DEP937

Labour Court Database __________________________________________________________________________________ File Number: AEP931 Case Number: DEP937 Section / Act: S8(1)AD Parties: DEPARTMENT OF TOURISM, TRANSPORT AND COMMUNICATIONS - and - 4 WORKERS;THE CIVIL AND PUBLIC SERVICES UNION

Subject:
Appeal by the Department of Tourism, Transport and Communications against Equality Officer's Recommendation No. EP9/1992 and Appeal by the Union for the implementation of Equality Officer's Recommendation EP9/1992.

Recommendation:
Two appeals were referred to the Court for Determination.

(1) An appeal on behalf of the claimants for a determination that
Recommendation EP9/1992 had not been implemented, and

(2) an appeal by the respondent against the said recommendation.

In relation to (1) above, a re-statement of the claim by the Union
as referred to the Equality Officer was made on behalf of the
claimants. Further elaboration of the duties and structure within
the Accounts Office was also given and, insofar as the
recommendation was concerned, it was contended that there were no
grounds upon which a reversal of its findings could be justified.

In its appeal, (2) above, the respondent put forward a number of
grounds upon which it was contended that the Equality Officer
erred in arriving at her conclusions and recommendation. In
particular the Department contended (a) that the comparators were
"red-circled" and (b) that the difference in pay between the
comparators and the claimants arose from the fact that the
respective groups were in two different grades.

In its consideration of the issue of "red-circling" the Court was
initially confronted with a difficulty. Heretofore, appeals to
the Court against an Equality Officer's recommendation have by and

large been a matter of the Court considering the recommendation on
foot of elaboration of evidence or of further information related
to that which was already made available by the parties to the
Equality Officer during the investigation of the claim. In this
instance however, a completely new ground of argument
('red-circling') was introduced at the appeal stage. In such
circumstances the Court considered that it had two alternatives.
Either it could refer the claim back to the Equality Officer to
review the recommendation in the light of the additional argument
of 'red-circling', or it could proceed with the appeal, taking
into account the newly-introduced element. Despite the fact that,
in practice, an appeal is a re-hearing of the original case, the
Court proceeded on the latter course.

Section 3(c) of the Act (Equal Value)

The Equality Officer in her recommendation had found that the work
of all the claimants was equal in value to that of the comparator.
The Court noted that, during the hearing of the appeal, little
disagreement was recorded on this aspect of the findings.
Notwithstanding, the Court gave further consideration to (a) the
arguments for and against the original claim, (b) the conclusions
reached by the Equality Officer, and (c) the basis upon which she
arrived at those conclusions. In respect of the foregoing (a),
(b), (c) the Court found no grounds for altering the Equality
Officer's conclusions under 3(c) of the Act, and determines
accordingly.

The main issue therefore was whether the Department was entitled
to pay the claimants at a different rate from the comparators on
grounds other than sex.

The "Red Circling" Defence.

The Court considered the contention by the employer that a higher
rate was being paid to the comparators on grounds other than sex
and was therefore permissible under Section 2(3) of the Act. In
support of its argument, the Department maintained that the
comparators were in receipt of a "red-circled" grade of pay which
applied to Radio Officers. The Department argued that it was a
matter of Radio Officers, who because of medical difficulties were
unable to undertake the full duties of such a position, being
detailed to work in the Accounts Office.

The Union, on behalf of the claimants, contested this assertion
and maintained that, from the inception of the unit, male and
female employees were involved in both the ANS and CRCO sections,
but that an artificial barrier had been created by the allocation
of specific duties within the section in order to justify the
payment of a higher rate to the male workers. Insofar, as
'red-circling' and the reasoning for it was concerned, the Union
contended that this was basically a belated effort by the employer
to achieve a reversal of the Equality Officer's conclusions and
recommendation.

The Union referred in particular to paragraph 5.17 of the E.O.'s
Recommendation and to the negative reply given to the E.O. by the
employer when asked whether or not there were any compassionate
grounds involved in the allocation of the comparators' duties.
The Union further supported its argument by reference to the
background of the unit and to the working procedures within it.

The Court accepts that, over time, there have been instances in
which Radio Officers, who for health reasons have been unable to
fulfil all of the duties related to that position, have been
transferred to duties in the Accounts Office while retaining



Radio Officers' pay. What the Court is being asked to accept in
this instance by the respondent, however, is that the positions
held by the male comparators within the unit were retained for
filling by transferees from full Radio Officer duties, and that,
on being transferred, they retained their Radio Officer's pay on a
"red-circled" basis.

The Court can accept the first part of the proposition, namely
that the positions were retained for transferees from full Radio
Officer duties. Some were transferred because of health problems,
and some because they were surplus to requirements. What the
Court cannot accept is that these transfers occurred on a
"red-circled" basis.

"Red-circling",is a phrase frequently used in industrial
relations. In the Court's view, an appropriate description of
such arrangement would be as follows:

Where as a result of alterations in a wage structure, or as a
result of alterations in the manner in which wages are
calculated, a level of earnings enjoyed heretofore is no
longer capable of being achieved by an individual or group
specific arrangements are made to ensure, on a personal basis,
the ongoing payment of the earlier level of pay. (Sometimes
referred to as Protection of, or Maintenance of earnings).

or,

where for specific reasons an individual or group may not be
required to perform what would normally be considered the full
list of duties of their grade and an arrangement is made



whereby those concerned retain their grade pay while being
reassigned to duties which, in the normal course, would
attract a lower rate of pay.

The latter definition is relevant to this case. Indeed,the
Court accepts that the Radio Officers were re-deployed to the
Accounts Office where their duties were quite separate from and
lower than the normal duties of their grade. However, it does
not accept that the existence of such an arrangement regarding
work content automatically created a 'red-circling' arrangement
affecting their rate of pay. An examination of the medical
evidence supplied highlighted one particular issue, namely an
inability to operate on shift work which was a standard condition
of service for Radio Officers. Yet, when the officers availed of
the facility provided by the Department to re-deploy to the
communications unit, none of the personnel directly or indirectly
involved were specifically informed that the rate of pay of the
re-deployed officers was 'red-circled'. While the Court can to
some extent accept the comment in the Department's submission, "it
is inconceivable that in a small office of this kind all parties
are not aware that the Radio Officers concerned were assigned to
the Office because of ill health", it does not necessarily follow
that all parties were aware, or would have accepted that, insofar
as pay was concerned, a "red-circling" arrangement existed.

In Determination No. DEP 5 of 1991, Eastern Health Board/SIPTU,
the Court in referring to a defence of 'red-circling' in an equal
pay claim, defined a number of elements which are necessary to
establish such a defence. While it is accepted by the Court that
each case should be considered on its own merits in the light of
the relevant sections of the Anti-Discrimination (Pay) Act, 1974,
some regard may be had by the court to previous considerations of
the issue of "red-circling".



In Dep 5/91 relating to an equal pay claim on behalf of staff of
the Eastern Health Board, the court set out its views on the use
of red-circling as a defence under section 2(3) of the
Anti-Discrimination (Pay) Act, 1974. The Court indicated that
where such a defence was introduced the Court (i) had to consider
the reason for the application of red-circling and (ii) be
satisfied that a recognised, factual, and acknowledged position of
red-circling existed. The Court explained that, for the
arrangement described at (ii) to be substantiated, all who are
party to such an arrangement must be fully aware of the
circumstances which brought it into operation and the manner in
which it is being operated. It is the view of the Court that this
condition was not fulfilled in the present case. There was
clearly insufficient understanding of the implications for both
the claimants and comparators of the arrangements governing the
assignment of Radio Officers to the Accounts Office. The response
of local management to the Equality Officer's question as to
whether the assignments were made on compassionate grounds, which
was at variance with information produced at the appeal hearing,
reinforces the view that there was a lack of clarity on the exact
nature of the arrangements applying in the accounts office in
Ballygireen. In these circumstances the Court considers that it
must, on balance, reject the red-circling argument advanced at the
appeal hearing and uphold the finding of the Equality Officer in
relation to the four claimants.

The Court therefore determines that a defence of 'red-circling' in
this instance is not sustainable.

The Court would draw attention to the fact that this claim relates
to the four named claimants only and nothing in the above finding
should be taken as precluding the parties from applying a
"red-circling" arrangement on the basis of the criteria set out on
DEP5/91 referred to above.



GRADING

In relation to the second ground of appeal, that the difference in
pay between the claimants and the comparators arose as a result of
grading, the Court had regard to the Equality Officer's findings
on this point and to the submissions made during the appeal.

It is important at this point for the Court to emphasise that a
grading structure of itself need not justify different rates of
pay. The Court considers it necessary to emphasise that grading
structures may in fact be open to scrutiny in connection with an
equal pay claim.

In this instance there are two issues to be considered. One is
the basis for the grading structure, and the other is the fact
that within the Accounts Office two grades are performing
operations which have been found to be "like work".

With regard to the grading system, there is no doubt in the
Court's mind that the duties and responsibilities of the Radio
Officer (fully-operational) grade, are of a higher level than
those of the Communications Assistant grade; they involve work of
greater value requiring a high level of expertise and experience
and higher qualifications.

There are instances in which particular grades may perform at
levels above or below the normal requirements and the higher grade
rate of pay may be justified. In some cases, duties / operations
/ responsibilities related to one grade may overlap with those of
another. In other cases, a person might be promoted to a higher
grade, but pending a suitable vacancy may continue to function in
the lower grade.


But in this case there could be no justification for employing the
higher graded non-fully-operational Radio Officers in the
particular work in the Accounts Office in the absence of a
"red-circling" arrangement. To establish "grounds other than sex"
either they were "red-circled", or the work justified employing
the higher grade to do it; if they were not "red-circled" (and the
Court has found that they were not), then the work would have to
justify the grade, which it does not. The work performed by the
Radio Officers in the Accounts Office is, in fact, equal in value
to the work of the Communications Assistants. This conclusion was
drawn from the exacting study of the responsibilities and skills
of the claimants and the comparators carried out by the Equality
Officer, with whose conclusions the Court has agreed. The reality
of this case is that there was an allocation of duties between ...

Division: Ms Owens Mr Brennan Mr Walsh

Text of Document__________________________________________________________________

AEP931 DETERMINATION NO. DEP793

ANTI-DISCRIMINATION (PAY) ACT, 1974
SECTION 8(1)


PARTIES: DEPARTMENT OF TOURISM, TRANSPORT AND COMMUNICATIONS

and

4 WORKERS
(REPRESENTED BY THE CIVIL AND PUBLIC SERVICES UNION)



SUBJECT:

1. Appeal by the Department of Tourism, Transport and
Communications against Equality Officer's Recommendation No.
EP9/1992

and

Appeal by the Union for the implementation of Equality Officer's
Recommendation EP9/1992.

BACKGROUND:

2. The background to this case is outlined in the Equality
Officer's Recommendation No. E.P. 9/1992, which is attached at
Appendix 1.

On 18th January, 1993, the Department of Tourism, Transport and
Communications appealed against the above Recommendation to the
Labour Court on the following grounds:

(i) The Equality Officer erred in law and in fact in finding
that the claimants were performing like work within the
meaning of Section 3 of the Act of 1974 with the named
Comparators;

(ii) The Equality Officer erred in law and in fact in finding
that there were no grounds other than sex for the
differences in pay, within the meaning of Section 2(3)
of the Anti-Discrimination (Pay) Act, 1974;

(iii) The Equality Officer erred in law and in fact in finding
that the claimants had an entitlement under Section 2(1)
to equal pay with the named Comparators.


On 20th January, 1993 the Union appealed to the Labour Court for
the implementation of the above Recommendation. The Court heard
the appeal on 27th April, 1993. The Department of Tourism,
Transport and Communications submission is attached at Appendix 2.
The Union's submission is attached at Appendix 3. A
supplementary submission on behalf of the Department is attached
at Appendix 4 and the Union's response is attached at Appendix 5.


DETERMINATION:

Two appeals were referred to the Court for Determination.

(1) An appeal on behalf of the claimants for a determination that
Recommendation EP9/1992 had not been implemented, and

(2) an appeal by the respondent against the said recommendation.

In relation to (1) above, a re-statement of the claim by the Union
as referred to the Equality Officer was made on behalf of the
claimants. Further elaboration of the duties and structure within
the Accounts Office was also given and, insofar as the
recommendation was concerned, it was contended that there were no
grounds upon which a reversal of its findings could be justified.

In its appeal, (2) above, the respondent put forward a number of
grounds upon which it was contended that the Equality Officer
erred in arriving at her conclusions and recommendation. In
particular the Department contended (a) that the comparators were
"red-circled" and (b) that the difference in pay between the
comparators and the claimants arose from the fact that the
respective groups were in two different grades.

In its consideration of the issue of "red-circling" the Court was
initially confronted with a difficulty. Heretofore, appeals to
the Court against an Equality Officer's recommendation have by and

large been a matter of the Court considering the recommendation on
foot of elaboration of evidence or of further information related
to that which was already made available by the parties to the
Equality Officer during the investigation of the claim. In this
instance however, a completely new ground of argument
('red-circling') was introduced at the appeal stage. In such
circumstances the Court considered that it had two alternatives.
Either it could refer the claim back to the Equality Officer to
review the recommendation in the light of the additional argument
of 'red-circling', or it could proceed with the appeal, taking
into account the newly-introduced element. Despite the fact that,
in practice, an appeal is a re-hearing of the original case, the
Court proceeded on the latter course.

Section 3(c) of the Act (Equal Value)

The Equality Officer in her recommendation had found that the work
of all the claimants was equal in value to that of the comparator.
The Court noted that, during the hearing of the appeal, little
disagreement was recorded on this aspect of the findings.
Notwithstanding, the Court gave further consideration to (a) the
arguments for and against the original claim, (b) the conclusions
reached by the Equality Officer, and (c) the basis upon which she
arrived at those conclusions. In respect of the foregoing (a),
(b), (c) the Court found no grounds for altering the Equality
Officer's conclusions under 3(c) of the Act, and determines
accordingly.

The main issue therefore was whether the Department was entitled
to pay the claimants at a different rate from the comparators on
grounds other than sex.

The "Red Circling" Defence.

The Court considered the contention by the employer that a higher
rate was being paid to the comparators on grounds other than sex
and was therefore permissible under Section 2(3) of the Act. In
support of its argument, the Department maintained that the
comparators were in receipt of a "red-circled" grade of pay which
applied to Radio Officers. The Department argued that it was a
matter of Radio Officers, who because of medical difficulties were
unable to undertake the full duties of such a position, being
detailed to work in the Accounts Office.

The Union, on behalf of the claimants, contested this assertion
and maintained that, from the inception of the unit, male and
female employees were involved in both the ANS and CRCO sections,
but that an artificial barrier had been created by the allocation
of specific duties within the section in order to justify the
payment of a higher rate to the male workers. Insofar, as
'red-circling' and the reasoning for it was concerned, the Union
contended that this was basically a belated effort by the employer
to achieve a reversal of the Equality Officer's conclusions and
recommendation.

The Union referred in particular to paragraph 5.17 of the E.O.'s
Recommendation and to the negative reply given to the E.O. by the
employer when asked whether or not there were any compassionate
grounds involved in the allocation of the comparators' duties.
The Union further supported its argument by reference to the
background of the unit and to the working procedures within it.

The Court accepts that, over time, there have been instances in
which Radio Officers, who for health reasons have been unable to
fulfil all of the duties related to that position, have been
transferred to duties in the Accounts Office while retaining



Radio Officers' pay. What the Court is being asked to accept in
this instance by the respondent, however, is that the positions
held by the male comparators within the unit were retained for
filling by transferees from full Radio Officer duties, and that,
on being transferred, they retained their Radio Officer's pay on a
"red-circled" basis.

The Court can accept the first part of the proposition, namely
that the positions were retained for transferees from full Radio
Officer duties. Some were transferred because of health problems,
and some because they were surplus to requirements. What the
Court cannot accept is that these transfers occurred on a
"red-circled" basis.

"Red-circling",is a phrase frequently used in industrial
relations. In the Court's view, an appropriate description of
such arrangement would be as follows:

Where as a result of alterations in a wage structure, or as a
result of alterations in the manner in which wages are
calculated, a level of earnings enjoyed heretofore is no
longer capable of being achieved by an individual or group
specific arrangements are made to ensure, on a personal basis,
the ongoing payment of the earlier level of pay. (Sometimes
referred to as Protection of, or Maintenance of earnings).

or,

where for specific reasons an individual or group may not be
required to perform what would normally be considered the full
list of duties of their grade and an arrangement is made



whereby those concerned retain their grade pay while being
reassigned to duties which, in the normal course, would
attract a lower rate of pay.

The latter definition is relevant to this case. Indeed,the
Court accepts that the Radio Officers were re-deployed to the
Accounts Office where their duties were quite separate from and
lower than the normal duties of their grade. However, it does
not accept that the existence of such an arrangement regarding
work content automatically created a 'red-circling' arrangement
affecting their rate of pay. An examination of the medical
evidence supplied highlighted one particular issue, namely an
inability to operate on shift work which was a standard condition
of service for Radio Officers. Yet, when the officers availed of
the facility provided by the Department to re-deploy to the
communications unit, none of the personnel directly or indirectly
involved were specifically informed that the rate of pay of the
re-deployed officers was 'red-circled'. While the Court can to
some extent accept the comment in the Department's submission, "it
is inconceivable that in a small office of this kind all parties
are not aware that the Radio Officers concerned were assigned to
the Office because of ill health", it does not necessarily follow
that all parties were aware, or would have accepted that, insofar
as pay was concerned, a "red-circling" arrangement existed.

In Determination No. DEP 5 of 1991, Eastern Health Board/SIPTU,
the Court in referring to a defence of 'red-circling' in an equal
pay claim, defined a number of elements which are necessary to
establish such a defence. While it is accepted by the Court that
each case should be considered on its own merits in the light of
the relevant sections of the Anti-Discrimination (Pay) Act, 1974,
some regard may be had by the court to previous considerations of
the issue of "red-circling".



In Dep 5/91 relating to an equal pay claim on behalf of staff of
the Eastern Health Board, the court set out its views on the use
of red-circling as a defence under section 2(3) of the
Anti-Discrimination (Pay) Act, 1974. The Court indicated that
where such a defence was introduced the Court (i) had to consider
the reason for the application of red-circling and (ii) be
satisfied that a recognised, factual, and acknowledged position of
red-circling existed. The Court explained that, for the
arrangement described at (ii) to be substantiated, all who are
party to such an arrangement must be fully aware of the
circumstances which brought it into operation and the manner in
which it is being operated. It is the view of the Court that this
condition was not fulfilled in the present case. There was
clearly insufficient understanding of the implications for both
the claimants and comparators of the arrangements governing the
assignment of Radio Officers to the Accounts Office. The response
of local management to the Equality Officer's question as to
whether the assignments were made on compassionate grounds, which
was at variance with information produced at the appeal hearing,
reinforces the view that there was a lack of clarity on the exact
nature of the arrangements applying in the accounts office in
Ballygireen. In these circumstances the Court considers that it
must, on balance, reject the red-circling argument advanced at the
appeal hearing and uphold the finding of the Equality Officer in
relation to the four claimants.

The Court therefore determines that a defence of 'red-circling' in
this instance is not sustainable.

The Court would draw attention to the fact that this claim relates
to the four named claimants only and nothing in the above finding
should be taken as precluding the parties from applying a
"red-circling" arrangement on the basis of the criteria set out on
DEP5/91 referred to above.



GRADING

In relation to the second ground of appeal, that the difference in
pay between the claimants and the comparators arose as a result of
grading, the Court had regard to the Equality Officer's findings
on this point and to the submissions made during the appeal.

It is important at this point for the Court to emphasise that a
grading structure of itself need not justify different rates of
pay. The Court considers it necessary to emphasise that grading
structures may in fact be open to scrutiny in connection with an
equal pay claim.

In this instance there are two issues to be considered. One is
the basis for the grading structure, and the other is the fact
that within the Accounts Office two grades are performing
operations which have been found to be "like work".

With regard to the grading system, there is no doubt in the
Court's mind that the duties and responsibilities of the Radio
Officer (fully-operational) grade, are of a higher level than
those of the Communications Assistant grade; they involve work of
greater value requiring a high level of expertise and experience
and higher qualifications.

There are instances in which particular grades may perform at
levels above or below the normal requirements and the higher grade
rate of pay may be justified. In some cases, duties / operations
/ responsibilities related to one grade may overlap with those of
another. In other cases, a person might be promoted to a higher
grade, but pending a suitable vacancy may continue to function in
the lower grade.


But in this case there could be no justification for employing the
higher graded non-fully-operational Radio Officers in the
particular work in the Accounts Office in the absence of a
"red-circling" arrangement. To establish "grounds other than sex"
either they were "red-circled", or the work justified employing
the higher grade to do it; if they were not "red-circled" (and the
Court has found that they were not), then the work would have to
justify the grade, which it does not. The work performed by the
Radio Officers in the Accounts Office is, in fact, equal in value
to the work of the Communications Assistants. This conclusion was
drawn from the exacting study of the responsibilities and skills
of the claimants and the comparators carried out by the Equality
Officer, with whose conclusions the Court has agreed. The reality
of this case is that there was an allocation of duties between
male and female workers, and that payment of a lower rate to the
female workers was sought to be justified on the basis of grade.
But there could be no justification, other than red-circling, for
a higher grade to do the work of the Radio Officers
(non-fully-operational), and, therefore, there is no justification
for offering a different rate of pay to the Communications
Assistants.

The Communications Assistants are entitled to be paid at the same
rate as the non- fully-operational Radio Officers, not because
they are doing work which the grade of a Radio Officer warrants,
but because they are doing work which has the same value as the
work which the non-fully-operational Radio Officers are actually
doing, in circumstances in which there are no valid grounds other
than sex for the discrimination.


For the reasons set out above and having regard to the provision
of Section 8(5) of the Act, the Court determines that the four
named Communications Assistants are entitled to the same rate of
remuneration as each of the comparators with effect from 27th
April, 1989.

Accordingly the Court rejects the appeal by the respondents
against Recommendation EP 9/1992 and decides that the
Recommendation of the Equality Officer should be implemented
forthwith.

~

Signed on behalf of the Labour Court



21st December 1993
F.B./J.C. Evelyn Owens

Deputy Chairman.