Labour Court Database __________________________________________________________________________________ File Number: AEP927 Case Number: DEP935 Section / Act: S8(1)AD Parties: WESTERN HEALTH BOARD - and - A WORKER |
Appeal by the worker against Equality Officer's recommendation EP6/1992 concerning a claim by the worker that she was discriminated against on the grounds of her sex by the Western Health Board in the granting of more favourable arrangements for incremental credits to the comparator Mr. S. contrary to the terms of the Anti-Discrimination (Pay) Act, 1974 ('the 1974 Act').
Recommendation:
4. This appeal against Equality Recommendation E.P. 6/1992 was
made under Section 8(1)(a) of the Anti-Discrimination (Pay) Act,
1974, in relation to a rejection of the claim by an Equality
Officer. The employer defending the appeal is the Western Health
Board with which the appellant is employed as a clinical
psychologist.
The appellant's grounds of appeal against the Recommendation are
as follows:-
(i) The equality officer erred in law and in fact in finding
that the Eastern Health Board had not discriminated
against the claimant on grounds of sex in relation to
pay contrary to the Anti-Discrimination (Pay) Act, 1974.
(ii) The equality officer erred in law and in fact in finding
that the Western Health Board had established that there
were grounds other than sex, satisfying section 2(3) of
the 1974 Act, for the less favourable treatment of the
claimant in relation to pay.
(iii) The equality officer erred in law and in fact in not
awarding the claimant arrears of pay due to her under
the 1974 Act and furthermore, in not awarding her
compensation for the discrimination against her.
(iv) All grounds put before the Equality Officer during his
investigation.
The appellant represented herself at the appeal hearing which was
held on 29th April, 1993.
The facts of the employment history were not in dispute; both
parties accepted the equality officer's record as accurate and
also that the nature of the employment had been correctly
described.
The appellant disputed the conclusion of the Equality Officer.
She alleged that the Health Board had failed to produce the
evidence which would have proved that the comparator had been put
on a higher point on the incremental scale on the basis of verbal
advice by the Department of Health, which said advice had been
incorrect.
Section 2(3) of the Act 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".
As it was accepted that the claimant and comparator are employed
on like work the Court proceeded to examine the reasons submitted
for the differences in their remuneration. The Court is satisfied
that the reason the claimant was not given incremental credit for
her attendance at Edinburgh University (although such credit had
been given to the comparator) arose from incorrect advice given by
the Department of Health in relation to the comparator. It would
have been helpful to all parties if the Department of Health had
provided written confirmation of the error. However, the
Department's letter, dated 26th February, 1986, in which it was
stated that the Minister for Health would not be disposed to
sanction incremental credit to Clinical Psychologists in respect
of two years during which they attend University, confirms the
oral evidence that the comparator was given such increments in
error, and shows that the increments were not related to the sex
of the appointee.
This conclusion is endorsed by the fact that the Health Board made
a similar error in the case of two other appointees one male and
one female, who were both appointed at the same time as the
comparator.
The Court accordingly finds that the difference in remuneration
between the claimant and comparator was based on grounds other
than sex as permitted under Section 2(3) of the Act and that the
appeal accordingly fails.
The Court upholds the Equality Officer's Recommendation and
decides that the claimant has not been treated less favourably on
the basis of her sex under the terms of the 1974 Act.
The Court so decides.
Division: Ms Owens Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
AEP927 DETERMINATION NO. DEP593
ANTI-DISCRIMINATION (PAY) ACT, 1974
SECTION 8(1)
PARTIES: WESTERN HEALTH BOARD
(REPRESENTED BY THE LOCAL GOVERNMENT STAFF NEGOTIATIONS BOARD)
and
A WORKER
SUBJECT:
1. Appeal by the worker against Equality Officer's recommendation
EP6/1992 concerning a claim by the worker that she was
discriminated against on the grounds of her sex by the Western
Health Board in the granting of more favourable arrangements for
incremental credits to the comparator Mr. S. contrary to the terms
of the Anti-Discrimination (Pay) Act, 1974 ('the 1974 Act').
BACKGROUND:
2. The background to this case is set out in the Equality
Officer's Recommendation which is Appendix 1 to this
Determination. The Equality Officer in his recommendation which
was issued on the 24th July, 1992 found that there were grounds
other than sex in terms of Section 2(3) of the 1974 Act for the
differences in the rate of remuneration of the claimant and that
of the comparator; he found that the claimant had not been treated
less favourably on the basis of her sex under the terms of the
1974 Act.
3. On the 24th August, 1992 the worker appealed the Equality
Officer's recommendation to the Labour Court. The Court heard the
appeal in Galway on the 29th April, 1993. The written submissions
to the Court are attached as appendices.
DETERMINATION:
4. This appeal against Equality Recommendation E.P. 6/1992 was
made under Section 8(1)(a) of the Anti-Discrimination (Pay) Act,
1974, in relation to a rejection of the claim by an Equality
Officer. The employer defending the appeal is the Western Health
Board with which the appellant is employed as a clinical
psychologist.
The appellant's grounds of appeal against the Recommendation are
as follows:-
(i) The equality officer erred in law and in fact in finding
that the Eastern Health Board had not discriminated
against the claimant on grounds of sex in relation to
pay contrary to the Anti-Discrimination (Pay) Act, 1974.
(ii) The equality officer erred in law and in fact in finding
that the Western Health Board had established that there
were grounds other than sex, satisfying section 2(3) of
the 1974 Act, for the less favourable treatment of the
claimant in relation to pay.
(iii) The equality officer erred in law and in fact in not
awarding the claimant arrears of pay due to her under
the 1974 Act and furthermore, in not awarding her
compensation for the discrimination against her.
(iv) All grounds put before the Equality Officer during his
investigation.
The appellant represented herself at the appeal hearing which was
held on 29th April, 1993.
The facts of the employment history were not in dispute; both
parties accepted the equality officer's record as accurate and
also that the nature of the employment had been correctly
described.
The appellant disputed the conclusion of the Equality Officer.
She alleged that the Health Board had failed to produce the
evidence which would have proved that the comparator had been put
on a higher point on the incremental scale on the basis of verbal
advice by the Department of Health, which said advice had been
incorrect.
Section 2(3) of the Act 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".
As it was accepted that the claimant and comparator are employed
on like work the Court proceeded to examine the reasons submitted
for the differences in their remuneration. The Court is satisfied
that the reason the claimant was not given incremental credit for
her attendance at Edinburgh University (although such credit had
been given to the comparator) arose from incorrect advice given by
the Department of Health in relation to the comparator. It would
have been helpful to all parties if the Department of Health had
provided written confirmation of the error. However, the
Department's letter, dated 26th February, 1986, in which it was
stated that the Minister for Health would not be disposed to
sanction incremental credit to Clinical Psychologists in respect
of two years during which they attend University, confirms the
oral evidence that the comparator was given such increments in
error, and shows that the increments were not related to the sex
of the appointee.
This conclusion is endorsed by the fact that the Health Board made
a similar error in the case of two other appointees one male and
one female, who were both appointed at the same time as the
comparator.
The Court accordingly finds that the difference in remuneration
between the claimant and comparator was based on grounds other
than sex as permitted under Section 2(3) of the Act and that the
appeal accordingly fails.
The Court upholds the Equality Officer's Recommendation and
decides that the claimant has not been treated less favourably on
the basis of her sex under the terms of the 1974 Act.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
_____________________
19th July, 1993. Deputy Chairman
T.O'D./J.C.
APPENDICES
1. Equality Officer's Recommendation.
2. Worker's Submission.
3. Western Health Board's Submission.