Labour Court Database __________________________________________________________________________________ File Number: AEP9311 Case Number: DEP952 Section / Act: S8(1)AD Parties: FUJITSU MICROELECTRONICS - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Equality Officer's Recommendation No. EP 10/1993 concerning a claim by the Union on behalf of an accounts assistant, that she is entitled under the above Act to the same rate of pay as that paid to Martin Wall a purchasing assistant.
Recommendation:
In support of its argument that this was an equal treatment issue
and not an equal pay one, the Company cited Determination No. 7 of
1983 and the case of Grant Barnett & Co. Ltd. The Company
contended that there were similarities between that case and the
case now before the Court, to the extent that the Court should be
persuaded that this was an equal treatment case, and should have
been dealt with under the Employment Equality Act, 1977, rather
than as an equal pay claim.
The Company also argued that the dispute was about transfers in
employment and that consequently the reference to the Court should
have been made under Section 3(4) of the 1977 Act.
The Court does not accept these submissions, and is satisfied that
the claim currently before the Court is an equal pay claim, was
properly treated as such by the Equality Officer under the Anti-
Discrimination (Pay) Act 1974, and that the issues to be
determined are whether there is "like work" between the claimant
and the comparator, and if so, whether there are grounds other
than sex for differences in their rates of remuneration.
On the issue of "like work", the Equality Officer had concluded
that while the case made by the claimant was not sustainable under
sub-sections 3(a) or 3(b) of the 1974 Act, it was valid under sub-
section 3(c). The Equality Officer did not elaborate on her
conclusions, and it is not the wish of the Court to presume what
her thinking was, but it would appear that her conclusions were
based strictly on a comparison of the work of both the claimant
and the comparator, and her estimate that they were equal in value
in terms of the demands made on each worker.
Having found that there was "like work", the Equality Officer then
considered the "grounds other than sex" which had been relied on
by the Company in its defence. She found that the grounds relied
on did not justify the differences in the rates of payment of the
claimant and the comparator.
In its submission on its appeal against the Equality Officer's
Recommendation, the Company did not dispute the finding of "like-
work". The Court consequently confined itself to consideration of
the arguments made in relation to "grounds other than sex".
Before dealing with this substantive issue, there are two matters
raised in the course of the appeal to which reference should be
made. It has been pointed out by the Company, and the Court
accepts, that the Equality Officer had incorrectly stated that
both the claimant and the comparator had been employed in the
accounts department of the Company. This was an error on her
part, but is of no significance in the determination of the case.
The second matter relates to whether the claimant was first,
second or third choice for the administrative position. In fact,
she was third, but again the matter is of no significance in
relation to the ultimate determination of the case. For the
claimant to be promoted or transferred from the Operative Grade to
the Administrative Grade, she would have to meet certain minimum
standards and have certain qualifications. Once these had been
achieved, the sequential circumstances of the promotion/transfer
would be irrelevant.
In considering the substantive defence of the Company under
Section 2(3) of the 1974 Act, the Court had regard to the findings
of the Equality Officer, and to the submissions, both verbal and
written, made by the Company in this appeal. The claimant's
submissions on the appeal were limited to the case which had been
made on her behalf in the investigation by the Equality Officer,
together with a request that the Recommendation be upheld and
implemented.
The question to which the Court addressed itself was whether or
not the payment of extra increments to the comparator was
justifiable in the circumstances, and unrelated to sex. The Court
was satisfied that there were two factors which influenced the
incremental advantages afforded to the comparator, namely his
previous experience, and his commitment to a specific programme of
further education.
The Court does not agree with the conclusions of the Equality
Officer on the Company's section 2(3) defence. It finds that the
Equality Officer attached insufficient weight to the issue of
qualifications and experience which she outlines in paragraph
5.6(b) of her conclusions. In particular, the Court is satisfied
that the five year's experience of the comparator in a
supermarket, which included responsibility for the day to day
management of five employees, was of far greater benefit to the
Company than the 18 months experience of the claimant in a retail
outlet. The Court is also satisfied that there were significant
differences in the educational standards of the claimant and the
comparator. The comparator had not only had the minimum standard
required and detailed in the advertisement for the position, but
he had also obtained Part 1 of a Certificate in Supermarket
Management, whereas the claimant had not even met the required
minimum standard detailed in the advertisement.
The Court also attached considerable weight to the condition which
had been outlined in the advertisement for the comparator's
position, namely that the appointee "must be prepared to study for
and obtain the relevant professional examinations". That
advertisement had continued "Future prospects (career, pay etc.)
will reflect progress both in job performance and external
studies". The Company had clearly been looking for someone who
would be prepared to adhere to and be capable of adhering to
certain conditions when it was making that appointment; failure to
adhere to those conditions would mean that the appointee would
revert to a Grade A Operator's job. Compliance with those
conditions warranted better pay for the successful applicant.
The Court is satisfied that the above considerations, which were
clearly set out by the Company prior to the making of the
appointments amount to sufficient grounds other than sex for the
differing rates of pay between the claimant and the comparator.
The Court accordingly decides under Section 8(1) of the 1974 Act
that the appeal of the Company against the Recommendation of the
Equality Officer be allowed, and determines accordingly.
Division: Mr McGrath Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
AEP9311 DETERMINATION NO. DEP295
ANTI DISCRIMINATION (PAY) ACT, 1974
SECTION 8(1)
PARTIES:
FUJITSU MICROELECTRONICS
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Equality Officer's
Recommendation No. EP 10/1993 concerning a claim by the Union
on behalf of an accounts assistant, that she is entitled
under the above Act to the same rate of pay as that paid to
Martin Wall a purchasing assistant.
BACKGROUND:
2. 1. The background to this dispute is set out in the
Equality Officer's Recommendation which is attached as
Appendix 1 to this Determination.
2. The Equality Officer's Recommendation which was issued
on the 18th November, 1993, recommended that the
claimant be paid an additional three increments on Scale
1 with effect from the 19th June, 1989.
3. On the 21st December, 1993, the Employer appealed the
recommendation to the Labour Court on the following
grounds:
(1) The Equality Officer erred in law when concluding
that the claim had been referred under the proper
Act.
(2) The Equality Officer erred in law and in fact in
deciding that legitimate grounds other than sex did
not exist to justify the different treatment of the
named comparator.
(3) Such grounds of appeal as may arise during the
course of the hearing of the Company's appeal.
4. On the 22nd December, 1993, the Union appealed to the
Labour Court for a Determination that the Company had
not implemented the Equality Officer's Recommendation.
5. The Court heard the appeals on the 22nd March, 1994.
The written submissions to the Court are attached as
appendices.
DETERMINATION:
In support of its argument that this was an equal treatment issue
and not an equal pay one, the Company cited Determination No. 7 of
1983 and the case of Grant Barnett & Co. Ltd. The Company
contended that there were similarities between that case and the
case now before the Court, to the extent that the Court should be
persuaded that this was an equal treatment case, and should have
been dealt with under the Employment Equality Act, 1977, rather
than as an equal pay claim.
The Company also argued that the dispute was about transfers in
employment and that consequently the reference to the Court should
have been made under Section 3(4) of the 1977 Act.
The Court does not accept these submissions, and is satisfied that
the claim currently before the Court is an equal pay claim, was
properly treated as such by the Equality Officer under the Anti-
Discrimination (Pay) Act 1974, and that the issues to be
determined are whether there is "like work" between the claimant
and the comparator, and if so, whether there are grounds other
than sex for differences in their rates of remuneration.
On the issue of "like work", the Equality Officer had concluded
that while the case made by the claimant was not sustainable under
sub-sections 3(a) or 3(b) of the 1974 Act, it was valid under sub-
section 3(c). The Equality Officer did not elaborate on her
conclusions, and it is not the wish of the Court to presume what
her thinking was, but it would appear that her conclusions were
based strictly on a comparison of the work of both the claimant
and the comparator, and her estimate that they were equal in value
in terms of the demands made on each worker.
Having found that there was "like work", the Equality Officer then
considered the "grounds other than sex" which had been relied on
by the Company in its defence. She found that the grounds relied
on did not justify the differences in the rates of payment of the
claimant and the comparator.
In its submission on its appeal against the Equality Officer's
Recommendation, the Company did not dispute the finding of "like-
work". The Court consequently confined itself to consideration of
the arguments made in relation to "grounds other than sex".
Before dealing with this substantive issue, there are two matters
raised in the course of the appeal to which reference should be
made. It has been pointed out by the Company, and the Court
accepts, that the Equality Officer had incorrectly stated that
both the claimant and the comparator had been employed in the
accounts department of the Company. This was an error on her
part, but is of no significance in the determination of the case.
The second matter relates to whether the claimant was first,
second or third choice for the administrative position. In fact,
she was third, but again the matter is of no significance in
relation to the ultimate determination of the case. For the
claimant to be promoted or transferred from the Operative Grade to
the Administrative Grade, she would have to meet certain minimum
standards and have certain qualifications. Once these had been
achieved, the sequential circumstances of the promotion/transfer
would be irrelevant.
In considering the substantive defence of the Company under
Section 2(3) of the 1974 Act, the Court had regard to the findings
of the Equality Officer, and to the submissions, both verbal and
written, made by the Company in this appeal. The claimant's
submissions on the appeal were limited to the case which had been
made on her behalf in the investigation by the Equality Officer,
together with a request that the Recommendation be upheld and
implemented.
The question to which the Court addressed itself was whether or
not the payment of extra increments to the comparator was
justifiable in the circumstances, and unrelated to sex. The Court
was satisfied that there were two factors which influenced the
incremental advantages afforded to the comparator, namely his
previous experience, and his commitment to a specific programme of
further education.
The Court does not agree with the conclusions of the Equality
Officer on the Company's section 2(3) defence. It finds that the
Equality Officer attached insufficient weight to the issue of
qualifications and experience which she outlines in paragraph
5.6(b) of her conclusions. In particular, the Court is satisfied
that the five year's experience of the comparator in a
supermarket, which included responsibility for the day to day
management of five employees, was of far greater benefit to the
Company than the 18 months experience of the claimant in a retail
outlet. The Court is also satisfied that there were significant
differences in the educational standards of the claimant and the
comparator. The comparator had not only had the minimum standard
required and detailed in the advertisement for the position, but
he had also obtained Part 1 of a Certificate in Supermarket
Management, whereas the claimant had not even met the required
minimum standard detailed in the advertisement.
The Court also attached considerable weight to the condition which
had been outlined in the advertisement for the comparator's
position, namely that the appointee "must be prepared to study for
and obtain the relevant professional examinations". That
advertisement had continued "Future prospects (career, pay etc.)
will reflect progress both in job performance and external
studies". The Company had clearly been looking for someone who
would be prepared to adhere to and be capable of adhering to
certain conditions when it was making that appointment; failure to
adhere to those conditions would mean that the appointee would
revert to a Grade A Operator's job. Compliance with those
conditions warranted better pay for the successful applicant.
The Court is satisfied that the above considerations, which were
clearly set out by the Company prior to the making of the
appointments amount to sufficient grounds other than sex for the
differing rates of pay between the claimant and the comparator.
The Court accordingly decides under Section 8(1) of the 1974 Act
that the appeal of the Company against the Recommendation of the
Equality Officer be allowed, and determines accordingly.
~
Signed on behalf of the Labour Court
13th February, 1995 Tom McGrath
T.O.D./M.M. _______________
Deputy Chairman
Note
Enquiries concerning this Determination should be addressed to Mr.
Tom O'Dea, Court Secretary.
Appendix 1 Equality Officer's Recommendation
Appendix 2 Union's Submission
Appendix 3 Company's Submission