Labour Court Database __________________________________________________________________________________ File Number: AEP933 Case Number: DEP951 Section / Act: S8(1)AD Parties: NORTH WESTERN HEALTH BOARD (N.W.H.B.) - and - NINE PART-TIME WORKERS;IMPACT |
Appeal by the North Western Health Board Against Equality Officer's Recommendation No. EP13/1992. and Appeal by the Union for the implementation of Equality Officer's Recommendation No. EP13/1992.
Recommendation:
In this case, nine employees ('the claimants') of the North
Western Health Board ('the Board'), who are employed as Part-time
Home Helps, are seeking to be paid the same hourly rate as a
full-time caretaker, also employed by the Board.
The Board is appealing under Section 8 of the Anti-Discrimination
(Pay) Act, 1974 ('the Act') against a Recommendation of an
Equality Officer (EP13/1992) which found in favour of the
claimants.
The Union, on behalf of the claimants, under the same Section
sought a Determination that the Recommendtion had not been
implemented by the Board.
The dispute arises under Section 2(1) of the Act, which provides
that "it shall be a term of the contract under which a woman is
employed in any place that she shall be entitled to the same rate
of remuneration as a man who is employed in that place by the same
employer ......... if both are employed on like work".
The claimants chose to compare themselves, for the purposes of
their claim, to a man doing work which the Equality Officer was
satisfied was "like work" within the meaning of Section 3 of the
Act to the work of the claimants.
Such a comparison is often made if there are no persons of the
opposite sex doing the same work as the claimants and being paid
at a higher rate.
In this instance, however, there were men doing exactly the same
work as the women claimants. These men, also employed as
part-time home helps, were in receipt of the same hourly rate as
the claimants.
Since the terms of the claimants' contracts are the same as those
of their male colleagues who are doing the same work, their claim
for the same rate of remuneration as their chosen comparator is
not a claim which can properly be founded on an allegation of
discrimination.
Even an allegation of indirect discrimination cannot be sustained
in this case. The rate paid to the comparator is the Grade 1 rate
and is in fact paid mostly to women workers, who far outnumber
their male colleagues in the employment of the Board, and includes
women doing the same work as the claimants, both on a part-time
and on a full-time basis.
At the time of the investigation by the Equality Officer the
gender breakdown of workers employed at Grade 1 by the Board was
as follows:-
Total employees in Grade 1 - 1,164
- Female 868 (78%)
- Males 296 (25%)
Included in the foregoing were 8 caretakers, being 5 females and 3
males.
Undoubtedly, there are differences in the rate paid to the
claimants and that paid to other workers doing the same work.
However, such a claim cannot be founded on allegations of
discrimination, because of the fact that so many women are paid at
the higher rate. The Court is satisfied that the difference in
pay is not related, either directly or indirectly, to the sex of
the workers.
The Court therefore allows the appeal of the Board against the
Recommendation of the Equality Officer, and rejects the appeal by
the Union for a Determination that the Recommendation had not been
implemented.
Division: Ms Owens Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
AEP933 DETERMINATION NO. DEP195
ANTI-DISCRIMINATION (PAY) ACT, 1974
SECTION 8(1)
PARTIES:
NORTH WESTERN HEALTH BOARD (N.W.H.B.)
(REPRESENTED BY THE LOCAL GOVERNMENT STAFF NEGOTIATIONS BOARD)
AND
NINE PART-TIME WORKERS
(REPRESENTED BY IMPACT)
SUBJECT:
1. Appeal by the North Western Health Board Against Equality
Officer's Recommendation No. EP13/1992.
and
Appeal by the Union for the implementation of Equality
Officer's Recommendation No. EP13/1992.
BACKGROUND:
2. The background to this case is outlined in the Equality
Officer's Recommendation No. EP13/1992, which is attached at
Appendix 1.
On 29th January, 1993, the Northern Western Health Board
appealed against the above RECOMMENDATION TO THE LABOUR COURT
ON THE FOLLOWING GROUNDS:-
I) THE EQUALITY OFFICER ERRED IN LAW AND IN FACT IN NOT
acknowledging the special nature of the part-time home
help service as grounds other than sex for the purposes
of Section 2(3) of the Act.
II) The Equality Office erred in law and in fact in not
acknowledging the difference between the contractual
arrangement of full-time employees and part-time home
helps as grounds other than sex for the purposes of
Section 2(3) of the Act.
iii) The Equality Officer erred in law and in fact in
disregarding the statistical evidence provided by the
Board.
iv) The Equality Officer erred in law and in fact in
deciding that indirect discrimination existed.
v) The Equality Officer erred in law in her interpretation
of Section 2(3).
vi) Any other grounds which may arise during the hearing.
On 2nd February, 1993, the Union appealed to the Labour Court
for the implementation of the above recommendation. The
Court heard the appeals by both parties on 10th November,
1993. The North Western Health Board's submission is
attached at Appendix 2. The Union's submission is attached
at Appendix 3.
DETERMINATION:
In this case, nine employees ('the claimants') of the North
Western Health Board ('the Board'), who are employed as Part-time
Home Helps, are seeking to be paid the same hourly rate as a
full-time caretaker, also employed by the Board.
The Board is appealing under Section 8 of the Anti-Discrimination
(Pay) Act, 1974 ('the Act') against a Recommendation of an
Equality Officer (EP13/1992) which found in favour of the
claimants.
The Union, on behalf of the claimants, under the same Section
sought a Determination that the Recommendtion had not been
implemented by the Board.
The dispute arises under Section 2(1) of the Act, which provides
that "it shall be a term of the contract under which a woman is
employed in any place that she shall be entitled to the same rate
of remuneration as a man who is employed in that place by the same
employer ......... if both are employed on like work".
The claimants chose to compare themselves, for the purposes of
their claim, to a man doing work which the Equality Officer was
satisfied was "like work" within the meaning of Section 3 of the
Act to the work of the claimants.
Such a comparison is often made if there are no persons of the
opposite sex doing the same work as the claimants and being paid
at a higher rate.
In this instance, however, there were men doing exactly the same
work as the women claimants. These men, also employed as
part-time home helps, were in receipt of the same hourly rate as
the claimants.
Since the terms of the claimants' contracts are the same as those
of their male colleagues who are doing the same work, their claim
for the same rate of remuneration as their chosen comparator is
not a claim which can properly be founded on an allegation of
discrimination.
Even an allegation of indirect discrimination cannot be sustained
in this case. The rate paid to the comparator is the Grade 1 rate
and is in fact paid mostly to women workers, who far outnumber
their male colleagues in the employment of the Board, and includes
women doing the same work as the claimants, both on a part-time
and on a full-time basis.
At the time of the investigation by the Equality Officer the
gender breakdown of workers employed at Grade 1 by the Board was
as follows:-
Total employees in Grade 1 - 1,164
- Female 868 (78%)
- Males 296 (25%)
Included in the foregoing were 8 caretakers, being 5 females and 3
males.
Undoubtedly, there are differences in the rate paid to the
claimants and that paid to other workers doing the same work.
However, such a claim cannot be founded on allegations of
discrimination, because of the fact that so many women are paid at
the higher rate. The Court is satisfied that the difference in
pay is not related, either directly or indirectly, to the sex of
the workers.
The Court therefore allows the appeal of the Board against the
Recommendation of the Equality Officer, and rejects the appeal by
the Union for a Determination that the Recommendation had not been
implemented.
~
Signed on behalf of the Labour Court
27th January, 1995 Evelyn Owens
F.B./M.M. ____________
Chairman
Note
Enquiries concerning this Determination should be addressed to Mr.
Fran Brennan, Court Secretary.