FULL RECOMMENDATION
SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974 PARTIES : DUNNES STORES (REPRESENTED BY MARGUERITE BOLGER B.L. INSTRUCTED BY BCM HANBY WALLACE, SOLICITORS) - AND - MANDATE DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. Appeal by both parties Against Equality Officer's Recommendation No. EP5/98 concerning a claim by the Union on behalf of 6 female employees that they are entitled to the same rate of remuneration as that paid to seven named male comparators in terms of Section 3(C) of the Anti-Discrimination (Pay) Act, 1974.
BACKGROUND:
2. The six named female claimants are employed in a part-time capacity as canteen/cleaning staff by Dunnes Stores Douglas Court Limited, Cork , earning £4.18 per hour. They are responsible for the preparation, presentation and sale of meals to staff.
The seven named male comparators are employed as sales assistants in the Delicatessen Department and their weekly salaries range from £148.68 to £221.79 on a six point pay scale. Some of the comparators are full-time and some are part-time.
The Union contends that each of the named female claimants perform "like work" with that performed by each of the named male comparators, and are, therefore, entitled to the same rate of pay. The Company rejected the claim stating that the work of the claimants differed substantially from the work of the comparators in terms of qualifications and training, skill, physical demands, mental effort, working conditions and responsibilities. The dispute was investigated by an Equality Officer. The Equality Officer's recommendation which was issued on the 20th January, 1998 found that there were grounds other than sex for the difference in pay between the six claimants and the named comparators in terms of Section 2(3) of the Anti-Discrimination (Pay) Act, 1994, and that the claimants did not have any entitlement to the same rate of remuneration as that paid by Dunnes Stores to each of the named comparators. On the 2nd March, 1998, both parties appealed the recommendation to the Labour Court.
The Union's grounds of appeal were as follows:
1. The Equality Officer failed to hold that the appellants have been discriminated against on gender grounds in relation to pay and failed to award the appellants equal pay and the appropriate arrears under the 1974 Act.
2. The Equality Officer erred in law in that she did not consider indirect discrimination in her investigation of the claim.
3. The Equality Officer erred in law and in fact in finding that the fact that female workers were paid at the same rate as the male comparators constituted 'grounds other than sex' for the purpose of section 2(3) of the 1974 Act.
4. The Equality Officer erred in law and in fact in finding that the appellants had not been discriminated against on gender grounds in relation to pay contrary to the 1974 Act and failing to award the appellants equal pay and the appropriate arrears under the 1974 Act.
5. On all grounds submitted and relied on during the Equality Officer's investigation.
The Company appealed the recommendation on the following grounds:
1. That the Equality Officer erred in law and in fact in recommending that the named Claimant (Ms. O'Herlihy) was doing like work to the named Comparator (Mr. Lordon).
i. In finding that the demands on the claimant, in relation to physical effort, are greater than those made on the named comparator.
ii. In finding that the demands on the claimants and the named comparator, in relation to mental effort are equal.
iii. In finding that the demands on the claimant and the named comparator, in relation to the level of responsibility, are equal.
iv. In finding that the demands on the claimant, in relation to working conditions, are greater than those made on the named comparator.
2. That the Equality Officer erred in law and in fact in failing to find that any difference in pay was for reasons other than sex in addition to the fact that the three claimants perform "like work" with eighteen female sales assistants working in the Deli Department, namely:
i. that the differential levels of pay between the claimants and the comparators were based on proportionately different wages levels recommended by the relevant Joint Labour Committee.
ii. That the differential levels of pay between the claimants and the comparators were based on a scale which exists for the comparators and not for the claimants as a greater development of skills and experience is required for the work of the comparators.
iii. that the differential levels of pay between the claimants and the comparators were based on the greater value which the work of the comparators has for the Appellant than the work of the claimants.
DETERMINATION:
This is an appeal by both parties against Recommendation EP6/98 of an Equality Officer dated 20th January, 1998.
The Union's appeal was against the finding of the Equality Officer that the workers were not entitled to the same rate of pay as the comparators. The Union alleges that the Equality Officer did not consider the issue of indirect discrimination, and also that her finding of grounds other than sex for the difference in pay was in error.
The Company appealed on the grounds that certain of the findings of the Equality Officer in relation to the work of certain of the claimants and that of the comparators were not justified in the circumstances.
At the hearing of the case, the Court pointed out to the Company's representative that if the Court agreed with the Equality Officer that there were grounds other than sex for the differences in pay, the question of whether some of the work was or was not 'like work' would be irrelevant. The Company agreed that the Court should determine the Union's appeal without prejudice to its contention that the findings of the Equality Officer were wrong.
Having carefully considered the submissions of the parties and the Recommendation of the Equality Officer, the Court is satisfied that there were grounds other than sex for the payment of different rates of remuneration to the claimants and the comparators, notwithstanding whether some of the work was 'like work' or not.
The Union claimed that the work performed by a number of female employees at Dunnes Stores is equal in value to seven named male comparators and that they are entitled to the same rate of pay as the comparators under Section 3 (c) of the Anti-Discrimination (Pay) Act, 1974. The female claimants are employed in a part-time capacity as Canteen/Cleaning staff. The comparators are employed as Sales Assistants in the Delicatessen Department.
The Equality Officer had found that the claimants did not perform 'like work' with each other, but rather were in two groupings, whereas the comparators did perform 'like work' with each other. She, therefore, compared the work of one claimant from each grouping with the work of one comparator. She found that one of the groupings performed 'like work' with the comparators and that the other did not.
Despite the finding of 'like work' between one group of claimants and the comparators, the Equality Officer found that there were grounds other than sex for the differential in the remuneration. This finding was on the gounds that the comparators were six males out of a group of 24 sales assistants, and that the remaining 18 sales assistants were all female. The Equality Officer was satisfied that all the Sales Assistants perform 'like work' with each other. The difference in pay between the claimants and the six male sales assistants who were named as comparators could therefore, not be based on the sex of the workers.
The Court agrees with this conclusion. The differential in pay between the claimants and the male comparators cannot be based on the sex of the comparators if the comparators are a minority of male workers among a group doing 'like work' with each other who are mostly female. The Court reached a similar conclusion in the case of Harte and Others and the North Western Health Board (DEP 195) where there were a group of female workers who compared themselves to a single male worker and claimed discrimination in pay, despite the fact that the rate of pay of the comparator in that case was the same as the rate paid mostly to women workers in the same grade. The differences in the remuneration could therefore, not be due to sex discrimination. A similar conclusion was reached in the case of Wilton V. The Steel Company of Ireland (DEP 971) in which one female worker compared herself to a male on a higher rate of salary, but where there was a male worker doing the same work as herself, and being paid the same rate as herself. The difference between that female worker and the male comparator could therefore, not be grounded on sex. (The Court notes the case of Pickstone and Others v. Freemans (1988 IRLR 358), but it is of no assistance here, being concerned with the right of a claimant to choose her comparator, and not with whether a pay differential is sex-based or not.)
The Court also finds that the allegation of indirect discrimination cannot be upheld either in this case (and indeed no evidence was put forward on this point by the Union), since the group with which the claimants have compared themselves consists mostly of women workers (although not actually named as the comparators).
The Equal Pay Directive (Directive 75/117/EEC) seeks to enforce the principle that for the same, or for work to which equal value is attributed, there shall be no discrimination on grounds of sex in relation to pay. In particular, according to the Directive, where a job classification system is used for determining pay, it must be based on the same criteria for men and women.
The Court can find nothing in the claimants' case to show that even those three claimants who were found by the Equality Officer to be doing like work with the comparators are being paid less by reason of their sex. The comparators are part of what is mostly a female group, they are doing different work from that of the claimants (even if it has been found in some respects to be equal in value to that of some of the claimants), and they are paid on a salary scale which rises with experience and seniority, thus indicating that continuity of employment is important to the employer, whereas the claimants are paid on an hourly basis. For all these reasons, the Court is satisfied that the employer, in paying the Sales Assistants more than the claimants, is doing so on grounds which are not sex-based.
The Court upholds the Recommendation of the Equality Officer.
Signed on behalf of the Labour Court
Finbarr Flood
9th December, 1998______________________
TOD/BCChairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.