Labour Court Database __________________________________________________________________________________ File Number: AEP885 Case Number: DEP884 Section / Act: S8(1)AD Parties: DUNNES STORES (NORTHSIDE) LIMITED - and - FIVE FEMALE EMPLOYEES;IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION |
Appeal, by the Union, against Equality Officer's Recommendation No. E.P. 6/1988, concerning a claim by five named female sales assistants for the same rate of remuneration as that paid to Mr. Frank Bollard from the date of his assimilation onto point 3 of the sales assistant scale in December, 1983.
Recommendation:
26. In view of my conclusions, I consider that the claimants
have no entitlement to be paid the difference between the
rate paid to them and that paid to Mr. Bollard following his
assimilation to the sales assistant scale."
5. The Union appealed the Equality Officer's recommendation to
the Labour Court Court under Section 8 of the Anti-Discrimination
(Pay) Act, 1974 on 5th July, 1988. The appeal came before the
Court on 26th August, 1988. The written submissions to the Court
are attached as appendices to this Determination.
DETERMINATION:
6. At the hearing of this appeal the Company requested that the
Court consider in the first instance their objection to the
hearing of the appeal, the grounds of which it was submitted, did
not comply with the terms of Section 8(1)(e) of the
Anti-Discrimination (Pay) Act, 1974. That section states:
"An appeal under this section shall be lodged in the Court not
later than 42 days after the date of the Equality Officer's
recommendation and the notice shall specify the grounds of
appeal".
The Company also referred the Court to the judgement of Finlay,
Chief Justice in NWHB -V- Martyn wherein the Chief Justice stated
"If a party appealing the ruling or recommendations of the
Equality Officer to the Labour Court seeks to put in issue any of
the facts so found they should unequivocally do so in their notice
of appeal" etc.
The appeal from the Irish Distributive and Administrative Trade
Union dated 5th July, 1988 states:
"I am directed by my Dublin Distributive Branch Committee to
request a Labour Court hearing of our appeal against the
above recommendation.
We are making the appeal on the grounds that the comparator,
Mr Bollard, continues to enjoy an advantage on the
incremental scale which does not apply to the five female
claimants."
Having considered the submissions made by the parties, the Court
is satisfied that the point made by the Company is well founded
and that the letter of appeal quoted above does not constitute a
valid appeal under the Act of 1974 as it does not challenge any
matter of fact or law in the Equality Officer's report and
recommendation but rather seeks to challenge the effects of that
recommendation.
The Court accordingly rejects the appeal and so determines.
Division: Ms Owens Mr McHenry Mr Devine
Text of Document__________________________________________________________________
AEP885 DETERMINATION NO. DEP488
ANTI-DISCRIMINATION (PAY) ACT, 1974
SECTION 8(1)(A)
PARTIES: DUNNES STORES (NORTHSIDE) LIMITED
and
FIVE FEMALE EMPLOYEES
(REPRESENTED BY IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION)
SUBJECT:
1. Appeal, by the Union, against Equality Officer's
Recommendation No. E.P. 6/1988, concerning a claim by five named
female sales assistants for the same rate of remuneration as that
paid to Mr. Frank Bollard from the date of his assimilation onto
point 3 of the sales assistant scale in December, 1983.
BACKGROUND:
2. The claimants were recruited as sales assistants on dates
between February and April, 1982. Mr. Bollard was recruited as a
porter/packer in May, 1982. Prior to December, 1983, sales
assistants and porter/packers, who are represented by different
Unions, were paid on the basis of different scales, the porter/
packer scale being an age-related scale and the sales assistant
scale being an incremental scale. The rates in operation in 1983
were as follows:-
Age Porter/Packer Sales Assistants
£ £
16 52.29 P.1 79.12
17 62.77 P.2 83.09
18 70.44 P.3 87.73
19 78.32 P.4 111.53
20 88.82 P.5 115.25
21 110.99 P.6 120.73
3. On 3rd December, 1983, in return for taking on cash register
duties, Mr. Bollard and the other porter/packers employed by the
Company were assimilated onto the sales assistant scale and since
then have been regarded by the Company as sales assistants. The
porter/packer scale is no longer in existence. Assimilation took
place on the following basis:-
Age Old System New System
(1.5.1983) (Assimilation)
16 £52.29 +£10.00
17 £62.77 +£10.00
18 £70.44 £79.12 Pt/1
19 £78.32 £87.73 Pt/3
20 £88.82 £111.53 Pt/4
21 £110.99 £115.25 Pt/5
£120.73 Pt/6
Mr. Bollard who was on the 19 year old point of the age related
scale (£78.32) in December, 1983 was assimilated onto point 3 of
the sales assistant scale (£87.73) and progressed to points 4,5
and 6 with effect from the date of his annual increase in March,
1984, 1985 and 1986. The claimants did not reach point 3 of the
scale until they had 2 years service with the Company i.e. on
dates between February and April, 1984 and consequently continued
to be paid one point lower on the scale than Mr. Bollard until
they reached point 6 of the scale in 1987.
4. The Union contends that the claimants are entitled under the
Act to be paid the difference between the rates paid to Mr.
Bollard and the rates paid to the claimants in respect of the
period from the date of his assimilation onto the sales assistant
scale to the date they reached point 6 on the scale, subject to
the provisions of section 8(5) of the Act. The Company was not
prepared to concede this claim and the Union requested the
Equality Officer to investigate the matter and issue a
recommendation. Following an investigation, the Equality Officer,
on 10th June, 1988, issued the following conclusions and
recommendation -
"Conclusions of Equality Officer:
11. The basic questions which have arisen in the case here
concerned may be summarised as follows: (i) Does a dispute
exist in the context of section 7(1) of the Act? (ii) Do the
provisions of section 19(5) of the Employment Equality Act,
1977 concerning the time limit for lodgement of disputes for
investigation apply to the Anti-Discrimination (Pay) Act,
1974? (iii) are there grounds other than sex, within the
meaning of section 2(3) of the Act, to justify the
assimilation of Mr. Bollard onto point 3 of the sales
assistant scale? and (iv) do the claimants perform like work
with that performed by Mr. Bollard in terms of section 3 of
the Act. My views in relation to these points are set out in
the following paragraphs.
Existence of dispute
12. The first point for consideration is the Company's
argument that I have no jurisdiction to investigate the
matter here concerned because the provisions of section 7(1)
of the Act have not been satisfied. Section 7(1) states as
follows:-
"A dispute between an employer and an employee in relation
to the existence or operation of a term (in this section
referred to as an equal pay clause) included by virtue of
section 2 in a contract of employment or implied by virtue
of section 4 in terms and conditions of employment may be
referred by a party to the dispute to an equal pay officer
for investigation and recommendation and shall upon such
reference be investigated in accordance with this Act and
not under any other existing provision or arrangement."
In essence, the Company states that the Union sent letters to
both the Company and the Equality Officer dated 14th and 15th
July, 1987 purporting to bring a claim under the Act. This
was the first occasion on which the Union had contacted the
Company in the matter and, furthermore, the letters simply
stated that the named claimants were claiming equal pay under
the terms of the Anti-Discrimination (Pay) Act, 1974 with Mr.
Bollard. No further details of the claim were given. The
Company argues that it is clear, therefore, that no dispute
existed in relation to the claim for the purposes of section
7(1) of the Act. In response, the Union argues that the
Company has had a policy of refusing to meet the Union and
that experience has shown, therefore, that attempting to
resolve any claim through direct discussions is a pointless
exercise.
13. In my opinion, the judgement of Mr. Justice Blayney in
the case of Polymark (Ireland) Ltd. v. The Labour Court and
the I.T.G.W.U. is relevant in considering the Company's
argument. Polymark (Ireland) Ltd. appealed to the High Court
against a Determination of the Labour Court that certain
female employees were entitled to equal pay with one
particular comparator. The basis of the appeal was
summarised in the Judgement as follows:-
"The dispute which was referred to the equal pay officer
was a dispute concerning twenty six female packers and
checkers who were claiming equality of pay with nine named
male assistant operatives. The dispute which was in fact
considered by the equal pay officer was one in respect of
a claim by the packers and checkers for equality of pay
with Stephen Vaughan, an assistant operative who was not
one of the nine male assistant operatives originally
named. The claim being made was a new claim but no
dispute which could be referred to the equal pay officer
had arisen in respect of it as it had not been submitted
to the Company and rejected by it. There was accordingly
no dispute within Section 7 of the Anti-Discrimination
(Pay) Act, 1974 which could be referred to the equal pay
officer. The equal pay officer therefore had no
jurisdiction to deal with the matter and the Labour Court
equally had no jurisdiction to deal with it either".
Having considered this submission Mr. Justice Blayney stated
as follows:-
"In my opinion this submission is correct insofar as it
contends that what the equal pay officer investigated was
a dispute in respect of a new claim and not the original
one, but I consider it is not correct insofar as it
contends that there was no dispute between the Prosecutor
and the Union in regard to the new claim. That there was
no dispute in regard to this claim is not borne out by the
facts. In their memorandum of the 11th January, 1984, the
Union made it very clear what their claim then was,
namely, that the work of the packers/checkers was equal in
value to that of assistant operatives like Mr. Stephen
Vaughan. A copy of this memorandum was sent to the
Federated Union of Employers and they wrote on behalf of
the Prosecutor to the equal pay officer on the 4th April,
1984 specifically rejecting the contention that the work
performed by the packers/checkers was "like work" with
that performed by Mr. Vaughan. In other words, the
Prosecutor, having been given notice of the new claim
being made by the Union, rejected it, and the effect of
the rejection was to give rise to a dispute which was
capable of being referred to the equal pay officer for
investigation and recommendation. I am satisfied
accordingly that what the equal pay officer investigated
was the subject of a dispute and therefore she had
jurisdiction to investigate it and make a recommendation
in regard to it, and the Labour Court had jurisdiction to
hear the Prosecutor's appeal from her recommendation. The
Prosecutor's first ground accordingly fails."
14. In the case here concerned, on 14th July, 1987, the
Union requested the assistance of an Equality Officer in
relation to a claim under the Anti-Discrimination (Pay) Act,
1974 by five named female employees for equal pay with Mr.
Frank Bollard. The Equality Officer held a preliminary
meeting with the parties on 20th August, 1987 (the earliest
date suitable to all parties). At that meeting, the Union
stated that it had discovered that Mr. Bollard, who had the
same length of service as the claimants, had been moved to
point 6 of the sales assistant scale in 1986 whereas the
claimants had not reached that point until 1987. The Union
submitted that the claimants were entitled, under the Act
here concerned, to be moved onto point 6 with effect from
1986, in line with Mr. Bollard's move to that point of the
scale. In response, the Company explained that Mr. Bollard
had been recruited as a porter/packer on an age-related scale
and had been assimilated onto the sales assistant scale in
December, 1983 in return for taking on additional duties.
The Company agreed to forward a copy of the rates which had
applied to Mr. Bollard from the time he was recruited and
these rates were furnished to the Union on 28th August.
15. On 11th September, 1987 the Union made a written
submission to the Equality Officer indicating that it was
adjusting its claim in the light of the information received
from the Company concerning the rates applied to Mr. Bollard.
It was now claiming that the five claimants were entitled,
under the terms of the Act, to equal pay with Mr. Bollard
with effect from 3rd December, 1983, i.e. the date on which
Mr. Bollard was moved to a higher point of the scale than
applied in the case of the claimants, subject to the
provisions of section 8(5) of the Act. This submission was
copied to the Company.
16. The Company furnished a written response to the Union's
submission on 8th October. While the Company stated in the
submission that it was not aware of any dispute under section
7 of the Act, without prejudice to its position on that point
it set out in detail the reasons it believed that any
difference between the rates of pay of the five claimants and
of the comparator was on grounds other than sex and that,
therefore, they had no entitlement under the terms of the Act
to the retrospective rate claimed by them. The Union
responded to this submission in November and the Equality
Officer held a joint hearing of the case on 4th December. At
that hearing the Union's claim, and the Company's reasons for
rejecting the claim were discussed in detail and a further
written submission was made by the Company on 31st December.
Further written material was received subsequently from both
parties
17. In the light of the facts set out in paragraphs 14 - 16
ante, it is clear that the Company, having been given notice
of the claim being made by the Union, rejected it, and the
effect of the rejection was to give rise to a dispute for the
purposes of section 7(1) of the Act. Consequently, I am
satisfied that the provisions of section 7(1) of the Act have
been satisfied.
Section 19(5) and 56(2) of the 1977 Act
18. The Company contends that the time limit prescribed in
section 19(5) of the Act of 1977 applies to disputes referred
for investigation under the Act here concerned by virtue of
section 56(2) of the Act of 1977 which provides that "The Act
of 1974 and this Act shall be construed together as one Act".
Section 19(5) of the Act of 1977 states that -
"Save only where a reasonable cause can be shown, a
reference under this section shall be lodged not later
than six months from the date of the first occurrence of
the act alleged to constitute discrimination".
A reference "under this section" clearly means a reference
under section 19 of the Act of 1977. The dispute here
concerned, however, has been referred for investigation under
section 7 of the Act of 1974. Consequently, it is not a
reference under section 19 of the Act of 1977, nor is there
any provision in the legislation that a reference under
section 7 of the Act of 1974 shall be dealt with as if it
were a reference under section 19 of the Act of 1977. I am
satisfied, therefore, that the provisions of section 19(5) of
the Act of 1977 do not apply to a reference under section 7
of the Act of 1974.
Section 2(3) of the 1974 Act
19. Section 2(3) of the Act states as follows:-
"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 context of this section of the Act the Company argues,
basically, that the reason Mr. Bollard was placed on point 3
of the sales assistant salary scale in December, 1983 was not
related in any way to his sex but that he was assimilated
onto point 3 of the scale solely in return for taking on the
additional duty of operating the cash registers.
20. I am satisfied that Mr. Bollard was assimilated onto the
sales assistant scale in return for taking on cash register
duties. However, that is not really the point at issue. The
point in contention is that Mr. Bollard was assimilated onto
point 3 of the scale, which was one point higher than that of
the claimants who had similar length of service. I have
examined, therefore, the basis on which Mr. Bollard was
assimilated in order to ascertain whether or not the fact
that he was assimilated onto a higher point of the scale than
that of the claimants was on grounds other than sex in the
context of section 2(3) of the Act.
21. Prior to assimilation, Mr. Bollard and the claimants,
who are represented by different Unions, were paid on the
basis of scales which were fundamentally different. The
scale applying to Mr. Bollard was based entirely on age and
did not take into account the service of the employee, while
the scale applying to the claimants was based on service and
did not take into account the age of the employee. In order
to ensure that no differences would have arisen between the
rates of the claimants and the porter/packers following
assimilation it would have been necessary to assimilate
porter/packers onto the sales assistant scale solely on the
basis of their service. It is clear, however, that this
would have caused difficulties as, depending on age and
service, this would have involved a decrease in pay in some
instances because the rates applying to porter/packers at 20
years of age and over were higher than the first three points
on the sales assistant scale. It would also have involved a
very significant increase for porter/packers at the lower end
of the age related scale.
22. It is clear from the Company's submission that the
Company assimilated the porter/packers onto the sales
assistant scale on the basis of their existing salary rather
than on the basis of length of service. It appears to me
that if a difference in rates arises as a result of
assimilating a person of one sex, on the basis of his/her
existing salary rather than on the basis of service, onto a
service related scale applying to persons of the other sex,
the difference will only be permissible in terms of section
2(3) of the Act if the reason the existing salary was higher
than certain points of the service related salary is not due
to the sex of the job holders.
23. (i) In the case here concerned, the scales which applied
to porter/packers and sales assistants prior to
assimilation (1983) were as follows:-
Porter/Packer Sales Assistants
£ £
16 52.29 Pt.1 79.12
17 62.77 " 2 83.09
18 70.44 " 3 87.73
19 78.32 " 4 111.53
20 88.82 " 5 115.25
21 110.99 " 6 120.73
Having considered these scales, it is clear that it
could not be said that the scale applying to the
comparators was, in overall terms, more advantageous
than that applying in the case of the sales
assistants. It resulted in a higher wage than that
paid to sales assistants with less than three years
service in the case of those porter/packers who were
20 years of age or over; however, all sales
assistants, irrespective of their age or service,
had a higher rate than that applying to
porter/packers under 20 years of age, and any sales
assistant with at least 3 years service had a higher
rate than any porter/packer, irrespective of his age
or service.
(ii) An age-related scale applies to porter/packers in
the Company's Store at Cornelscourt in Dublin and
was substantially the same as that which applied to
the porter/packers in the Store here concerned prior
to their assimilation onto the sales assistant
scale. In 1982, a porter employed at the
Cornelscourt Store claimed entitlement under the Act
here concerned to equal pay with a female sales
assistant on point six of the sales assistant scale.
Having investigated the case the Equality Officer,
in Recommendation No. EP. 27/1982, found that there
were grounds other than sex to justify the
difference in rates. He concluded that the
different rates paid to the claimant and the sales
assistant were based on the different ranges of
duties for which they were liable in their
respective capacities as porter and sales assistant
and were not related to the sex of the job holders.
He stated that he was satisfied that "the difference
in the pay of the employees concerned would still
exist even if there were a mixture of males and
females employed in each category or even, indeed,
if it were the males who were employed as sales
assistants and the females as porters." The
Equality Officer's Recommendation was upheld by the
Labour Court on appeal in Determination No. DEP.
4/1983.
(iii) In view of points (i) and (ii) ante I am satisfied
that the fact that the rates applying at age 20 and
over on the porter/packer scale were higher than the
first three points of the sales assistant scale was
not due to the sex of the job holders.
24. I have also considered fully the Union's argument that if
Mr. Bollard had been assimilated onto point 2 of the scale
this would have resulted in an increase in pay for him and
that, consequently, it was not appropriate to assimilate him
onto point 3 of the scale. It is a fact, however, as pointed
out by the Company, that if Mr. Bollard had been assimilated
onto point 2 of the scale this would have resulted in him
earning less within a few months than he would have earned as
a porter/packer, because the rate he would have been paid on
the porter/packer scale at age 20 (the age he attained in
March, 1984, three months after his assimilation) was higher
than point 3 of the sales assistant scale. I consider,
therefore, that Mr. Bollard's position on his then existing
salary scale genuinely determined the point on the sales
assistant scale to which he was assimilated viz point 3. As
already stated in paragraph 23, I am satisfied that the
reason certain points of his then existing salary structure
were paid at a higher rate than certain points of the sales
assistant scale was not due to the sex of the job holders.
25. In view of my conclusions in paragraphs 22 - 24 I am
satisfied that the difference between the rate paid to Mr.
Bollard and that paid to the claimants was permissible having
regard to the provisions of section 2(3) of the Act.
Consequently, the question of whether or not the claimants
perform like work with that performed by Mr. Bollard is not
relevant in making a decision in relation to their
entitlement under the Act.
Recommendation
26. In view of my conclusions, I consider that the claimants
have no entitlement to be paid the difference between the
rate paid to them and that paid to Mr. Bollard following his
assimilation to the sales assistant scale."
5. The Union appealed the Equality Officer's recommendation to
the Labour Court Court under Section 8 of the Anti-Discrimination
(Pay) Act, 1974 on 5th July, 1988. The appeal came before the
Court on 26th August, 1988. The written submissions to the Court
are attached as appendices to this Determination.
DETERMINATION:
6. At the hearing of this appeal the Company requested that the
Court consider in the first instance their objection to the
hearing of the appeal, the grounds of which it was submitted, did
not comply with the terms of Section 8(1)(e) of the
Anti-Discrimination (Pay) Act, 1974. That section states:
"An appeal under this section shall be lodged in the Court not
later than 42 days after the date of the Equality Officer's
recommendation and the notice shall specify the grounds of
appeal".
The Company also referred the Court to the judgement of Finlay,
Chief Justice in NWHB -V- Martyn wherein the Chief Justice stated
"If a party appealing the ruling or recommendations of the
Equality Officer to the Labour Court seeks to put in issue any of
the facts so found they should unequivocally do so in their notice
of appeal" etc.
The appeal from the Irish Distributive and Administrative Trade
Union dated 5th July, 1988 states:
"I am directed by my Dublin Distributive Branch Committee to
request a Labour Court hearing of our appeal against the
above recommendation.
We are making the appeal on the grounds that the comparator,
Mr Bollard, continues to enjoy an advantage on the
incremental scale which does not apply to the five female
claimants."
Having considered the submissions made by the parties, the Court
is satisfied that the point made by the Company is well founded
and that the letter of appeal quoted above does not constitute a
valid appeal under the Act of 1974 as it does not challenge any
matter of fact or law in the Equality Officer's report and
recommendation but rather seeks to challenge the effects of that
recommendation.
The Court accordingly rejects the appeal and so determines.
~
Signed on behalf of the Labour Court
Evelyn Owens
__________________________
8th September, 1988 Deputy Chairman.
A.K./J.C.
APPENDIX 1
Union's submission to the Labour Court
Chairperson and Members of the Court,
The history of this case is outlined in the Equality Officer's
Recommendation E.P. 6/1988.
Having achieved the Sales Assistant rate of pay in December, 1983,
the comparator continued to move up this new scale on his date of
birth rather than on the anniversary date of his joining the
Company. As his date of birth is March and his date of joining
the Company is May, he gained a two-month advantage over the sales
workers every time he moved up an incremental point. As all of
the Porters/Packers staff are male and all of the sales staff were
female, the advantage enjoyed by the comparator was one enjoyed by
males as against females. We submit that this same advantage
should be extended retrospectively to the five claimants. We are
not suggesting that sales/female workers should progress along the
scale on the date(s) of their birth. We are merely proposing that
the two-month advantage enjoyed by the comparator be extended to
the five named claimants.
Secondly, the actual system of assimilation used to move the
comparator from the Porters/Packers scale on to the Sales
Assistant pay scale was unnecessarily advantageous to the male
worker.
The comparator could have moved prematurely on to the remaining
points of the Porters/Packers scale and from there be assimilated
onto the Sales scale as follows:
Porters/Packers Sales Assistants
16 £ 52.29
17 £ 62.77
18 £ 70.44
* 19 £ 78.32 1. £ 79.12
Dec. 83 20 £ 88.82 2. £83.09
Dec. 84 21 £110.99 3. £ 87.73
March/May 85 4. £111.53
March/May 86 5. £115.25
March/May 87 6. £120.73
The Company however chose to do deals with individual workers
instead of negotiating with unions and the result is obvious.
The Court is asked to determine that the claimants be paid the
difference between their rates and the rate paid to Mr. Bollard in
respect of the period from the date of his assimilation to the
date they (the claimants) reached point 6 of their scale, subject
to the provisions of Section 8(5) of the Act.
APPENDIX 2
Company's submission to the Labour Court
ANTI-DISCRIMINATION (PAY) ACT, 1974
5 Female Employees -v- Dunnes Stores (Northside) Limited
EP 6/1988 (Appendix 1 of submission)
Background to Appeal
1. The Equality Officer recommended on 10th June, 1988 that the 5
female claimants are not entitled to equal pay under the Act
with the male comparator. Without prejudice to the following
the company accepts that recommendation.
2. The key point in relation to the claim is that we are dealing
with a claim for retrospective equal pay.
3. The union appealed this recommendation on behalf of the 5
claimants by way of letter of appeal to the Labour Court dated
5th July, 1988 (Appendix 2). There was only one ground of
appeal namely, that the comparator continues to enjoy an
advantage on the incremental scale which does not apply to the
5 female claimants.
We refer the Court to S 8(1) (e) of the 1974 Act which
provides that a notice of Appeal should state the grounds of
appeal.
That section states - "An appeal under this section shall be
lodged in the Court not later than 42 days after the date of
the Equality Officer's recommendation and the notice shall
specify the grounds of appeal."
We state that there is no continuing advantage to the
comparator. Accordingly, we request the Court to strike out
this appeal as it has no foundation at all. Furthermore,
there is no request to hear the appeal in full i.e. appeal the
recommendation on facts and on law. The Court is also
referred to the judgement of Finlay, C.J. in North Western
Health Board -v- Martyn, wherein the Chief Justice stated -
"If a party appealing the ruling or recommendations of the
Equality Officer to the Labour Court seeks to put in issue any
of the facts so found they should unequivocably do so in their
Notice of Appeal and, in turn, the Labour upon the conclusion
of its hearing should in an unambiguous fashion state the
facts which it has found and the evidence upon which it has
found them." (21st December, 1987 - Supreme Court) (Appendix
3 of submission).
4. At this stage, the Court is requested to note that the
discrimination must be proved by the person alleging it
(Martyn -v- North Western Health Board - December, 1987 -
judgement of Hederman, J.- Supreme Court) (Appendix 4 of
submission).
BACKGROUND TO APPEAL
1. IDATU sent letter to both the company and the Equality Officer
dated 14th July and 15th July purporting to bring a claim
under the Act (Appendix 2 of submission).
The company is not aware of any dispute in this regard under
section 7 of the Act. In support of such allegations, please
find attached note of meeting between the shop manageress and
the claimants. During the course of such conversation the
manageress was merely asked about rates of pay. There was
absolutely no question of alleged discrimination (Appendix 5
of submission). The first indication from the claimants that
there was such alleged discrimination was 16th July, 1987.
Subsequently on 21st August, 1987 at a meeting before the
Equality Officer the claimants representative was still not
sure whether he was bringing a claim or not on behalf of the
alleged claimants.
Arguably, therefore the claim (if any) only commenced on 11th
September, 1987 (see details of Equality Officer's
investigation - Appendix 11 of recommendation).
2. Without prejudice to the above, the union stated it was
bringing the claim under Sections 3(b) and 3(c) of the Act.
Accordingly, the company reserves its rights to submit further
submissions in relation to such purported appeal.
3. Section 56(2) of the Employment Equality Act, 1977 states that
the 1974 Act and the 1977 Act shall be construed together as
one Act. Section 19(5) of the 1977 Act in summary provides
that a claim must be lodged not later than 6 months from the
first act of alleged discrimination. Such first act, if any,
in the present claim occurred in December, 1983. Accordingly,
it is contended that such claim is out of time and further
that no reasonable cause has been shown for such delay.
Without prejudice to all the above points, the company submits as
follows:
FACTS
1. Appendix 6 of submission shows rates of pay with annual
increases for both claimants and the male comparators. It
also has a table showing the assimilation of the
porter/packers onto the Sales Assistant rate. The company has
a Sales Assistant rate with 6 points in such scale. The
company operated a young persons porter/packer scale which is
no longer in existence.
The porter/packers were on an age related scale up to 21
years; however, they took on additional duties by agreement on
3rd December, 1983. This was by way of verbal agreement with
Mr. Mahon. At the time they were assimilated on the relevant
point on the Sales Assistant scale. All such persons are now
termed Sales Assistants. (For further information - see
Appendix 7 of submission - this information was submitted to
the Equality Officer with the attached covering letter).
COMPANY'S ARGUMENTS
1. The agreement referred to above was on grounds other than sex.
It was agreed with the porter/packers at that time that their
scale be dispensed with and that each young person would be
assimilated on to the Sales Assistant scale. The male
comparator porter/packer who was assimilated on to that scale
just happened to be male; that person could as easily have
been a female.
The porter/packer scale has now been dispensed with and all
new Sales Assistants enter on point 1 of the Sales Assistant
scale, unless they had previous relevant experience.
2. In relation to this claim, the Court is referred to the
recommendation in Dunnes Stores (Parkway) Limerick Limited and
28 Female Employees (Reference No. EP6/1987). (Appendix 8).
The principle of the current case is exactly the same as the
Parkway case, wherein the Equality Officer held that the
claimants in that case had no entitlements under the Act.
She was satisfied that applying the Sales Assistants scale to
the comparators in exchange for their agreement to undertake
cash register duties was not on grounds of sex. Accordingly,
therefore any difference between rates of remuneration was on
grounds other than sex, within the meaning of section 2(3) of
the Act.
3. Accordingly, it is maintained that any differences in pay were
on grounds other than sex, in accordance with section 2(3) of
the Act, which states '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.' It might be noted that the company
has a particular requirement for extra staff to be available
to do register duty, more particularly in relation to lunch
hours and at other break times, and further during holiday
periods.
Accordingly, under this section of the Act, an employer may
raise such defence on differences in the pay of employees of
different sexes arising for reasons other than sex, such as
the economic circumstances, legitimate business purposes and
market forces. The company requirement for such employees to
do additional duties arises under this ground.
Such assimilation on to the Sales Assistant scale was effected
by means of collective bargaining between the company and the
male comparator. The Labour Court has accepted in Grant
Barnett & Co. Limited -v- A Worker (DEE 7/1983) (Appendix 9 of
submission), that any differences arising from the collective
bargaining process and not resulting in unequal treatment for
discriminatory reasons did not constitute discrimination
within the meaning of the Act.
The Court is also referred to Healy -v- Dunnes Stores
(Cornelscourt) Limited (EP 27/1982 and DEP 4/1983 which is
referred to in the Equality Officer's recommendation (Appendix
10 of submission).
4. On recruitment the Sales Assistants were placed on a 6 point
incremental scale, while the male comparator was placed on an
age related scale. On the 3rd December, 1983 the male
comparator was placed on point 3 of the Sales Assistant scale
as a result of taking on additional duties.
This was the next most appropriate point on the scale. On the
19th December, 1983, that point 3 was re-alligned in order to
take account of wage round increases. From that date he
received all wage round increases as per the Sales Assistant
scale, and on the 9th March, 1986, he reached point 6 of that
scale. The female employees all commenced employment in or
about February to April, 1982 and were all placed on point 1
of the Sales Assistant scale and received full pay increases
and are now on point 6 of that scale.
Accordingly, the claim lies in relation to a form of
retrospection because it took the male comparator a marginally
shorter time to reach point 6 of the Sales Assistant scale.
He reached it in March, 1986 whilst the female claimants
reached it in or about February to April, 1987.
Accordingly, the Court is asked to determine that:-
The male comparator's undertaking to take on additional duties
and thus his assimilation on to the next relevant point on the
Sales Assistant scale was not on grounds of sex, and further
that any difference between the rates of renumeration of the 5
claimants and of the comparator was on grounds other than sex.
It is submitted that the Court may only consider the Equality
Officer's recommendation - in essence that is all that is
before the Court. In support of this contention the Court is
referred to Cadwell and Others -v- The Labour Court and
Lissadell Towels Limited - the High Court heard this case by
way of judicial review. Mr. Justice Egan gave judgement in
May, 1988 and he held that the Labour Court should have
investigated the case rather than just determine on a point of
law. However, the Labour Court has now appealed this
judgement to the Supreme Court. Accordingly the Labour Court
should either look at the issue before the Court which is
jurisdiction or alternatively grounds other than sex or else
await the Supreme Court ruling.
The Court is requested to give reasons for reaching its
determination.
The Appendices to the Company's submission are listed below.
____________________________________________________________
Appendix 1: Equality Officer's Recommendation No. EP6/1988.
Appendix 2: (a) IDATU appeal to the Labour Court dated 5th July,
1988.
(b) Court's notification to Company of same.
Appendix 3/4: Supreme Court: NWHB v C. Martyn. Judgements of
Finlay, Hederman and McCarthy.
Appendix 5: Account of meeting between claimants and
manageress held on 18th February, 1987.
Appendix 6/7: Details of rates of pay.
Appendix 8: Equality Officer's Recommendation No. EP6/1987.
Appendix 9: Labour Court Determination No. DEE/7/83.
Appendix 10: (a) Equality Officer's Recommendation No. EP27/1982.
(b) Labour Court Determination No. DEP4/1983.