Labour Court Database __________________________________________________________________________________ File Number: AEP913 Case Number: DEP918 Section / Act: S8(1)AD Parties: JURY'S HOTEL DUBLIN - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Equality Officer's Recommendation NO. EP13/1990 concerning a claim by eighteen named waitresses for the same basic rate of remuneration and Sunday premium as that paid to one named waiter.
Recommendation:
7. The Court has considered the points argued by the parties in
their submissions made at the hearing of the appeal and
subsequently. Taking account of the arguments relating to Section
3(b) of the Act both parties have submitted detailed descriptions
of the work of the claimants and the comparator. It is common to
both that the work is of similar nature but the parties disagree
on the conclusion arrived at by the Equality Officer as to the
importance of the differences which exist.
It is the view of the Court that such differences are conclusive
and it concurs with the Equality Officer that the differences are
important enough to warrant the conclusion that the claimants, are
not employed in like work within the terms of Section 3(b) of the
Act.
It seems to the Court that the major factor determining the
relative importance of the actual meal and therefore the extent to
which the waiting function is critical in each area is the fact
that apart from the greater range of wine and food offered on the
Embassy menu, the service provided by the claimants is
complementary to the cabaret whereas the guests at the Embassy are
there with the sole intention of taking a meal. It is evident
therefore that in this situation the Embassy waiter must deploy
the full range of his knowledge and craft to ensure the standard
of service is maintained.
On the question of other subsidiary duties carried out by the
comparator it does seem to the Court that the Union appears to
have been mistaken on the role of waiter in the training of the
commis staff.
Furthermore the Court is satisfied that the organisational and
supervisory requirements involved in the duty of room service are
substantial and demand a higher degree of responsibility than that
required of the claimants.
The Court has noted the arguments the Union has put forward
relating to the evolution over time of the industrial wage
structure in the industry but is of the opinion that they are not
applicable to the facts of this particular case and it is also
clear that the claimants are not as suggested an integral part of
the 'silver service function' in the hotel. There is no
integration between the claimants and the restaurant staff of
which the comparator forms part.
Finally the Court is satisfied that all the data it required or
that the Equality Officer required was provided and the Union
offered no convincing evidence of any missing information which
would have affected the Equality Officer's judgement in a
significant fashion.
The Court therefore does not uphold the Union's appeal and the
Equality Officer's recommendation stands.
Division: Mr O'Connell Mr McHenry Mr Devine
Text of Document__________________________________________________________________
AEP913 DETERMINATION NO. DEP891
ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. 8 OF 1991
PARTIES: JURY'S HOTEL DUBLIN
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Equality Officer's Recommendation
NO. EP13/1990 concerning a claim by eighteen named waitresses for
the same basic rate of remuneration and Sunday premium as that
paid to one named waiter.
BACKGROUND:
2. On 19th March, 1990 the Union requested an investigation by an
Equality Officer of a dispute as to whether or not eighteen
waitresses are entitled under the Act to the same basic rate and
Sunday premium as one male waiter.
3. The claimants are employed as seasonal staff and perform
waiting duties, including silver service, at Jury's cabaret for
the duration of the cabaret season, May to October of each year.
They work from 4.00 p.m. until midnight five days a week and are
off every Monday, and one other day per week. Call back to work
for the next cabaret season is determined by order of seniority.
The workers are paid a basic rate of #76.98 per thirty-nine hour
week and a Sunday premium of #7.70. They also receive a share of
the service charge from customers attending the cabaret. The
comparator performs silver service waiting duties in the Embassy
Garden restaurant, caters for room service on a rostered schedule
and is required to undertake relief duties in the Kish restaurant
if necessary. He works on a day on day off basis with split
shifts of 11.00 a.m. to 3.00 p.m. and 6.00 p.m. to 12.30 a.m.
This worker receives a basic rate of #90.74 per thirty-nine hour
week and a Sunday premium of #9.07. He receives a share of the
service charge from customers dining in the Embassy and Kish
restaurants and from room service. There is a guaranteed minimum
service charge payment per week for both the claimants and
comparator.
4. The conclusions and recommendation of the Equality Officer
which issued on 30th November, 1990 are attached at Appendix 1.
Labour Court Investigation:
5. On 7th January, 1991 the Union appealed the recommendation of
the Equality Officer to the Labour Court. The Union's grounds of
appeal were as follows:
1. That the Equality Officer erred in the application of her
interpretation of Section 3(b) of the Act.
2. That the Equality Officer erred in not taking account of
all the facts relating to this case.
3. That the recommendation was based on incomplete data.
4. Any other grounds that may arise in the course of this
appeal.
6. The Court heard the appeal on 11th April, 1991. The written
submissions to the Court are attached as Appendices.
DETERMINATION:
7. The Court has considered the points argued by the parties in
their submissions made at the hearing of the appeal and
subsequently. Taking account of the arguments relating to Section
3(b) of the Act both parties have submitted detailed descriptions
of the work of the claimants and the comparator. It is common to
both that the work is of similar nature but the parties disagree
on the conclusion arrived at by the Equality Officer as to the
importance of the differences which exist.
It is the view of the Court that such differences are conclusive
and it concurs with the Equality Officer that the differences are
important enough to warrant the conclusion that the claimants, are
not employed in like work within the terms of Section 3(b) of the
Act.
It seems to the Court that the major factor determining the
relative importance of the actual meal and therefore the extent to
which the waiting function is critical in each area is the fact
that apart from the greater range of wine and food offered on the
Embassy menu, the service provided by the claimants is
complementary to the cabaret whereas the guests at the Embassy are
there with the sole intention of taking a meal. It is evident
therefore that in this situation the Embassy waiter must deploy
the full range of his knowledge and craft to ensure the standard
of service is maintained.
On the question of other subsidiary duties carried out by the
comparator it does seem to the Court that the Union appears to
have been mistaken on the role of waiter in the training of the
commis staff.
Furthermore the Court is satisfied that the organisational and
supervisory requirements involved in the duty of room service are
substantial and demand a higher degree of responsibility than that
required of the claimants.
The Court has noted the arguments the Union has put forward
relating to the evolution over time of the industrial wage
structure in the industry but is of the opinion that they are not
applicable to the facts of this particular case and it is also
clear that the claimants are not as suggested an integral part of
the 'silver service function' in the hotel. There is no
integration between the claimants and the restaurant staff of
which the comparator forms part.
Finally the Court is satisfied that all the data it required or
that the Equality Officer required was provided and the Union
offered no convincing evidence of any missing information which
would have affected the Equality Officer's judgement in a
significant fashion.
The Court therefore does not uphold the Union's appeal and the
Equality Officer's recommendation stands.
~
Signed on behalf of the Labour Court
John O'Connell
_____________________
27th November, 1991 Deputy Chairman.
U.M./J.C.
APPENDICES
CONTENTS
1. Appendix 1 - Equality Officer's Conclusions and
Recommendation.
2. Appendix 2 - Union's submission - Labour Court hearing
of 11th April, 1991.
3. Appendix 3 - Company's first submission - Labour Court
hearing of 11th April, 1991.
4. Appendix 4 - Company's second submission - Labour
Court hearing of 11th April, 1991.
5. Appendix 5 - Company's third submission - subsequent
to Labour Court hearing of 11th April,
1991.
6. Appendix 6 - Union's response to the Company's third
submission.
APPENDIX 1
EQUALITY OFFICER'S CONCLUSIONS AND RECOMMENDATION OF 30TH
NOVEMBER, 1990
Conclusions
21. The first question which I have considered in this case is
whether or not the work of each of the claimants and that of Mr.
Maher is like work within the terms of Section 3(b) of the Act.
Section 3(b) of the Act states that two persons shall be regarded
as being on like work:-
"where 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 occur only infrequently or are of small importance in
relation to the work as a whole."
22. The Union contends that the work of the claimants and Mr.
Maher is similar in nature but accepts that differences occur and
argues that these differences are endemic to the departments to
which the claimants and Mr. Maher are allocated. The Union states
that the demands made on Mr. Maher by the greater range of menus
and more extensive wine lists in the Embassy and Kish restaurants,
the performance of room service duties and the training of commis
staff are more than counterbalanced by the demands of the work
performed by the claimants in the cabaret and are therefore of
small importance in relation to the work as a whole.
23. The Hotel contends that there are considerable differences
between the work performed by the claimants and Mr. Maher and that
these differences make Mr. Maher's work more demanding than the
work of the claimants. The Hotel highlighted the following
differences as being integral to Mr. Maher's job and as
differences which justify the payment of the higher rate of pay to
Mr. Maher:-
the greater range of menus in the Embassy and Kish
restaurants,
the more extensive wine lists,
the supervision and training of a commis waiter by Mr. Maher,
the provision of cloche, flambe, carvery and trolley services
in the restaurants,
running the room service department once every two weeks and
supervising 8 - 10 room service staff,
relief duties in the Kish restaurant as required.
APPENDIX 1
24. Having examined the work performed by the claimants and Mr.
Maher, I am satisfied that as both the claimants and Mr. Maher are
employed as experienced silver service waiting staff and provide a
waiting service to Hotel guests, that the work performed by each
of the claimants is similar in nature to that performed by Mr.
Maher.
25. The Union accepts that there are differences in the work
performed by the claimants as compared with Mr. Maher and do not
dispute the fact that Mr. Maher works with a greater range of
menu's and a more extensive wine list and carries out the
following duties, not performed by the claimants i.e.
the supervision and training of a commis waiter,
the provision of cloche, flambe, carvery and trolley services
in the restaurants,
running the room service department once every two weeks and
supervising the staff assigned to room service on that day,
relief duties in the Kish restaurant as required.
26. The question to be decided in terms of Section 3(b) of the
Act is, therefore, whether or not the differences between the work
performed by each claimant and that performed by Mr. Maher, or any
differences in the conditions under which it is performed, are of
small importance in relations to the work as a whole. The Union
points out that the Act does not stipulate the basis for assessing
whether differences in the work performed by a claimant and a
comparator are of small importance to the work as a whole.
27. In Dowdall O'Mahony and Company Limited and Nine Female
Employees (DEP.6/1987) the Labour Court noted that Section 3(b) of
the Act does not stipulate the basis for assessing what is or is
not of small importance but went on to state that -
"Deciding whether or not such differences are of small
importance in relation to the work as a whole must be a
matter of judgement. If the Company itself has criteria for
its job classification which are free of sex bias, then the
Court would consider those criteria."
In the absence of definitive criteria in that case the Court went
on to decide the issue of "small importance" by considering:
"Whether or not these differences were of such importance that
they would normally be used as the basis for establishing a
different grade, salary scale or rate of pay irrespective of
the sex of the workers concerned."
APPENDIX 1
28. It has been held in the case of Kavanagh and Toyota Motor
Distributors (EP17/1985 and DEP1/1986 refer) that whether or not
differences in work performed by two persons are of small
importance in relation to the work as a whole can be decided by
reference to whether the differences warrant a difference in
remuneration. I am satisfied that whether differences warrant a
difference in remuneration can itself be assessed through an
examination of the circumstances in the particular Company being
considered. In this case the Hotel states that the differences
listed at Paragraph 23 ante justify the differential in the pay
struck between Mr. Maher and the claimants.
29. Having considered these differences I am satisfied that each
waiter employed in the Embassy restaurant, including a female
waiter, works with a wider range of menus and more extensive wine
list than the claimants and, unlike the claimants, provides
cloche, flambe, carvery and trolley services in the restaurant,
supervises and trains a commis waiter, runs room service on a rota
basis with up to 10 staff (i.e. commis and casuals) reporting to
them and, as required, relieves in the Kish restaurant which has a
different menu to that of the Embassy. I am also satisfied that
the differences which the Hotel has identified as being the reason
for the differential in the rate of pay between Mr. Maher and the
claimants are not differences of small importance in relation to
work as a whole.
30. Having examined the totality of the work performed by the
claimants as compared to the totality of the work performed by Mr.
Maher, I am fully satisfied that the differences in the work
performed by Mr. Maher and the claimants, listed at Paragraph 23
above, amount to extra duties which place additional demands on
Mr. Maher which are significant in relation to the work as a
whole. I fully accept the Union's argument that both Mr. Maher
and the claimants are employed as experienced silver service
waiting staff and have the skills necessary to do this work. I do
not accept, however, that the same level of social and technical
skills are required of the claimants in the performance of their
cabaret duties as are required of Mr. Maher in the performance of
his duties. Mr. Maher employs a more diverse range of skills in
carrying out his duties, such skills not being present or demanded
in the work of the claimants.
31. For example, the technical product knowledge, i.e. in terms
of food and wine, required of Mr. Maher to competently carry out
his duties in the restaurants and room service is far wider than
is required of the claimants in carrying out their duties in the
cabaret. When assigned to tour tables the claimants need only be
familiar with a set menu while the range of choice when assigned
to the a la carte tables is much narrower than would apply in
either restaurant to which Mr. Maher can be assigned. The
existence of the wider food and wine choice range also gives rise
to more customer enquiries as to wine type and dish content than
would arise for the claimants in the cabaret involving more
interaction between Mr. Maher and the guest.
APPENDIX 1
32. Additional culinary skills are also demanded of Mr. Maher
when a guest orders a flambe main course or dessert as Mr. Maher
actually cooks and presents the dish at the guests' tableside and
is exposed to the guests' close scrutiny for that time. The skill
to competently train the commis waiter assigned to him is a
constant factor in his work and is one which does not figure in
the work of the claimants.
33. I consider, for the reasons set out in Paragraphs 30 - 32
that the differences, listed at Paragraph 23, which exist between
the work of Mr. Maher and the claimants are important differences
which demand a more diverse range of skills from Mr. Maher, such
skills not being present or demanded in the waiting duties of the
claimants. Consequently, I am satisfied that the differences
identified at Paragraph 23 between the work of Mr. Maher and the
claimants constitute objective reasons which I consider warrant a
difference in remuneration. I find, therefore, that none of the
claimants are employed on like work with Mr. Maher in terms of
Section 3(b) of the Act.
34. The final question for consideration in this case is whether
or not the work performed by each of the claimants is equal in
value to that performed by Mr. Maher in terms of Section 3(c) of
the Act. Section 3(c) of the Act states that two persons shall be
regarded as employed on like work:-
"where the work performed by one is equal in value to that
performed by the other in terms of the demands it makes in
relation to such matters as skill, physical or mental effort,
responsibility and working conditions."
35. Both Mr. Maher and the claimants are employed as experienced
silver service waiting staff. Having examined the totality of the
work performed by the claimants and Mr. Maher, I am fully
satisfied that the differences identified in Paragraph 23 ante,
demanding a more diverse range of skills from Mr. Maher and
warranting the difference in remuneration between the claimants
and Mr. Maher in terms of Section 3(b) of the Act, also place
additional demands on Mr. Maher in terms of Section 3(c) of the
Act which are not matched by the demands of the claimants' work.
36. The more diverse range of skills employed by Mr. Maher in
carrying out his duties also places additional demands on him in
terms of responsibility, such responsibility not being matched in
the work of the claimants. For example, the main responsibility
of the claimants is the serving of a meal and drinks to cabaret
customers in a professional and competent manner. In addition to
this responsibility which exists in Mr. Maher's waiting work in
the restaurants, he has supervisory responsibility for the commis
waiter assigned to him. He has responsibility for the commis and
casual staff working to him when he is assigned to room service.
When preparing flambe dishes he, rather than the chef, is
responsible for the quality and presentation of those particular
APPENDIX 1
main courses and desserts. In assessing the level of
responsibility attached to Mr. Maher's work I have taken into
account the fact that he is only responsible for one set of duties
at any particular time. I am fully satisfied, however, that the
demands placed on Mr. Maher by his additional duties make his work
more demanding in terms of responsibility than the work of the
claimants.
37. With regard to mental effort I am also satisfied that Mr.
Maher's work is more demanding. Both the claimants and Mr. Maher
must at all times during the performance of their waiting duties
be alert and attentive to the requirements of the guests. In
addition Mr. Maher, on a continuous basis, must be attentive to
the training needs of the commis waiter assigned to him. When
cooking either flambe main courses or desserts Mr. Maher must
closely watch the meal or dessert being flambeed. When assigned
to room service Mr. Maher must ensure that each commis and casual
staff working to him is assigned duties throughout the shift. In
conclusion, I am satisfied that the demands placed on Mr. Maher by
his additional duties make his work more demanding in terms of
mental effort than the work of the claimants and in assessing the
level of mental effort attached to his work I have taken note of
the fact that he is only performing one set of duties at any
particular time.
38. The work of both the claimants and the comparator is
physically demanding in that as waiting staff they are continually
on their feet, usually walking to and from table and kitchen
balancing food dishes. However, greater demands are placed on the
claimants as they have longer floor distances to cover and must
serve the meal at the cabaret as quickly as possible. The working
conditions of both the claimants and Mr. Maher are similar with
the claimants exposed to the higher noise levels of the cabaret
and, as the tables are set more closely together, to more cramped
serving conditions.
39. I am satisfied, however, that the higher demands made on Mr.
Maher in terms of skill, responsibility and mental effort make his
work more demanding than the work of any of the claimants and that
the work performed by the claimants is not like work in terms of
Section 3(c) of the Act with that performed by Mr. Maher.
RECOMMENDATION
40. In view of my conclusions in Paragraphs 21 - 39 I am
satisfied that the claimants do not have an entitlement under the
Act to the same rate of remuneration as that paid to Mr. Maher.