Labour Court Database __________________________________________________________________________________ File Number: AEP926 Case Number: DEP936 Section / Act: S8(1)AD Parties: IRISH KENNEL CLUB LTD. - and - 8 FEMALE EMPLOYEES;THE IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE;UNION (I.D.A.T.U.) |
SUBJECT: 1. Appeal by Irish Kennel Club Ltd. and I.D.A.T.U. against Equality Officer's Recommendation EP5/1992 concerning a claim by eight female clerical staff that they are entitled to the same rate of remuneration as a comparator, a former employee, on the grounds that they performed like work in terms of Section 3 of the Anti-Discrimination (Pay) Act, 1974 (the 1974 Act).
Recommendation:
5. The Court having investigated the appeal of the claimants
and having individually inspected and compared all of the jobs
in dispute finds that those claiments not having a supervisory
function are not employed on like work with the comparator. The
Court concurs with the finding of the Equality Officer that the
two claimants with a supervisory function hold very responsible
jobs and that these compare favourably with the job of the
Senior Clerk.
-6- DEP693
The Court however is satified that the comparator was appointed
as an Assistant Secretary with a view to his replacing the
Secretary on the Secretary's retirement. After an extended
period of probation he was not confirmed in the position of
Assistant Secretary as his performance was considered
unsatisfactory and he was considered unsuitable for the eventual
position of Secretary. He was then regraded to the position of
senior clerk. He continued to perform the same range of duties
but the expectation of progressing to the post of Secretary no
longer existed. He was allowed to retain his rate of pay which
the Court is satisfied was on a personal basis. Given all of
these circumstances the Court concludes there were valid grounds
other than sex for the payment of the higher rate of pay of the
comparator. To summarise the Court concurs with the finding of
the Equality Officer that in respect of the non supervisory
claimants they were not employed on like work with the
comparator, and that in the case of the supervisory claimants
they were doing like work with the comparator but that there
were valid reasons other than sex for the payment of a higher
rate of pay.
Accordingly the Court rejects the appeal by the claimants.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
AEP926 DETERMINATION NO. DEP693
ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. 6 OF 1993
PARTIES: IRISH KENNEL CLUB LTD.
(Represented by the Irish Business and Employers Confederation)
and
8 FEMALE EMPLOYEES
(Represented by the Irish Distributive and Administrative Trade
Union (I.D.A.T.U.))
SUBJECT:
1. Appeal by Irish Kennel Club Ltd. and I.D.A.T.U. against
Equality Officer's Recommendation EP5/1992 concerning a claim by
eight female clerical staff that they are entitled to the same
rate of remuneration as a comparator, a former employee, on the
grounds that they performed like work in terms of Section 3 of
the Anti-Discrimination (Pay) Act, 1974 (the 1974 Act).
BACKGROUND:
2. 1. The background to this case is set out in the Equality
Officer's Recommendation which is at Appendix 1. The Equality
Officer recommended that;
(a) the non-supervisory claimants were not employed
on like work with the comparator and
(b) the supervisory claimants were doing like work
with the comparator but there were valid grounds
other than sex for the payment of a higher rate of
pay and consequently the claimants were not entitled
to the same rate of remuneration as the comparator.
2. Both parties appealed the Recommendation to the Labour
Court. I.D.A.T.U. appealed the Recommendation on the 8th July,
1992 on the following grounds:
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(1) The Equality Officer erred in law and in fact when he
divided the claimants into two groups (supervisory and
non-supervisory) for the purposes of comparing them with the
comparator (paragraph 23).
(2) The Equality Officer erred in law and in fact when he
concluded that none of the non-supervisory claimants perform
work which is equal in value to that of the comparator
(paragraph 29(ii)).
(3) The Equality Officer erred in law and in fact when he
concluded that the non-supervisory claimants are not employed in
like work in terms of Section 3 of the 1974 Act when compared
with the comparator (paragraph 41).
(4) The Equality Officer erred in law and in fact when he found
that there were grounds other than sex for the difference in pay
rates between the comparator and the claimants (paragraph 49).
The Equality Officer was at a serious disadvantage in that the
comparator was not available for interview.
3. The Irish Kennel Club Ltd. appealed the Recommendation to
the Labour Court on the 10th July, 1992 with respect to that
part of the Equality Officer's Recommendation in which he stated
that like work existed between the supervisory claimants and the
comparator under Section 3(1) of the 1974 Act.
4. The Court heard the appeal on the 4th November, 1992. The
written submissions to the Court are attached as appendices 2
and 3.
UNION'S ARGUMENTS:
3. 1. In Chapter 23 of his recommendation, the Equality
Officer considers it appropriate to separately look at the case
of the two supervisors and the six non-supervisory staff for the
purposes of comparison with the comparator. By so doing the
Equality Officer is deciding prematurely that the work of all
claimants is not equal to that of the comparator. The Equality
Officer has in reality, prejudiced the Union's argument that the
work of the claimants (all of the claimants) is equal to the
work performed by the comparator.
-3- DEP693
2. By viewing the claimants as he did the Equality Officer
failed to allow for the possibility of any differences between
each of the two supervisors or between each of the six
non-supervisory claimants. His findings reflect exactly his
original decision to separate the supervisory and
non-supervisory claimants.
3. The comparator and all of the claimants are/were employed
in a clerical capacity. The level of flexibility however, is
far greater for the claimants than it ever was for the
comparitor. The Equality Officer has given insufficient weight
to the flexibility question and he has failed to credit the
claimants for their mobility and interchangeability.
4. No two staff of the Irish Kennel Club perform tasks which
are identical down to the last detail but in overall terms the
jobs are equal within the meaning of clerical work. The only
clerical employee who was not available for all duties within
reason was the comparator.
5. All of the non-supervisory staff are on a common scale and
are therefore interchangeable with each other. So flexible is
the system in the Irish Kennel Club that the mobility extends to
work which blurs even the distinction between clerical and
supervisory functions.
6. The comparator never functioned in a management capacity.
His entire service comprised of clerical duties regardless of
the various titles bestowed on him.
7. In Paragraphs 48 and 49 the Equality Officer deals with the
somewhat abstract consideration of the original intentions of
the Irish Kennel Club in respect of the comparator and
completely ignores the fact that the comparator was in the
so-called 'Senior Clerk' position for three years.
8. At the time of his redundancy, the comparator was being
treated as a normal member of the clerical staff in every
respect except pay.
-4- DEP693
9. Since recommendation No. EP5/1992 was issued some of the
tasks originally performed by the comparator have been given to
the claimants. Some of these tasks were originally performed by
the claimants, were taken over by the comparator when he became
'Senior Clerk' and have now been restored to the claimants.
COMPANY'S ARGUMENTS:
4. 1. The Equality Officer refers to a decision by Mr.
Justice Keane in the case Murphy and others V An Bord Telecom
Eireann to give him guidance on the interpretation of the term
"equal in value". He erred when using part of Mr. Justice
Keane's ruling to support the argument that work of equal value
existed between the supervisory graded claimant jobs and the job
of the comparator. In that case the claimants were performing
work which was of a higher value than that performed by the
named comparator and were being paid less. No similarity exists
between the Irish Kennel Club case and the Bord Telecom Eireann
case.
2. An agreement entered into by the Company and IDATU in 1990
shows that both sides agreed that two grades be established i.e.
a supervisory and a non-supervisory grade. This clearly shows
that the Equality Officer was correct in dividing the claimants
into two separate groups for the purpose of comparing them with
the comparator.
3. The Equality Officers' comparison of the work of the
non-supervisory claimants with the comparator shows that the
skill, responsibility and mental effort of the non-supervisory
claimant jobs are not as demanding as those found in the
comparator job.
4. The Company rejects the claim that the non-supervisory
claimants and the comparator perform the same work. A study of
the job descriptions (Appendix 3 - Company's submission) shows
quite clearly that the jobs of the non-supervisory claimants and
the comparator are not the same.
-5- DEP693
5. It is not true to say that the jobs performed by any of the
non-supervisory claimants were, in every respect interchangeable
with that of the comparator. The claimants would not possess
the skills and training required to carry out most of the
functions of the comparator.
6. It is not true to say that even within the non-supervisory
group that each of the claimants' jobs involve the same work. A
study of the non-supervisory claimant job descriptions (Appendix
2 - Company's submission) shows this clearly.
7. It is not true to say that the non-supervisory claimants
and the comparator were doing similar work. The jobs of the
non-supervisory claimants and the comparator are similar only to
the extent that all are office based jobs.
8. The differences between the non-supervisory claimants jobs
and that of the comparator were also significant in relation to
the work as a whole, i.e. they were sufficient to justify a
higher rate of pay for the comparator job.
9. To support the case justifying "grounds other than sex" for
the higher rate of pay for the comparator it is emphasised that
during his period of employment with the Company he only
received pay increases in line with the terms of the Programme
for National Recovery and the Programme for Economic and Social
Progress. He was regarded as part of the management team. The
clerical staff, however, receive an increment each year in
addition to the basic pay award increases.
DETERMINATION:
5. The Court having investigated the appeal of the claimants
and having individually inspected and compared all of the jobs
in dispute finds that those claiments not having a supervisory
function are not employed on like work with the comparator. The
Court concurs with the finding of the Equality Officer that the
two claimants with a supervisory function hold very responsible
jobs and that these compare favourably with the job of the
Senior Clerk.
-6- DEP693
The Court however is satified that the comparator was appointed
as an Assistant Secretary with a view to his replacing the
Secretary on the Secretary's retirement. After an extended
period of probation he was not confirmed in the position of
Assistant Secretary as his performance was considered
unsatisfactory and he was considered unsuitable for the eventual
position of Secretary. He was then regraded to the position of
senior clerk. He continued to perform the same range of duties
but the expectation of progressing to the post of Secretary no
longer existed. He was allowed to retain his rate of pay which
the Court is satisfied was on a personal basis. Given all of
these circumstances the Court concludes there were valid grounds
other than sex for the payment of the higher rate of pay of the
comparator. To summarise the Court concurs with the finding of
the Equality Officer that in respect of the non supervisory
claimants they were not employed on like work with the
comparator, and that in the case of the supervisory claimants
they were doing like work with the comparator but that there
were valid reasons other than sex for the payment of a higher
rate of pay.
Accordingly the Court rejects the appeal by the claimants.
~
Signed on behalf of the Labour Court
27TH OCTOBER, 1993 TOM MCGRATH
P.O'C./M.H. ____________________________________
DEPUTY CHAIRMAN.