Labour Court Database __________________________________________________________________________________ File Number: AEP952 Case Number: DEE962 Section / Act: S8(1)AD Parties: IRISH LIFE STAFF RESTAURANT TRUSTEES (Represented by THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION) - and - A WORKER;SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Equality Officers Rec. EP2/95
Recommendation:
(1) That the Equality Officer erred in his interpretation of
"like work".
The Union has argued that the Equality Officer was not
entitled to disregard the work the claimant carried out at
functions in his assessment of whether her work was "like
work" with that of the comparator.
The claimant works occasionally and at her option at
functions of the company. When carrying out such work, it is
alleged that the claimant performs "like work" with the
comparators she had identified; she claimed that her ability
to perform the same work as the comparators demonstrated that
her skills were equal to theirs. The company refuted the
claim.
The Court is satisfied that this issue was of no relevance to
the claim of "like work", and that even when working at
functions -an event which was extremely rare - the claimant
was not performing "like work" with any of the comparators.
(2) That the Equality Officer erred in law in that he failed to
investigate the claim under section 3 (b) against each
comparator.
(The company argued that the Union was not entitled to pursue
this aspect of the appeal, since it had incorrectly described
the section of the Act in dispute as section 8.3.(c), a
section which does not exist. The Court is satisfied that the
reference in the Union submission to section 8.3(c) is
clearly a typographical error, and that no-one was misled by
it. The Court therefore rejects this argument by the
company).
Three comparators had been named by the Union for the
purposes of the investigation. The Equality Officer was
satisfied that all three were performing "like work" with
each other in terms of section 3(b) of the Act. The Union
submits that he should have investigated the work of each
comparator and compared the claimant's work to each. If he
had done so, the Union claims, he would have found that the
claimant's work was at least as demanding as that of the
least demanding Chef's position.
The Court cannot find that the above argument shows any error
of law on the part of the Equality Officer. He had to compare
two persons; the claimant and one other. He was given three
others, and satisfied himself on the facts that all three
were employed on "like work" with each other. If they were
doing "like work" with each other, then he only had to pick
one of them against which to compare the claimant's work. In
any event, he had taken all the submissions, both written and
oral, made to him, and examined the work of all four persons.
(3) That the Equality Officer erred in his conclusions under
section 3(c) of the Act.
The argument here is a repeat of the argument described at 2
above, namely that the Equality Officer should have
investigated all three comparators and compared them against
the claimant. But the Equality Officer did investigate the
work of all three comparators, and found them to be equal to
each other.
He had found that the differences between the work of the
claimant and that of the comparator with whom he compared her
work were significant, and that it was not "like work" under
section 3(c). However, he then concluded that as he had
already found the three named comparators to be doing "like
work" with each other, the remaining two comparators' work
was also more demanding in terms of section 3(c) than that of
the claimant.
The Union argues that the Equality Officer could not
logically reach this conclusion without investigating and
comparing the work of the remaining comparators with that of
the claimant.
Section 3 of the 1974 Act describes what is to be regarded as
"like work" for the purposes of entitlement to equal pay.
There are three alternatives. Either the work of two persons
is the same or interchangeable, or it is of a similar nature
with only slight differences, or the work is equal in value
in terms of the demands it makes on the workers.
In paragraph 5.4 of his Recommendation, the Equality Officer
had been satisfied that the three comparators named by the
Union were doing work in which there were differences, but
that those differences were not significant enough to warrant
a pay differential between them. He stated "they are employed
on like work with each other in terms of section 3(b) of the
Act". He could have quite simply said they were doing "like
work" with each other in terms of section 3, since that is
the import of his finding.
The Court is satisfied that the Equality Officer made a finding
that the three comparators were doing "like work" with each other.
His reference to section 3(b) in paragraph 5.4 is superfluous and
confusing, but does not take away from the essence of his
conclusion that the work of the comparators was equal inter se. Nor
does it take away from the validity of his choice of one comparator
in assessing the work of the claimant. He measured the work of the
claimant under section 3(c) with that of the comparator, and found
that the work of the comparator was of greater value than that of
the claimant. As he had already found the other two comparators to
be equal inter se to the one chosen for comparison purposes, he
rejected the claim under 3(c).
The Court is satisfied that this was a correct finding, despite the
lack of clarity in paragraph 5.4 of the Recommendation.
The Court decides that the appeal by the Union fails, and upholds
the Recommendation of the Equality Officer.
Division: Mr Flood Mr Pierce Ms Ni Mhurchu
Text of Document__________________________________________________________________
AEP952 DETERMINATION NO. DEE296
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
PARTIES:
IRISH LIFE STAFF RESTAURANT TRUSTEES
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
SUBJECT:
Appeal against Equality Officers Rec. EP2/95
BACKGROUND:
The worker was employed by Irish Life Restaurant Trustees as
a Cook. The basis of her claim is that she is entitled to
receive the same remuneration as other cooks employed by the
Company, in accordance with Section 3 subsection (B) and (C)
of the Act as outlined hereunder.
Section 3 subsection (B) states:
"that the work performed by one is of a similar nature
to that performed by the other and any differences
between the work performed or the conditions under which
it is performed by each occur only infrequently or are
of small importance in relation to the work as a whole"
Section 3 subsection (C) states:
"that the work performed by one is equal in value to
that performed by the other in terms of the demands it
makes in relation to such matters as skill, physical or
mental effort, responsibility and working conditions".
The following are the Grounds of Appeal by the Union:-
1. The first ground of our appeal is that the Equality Officer
erred in law in defining "like work" in terms of the Act.
2. That the Equality Officer erred in law in failing to
investigate the claim under Section 8.3 (c) against each
Comparator.
3. That the Equality Officer erred in law in defining 3(C) of
the Act.
DETERMINATION:
(1) That the Equality Officer erred in his interpretation of
"like work".
The Union has argued that the Equality Officer was not
entitled to disregard the work the claimant carried out at
functions in his assessment of whether her work was "like
work" with that of the comparator.
The claimant works occasionally and at her option at
functions of the company. When carrying out such work, it is
alleged that the claimant performs "like work" with the
comparators she had identified; she claimed that her ability
to perform the same work as the comparators demonstrated that
her skills were equal to theirs. The company refuted the
claim.
The Court is satisfied that this issue was of no relevance to
the claim of "like work", and that even when working at
functions -an event which was extremely rare - the claimant
was not performing "like work" with any of the comparators.
(2) That the Equality Officer erred in law in that he failed to
investigate the claim under section 3 (b) against each
comparator.
(The company argued that the Union was not entitled to pursue
this aspect of the appeal, since it had incorrectly described
the section of the Act in dispute as section 8.3.(c), a
section which does not exist. The Court is satisfied that the
reference in the Union submission to section 8.3(c) is
clearly a typographical error, and that no-one was misled by
it. The Court therefore rejects this argument by the
company).
Three comparators had been named by the Union for the
purposes of the investigation. The Equality Officer was
satisfied that all three were performing "like work" with
each other in terms of section 3(b) of the Act. The Union
submits that he should have investigated the work of each
comparator and compared the claimant's work to each. If he
had done so, the Union claims, he would have found that the
claimant's work was at least as demanding as that of the
least demanding Chef's position.
The Court cannot find that the above argument shows any error
of law on the part of the Equality Officer. He had to compare
two persons; the claimant and one other. He was given three
others, and satisfied himself on the facts that all three
were employed on "like work" with each other. If they were
doing "like work" with each other, then he only had to pick
one of them against which to compare the claimant's work. In
any event, he had taken all the submissions, both written and
oral, made to him, and examined the work of all four persons.
(3) That the Equality Officer erred in his conclusions under
section 3(c) of the Act.
The argument here is a repeat of the argument described at 2
above, namely that the Equality Officer should have
investigated all three comparators and compared them against
the claimant. But the Equality Officer did investigate the
work of all three comparators, and found them to be equal to
each other.
He had found that the differences between the work of the
claimant and that of the comparator with whom he compared her
work were significant, and that it was not "like work" under
section 3(c). However, he then concluded that as he had
already found the three named comparators to be doing "like
work" with each other, the remaining two comparators' work
was also more demanding in terms of section 3(c) than that of
the claimant.
The Union argues that the Equality Officer could not
logically reach this conclusion without investigating and
comparing the work of the remaining comparators with that of
the claimant.
Section 3 of the 1974 Act describes what is to be regarded as
"like work" for the purposes of entitlement to equal pay.
There are three alternatives. Either the work of two persons
is the same or interchangeable, or it is of a similar nature
with only slight differences, or the work is equal in value
in terms of the demands it makes on the workers.
In paragraph 5.4 of his Recommendation, the Equality Officer
had been satisfied that the three comparators named by the
Union were doing work in which there were differences, but
that those differences were not significant enough to warrant
a pay differential between them. He stated "they are employed
on like work with each other in terms of section 3(b) of the
Act". He could have quite simply said they were doing "like
work" with each other in terms of section 3, since that is
the import of his finding.
The Court is satisfied that the Equality Officer made a finding
that the three comparators were doing "like work" with each other.
His reference to section 3(b) in paragraph 5.4 is superfluous and
confusing, but does not take away from the essence of his
conclusion that the work of the comparators was equal inter se. Nor
does it take away from the validity of his choice of one comparator
in assessing the work of the claimant. He measured the work of the
claimant under section 3(c) with that of the comparator, and found
that the work of the comparator was of greater value than that of
the claimant. As he had already found the other two comparators to
be equal inter se to the one chosen for comparison purposes, he
rejected the claim under 3(c).
The Court is satisfied that this was a correct finding, despite the
lack of clarity in paragraph 5.4 of the Recommendation.
The Court decides that the appeal by the Union fails, and upholds
the Recommendation of the Equality Officer.
~
Signed on behalf of the Labour Court
25th January, 1996 Finbarr Flood
C.O.N./A.K. ---------------
Deputy Chairman