the respondent in September 2018, he was placed on the lower salary band, Academic 1, €36,540 - €52,783 and he is paid €25,221 less than the complainant because his prior lecturing experience was deemed to be limited and he had no research output.
The respondent states that there are two female Lecturers in the School of Business who also must be considered in the context of any analysis of the rates of pay paid to staff:
(C ) Female One (Academic & Subject Area) This individual joined the respondent in 2006, the same year as the complainant and has similar service to her. This Lecturer achieved her PhD in 2015 (one year later than the complainant) and has similar research output. This individual is on the same salary band as the complainant but is paid €3,561 less than the complainant.
(D ) Female Two (Industry Experience) This individual joined the respondent in 2018 and is also a HR Lecturer in the School of Business. This individual is in the final stages of her PhD i.e. PhD has yet to be completed but she joined with fourteen years industry experience and her most recent role was at a senior level with a named company. Similar to Male Comparator Two above, this individual is on the lower salary band Academic 1, €36,540 - €52, 783 and is paid €31,491 less than the complainant because she does not hold a PhD currently, has no research output and her lecturing experience was deemed to be limited.
The respondent states that Lecturers in the School of Business are placed at different points on the salary scale. In 2008, point 1 was the lowest paid and point 9 was the highest paid. The respondent states that following negotiations with SIPTU, pay scales were replaced by pay bands in 2015. It states that there are two groups within Academic II, those who were recruited before 31 October 2015 and those who were recruited after 1 November 2015. The respondent states that the maximum potential salary that can be achieved by Lecturers in the Academic II post – 1 November 2015 group is slightly less than those in the Academic II pre-31 October 2015 group.
The respondent provided a table and statistics at the hearing showing that both in 2009 and 2018, Mr. DG’s salary group comprises him and three females. It submits that these were the appropriate comparators to Mr. DG in 2009 when he was placed on salary scale. The respondent states that all three female comparators had long tenure with the respondent and did not have a PhD, one had service with the respondent since 1996 and the two others since 1999. The respondent states that in relation to Mr. DG’s three female comparators in 2018, one remains in service with the respondent since 1996, once since 1999 and the other has a PhD and previously held additional duties and responsibilities which entitled her to earn a higher salary (she is a Subject Head and took on additional duties to cover the Vice-Dean of the School of Business’ maternity leave). The respondent states that a distinction can clearly be drawn between these females and the complainant and there are objective reasons for the pay disparity. It states that these females are paid at the same level as Mr. DG.
The respondent submits that as a general point from the tables which were submitted at hearing, males and females are dispersed throughout the band and length of tenure with the respondent is a key influencer of salary position on the band and salary paid. The respondent maintains that it is clear that there is no trend or practice of paying higher salaries to male Lecturers at the School of Business. It also states that of the four individuals who were at the highest point on the scale in 2009 or band in 2018, Mr. DG was/is the only male. It states that Faculty within the School, both male and female are positioned at various points of the band and it submits that this is a legitimate pay model. The respondent states that in the case of Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union (No. DEP993) the Labour Court noted the difference in pay between male and female comparators which arose out of the grading structure. It stated “In this case, the difference in remuneration between the claimants and the comparators derives from the grading structure operated by the respondent. Therefore, a case of direct discrimination does not arise”. The respondent submits that the Equality Officer found in that case that there were grounds other than gender to justify the pay differential between the claimants and the comparators. On appeal, the Labour Court was asked to consider if the evidence adduced supported an inference that the respondent’s grading structure was in reality gender-based. The respondent states that the complainants failed at an earlier hurdle, however, in that they did not show that their grade showed such a marked difference in gender composition to raise a prima facie case such as to require the Labour Court to consider the grading structure and its relation to gender. The respondent submits that the same situation arises in the instant case, there is no discernible difference in gender composition in order to raise a prima facie case. The respondent submits that it is clear that there are other males who are not remunerated at the same level as Mr. DG and similarly there are females who are not remunerated at the same level as the complainant.
The respondent states that since 2009, economic conditions influenced pay policy at the College. However, it states that Mr. DG and the complainant were both similarly affected by these measures. In light of economic conditions, there was a two year pay freeze in 2009 and 2010, followed by a two year reduction and pay freeze in 2011 and 2012. The reduction was restored in 2013. A final increment was awarded in 2014 in the course of discussions to eliminate incremental scales. Since 2015, incremental scales are gone and replaced by salary bands. The respondent states that it engages with the union every year and negotiates the annual pay award. The respondent states that it is interesting to track Mr. DG’s salary progression since his date of appointment to Lecturer. Mr. DG was appointed on a salary of €85,118 on 1 January 2009 and the increases in his salary since then includes a 0.5% increase when a band increase took place in 2016 when his salary increased by €436 to €85,554 and increased by a further €846 to €86,400 as a result of a further band review on 1 July 2018. It states however since 2009, the complainant’s salary has increased by one increment and annual pay awards from €68,167 in January 2009 to €79,491. This amounts to €11,324 of an increase. While Mr. DG’s salary has only increased by €1,282. The respondent submits that the complainant’s salary will also continue to increase until it reaches €86,400 or any new band max that arises because of a future band review.
The respondent reiterates that the difference in remuneration between the complainant and Mr. DG is not attributable to gender and the disparity is purely as a result of objective reasons. The respondent states that Faculty at the College are on different salaries within a band for a variety of reasons, for example, date of recruitment, subject specialism, length of service and salary pre-employment. It states that in Mr. DG’s case and with respect to the other three employees (all female) who were on the same point in the salary scale as Mr. DG in 2009, all of these individuals have significantly more service with the respondent than the complainant. The respondent submits that Mr. DG had lectured for almost 14 years before he was appointed as Lecturer in 2009 i.e. from September 1995 to 1 January 2009. The respondent states that of the three females who were at the top of this scale, one has service with the College since 1996, and the two others since 1999. In this regard, the respondent cites the caselaw relating to Cadman v HSE (C-17/05)  ECR I-09583 and the High Court case in Wilton v Steel Company of Ireland  ELR 1.
The respondent submits that in addition to the length of service justification, there were other objective reasons unrelated to gender for which Mr. DG was paid a higher salary than the complainant which were set out in an email dated 27 April 2018 to the complainant. The respondent asserts that market forces are another reason for Lecturers being placed on different points on the pay scale at the School of Business in the College. In addition, the respondent submits that economic conditions also influence Lecturers’ pay. The respondent states that market forces influence its recruitment policy for example, whether or not to require Lecturers to undertake a PhD. It states for example, with respect to certain subject areas, there is a ready supply of candidates with PhD’s but in other areas, PhD’s are not the norm and a professional qualification is required qualification (for example, law or accountancy). The respondent outlines that market forces have been accepted by the courts as an objective justification for pay disparity and in this regard cites the case of Rainey v Greater Glasgow Health Board  ICR 129. The respondent states that notwithstanding the various reasons which influence a Lecturer’s pay, gender does not in any way impact the decision on where on the pay scale a Lecturer is placed. The respondent submits that it is only objective non-discriminatory criteria which decide the level of pay of each employee.
In conclusion, the respondent states that it has not acted unlawfully with respect to the complainant. While it concedes that Mr. DG and the complainant perform “like work” for the same employer for the past few years, it states all Lecturers within the School of Business perform “like work”. The respondent submits that Mr. DG is not the appropriate comparator to the complainant and the choice of Mr. DG as a comparator is impermissible in light of the number of other Lecturers in the School of Business who are more accurate comparators to the complainant. The respondent contends that it is noteworthy that within the wider grouping of the School of Business, there is no discriminatory practice in relation to pay between the genders. In addition, the respondent states that insofar as there is a disparity in pay between Mr. DG and the complainant, this disparity can be clearly attributed to objective reasons which are unrelated to gender. The respondent further states that it is reasonable for the College to place faculty members on different pay scales within a band where their levels of experience and expertise vary and their length of service and performance also vary.
Findings and Conclusions:
The issue for decision by me is whether or not the respondent discriminated against the complainant on the gender ground in terms of Section 6(1)(a) and 6(2)(a) of the Employment Equality Acts, in contravention of Sections 7 and 8 of the Acts in relation to her conditions of employment in respect of equal pay.
Section 6(1) of the Employment Equality Acts provides:
For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds’’)
Section 6(2)(a) provides that as between any two persons, the discriminatory grounds are, inter alia: (a) that one is a woman and the other is a man (in this Act, referred to as ‘‘the gender ground’’),
Section 8 (1)(b) provides that in relation to conditions of employment…an employer shall not discriminate against an employee.
Section 8(4) requires that an employer shall not, in relation to employees or employment—
(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or
(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.”
The complainant alleges that she was discriminated against on the grounds of gender in relation to her pay in that she performs “like work” with a named male comparator. 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
Section 19 of the Act provides:
(1) It shall be a term of the contract under which A is employed that, subject to this Act, A 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.
(2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.
(3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment
(a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.
(c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.
(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.
Section 85A of the Employment Equality Acts sets out the burden of proof as follows:
“(1) 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 her or her, it is for the respondent to prove the contrary.”
It was conceded by both parties that the complainant and her male comparator, Mr. DG were doing “like work”. In relation to the complainant’s complaint that in 2009 on appointment, Mr. DG was placed at the top of the Lecturer II scale and she was placed on the scale at a salary level of 63,203. I accept the reasons given by the respondent in relation to the historical nature of Mr. DG’s employment with the College, in that, his hours of work exceeded the norm of 35 hours, his lecturing hours were in excess of the norm of 12 hours lecturing per week and his earnings on his part-time contract arrangement exceeded the top point of the scale. The College stated that this was to bring his contractual arrangements into line with his actual working arrangements. It is also noteworthy that at the time of Mr. DG’s contract change in 2009, there were three other members of faculty in the School of Business at the top point of the Lecturer II scale, one commenced employment with the respondent in 1996 and two commenced in 1999. Therefore, all of the individuals at the top point of the salary scale had significantly longer service with the respondent than the complainant. I note that three of the four individuals at the top point of the salary scale were female and only one was male, namely Mr. DG.
Having carefully considered the totality of the evidence in the instant claim, I am cognisant of the case of Cadman v HSE (C-17/05)  ECR I-09583 where the Court of Justice of the European Union rejected an employee’s claim for equal pay accepting that the criterion of length of service is appropriate “to attain the legitimate objective of rewarding experience acquired which enables an employee to do their job better”. Similarly, in the case of Wilton v Steel Company of Ireland, the High Court found that there was no discrimination in this case because the comparator was actually being paid more money due to his greater length of service and that this was a ground other than gender under the Anti-Discrimination (Pay) Act 1974. I am satisfied that Mr. DG had fourteen additional years lecturing experience with the respondent than the complainant. In addition, I find that while the complainant has argued that she was discriminated against upon appointment in 2009, her complaint in that regard is out of time and is statute barred.
I am also mindful of the case Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union DEP993 where the Labour Court noted the difference in pay between male and female comparators which arose out of the grading structure. It stated “In this case, the difference in remuneration between the claimants and the comparators derives from the grading structure operated by the respondent. Therefore, a case of direct discrimination does not arise”. I am satisfied based on the evidence adduced that the complainant has failed to establish a prima facie case of direct discrimination on grounds of gender in relation to equal pay. I find that the differential in pay between the complainant and Mr. DG are attributed to objective reasons which are unrelated to gender.
The complainant has also argued that she was subjected to indirect discrimination on grounds of gender. In order to ground a case of indirect discrimination, the complainant must show that, at the relevant time “an apparently neutral provision, criterion or practice” was in place that “put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” I find that the complainant has not established a prima facie case of indirect discrimination. I note that of the 4 individuals on Point 9 (Top) of the Scale, 3 are female and the other person is Mr. DG. Having carefully examined the tables and statistics submitted at hearing, I am satisfied that male and female Lecturers are dispersed throughout the banded scale and the complainant did not demonstrate that there was a practice of paying higher salaries to male Lecturers at the School of Business. Accordingly, in the circumstances, I am satisfied that the complainant has failed to establish a prima face case of indirect discrimination on grounds of gender in relation to her pay.
Section 41 of the Workplace Relations Act 2015 and Section 79 of the Employment Equality Acts require that I make a decision in relation to the complaint in accordance with the relevant redress provisions under the Acts.
I find that the complainant has failed to establish a prima facie case of direct discrimination in relation to equal pay.
I find that the complainant has failed to establish a prima facie case of indirect discrimination in relation to equal pay.
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
Equal pay, like work, comparator, indirect discrimination