Labour Court Database __________________________________________________________________________________ File Number: AEP928 Case Number: DEP941 Section / Act: S8(1)AD Parties: AER RIANTA - and - 11 CATERING ATTENDANTS;SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Equality Officer's Recommendation No. EP8/92. The Recommendation concerns a claim by the Union on behalf of eleven female catering attendants employed by Aer Rianta, that they are entitled, under the above Act, to the same rate of remuneration as that paid to four named comparators.
Recommendation:
5. GROUNDS (a) AND (b) OF APPEAL
The 1974 Anti-Discrimination (Pay) Act does not place any time-
restriction on the submission of equal pay claims although it does
limit to three years the amount of retrospective payment which may
result from a successful claim. In this particular case the
comparator, Mr. Fenton, had retired some seven years before the
claim was submitted and the Equality Officer addressed the
question of whether there was a time limit from the date the
comparator left the employment within which a claim under the Act
might be initiated. Based on the limitation of retrospective
payment of arrears as covered in Section 8(5) of the Act and on
statements made by the then Minister for Labour during the Seanad
Eireann debate on the introduction of the legislation in 1974, the
Equality Officer concluded that claims for equal pay with a named
comparator who has left the employment must be initiated within
three years of the date the comparator left. As a consequence,
the Equality officer held that Mr. Fenton could not be regarded as
a bona-fide comparator for the purposes of the Act.
The Court has considered the question and does not agree with
the Equality Officer's conclusion that equal pay cases must be
initiated within three years of the comparator leaving the
employment. The Act itself is silent on the matter and the Court
does not regard statements in Dail/Seanad debates as having
particular interpretative value in respect of legislation.
Nevertheless, the delay in initiating the claim has fundamental
relevance to the case. It concerns the practicality of examining
the question of "like-work", given that over seven years elapsed
from the time Mr. Fenton left the employment to the time the
claimants made their claim for equal pay. Because of the lapse of
time and the absence of any helpful work records, the Equality
Officer was unable to establish whether or not a "like-work"
situation existed between Mr. Fenton and the claimants. No
additional evidence was presented to the Court on the question.
The establishment of "like-work" is fundamental to the success of
any equal-pay claim, but a realistic evaluation of jobs is
impractical in the circumstances of this case where the comparator
has left the employment for such a long time. In the absence of
subtantial, verifiable evidence, the Court considers that it would
be unreasonable to place an onus on an employer to disprove a
claim of "like-work" when the comparator had left the employment
some seven years earlier. As no such evidence was provided, the
Court upholds the Equality Officer's conclusion that Mr. Fenton
was not a bona-fide comparator and rejects grounds (a) and (b) of
the Union's appeal.
GROUND (C) OF APPEAL
Since the work of the claimants and that of the comparators is
accepted by both sides as being "like-work", the claimants would
be entitled to the same rate of remuneration as the male workers
unless there are grounds other than sex for the difference in the
remuneration.
It is not disputed by the parties that both the cleaner and the
catering grades were originally unisex grades. The pay set for
each of the grades was, therefore, not related to the sex of the
workers. A progression of circumstances including the on-going
phasing-out of the cleaner grade and its replacement by
contractors, has resulted in each grade now being occupied
exclusively by one sex - the cleaners are exclusively male and the
catering attendants are exclusively female. Those circumstances
have also resulted in the work at present done by each grade being
"like-work", although the Court is satisfied it was not so
originally.
The Court is satisfied that the fact that the grades were unisex
grades to begin with is a valid ground other than sex for the
difference in pay. Furthermore, the duties originally performed
by members of the cleaner grade were more onerous than those which
the job of cleaner now entails. The duties and responsibilities
of the cleaner grade have been reduced over the years in the
process of its being phased-out altogether, but the members of the
grade, as is the norm in such cases, continue to enjoy the
standard of pay originally deemed appropriate to the grade.
While women workers now make up the group of catering-attendants
and men workers the group of cleaners, and both groups are engaged
on "like-work", the difference in their rates of pay is not
related to the sex of the particular workers. The difference in
pay and the "like-work" situation have come about because of the
way in which the duties of the cleaner grade have diminished and
the pay of the remaining members of the grade has continued at the
level which applied when the full duties of the grade were
undertaken and when the grade included both men and women.
The Court finds, therefore, that there are valid grounds for the
difference in pay as between the two grades and rejects the appeal
made on ground (c) of the Union's submission.
Signed on behalf of the Labour Court
Kevin Heffernan
----------------
4th February, 1994. Chairman.
M.K./J.C.
Division: Mr Heffernan Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
AEP928 DETERMINATION NO. DEP194
ANTI-DISCRIMINATION (PAY) ACT, 1974
SECTION 8(1)
PARTIES: AER RIANTA
(REPRESENTED BY BYRNE, COLLINS AND MORAN, SOLICITORS)
and
11 CATERING ATTENDANTS
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
SUBJECT:
1. Appeal by the Union against Equality Officer's Recommendation
No. EP8/92.
The Recommendation concerns a claim by the Union on behalf of
eleven female catering attendants employed by Aer Rianta, that
they are entitled, under the above Act, to the same rate of
remuneration as that paid to four named comparators.
BACKGROUND:
2. 1. The background to the case is outlined in the Equality
Officer's Recommendation and is attached at Appendix A.
2. The Union appealed against the above Recommendation, on
the 17th of December, 1992, on the following grounds:
(a) That the Equality Officer erred in law in determining
that the named comparator, Mr. Fenton, was not a valid
comparator in terms of the Anti-Discrimination (Pay)
Act, 1974.
(b) That the Equality Officer erred in fact and in law in
finding that no conclusion could be reached between the
work of the claimants and the work of the named
comparator, Mr. Fenton.
(c) That the Equality Officer erred in law by accepting as
valid a claim under Section 2(3) of the
Anti-Discrimination (Pay) Act, 1974.
(d) Such other points as may arise at the hearing.
UNION'S ARGUMENTS:
3. 1. The Union's arguments are as set out in Appendix B.
COMPANY'S ARGUMENTS:
4. 1. The Company's arguments are as set out in Appendix C.
The Labour Court investigated the dispute on the 5th May, 1993.
DETERMINATION:
5. GROUNDS (a) AND (b) OF APPEAL
The 1974 Anti-Discrimination (Pay) Act does not place any time-
restriction on the submission of equal pay claims although it does
limit to three years the amount of retrospective payment which may
result from a successful claim. In this particular case the
comparator, Mr. Fenton, had retired some seven years before the
claim was submitted and the Equality Officer addressed the
question of whether there was a time limit from the date the
comparator left the employment within which a claim under the Act
might be initiated. Based on the limitation of retrospective
payment of arrears as covered in Section 8(5) of the Act and on
statements made by the then Minister for Labour during the Seanad
Eireann debate on the introduction of the legislation in 1974, the
Equality Officer concluded that claims for equal pay with a named
comparator who has left the employment must be initiated within
three years of the date the comparator left. As a consequence,
the Equality officer held that Mr. Fenton could not be regarded as
a bona-fide comparator for the purposes of the Act.
The Court has considered the question and does not agree with
the Equality Officer's conclusion that equal pay cases must be
initiated within three years of the comparator leaving the
employment. The Act itself is silent on the matter and the Court
does not regard statements in Dail/Seanad debates as having
particular interpretative value in respect of legislation.
Nevertheless, the delay in initiating the claim has fundamental
relevance to the case. It concerns the practicality of examining
the question of "like-work", given that over seven years elapsed
from the time Mr. Fenton left the employment to the time the
claimants made their claim for equal pay. Because of the lapse of
time and the absence of any helpful work records, the Equality
Officer was unable to establish whether or not a "like-work"
situation existed between Mr. Fenton and the claimants. No
additional evidence was presented to the Court on the question.
The establishment of "like-work" is fundamental to the success of
any equal-pay claim, but a realistic evaluation of jobs is
impractical in the circumstances of this case where the comparator
has left the employment for such a long time. In the absence of
subtantial, verifiable evidence, the Court considers that it would
be unreasonable to place an onus on an employer to disprove a
claim of "like-work" when the comparator had left the employment
some seven years earlier. As no such evidence was provided, the
Court upholds the Equality Officer's conclusion that Mr. Fenton
was not a bona-fide comparator and rejects grounds (a) and (b) of
the Union's appeal.
GROUND (C) OF APPEAL
Since the work of the claimants and that of the comparators is
accepted by both sides as being "like-work", the claimants would
be entitled to the same rate of remuneration as the male workers
unless there are grounds other than sex for the difference in the
remuneration.
It is not disputed by the parties that both the cleaner and the
catering grades were originally unisex grades. The pay set for
each of the grades was, therefore, not related to the sex of the
workers. A progression of circumstances including the on-going
phasing-out of the cleaner grade and its replacement by
contractors, has resulted in each grade now being occupied
exclusively by one sex - the cleaners are exclusively male and the
catering attendants are exclusively female. Those circumstances
have also resulted in the work at present done by each grade being
"like-work", although the Court is satisfied it was not so
originally.
The Court is satisfied that the fact that the grades were unisex
grades to begin with is a valid ground other than sex for the
difference in pay. Furthermore, the duties originally performed
by members of the cleaner grade were more onerous than those which
the job of cleaner now entails. The duties and responsibilities
of the cleaner grade have been reduced over the years in the
process of its being phased-out altogether, but the members of the
grade, as is the norm in such cases, continue to enjoy the
standard of pay originally deemed appropriate to the grade.
While women workers now make up the group of catering-attendants
and men workers the group of cleaners, and both groups are engaged
on "like-work", the difference in their rates of pay is not
related to the sex of the particular workers. The difference in
pay and the "like-work" situation have come about because of the
way in which the duties of the cleaner grade have diminished and
the pay of the remaining members of the grade has continued at the
level which applied when the full duties of the grade were
undertaken and when the grade included both men and women.
The Court finds, therefore, that there are valid grounds for the
difference in pay as between the two grades and rejects the appeal
made on ground (c) of the Union's submission.
Signed on behalf of the Labour Court
Kevin Heffernan
----------------
4th February, 1994. Chairman.
M.K./J.C.