Coolbear V Prompto Despatch Limited (Represented by Joyce & Co. Solicitors)
1. DISPUTE
1.1 This dispute concerns a claim by Mr. Paul Coolbear that Prompto Despatch Limited discriminated against him when it failed to give him equal pay with the named comparator on the grounds of marital status in terms of Section 29 of the Employment Equality Act, 1998.
2. BACKGROUND
2.1 The complainant was employed as a night articulated truck driver and he alleges that he was entitled to equal pay with the named comparator with whom he performed 'like work' on the grounds of marital status. According to the complainant he was in receipt of less pay than the named comparator for performing the same work and the reason for the difference in pay is due to his marital status. The complainant is married while the named comparator is single. It is the respondent's contention that the complainant and the named comparator received the same take home pay.
2.2 The complainant referred a complaint to the Director of Equality Investigations on 15th August, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 25th October, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A final joint hearing took place on 13th February, 2003.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 It is the complainant's contention that he was discriminated against by the respondent when he did not receive the same remuneration as that paid to a single person on the grounds of marital status. The complainant, a married person, states that he was paid a lower gross salary than a named comparator who was single.
3.2 According to the complainant the named comparator received a gross pay of €425 whereas he received in the region of €50 less that this. The complainant stated that both he and the named comparator performed 'like work' with each other.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent states that when the complainant was employed he was informed that his take home pay would be £70 per night working 5 nights a week. For each driver this £70 comprised £55 which represented pay and which was subject to tax and £15 which related to travel and subsistence and was not liable to tax. The pay slips for the complainant and the named comparator do not reflect the £15 per night which was received by them for travel and subsistence. All night drivers travelling to Dublin or the surrounding regions were employed on this same basis.
4.2 The respondent states that during the course of the complainant's employment there were three other drivers employed to undertake night work. Not all of these drivers were employed for the entire duration of the complainant's employment with the respondent. The named comparator was single and was employed for the entire duration of the complainant's employment with the respondent. The other two drivers were married and neither were employed by the respondent for the full duration of the complainant's employment. The respondent states that, on recruitment, each of the drivers were told that they would receive take home pay, of what was the industry standard at the time, for travelling the return journey from Cork to Dublin or surrounding areas. According to the respondent it worked out and paid each employee's revenue contribution to the Revenue Commissioners. Consequently the Gross Pay for each driver was different reflecting the different deductions for each driver. Having made the necessary deductions the take home pay for each of the drivers differed from each other by a couple of euro. The respondent provided details of pay to the complainant and the named comparator. Details of pay were also provided for the two other night drivers who were also married.
4.3 According to the respondent the complainant was in receipt of an additional telephone allowance of €25.39 per month which was not paid to the other night drivers. The respondent states that the complainant negotiated this allowance with him before commencing employment. This allowance was not taxed by the respondent and the amount of €25.39 was paid in full to the complainant every month.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for consideration in this claim is whether or not the respondent discriminated against the complainant on the grounds of marital status in terms of his entitlement to equal remuneration under Section 29 of the Employment Equality Act, 1998. In making my decision in this claim I have taken into account all of the information supplied to me by the parties to this claim.
5.2 The Employment Equality Act, 1998 defines remuneration as follows: "remuneration", in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly from the employer in respect of the employment.
In all other pay claims under the 1998 Act (and its predecessor the Equal Pay Act, 1974) Equality Officers have considered remuneration to cover Gross Pay as opposed to Net Pay. Furthermore PRSI and income tax deductions are legally part of the income received by the taxpayer. On this basis and given the pay details for the complainant and the named comparator I am satisfied that there is a difference in pay received by the complainant (who is married) and that received by the named comparator (who is single). The complainant's gross pay is lower than the gross pay being received by the named comparator.
5.3 As the respondent offered the drivers it employed for night duty the same rate of take home pay I am satisfied that the respondent considered that each of his night drivers performed 'like work' with each other. The issue to be addressed is whether or not the respondent discriminated against the complainant on the grounds of marital status when he paid him less (in terms of gross pay) than that paid to the named comparator.
5.4 Based on the records provided and taking the records for the first week of February and first week of August, 2002 to show the pay of all employees employed at night by the respondent during the course of the complainant's employment I note that the gross pay for all the night drivers was as follows:
| 1st week of Feb. 2002 | 1st week of Aug. 2002 | |
|---|---|---|
| Complainant | €379.58 | €379.58 |
| Comparator | €426.25 | €426.25 |
| Employee 1 | €379.58 | - |
| Employee 2 | - | €404.77 |
In addition to the complainant's gross pay he was in receipt of a monthly net telephone allowance of €25.39. The gross amount of this allowance is €43.78 per month and €10.10 per week based on 52 weeks in the year. Therefore the complainant's total gross pay was €389.68. All drivers received the same travel and subsistence allowance of €95.23 per week.
5.5 From the information set out in paragraph 5.4 above I note that the named comparator, who was single, received a higher gross pay than any of the other drivers all of whom were married. In relation to the married drivers I note that the complainant received a higher gross pay than one and a lower gross pay than the other. The question to be answered is if the difference in gross pay between the complainant and the comparator was related to marital status.
5.6 I examined the information which the respondent received for the complainant and the named comparator from the Revenue Commissioners. This is the information that the respondent uses to determine the gross pay of the complainant and the named comparator. The documentation from the Revenue Commissioners contains the following information in respect of both the complainant and the named comparator:
- Employer's Number
- Date of Issue
- Effective Date
- Employee Details (PPS Number)
- Employee Name
- Tax Year
- Total Tax Credits
- Total Cut-off Point
- Standard Tax Rate
- Higher Tax Rate
- Tax Office Issued by
From my examination of this information I am satisfied that there is no information contained therein which would indicate to the respondent the marital status of his employees. Hence the deductions made by the respondent are done on the basis of the information received from the Revenue Commissioners (i.e. Tax Credits and the Cutoff point) and are not as a result of the complainant's marital status. As this information is confidential to the persons involved I am not at liberty to include them in this Decision.
5.7 The complainant made some further points following the hearing of this claim. According to the complainant he was asked if he was married and if his wife worked at the interview for the job. The complainant says that during his employment with the respondent he rarely received his pay slips and had to ask for copies of same. The complainant notes that there was no contract of employment signed by both parties and there was no net pay structure in the respondent organisation. According to the complainant there was no job description for his job or indeed any job undertaken by any of the employees. The complainant notes that all drivers had similar take home pay and says that the named comparator's wages increased around the time that he (the complainant) left the respondent's employment. It is the complainant's submission that at the time of his employment there was another married person with similar tax allowances as the complainant and having the same take home pay.
5.8 The respondent denied that the complainant was asked about his marital status, whether his wife worked and if he had children when he was interviewed for the position. According to the respondent the interview was informal (i.e. the respondent was working in his overalls while chatting to the complainant about the job). There was no one else present when the conversation took place and no notes were made. The respondent confirmed that he did inform the complainant not to discuss his pay with other drivers and he stated that he said this to all his drivers. According to the respondent the payment of £70 per night take home pay to night drivers was the industry standard at the time and the complainant accepted that all night drivers received the same take home pay.
5.9 It is accepted by both parties that night drivers received the same take home pay. In terms of working out the gross pay of each of the night drivers including the complainant and the named comparator I note that the respondent applied the information he received from the Revenue Commissioners regarding tax credits. This information related to each driver's individual circumstances and was not related to their marital circumstances. On this basis I find that the respondent did not discriminate against the complainant in terms of pay on the grounds of his marital status.
6. DECISION
6.1 On the basis of the foregoing I find that Prompto Despatch Limited did not discriminate against Mr. Paul Coolbear in relation to his pay and he was not discriminated against on the grounds of his marital status in terms of Section 29 of the Employment Equality Act, 1998.
__________________
Gerardine Coyle
Equality Officer
12th March, 2003