Labour Court Database __________________________________________________________________________________ File Number: AEP872 Case Number: DEP874 Section / Act: S8(1)AD Parties: METROPOLE HOTEL - and - ITGWU;ITGWU |
Appeal by the Federated Union of Employers, on behalf of the Metropole Hotel, against Equality Officer's Recommendation EP19/1986 concerning a claim by seven female waitresses that they have an entitlement under the terms of the Anti-Discrimination (Pay) Act, 1974, to the same rate of basic pay as that paid to a male waiter in the same employment.
Recommendation:
14. In view of my conclusions in the previous paragraphs I
find that the seven waitresses named in Appendix 1 are
entitled, under the provisions of the Act, to the same basic
rate of remuneration as that paid to the waiter with effect
from 14th October, 1983, viz. three years prior to the date on
which the dispute was referred to the Equality Officer.
(The claimants involved were named in Appendix 1 of the
Equality Officer's Report).
4. The FUE, on behalf of the Metropole Hotel, appealed the
Equality Officer's recommendation to the Labour Court under
Section 8 of the Anti-Discrimination (Pay) Act, 1974, on the
6th February, 1987. The Court heard the appeal on the 25th
March, 1987. The FUE's Notice of Appeal in addition to the
written submissions are attached as appendices to this
Determination. The parties enlarged on these submissions at
the hearing.
Determination:
The issue brought before the Equality Officer was the pay of the
waitresses concerned. The Court does not accept the contention in
this case that the matter at issue relates to a condition of
employment other than pay insofar as
(a) The Employer in the first instance equated the provision
of accommodation to remuneration,
(b) the provision of accommodation is optional for the workers
concerned. It is not a condition of employment that they
must use the accommodation provided,
(c) the provisions of Section 17 of the 1977 Act relate to
employments where the sex of the person is an occupational
qualification which clearly doesn't arise in this case.
On the matter of the alleged failure of the Equality Officer to
carry out investigations on the question of like work as between
themselves or to do a detailed analysis of the work of the
claimants and the comparator the Court finds it difficult to
understand the basis of this complaint. The fact of "like work"
was not ever at issue during the course of the Equality Officer's
investigation.
With regard to the additional matter of "red circling" of the
comparator this was not an issue which was brought to the Equality
Officer's attention. The Court in this connection notes that
additional experience is not a qualification which features in the
Hotel Industry's pay structure. Further it is not argued that the
waiter has additional functions or responsibilities from which his
continued status would derive.
On the matter of the interaction between remuneration and basic
rate in this case the Court finds the Equality Officer's
recommendation is well argued. It does not see how the provision
of additional optional - even unwanted - elements to a package of
remuneration simply on the basis of sex can be considered as
anything but discriminatory within the meaning of Section 2(3) of
the Act. If it were otherwise it could be argued that the
provision of say more commodious or better furnished office space
- whether wanted or necessary for the work to be done - might be
cited as grounds for justifying a difference in basic rate.
On the matter of arrears recommended, the Court in other cases has
dealt with the issues raised in the appeal.
The Court therefore upholds the Equality Officer's recommendation.
Division: Mr O'Connell Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
AEP872 THE LABOUR COURT DEP4/87
EP19/1986 ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. 4 OF 1987
Parties: METROPOLE HOTEL
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
SEVEN WAITRESSES
(REPRESENTED BY IRISH TRANSPORT AND GENERAL WORKERS' UNION)
Subject:
1. Appeal by the Federated Union of Employers, on behalf of the
Metropole Hotel, against Equality Officer's Recommendation
EP19/1986 concerning a claim by seven female waitresses that they
have an entitlement under the terms of the Anti-Discrimination
(Pay) Act, 1974, to the same rate of basic pay as that paid to a
male waiter in the same employment.
Background:
The Metropole Hotel employs seven waitresses and one waiter. The
waiter has been employed for fifteen years and the shortest
service of a waitress is three years. The waiter is paid #81.44
basic per week, which the Hotel states is exclusive of an amount
of #8.24 in respect of meals. The waitresses are paid #72.52
basic per week. The Hotel states that this amount is exclusive of
#8.11 in respect of meals and contends that the difference between
the waitresses' basic rate of #72.52 and the waiter's basic rate
of #81.44 is due to the fact that the waitresses have an option to
live in. The Union contends, however, that the amounts of #8.11
in the case of the waitresses and #8.24 in the case of the waiter
are in respect of both meals and accommodation and that the
difference between the amount paid to the waiter and the
waitresses is due to sex discrimination. The Hotel states that
the practice of providing accommodation for waitresses arose
because originally young waitresses employed by the Hotel were
from outlying areas and accommodation was made available to
facilitate them. On the other hand, waiters were considered to be
more independent and were offered live out positions. There are
no written documents on conditions of employment which would
establish the position more positively. The Union submitted a
claim to the Hotel in August, 1984, on behalf of the waitresses,
for the same basic rate as that of the waiter. The Hotel did not
dispute the fact that the claimants performed like work with the
waiter but refused to concede the claim on the grounds that the
difference in the rates of pay was in respect of accommodation.
This argument was rejected by the Union and on 14th October, 1986,
it referred the dispute to the Equality Officer for investigation
and recommendation.
3. Following an investigation of the matter, the Equality Officer
issued the following conclusions and recommendation on the 31st
December, 1986:-
Conclusions
11. Section 2(1) of the Act states that:-
"Subject to this Act, it shall be a term of the contract
under which a woman is employed in any place that she
shall be entitled to the same rate of remuneration as a
man who is employed in that place by the same employer
.... if both are employed in like work".
Section 2(3) of the Act states that:-
"Nothing in this Act shall prevent an employer from paying
to his employees who are employed on like work in the same
place different rates of remuneration on grounds other
than sex".
In the case here concerned the Hotel does not dispute that the
claimants are employed on like work with the waiter.
Therefore, they are entitled under section 2(1) of the Act to
the same rate of remuneration as that paid to him unless there
are grounds other than sex, within the meaning of section 2(3)
of the Act, to justify the difference in rates.
12. The first question to be considered is, therefore, whether
or not the claimants and the male are in receipt of the same
rate of remuneration. In this regard the Hotel argues that
they are in receipt of equal remuneration because the provision
of accommodation in the case of the waitresses makes up for the
difference between the basic rate of the waiter and that of the
waitresses. The Union, on the other hand, contends that the
provision of accommodation is paid for by the waitresses in the
amount of #8.11 which is deducted from their wages.
Remuneration is defined in the Act as including "any
consideration, whether in cash or in kind, which an employee
receives, directly or indirectly, in respect of his employment
from his employer". However, the Act does not state that a
person shall be entitled to equal remuneration. The Act states
that a person shall be entitled to "the same rate of
remuneration". For the purpose of deciding whether or not the
waitresses and the waiter are being paid the same rate of
remuneration it is not necessary for me to make a finding on
whether or not the difference in the basic rates is due to the
option which is available to the waitresses to avail of
accommodation or whether or not an option to live in
constitutes consideration within the definition of
remuneration. I am satisfied that, even if the difference in
basic rates is due to the option to live in and even if the
option to live in constitutes remuneration, payment on an
involuntary basis of a lower basic rate together with an option
to live in does not constitute payment of the same rate of
remuneration as payment of a higher basic rate.
13. The next question to be decided is, therefore, whether or
not there are grounds other than sex, within the meaning of
section 2(3) of the Act, to justify the difference in the rates
of remuneration. In my opinion where a person is performing
like work with a person of the other sex the onus of proof is
on the employer to show that the difference in rates is on
grounds other than sex. In this case the Hotel argues that the
difference in rates is due to the provision of accommodation in
the case of waitresses. The Union contends, however, that the
deduction of #8.11 from their wages covers both meals and
accommodation and points out that the waitresses receive a
lower basic rate whether or not they avail of the
accommodation.
The Union's argument that the deduction of #8.11 covers both
meals and accommodation is based on the fact that the deduction
is entered under the heading of meals and accommodation in the
Hotel's records. I note, however, that the deduction of #8.24
in the case of the waiter is also entered under the heading of
meals and accommodation in the Hotel's records. It is clear
that the deduction in the case of the waiter could not include
an amount in respect of accommodation since accommodation was
never available to him. As the deduction in the case of the
waitresses is no higher than in the case of the waiter it is
difficult to see how it could include a deduction in respect of
accommodation.
However, despite the fact that it appears unlikely to me that
the deduction of #8.11 includes an amount in respect of
accommodation, I am not satisfied that the difference in rates
is genuinely on grounds other than sex. I note that there is
no record of any attempt having been made, either originally or
during any wage negotiations over the years, to equate the
value in monetary terms of the provision of accommodation with
the difference in rates and that the difference applies whether
or not the waitresses actually avail of the accommodation.
Furthermore, it appears to me that even if the sole reason for
the difference in rates is genuinely due to the fact that
accommodation is available for the waitresses, (which the Hotel
has been unable to prove) this reason is, itself, sex based.
In other words, this reason means, in fact, that it is
specifically because the claimants are female that they receive
a different basic rate from that paid to the waiter as the
option to live in applies to the claimants solely because they
are female. Consequently, I find no valid grounds in the
context of section 2(3) of the Act to justify the difference
between the basic rate of the waiter and that of the claimants.
Recommendation
14. In view of my conclusions in the previous paragraphs I
find that the seven waitresses named in Appendix 1 are
entitled, under the provisions of the Act, to the same basic
rate of remuneration as that paid to the waiter with effect
from 14th October, 1983, viz. three years prior to the date on
which the dispute was referred to the Equality Officer.
(The claimants involved were named in Appendix 1 of the
Equality Officer's Report).
4. The FUE, on behalf of the Metropole Hotel, appealed the
Equality Officer's recommendation to the Labour Court under
Section 8 of the Anti-Discrimination (Pay) Act, 1974, on the
6th February, 1987. The Court heard the appeal on the 25th
March, 1987. The FUE's Notice of Appeal in addition to the
written submissions are attached as appendices to this
Determination. The parties enlarged on these submissions at
the hearing.
Determination:
The issue brought before the Equality Officer was the pay of the
waitresses concerned. The Court does not accept the contention in
this case that the matter at issue relates to a condition of
employment other than pay insofar as
(a) The Employer in the first instance equated the provision
of accommodation to remuneration,
(b) the provision of accommodation is optional for the workers
concerned. It is not a condition of employment that they
must use the accommodation provided,
(c) the provisions of Section 17 of the 1977 Act relate to
employments where the sex of the person is an occupational
qualification which clearly doesn't arise in this case.
On the matter of the alleged failure of the Equality Officer to
carry out investigations on the question of like work as between
themselves or to do a detailed analysis of the work of the
claimants and the comparator the Court finds it difficult to
understand the basis of this complaint. The fact of "like work"
was not ever at issue during the course of the Equality Officer's
investigation.
With regard to the additional matter of "red circling" of the
comparator this was not an issue which was brought to the Equality
Officer's attention. The Court in this connection notes that
additional experience is not a qualification which features in the
Hotel Industry's pay structure. Further it is not argued that the
waiter has additional functions or responsibilities from which his
continued status would derive.
On the matter of the interaction between remuneration and basic
rate in this case the Court finds the Equality Officer's
recommendation is well argued. It does not see how the provision
of additional optional - even unwanted - elements to a package of
remuneration simply on the basis of sex can be considered as
anything but discriminatory within the meaning of Section 2(3) of
the Act. If it were otherwise it could be argued that the
provision of say more commodious or better furnished office space
- whether wanted or necessary for the work to be done - might be
cited as grounds for justifying a difference in basic rate.
On the matter of arrears recommended, the Court in other cases has
dealt with the issues raised in the appeal.
The Court therefore upholds the Equality Officer's recommendation.
~
Signed on behalf of the Labour Court
4th September, 1987
DH/PG John O'Connell
Deputy Chairman