FULL RECOMMENDATION
SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974 PARTIES : IRISH TIMES LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Owens Employer Member: Mr Pierce Worker Member: Mr Rorke |
1. Appeal by the Company against, and appeal by the Union for implementation of, Equality Officer's Recommendation EP 05/97 (in respect of Ms. Fionnuala Stockton). Appeal by the Union against EP 05/97 (in respect of Ms. Pauline Andrews).
BACKGROUND:
2. The Irish Times Limited was established in 1859 and it publishes the Irish Times and the Irish Field. The workers concerned in the appeals are Ms. Andrews, an Analyst / Programmer on an annual salary of £25,932, and Ms. Stockton, a Software Development Co-ordinator with an annual salary of £28,544. On their behalf, the Union claims that they are entitled to the same rate of remuneration as that paid to 4 named male comparators in terms of Sections 3(a), 3(b) and (c) of the Anti-discrimination (Pay) Act, 1974. The four comparators are all assigned to the Editorial Systems team. Three of them earn salaries ranging from £31,422 to £35,157 per annum, with the fourth comparator earning a higher salary. It is the Union's position that the claimants perform 'like work' with that performed by each of the four comparators and are, therefore, entitled to the same rates of pay. On the 2nd of May, 1996 a claim was submitted by the Union on behalf of the 2 workers to an Equality Officer for investigation and recommendation.
The Equality Officer issued her Recommendation on the 30th of June, 1997. In the case of Ms Stockton, the Equality Officer found that she does perform "like work" with that performed by 3 of the 4 comparators and recommended that she be paid the same rate of remuneration as those three. In the case of Ms. Andrews, the Equality Officer found that she does not perform "like work" with that peformed by the comparators and is not entitled to the same rate of remuneration as that paid to any of the four.
The Union and the Company lodged their appeals with the Court on the 7th of August, 1997 and the 8th of August, 1997, respectively, and the appeals were heard by the Court on the 8th of December, 1997.
DETERMINATION:
In the case of Ms Stockton, the Company appealed the Recommendation of the Equality Officer (EP 05/1997) on the following grounds:-
1. That the Equality Officer erred in law and in fact in concluding that 'like work' exists between the jobs of Ms Stockton and three of the four named comparators.
2. The Company contends that all four named comparators are performing work of a higher value than that performed by the claimant and this justifies their higher level of remuneration.
3. The Equality Officer erred in law and in fact in concluding that no grounds other than sex existed to justify the higher rate of pay of the three comparators.
4. Any other grounds which arise during the course of this appeal.
In its submission to the Court the Company stated:-
"Whilst the Company does not agree with the conclusion of the Equality Officer that like work exists between the jobs of Ms. Stockton and the three males employed as members of the Editorial Systems Team this conclusion is not being appealed by the Company. The basis of this appeal is that grounds other than sex exist to support the Company's case".
The Court accepted this statement as a withdrawal of the grounds of appeal contained in the Company's notice of appeal with the exception of "grounds other than sex".
In its arguments, the Company submitted that it had new evidence to present before the Court which was not available to the Equality Officer. It claimed that the first Software co-ordinator in the Company was in fact a male who was paid at the same grade as the claimant. Hence, it contended that since the first holder of the position was a male and that the current holder was paid at the same grade as him, no discrimination on grounds of sex could have occurred.
The Union responded that it was its view that the male referred to did a much different job than that of the claimant and that, therefore, the Company's argument did not hold up.
The Court requested the Company to supply it with a copy of the job description and/or letter of appointment for the male in question.
Since the hearing, the Company, in correspondence, explained that no formal letter of appointment was available for the previous holder of the position, but enclosed a letter from him stating that the current job description for the position of Software Co-ordinator reflects accurately the job which he held up to the time he left the Information Technology Department. He also pointed out that his job title at that time was Programming Co-ordinator.
In response to that correspondence, the Union wrote making the following points:-
"(a) We do not accept that the role currently carried out by one of the claimants, Ms. Fionnuala Stockton, is the same role as was carried out by the previous Programming Co-ordinator. Both the job-title and job-content are different to varying degrees.
(b) The claimant is the first person to hold the title of Software Co-ordinator. The previous Programming Co-ordinator had a narrower focus than the software role."
The Union also pointed out that there was a 10-month period between the time that the Programming Co-ordinator left and the Software Co-ordinator took up her position.
The Court, having given careful consideration to all the evidence before it, is satisfied that the position held by Ms. Stockton is different to that of the previous Programming Co-ordinator. It is the view of the members of the Court that apart from the fact that there was a different title to the position, there was also a time-lag of 10 months between the two positions. With the nature of the technology of the day, it is difficult to imagine that the two positions would be identical or even that the difference would not be such as to justify the Court's finding of two different positions.
The Court, therefore rejects the claim by management that the claimant's position was the same as that held previously by a male who was paid the same grade as the current holder, and that, therefore, no discrimination on grounds of sex could have occurred.
In view of the above, the Court finds that the Equality Officer was entitled to reach her conclusion that the difference in pay between the claimant and each of the three named comparators can only be related to her sex. The new evidence supplied by the Company does not change that,in the view of the Court.
The Court, therefore, dismisses this appeal.
The Union appealed the Recommendation with regards to Ms Stockton on the grounds of non-implementation. The Court upholds this element of the Union's appeal.
The Union also appealed part of the Recommendation dealing with Ms. Pauline Andrews on the following grounds:-
(a) The Equality Officer erred in her conclusion in that, in Paragraph 6.1, she contradicts the conclusion of paragraphs 5.6 and 5.8 which established 'like work'.
(b) Her conclusions in paragraph 5.6 are illogical in that, while the claimant and four of her colleagues (male) are on the same scale, the four comparators all are male and on a rate exclusive to them as Editorial Systems Team. Under the Act it is not sufficient to claim that because a claimant has colleagues of the opposite sex doing 'like work' and on the same salary, that a claim cannot be sustained against staff elsewhere in the organisation who have more favourable terms and who are of the opposite sex.
The Court considered the arguments put forward by the parties in this area of the appeal and has come to the following conclusions:-
1. With regard to (a) above the Court agrees with the Union that there does seem to be a contradiction in the paragraphs mentioned. On this basis the Court sets aside paragraph 6.1 contained in the Recommendation of the Equality Officer, insofar as it relates to Ms. Andrews.
2. The Court is satisfied that the conclusions of the Equality Officer in paragraph 5.6 of her Recommendation were correct, and that the effect of these conclusions is that there were grounds other than sex for the difference in pay between the two categories of worker involved. The Court, therefore, replaces paragraph 6.1 of the Recommendation (insofar as it refers to Ms. Andrews) by a finding that there were grounds other than sex for the differences in the payment of the claimant and the comparators. The Court is satisfied that the basis for the differences in pay could not be sex-related, given that the claimant's co-workers in the I.T. Services Unit include a number of male workers doing like work with her. In the circumstances, the comparison of her work with that of the comparators chosen for the purposes of the case is an artificial one, since there are men doing thesamework as she is for the same remuneration. She is, therefore, receiving the same rate of remuneration as the men employed in that place by the same employer for the same work. The grounds for the differences in pay between that group of workers (which includes the claimant and her co-workers in the I.T. Services Unit) and the pay of the male comparators identified by the claimant in the Editorial Systems Team (whose work was found to be of a 'similar nature' to that of the claimant) are due to the fact that the Company values the work in the Editorial Systems area more highly than that of the I.T. Services Unit. The Court is satisfied, therefore, that the higher value of the comparators' work is reasonable in the overallcontext of theresponsibilities and abilities required of the workers, and is unrelated to the sex of the workers carrying out the work in either area.
In view of the above the Court dismisses this part of the Union's appeal.
The Court so determines.
Signed on behalf of the Labour Court
Evelyn Owens
30th April, 1998______________________
M.K./U.S.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.