Complainant

Respondent

Parties

Mr Barry Fennelly

Maynooth University National University Of Ireland Maynooth

Representatives

Self-Represented

Ms Aoife McGookin IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00071974-001

28/05/2025

These matters came before the Workplace Relations Commission dated 28/05/2025 as a complaint  pursuant to section 77 of the Employment Equality Act, 1998.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 14/05/2026. 

The Complainant is employed as Golf Manager with the Respondent. He is alleging that the Respondent has discriminated and continues to discriminate against him on the grounds of gender because he is paid less than a comparator, Ms X, GAA Development Manager, even though he is doing work of equal value. 

The Complainant receives €4,696.42 monthly gross pay for which he works 37 hours per week.  The Complainant commenced his employment with the Respondent on 01/09/2011. 

The Respondent disputes this claim in its entirety. 

CA-00071974-001

Overview of Complainant submission timeline document

Barry Fennelly (MU Golf Manager, Paddy Harrington Golf Scholarship)

➢ Sept 2011-2012: 1 year position as Part-Time Golf Manager of the Paddy Harrington Golf Scholarship at MU (Remuneration: €12,000)

➢ Sept 2012-2013: 1 year fixed term contract as Full-Time Golf Manager (Remuneration: €36,500 no incremental credit applied)

➢ Sept 2013-June 2015: 2 year fixed term contract as Golf Manager (Remuneration: €36,500 no incremental credit applied)

➢ May 2015: University advertises CID / Permanent Post of Golf Manager

➢ June 2015: Open competition with Interview process

➢ July 2015: Awarded Full Time, Permanent Contract of Golf Manager at MU

➢ Pay Scale: Senior Executive Assistant (SEA) point 2/7: €36,929 *Incremental credit to be applied

➢ BF made case with Sports Officer (HOD) for position to start on Administration Officer (AO II) pay scale to reflect role responsibilities, key duties, level of experience and master degree qualification but refused by Senior Officers / HR

➢ January 2020: Final credit increment due on SEA pay scale (Point 7/7): €47,173

➢ March 2020: Submission by Sports Officer along with Soccer Manager (HOD) for pay equality to Senior Management Prof Aidan Mulkeen and HR for promotion to AOII in line with GAA Development Manager Appointment for (Appointed CID in Nov 2016 on AOII *see below).

➢ February 2022: Top of SEA pay scale (Point 7) for 2 years: €48,616

➢ May 2023: Applied for University advertised internal promotion from SEA to AOII scales

➢ April 2024: Awarded promotion to AOII (Point 7) €56,594 *incremental credit to be applied Jan 2025 but still not on equal pay point in AO II grade

➢ April 2025: Meeting with MU HR Director to discuss and review case for equal pay and advised to resubmit case to HR management

➢ May 2025: Current pay rate of AOII (Point 8) €62,721

Comparator [REDACTED] (MU GAA Development Manager) *female

➢ 2012: Appointed MU GAA Development Manager (Part-funded: Leinster GAA / MU)

 ➢ November 2016: Awarded Full Time Permanent Contract as GAA Development Officer

➢ Position awarded without open competition or interview process

➢ Pay Scale awarded: Administration Officer (AO II) *Point 3/9: €42,000 (Point 9: €54,647) pay scale precedent broken with awarding CID / permanent post with Golf Manager a year previous

➢ February 2022 to present: Top of AOII pay scale *Point 9/9 on AO II €65,154 *current pay rates

Summary of direct evidence of Complainant

The Complainant submits he has been battling for many years on this matter and followed all the university procedures and feels a sense of frustration.  The university broke their own employment policies and he had done everything appropriately.  There was an open competition for his role in 2015; all legit.  He had four years’ experience and a good track record and achieved great success and had requested to be put on the A011 scale but he started on the SEA scale.

A year later his colleague got a permanent contact; there was no open competition following the precedent created when he was given a permanent contract after an open competition.  The remuneration was unequal.  He never made any progress and his colleague in soccer was battling the same case.  His comparator was placed on the higher pay scale.  He has given Maynooth incredible international exposure and this is all very disappointing.  Very little support received on this for 10 years and wants this to be sorted today.  Takes great pride in his work and he has been battling on his case since 2016.

Summary of cross-examination of Complainant

The Complainant confirms he is now on point 9 of the AOII scale.  Confirms he started on a FTC on €36,500 pre getting permanent position.  Assumed his colleagues were on similar pay; was told his remuneration was appropriate to his role.  Confirms he came in at point 2 of the SEA scale and annual increments were applied.  Submits the SEA scale was not the appropriate scale for him to be on.  He was the first sports officer to be employed by the university.  Confirms he was the first person among his colleagues to be awarded a permanent contract. 

The Complainant is asked if he accepts that the university is bound by pay policies and rules to which he replies this is not what he is disputing.  It is accepted salary has to be tied to a point on a scale and the comparator role had been partly funded by the GAA.  Her salary was partly paid by the GAA as clarified by Respondent representative upon enquiry. 

The Complainant submits the comparator was given a permanent contract ‘overnight.’

The Complainant submits he raised the matter with the head of department.  When asked if he had raised a formal grievance or engaged in any conversations with HR the Complainant submits he was told any grievance should go through his line manager. 

The Complainant submits in regard to the scale of operations that this is the first time he has been told that the GAA operation is bigger than the golf operation.  There are up to ten overseas events per annum at the highest level of competition around the world.  It is a global golf scholarship programme whereas the GAA operation is fixated November to February; the competition programme is much smaller.  It is unfounded and disrespectful to say that his numbers are not indicative of the workload involved. There is much more complexity and work travel involved with between 40/60 members whereas the GAA competition involves national fixtures in a small window of the year. 

They are different sports but undertaking the same work.   Works with the students 12 months of the year attracting the best athletes; working to promote their programmes; work is fundamentally the same in the delivery of the sports programme and everything that goes with that though the sports are different. 

Disrespectful to say GAA role has greater scale; that has never been raised with him in 10 years.  Accepts the role has grown over time; the programme has grown; more students want to come on board. 

Closing submission of Complainant

This has caused him a lot of frustration and he just wants to get it sorted.  Precedent has broken by the university; he has been unequally paid for nine years.  He was the first person to become a sports officer and had completed 4 years of service and he did seek at the time to get on the AO11 scale which was refused so he started on the SEA scale.  It is submitted the protocol for how he became permanent was not reciprocated for the GAA officer and he was treated unfairly.  He tried to bring his case forward several times but the head of department said it was a HR issue and nothing has been done to rectify it. 

In 2023 got the opportunity for promotion and is grateful for that.  Promoted to point 7 and that was not the same as his comparator; its been nine years not being paid equally for doing the same role.  There is no basis in the claim the GAA was more established; he was the first permanent officer and does not accept the GAA was more established.  His role is of equal value and he is astonished that after 10 years he is told the scale of the GAA is greater.  If you look at the fundamental role and the core competencies the jobs are of equal value and he has had less favourable treatment over a 10-year period.

CA-00071974-001

Overview of Respondent written submission

In his claim form to the WRC, the Complainant is alleging that he did not receive equal pay because of his gender. The Respondent disputes this claim in its entirety.

The Complainant was first engaged by the University as an occasional worker from October 2011 until he commenced his first contract with the Respondent in September 2012 and remains in employment with the Respondent as Golf Manager. The Complainant is currently at point 9 of the Administrative Officer, Grade II scale (Hereinafter referred to as AOII scale.)

The Respondent operates a defined salary structure in line with the standard Irish public sector framework for Higher Education. It is organized into hierarchical grades, each containing a series of points that represent annual pay increments.  The iterative approach to the definition of public sector pay and conditions from the Financial Emergency Measures in the Public Interest Act (2009) through to the current Public Service Stability Agreement (2024-2026), has defined a position whereby increments, which are subject to satisfactory performance, are earned only by periods of paid service and payable just once per annum until the top point of the pay scale in question is reached. In addition, the payments of increments remain subject to the provisions of national pay policy and agreements on an ongoing basis. DPER Circular 08/2019  defines the arrangements that apply to starting pay within public sector bodies as follows: “Government policy continues to be that starting pay on recruitment from open competition for all posts within the public service should be at the minimum of the relevant salary scale and should not be subject to negotiation.”

Annual Increment, once an employee is appointed to a grade, they usually move up one point on the scale each year, provided their performance is satisfactory.

Entry Points, new hires are almost always started at Point 1 of the relevant scale.

Credit for previous experience is only granted in exceptional circumstances and typically requires formal approval.

Promotions, moving from one grade to another is not automatic. It requires a formal application process through the University's Academic or Administrative Promotions processes.

National Pay Agreements, these scales are not set by the University alone; they are adjusted periodically based on national public sector pay deals such as Building Momentum which provides cost-of-living increases across all grades.

The Complainant submits he has been discriminated against on the gender ground and has identified two comparators, Ms X and Mr Y in his WRC complaint form who he submits are appropriate comparators for the purposes of the Act.

For the Adjudicator’s knowledge, the Respondent notes that Ms X and Mr Y are all currently paid at point 9 of the AOII scale, the same as the Complainant.

The Respondent points to Section 19 subsection 1 of the Employment Equality Act 1998- 2015 which states “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.”

As per Section 18 of the Employment Equality Act 1998- 2015 – The Respondent notes sub section 1 which stipulates “(1) (a) Subject to paragraph (b), for the purposes of this Part "A" and "B" represent 2 persons of opposite sex so that, where A is a woman, B is a man, and vice versa.”

In this instance the Complainant has identified both a male and a female comparator, the Respondent would submit that Mr Y, one of the comparators the Complainant has chosen is the same gender as him and as such not a valid comparator.

Kathleen O’Dwyer v HSE West DEC E2015-10

The Complainant was issued with a fixed term contract for the role of Golf Manager in the Sports Office, from 1 September 2012 to 3 August 2013. This was renewed as a Specific Purpose Contract from 1 September 2013 to the 30 June 2015.

The Complainant was issued with a Permanent Contract offered from 1 July 2015. The Complainant was place on point 2 of the Senior Executive Assistance scale. (hereinafter referred to as SEA scale). The Complainant was invited to apply for promotion in late 2023 which was confirmed and awarded in March 2024. As a result, the Complainant moved from the grade of SEA to the grade of AOII, in recognition of his performance in the role of Golf Manager. He was placed on the 7th  point on the AOII grade with retrospective effect from January 2024.

The Complainant is now at point 9 since January 2026.

Prima Facie Case of Discrimination & the Burden of Proof

The Complainant is alleging that he has been discriminated against on the grounds of gender. The Employment Equality Acts, 1998 – 2015 define the term ‘gender’ and what is meant by the term ‘discrimination’.

Section 6 (1) of the Employment Equality Acts 1998 – 2015

Section 6 (2) of the Employment Equality Acts 1998 to 2011

Southern Health Board v Teresa Mitchell, DEE011, [2001] ELR 201

Margetts v Graham Anthony & Company Limited, EDA038

IHREC’s Code of Practice on Equal Pay

It is respectfully submitted by the Respondent that the Complainant has not discharged the burden of proof required, as stated above. This is particularly in relation to the establishing of differentiation on the 9 grounds, like work, and less favourable treatment.

The Complainant is alleging that the appointment on the AOII scale of the female comparator, set precedent which was not followed when the Complainant was appointed his permanent role in 2015.

It is the Respondent’s position that the Complainant, when appointed to the permanent role in 2015, was appointed to the correct point on the correct salary scale based on his previous salary and in line with clause 1 of DPER Circular 08/2019:

“Pay on promotion from competitions confined to existing civil servants”.

On promotion, an officer will be appointed at the minimum point of the new scale unless any of the conditions set out at 1.2 apply.  

Where the officer's current salary is above the minimum point of the new scale but below the normal maximum, the nearest point above the officer's current salary point plus one increment.

Where the officer's current salary is above the normal maximum point of the new scale but below LSI1, the nearest point above the officer's current salary point (i.e. LSI1).

Where the officer's current salary is above LSI1 and below LSI2 of the new scale, the nearest point above the officer's current salary point (i.e. LSI2).

Where the minimum of the new salary scale is greater than existing pay by an amount less than the first increment on the new scale, the officer may enter the new scale at the minimum plus one increment.”

The Complainant’s salary in the contract dated 1 September 2013 was €36,000.00 per annum. When then Complainant’s employment transferred to Maynooth University under a permanent contract in July 2015 he was aligned to point 2 of the SEA salary scale, which at the time was €36,929.00 per annum, and was the closest point on scale to the salary in the contract dated 1 September 2013.

The comparator, Ms X’s salary in her contract dated 1 May 2012 was €44,000.00 per annum.   When Ms X’s employment transferred to Maynooth University under a permanent contract in January 2017, she was 8 aligned to point 6 of the AOII salary scale, which at the time was €45,766 per annum, and was the closest point on scale to her salary in the contract dated 1 May 2012.  As can be seen from the above, the same approach was taken when aligning both the Complainant and the comparator, Ms X to a point on a salary scale. This approach is in line with DPER Circular 08/2019, which the Respondent is bound by.

Further to the above, Section 12 of Circular Letter 55/2011 issued by the HEA advised that: “The Government has decided that all new appointees to entry grades will start at the minimum point of the new reduced scale. However, in certain circumstances incremental credit may apply for relevant recognised service.”

It can be seen in the current case that both the Complainant and the comparator had their relevant service recognised when they were appointed to permanent roles in the University. As such, salaries for both were based on their previous service.

Like Work

The Complainant in this case is alleging that he was performing ‘like work’ as defined by 7(c) of the Employment Equality Acts 1998 to 2004 with a named comparator. This claim is rejected by the Respondent. Section 7(1)(c) of the Act defines ‘like work’ as occurring where: “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.” It is the Respondent’s position that the scale of operation and the number of enrolled students for Golf are significantly less than the scale of the operation and number of enrolled students for GAA. It is the Respondent’s position that the scale of the GAA operation was reflected in the salary confirmed for the GAA Manager role in 2017.

Less Favourable Treatment

Direct discrimination is defined as occurring where one person is treated less favourably than another is, has been or would be treated and that person is of a different race, gender, marital status, family status, sexual orientation, religious belief, age, disability or member of the traveling community. Direct discrimination consists of two elements. The first is the less favourable treatment of the individual making the complaint; the second is the existence of discriminatory grounds for that treatment. Both elements must be satisfied for a claim of discrimination to succeed. The Respondent respectfully asserts that the Complainant has provided no evidence of less favourable treatment on the grounds of gender. The Complainant has failed to establish a causal link between any alleged discriminatory treatment and his gender. Rather, the difference in scales in dispute was awarded on an objective basis based on the correct application of DPER Circular 08/2019 as well as the differences in the scale of operation in each area. Indirect discrimination is deemed to occur where an apparently neutral provision puts persons at a particular disadvantage compared with other employees based on one of the nine grounds covered by the Acts. Similarly, there is no evidence to show that the Complainant has been indirectly discriminated against.

The Respondent submits that in his complaint of gender discrimination and equal pay, the Complainant has failed to discharge this evidential burden and consequently, this claim under the Employment Equality Acts, 1998 to 2015 must fail.

Should the Complainant shift this burden, it is the position of the Respondent that the Complainant was not discriminated against on the grounds of his gender in relation to his pay. The difference in pay between the two employees is attributable to grounds other than gender, specifically, that Ms X was appointed to the role of GAA Manager which involved working in an area of a greater scale than the Complainant’s role of Golf Manager. Further to this, the Complainant was appointed to the correct scale in line with DPER Circular 08/2019.

Law including caselaw relied upon by Respondent

Kathleen O’Dwyer v HSE West DEC E2015-10

Section 6 (1) of the Employment Equality Acts 1998 – 2015

Section 6 (2) of the Employment Equality Acts 1998 to 2011

Southern Health Board v Teresa Mitchell, DEE011, [2001] ELR 201

Margetts v Graham Anthony & Company Limited, EDA038

IHREC’s Code of Practice on Equal Pay

Melbury Developments v Arturs Valpetters EDA/0917

Cork City Council v Kieran McCarthy, Determination No. EDA0821

The Equality Tribunal and County Louth VEC [2016] IESC 40

Summary of direct evidence of Respondent witness Ms Meadhbh Lennon (hereafter ML) ER Manager

The comparator was appointed in 2012 on a FTC and she accrued a CID by operation of law.  She had been partially funded by the GAA and the point on the scale reflected that she had been on a higher salary.    She accrued a CID by operation of law based on the dates.  The Comparator is now at top of scale.  The university is subject to audits to ensure compliance with the various departmental circulars; there are annual audits and it is a heavily monitored regime. 

Summary of cross-examination of ML

The witness is asked to clarify that the Comparator had three years on FTCs based on contract exhibited and to clarify how she then achieved a permanent contract.  The Complainant outlined to the witness that he had to undergo an open competition and queried as to why this procedure was not followed in respect of the comparator in respect of the same job; same work; and same office.   It is put to the witness that she said that all permanent roles had to be advertised and she confirms that the comparator achieved her permanent contract by operation of law. 

Summary of direct evidence of Respondent witness Mr Peter Miller (hereafter PM) Deputy Director of HR

In respect of promotions and grading all scales are approved by DPER and the Department of Higher Education and are published online.  Posts are advertised with the associated grade.  They take directions from both govt departments.  Subject to external audit by the Comptroller and Auditor General.  Subject to internal audits also.  The grade is agreed in advance before a post is advertised.  The approved promotion scheme for progression is from SEA to AO.

In 2025 40% of the roles were filled by people already employed by the university.

Between 2016 and 2023 there was no movement (from SEA to AO).

In 2017/2018 there was a role evaluation scheme under the auspices of PWC in which 120 staff participated. 

The career progression is from EA to SEA to AO. 

The witness did not receive a formal grievance from the Complainant but would have had conversations with him and his colleagues.  He is being objective and does not mean to diminish any role or any contribution.  The comparator is not the first GAA officer.  The GAA function is more developed and more established.  In terms of the Complainant’s post at the time building and developing the function was a key part of his role and this has been recognised when he applied for promotion and was successful.  It is necessary to view all of this in context.   The Complainant did not apply for the role evaluation in 2017/2018 which he could have.  His engagement with the Complainant would have been sporadic.

Summary of cross-examination of PM

The Complainant commences his cross-examination by stating that they should get back to the facts to which the witness responds that everything he has said has been factual.  It is put to the witness that he had said there would have been an audit around his post to which the witness responds no but that in terms of the scale that would have had to be approved by the University Executive.  As a senior HR manager at that time he would have signed off on the letter of offer and it is confirmed there would have been agreement in 2015 on his pay scale.  It is put to the witness this was not done in the case of his comparator to which the witness responds that the assimilation of the GAA manager would have been part of an overall strategy based on the level of the operation of the GAA.  It is put to the witness that he had said there was no facility to promote people between 2016 and 2023 yet his comparator was promoted at that time and with so many procedural audits in place how was this overlooked to which he responds there was no promotion involved she was already the GAA officer. 

The witness is asked who approved the permanent contract for the comparator and who approved the AOII grade for her to which he replies it would have been senior officers from the Executive.  There was confidence in the decision because of the scale of the GAA operation.  It is put to the witness that the jobs are the same; the work is of equal value and it had never been communicated to him that this was not the case.  The witness is asked what evidence is there for this point that is now being made about scale in terms of the GAA and that it should constitute higher pay.  The witness responds that the comparator is not the first GAA officer and the numbers are demonstrably higher and that there was a level of comfort with the executive at the time of the assimilation that AOII was appropriate.

Closing submission of Respondent

The Complainant has failed to establish a prima facie case.  He has not discharged the burden of proof.  He is paid at the same level now and any historical differential is down to circulars.  The same rules have been applied to the Complainant as to his comparator; gender neutral based on public sector pay agreements.  The causal link between pay and gender has not been shown.

CA-00071974-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I have carefully considered the caselaw to which I have been directed.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.  Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

The Relevant Law 

The Law

Discrimination for the purposes of this Act.

6.—(1) 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’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

Entitlement to equal remuneration.

19.—(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.

(4) (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.

In National University of Ireland Cork v Ahern and Ors [2005] 2 ILRM 437 the Supreme Court held as follows:

“The question at issue…. Is whether the differing rates of remuneration are based on the grounds of sex or whether there are other reasons for the differential….”

The Labour Court held as follows in the case of the Department of Justice, Equality and Law Reform v CPSU [EDA 0713]:

“It is now well settled that discrimination, including discrimination in matters of pay, can be direct or overt or indirect or covert. Direct discrimination arises where a man or a woman is discriminated against because of his or her sex or because of a criterion linked to a characteristic which is indissociable from sex…”

Burden of proof.

85A.—(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 him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission undersection 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.

It is well-established that the WRC and the Labour Court require a complainant to present, in the first instance, facts from which it can be inferred that he/she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

In Southern Health Board v. Mitchell [2001] ELR 201the Labour Court held as follows:

“The first requirement […] is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. 

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

In Melbury Developments Ltd v Valpeters[2010] ELR 64, the Labour Court provided a helpful explanation on the nature of the burden of proof as follows:

“This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” [emphasis added]

It is well established that unsubstantiated beliefs or assertions that discrimination has occurred are not sufficient to establish a prima facie case.

In order to shift the burden of proof to the Respondent, the Complainant must not only establish the primary facts being relied upon but must also establish that those facts are of sufficient significance to raise an inference of discrimination.

In Margetts v Graham Anthony & Company Limited [EDA038], the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further clarified by the Labour Court.  The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” [emphasis added] 

When considering the primary facts adduced by the Complainant, I must take into consideration the Respondent’s contrary evidence when determining whether the burden of proof should shift to the Respondent.  The Labour Court in the case of Dyflin Publications Limited v. Spasic [EDA 0823] held as follows:

“…the Court should consider the primary facts which are relied upon by the complainant in their proper context.  It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”

The Relevant Facts

The Complainant submits that the Respondent discriminated against him on the gender ground, contrary to section 6(2)(a) of the Employment Equality Act 1998, by paying him less than his female comparator for nine years despite both performing work of equal value.

Initially there were two comparators being replied upon by the Complainant, one of whom was male.  The Complainant clarified that he is now relying on the female comparator. 

It is common case the Complainant was first engaged by the Respondent on a series of FTCs commencing 01 September 2012 on a salary of €36,500 which remained in place throughout.  I note the Respondent issued correspondence to the Complainant on 18 May 2015 followed by correspondence on 22 May 2015.  The Complainant was advised that his current FTC dated 9 October 2013 would terminate on 30 June 2015 in accordance with its terms.  The correspondence from the Respondent dated 18 May 2015 provided as follows:

“The University has decided to advertise the position of Golf Manager through open competition as is required by the University Statutes, recruitment and selection procedures.” 

I note the correspondence from the Respondent dated 4 days later on 22 May 2015 provides as follows:

“The decision of the University to advertise the position of Golf Manager through open competition as is required by the University Statutes, recruitment and selection procedures is subject to University Executive Approval on 26/05/2015.” 

On any reasonable analysis there appeared to be a doubling down on emphasising the requirement to advertise the position through open competition which I note with interest. 

I note the position was duly advertised; the salary was set out at that of Senior Executive Assistant with a range of €35,836 - €44,449 and an incremental scale comprising 7 points.  It is common case the Complainant was successful at interview and he was offered a permanent contract from 01 July 2015 as Golf Manager.   

I note the letter of appointment from the Respondent sets out the terms of his appointment including setting out the Complainant’s salary on the second point of the SEA scale which was at that time €36,929 per annum and advising that incremental credit would be applied on 01 October 2015 subject to Government pay policies and performance. 

I note the Complainant submits he took issue with being placed on the SEA scale at the time of his appointment and he made representations to the Head of Department for the position to start on the AOII pay scale to reflect the role responsibilities, key duties, level of experience and qualification at Masters level.   

I note one year later in November 2016 the female comparator was awarded a full-time permanent contract as GAA Development Officer.  It is noted there was no open competition.  The Respondent seeks to persuade this arose by operation of law as the Comparator had been on FTCs for 4 years and was awarded a CID accordingly.    

I note the Respondent is unable to provide the comparator’s contract from 01 May 2015 to October 2016.  The Respondent maintains that the comparator’s FTC which began on 01 May 2012 with an expiry date of 30 April 2015 ‘rolled over’ for this time.  I accept this to be the case in circumstances where little if anything turns on this for the purposes of this investigation because the claim properly before me for investigation is a discrete claim of not receiving equal pay on the grounds of gender. 

For the avoidance of doubt, I fully accept the Complainant is aggrieved because he had to undergo a process in order to secure his role whereas the comparator did not.  However, I am satisfied this has no bearing on the equal pay claim.  I am satisfied that, irrespective of whether the comparator came through a process or not as the case may be, she was on a salary of €44,000 and she would have been assimilated according to her existing salary which would have dictated the scale she would be placed on.   It should be noted that the comparator’s salary at that time is the crucial component that led to her subsequent assimilation. 

I note the comparator’s FTC commencing on 01 May 2012 end date 30 April 2015 sets out a salary of €44,000 per annum.  I note the comparator’s letter of offer for the permanent GAA Development Officer sets out the salary at the 6th point of the AOII scale which at that time was €45,766 per annum. 

I am satisfied the same approach was taken by the Respondent when aligning both the Complainant and the comparator to ‘a point on a salary scale’ which is in line with DPER Circular 08/2019. 

However, the difficulty that arises here and that has caused this anomaly or inconsistency or irregularity in pay in the first instance is that the comparator had been on a FTC salary of €44,000 per annum whereas the Complainant had been on a salary of €36,500 per annum before they were respectively appointed to permanent positions by open competition in the context of the Complainant and by operation of law in terms of the comparator as submitted by the Respondent.      

I have been presented with two reasons by the Respondent for the pay differential, namely (1) that the jobs of the Complainant and the comparator did not involve like work and (2) that the GAA role was partially funded by the GAA hence the salary of €44,000 as opposed to a salary of €36,500 for the golf job. 

Like Work

The entire basis of equal pay is that a person is doing like work with an identified comparator.

“Like work” is defined in Section 7 of the Employment Equalities Act as follows: subject to sub-section 2, for the purposes of this Act, in relation to 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 or 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.

As set out above “like work” is defined as work that is –

 i.     Identical or interchangeable;

 ii.     Similar in nature where the differences are infrequent or of small importance in relation to the work as a whole;

 iii.     Equal in value in terms of the demands made in relation to matters such as skill, physical or mental requirements, responsibility and working conditions.

I note the Respondent, in post hearing submissions, has submitted the GAA Development Officer Job Specification describing the role and responsibilities currently carried out by the comparator together with the vacancy notice in regard to the Complainant’s role as Maynooth University Sports Office Golf Manager.   

I note the Complainant at hearing rejects the Respondent position that he is not performing ‘like work’ and he submits that in fact this is the first time he has been told that the GAA operation is bigger than the Golf operation.  Having reviewed in detail the job specification and the vacancy notice I do not accept the Respondent position that the jobs of the Complainant and the comparator did not involve like work.  I have taken into account the skills needed to carry out the work; the responsibilities and the mental requirements.  I am satisfied the Complainant and the comparator are undertaking “like work” or work that is of equal value within the meaning of section 7 set out above.  

On the evidence before me I am satisfied the work done by the Complainant is comparable to the work done by the comparator. 

I find that the Complainant has successfully established a prima facie case of discrimination and it falls to the Respondent to rebut.  The Complainant has identified a properly comparable woman with whom he was doing work of equal value but who was paid significantly more than him.   

The onus of proof is on the employer to prove that the differentiation is genuinely attributable to grounds other than gender. 

I accept the differential in pay originated in the fact the comparator’s role while she has on FTCs was partially funded by the GAA and I am satisfied this would have been the case irrespective of the gender of that particular role holder.    

It is the Complainant’s case that he is directly discriminated against on the grounds of his gender in relation to his pay given that he performed like work or work of equal value with a named comparator who is of a different gender to him. I note the Complainant and the comparator are currently paid at point 9 of the AO11 scale. 

However, I note the disparity in the respective remuneration of the Complainant and the comparator commenced in 2016 and this constituted a difference in pay in real terms in the intervening years.     

I note in case of Glasgow City Council v Marshall [2000] 1 WLR 333 at p.339, Lord Nicholls observed as follows when considering the relevant and analogous UK legislation:

“The scheme of the Act is that a rebuttable presumption of sex discrimination arises once the gender-based comparisons shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man …. The burden passes to the employer to show that the explanation for the variation is not tainted with sex.  In order to discharge this burden the employer must satisfy the Tribunal on several matters.  First, that the proffered explanation, or reason, is genuine and not a sham or pretence.  Second, that the less favourable treatment is due to this reason.  The factor relied upon must be the cause of the disparity.  In this regard, and in this sense, the factor must be a “material” factor, that is, a significant and relevant factor.  Third, that the reason is not “the difference of sex”.  This phrase is apt to embrace any form of sex discrimination, whether direct or indirect ….”.

In Minister for Transport, Energy and Communication v Campbell and others [1996] E.L.R 106, Keane J held that the Labour Court in examining the question of whether there are grounds unconnected with the impugned ground which would render the difference in the rates of remuneration paid to the parties lawful – “is entitled and indeed bound to approach such an issue on the basis that an employer must prove that the differentiation is genuinely attributable to grounds other than sex”. 

Whilst Keane J was considering section 2(3) of the Anti-discrimination (Pay) Act, 1974, that provision is identical to section 29(5) of the Employment Equality Acts, 1998-2008 and his analysis applies to the present case.

I note Irish Crown Cork Company ltd v Martina Desmond and others [1983] ELR 180 sets out the obligation as follows:

“What the Labour court must consider under section 2(3) is whether the difference in rates of pay between the claimant and the defendants is or is not genuinely attributable to grounds other than sex “

Having carefully considered the totality of the evidence I am satisfied the disparity in pay is rooted in an anomaly in the first instance and not in discriminatory intent for the following reasons.  It is not in dispute the Complainant’s salary in his contract dated 1 September 2013 was €36,000 per annum.  It is not in dispute the comparator’s salary in her contract dated 1 May 2012 was €44,000.  When the respective employments transferred to the Respondent the salary alignment was undertaken in line with DPER Circular 08/2019 by which I accept the Respondent is bound. 

I am satisfied the pay assimilation that took place ensured that their current pay (at that time) namely €36,000 and €44,000 aligned correctly with the new pay scales by reference to their existing pay and assimilated accordingly to the new pay structure in respect of the Complainant and the comparator albeit with very different outcomes owing to the disparity that existed in the first instance.   

It is not in dispute the comparator’s remuneration was significantly higher than that of the Complainant prior to the employment transferring across to the Respondent when their respective employments were regularised.  I note the Respondent appeared to be aware this could cause issues internally but I note there was nothing done despite many efforts on the part of the Complainant to have the disparity in pay addressed over the years.  I fully accept the Respondent is bound by government policy in relation to pay but I am of the view there ought to have been attempts at finding some mechanism through which this pay disparity could have been addressed.     

I am statutorily bound to apply the law to the facts and to consider and adjudicate upon this complaint as presented under the impleaded legislation as for me to do otherwise would be operating ultra vires.    

Notwithstanding, had the Complainant raised this matter under the Industrial Relations Acts there may have been some scope for a recommendation to issue as to the manner in which this historic pay differential and the resultant financial detriment to the Complainant might be addressed.   

Overall, I find that the Complainant has successfully established a prima facie case of discrimination that meets the requirements of section 85A of the Act in respect of this complaint.

However, the Respondent has successfully rebutted this presumption by demonstrating that the difference in pay scales in contention arises from the application of DPER Circular 08/2019 by which it is bound and that the difference in pay between the Complainant and the comparator is attributable to factors other than gender for the reasons as set out above.   

CA-00071974-001

I find that the Complainant was not discriminated against by the Respondent for the reasons set out above.  I decide this complaint is not well-founded.