Ginley (Represented by Mandate) AND Tesco Ireland
1. DISPUTE
1.1 This dispute concerns a claim by Ms Mary Ginley, employed as a canteen cook by Tesco Ireland Ltd, that she is entitled to the same rate of remuneration as that paid to three named male comparators, also employed by the company as canteen cooks, in accordance with the provisions of section 19 (1) of the Employment Equality Act, 1998.
1.2 The complainant referred a claim to the Director of Equality Investigations on 13 February 2001 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 22 February 2001 an Equality Officer. For operational reasons, the case was re-delegated on 13 June 2001 to another Equality Officer, Anne-Marie Lynch, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 30 May 2002. Further material was sought and received from the parties following the hearing, and in January 2003 the Equality Officer sought further clarification from the respondent. After fruitlessly issuing numerous reminders to the respondent, the parties were advised on 13 June 2003 that the decision would issue on the basis of the information already received.
2. THE COMPLAINT
2.1 The complainant's case was referred under the provisions of section 19 (1) of the Act which provides It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer. Section 18 states that "A" and "B" represent two persons of the opposite sex so that, where "A" is a woman, "B" is a man, and vice versa. 2.2 Section 19 (5) of the Act provides that ...nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.
2.3 In relation to the investigation of claims for equal pay, the Act provides at section 79 (3) that If, in a case which is referred on the ground that the complainant is not receiving equal remuneration in accordance with an equal remuneration term, a question arises whether the different rates of remuneration to which the case relates are lawful by virtue of section 19 (5)...the Director may direct that that question shall be investigated as a preliminary issue and shall proceed accordingly.
2.4 Such a question arose in this claim, and I therefore proceeded on the basis of investigating whether the different rates of remuneration were justified on grounds other than gender. Whether like work existed between the complainant and the comparators was therefore not at issue during the preliminary investigation, although the respondent conceded like work in respect of two of the comparators, and work inspections were not carried out.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 On 19 November 1996 the complainant commenced employment as a canteen cook in the Monaghan branch of the respondent company. She was responsible for catering for between 80 and 100 members of staff, and supervised two co-workers. Her duties included menu planning and cooking of three meals per day, purchasing stock and cleaning the canteen. She was responsible for finance and cost control of the canteen and also catered for management meetings and Christmas dinners. Her hourly rate of pay was £6.20 for a 39-hour week.
3.2 The complainant said that her first comparator (Comparator A) was employed at the respondent's distribution depot in Dun Laoghaire where he supervised 11 workers. His hourly rate of pay was £8.72 for a 39-hour week. The complainant said her second comparator (Comparator B), employed at the Nutgrove Shopping Centre, supervised one other worker and catered for between 80 and 150 members of staff. His hourly rate of pay was £7.69 for a 45-hour week. The complainant's third comparator (Comparator C), employed at the respondent's branch at the Bloomfield Shopping Centre, supervised two co-workers and catered for approximately 150 staff members. His hourly rate of pay was £9.08 for a 40-hour week
3.3 The complainant said that, from the information available to her, it appeared that the three comparators enjoyed a "salaried" system of calculating wages. This involved a consolidation of all wage elements (basic, overtime, post of responsibility and adjustments) into basic salary and produced an hourly rate of pay far superior to that enjoyed by the complainant. She pointed out that of a list of 74 canteen cooks employed by the respondent, only Comparators B and C had access to overtime, and claimed that Comparator B had confirmed to her that he did not actually work a 45-hour week. She asked that she be awarded equal pay in accordance with the rate of pay enjoyed by the highest paid of the comparators, with the appropriate level of retrospection.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent denied that discrimination had occurred in relation to the complainant's rate of pay. It said that pay scales were collectively agreed between the company and the staff unions. Historically there had been 42 different sets of pay scales in operation in the company, including trade rates and local rates. In 1999, these 42 scales became just 2, premium and premium plus. A Labour Court Recommendation (LCR 16854) which issued in July 2001 proposed a single national pay scale applicable to the respondent's branches. There was a separate agreement with another union regarding pay scales in the respondent's head office and depot. In addition, certain individuals received a 7.5% allowance for holding a post of responsibility, and there was scope for branch managers to make an extra payment (known as an adjustment) to a staff member for, say, taking on extra responsibilities.
4.2 In accordance with the Labour Court Recommendation, the complainant was, at the date of the submission, paid at the rate of £7.52 per hour, the fifth and final point of the scale. The respondent said this claim arose from the union incorrectly interpreting information concerning pay rates which it had received in error. The information listed members of staff by hourly rate of pay, but did not give the reasons for the differences. There were a number of staff members on the list who were in receipt of pay rates which differed from the agreed scale, and the respondent claimed there were genuine objective reasons other than gender which accounted for these differences.
4.2 In relation to Comparator A, the respondent said that he was responsible for the operation of the canteen at its depot, which operated 24 hours over 3 shifts. It said his working arrangements, duties and conditions of employment were substantially different from all other canteen cooks employed by it. As he worked in the depot, he was paid in accordance with the rates applicable to that location. The respondent said that two female employees at the same location were also paid in accordance with the appropriate agreed rates. Comparator A did not receive a post of responsibility allowance or an adjustment payment. At the date of the submission, he was paid £368.66 for a 40.5-hour week.
4.3 With reference to Comparator B, the respondent agreed that like work existed between him and the complainant. In his case, he had been employed as a Head Chef in Nutgrove by Tesco in 1984, when pay rates were determined by Tesco UK. In 1986, Tesco was acquired by Power Supermarkets Ltd. All of the staff at Nutgrove transferred to Power Supermarkets, retaining their terms and conditions of employment including pay. The respondent said it was bound to honour this retention, when it subsequently re-acquired the store, in the context of the agreement reached regarding the acquisition. Comparator B was not in receipt of a post of responsibility allowance or an adjustment payment. At the date of the submission, he was paid £391.25 for a 40-hour week. 4.4 Regarding Comparator C, the respondent again did not dispute that he and the complainant were engaged in like work. However, it said that at the time of his recruitment in 1998, local management at the Bloomfield store deemed it necessary for operational reasons to have him work a 45-hour week. His pay was therefore calculated on the basis of 39 hours at the standard rate, plus 6 hours at the appropriate premium rate of double time. The respondent said that he was contracted to work a 45-hour week, and the respondent was obliged to honour his contracted hours. He was not in receipt of any post of responsibility allowance or any adjustment payment. At the date of the submission, he was paid £393.06 for a 45-hour week.
4.5 The respondent reiterated that there were different objective and historic reasons which resulted in different rates of remuneration being paid to each of the comparators. Accordingly, it submitted, the complainant was being paid at the correct rate and the claim under the 1998 Act should fail.
5. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY
OFFICER
5.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
5.2 A certain amount of confusion regarding amounts actually paid to the complainant and the comparators arose at the hearing of this claim on 30 May 2002. This was because the union on behalf of the complainant quoted hourly rates, applicable at the time of its submission, but the respondent's submission contained weekly figures, effective following the Labour Court Recommendation of July 2001. Following the hearing, I requested the respondent to provide me with copies of the premium and premium plus rates of pay applicable prior to implementation of the Recommendation. The material was received in September 2002, and copied to the union for observations. The union strongly disputed the accuracy of the material, and pointed out that the actual salaries received by the three comparators were in excess of all of the rates allegedly paid. The union contended that the three comparators were on off-scale rates of pay, unlike the complainant who was on the standard store rate, and it alleged that this was the respondent's method of paying men higher salaries than women.
5.3 Following detailed examination of the opposing sets of figures, I was unable to identify any common ground that would enable me to make a valid comparison. Accordingly, in January 2003 I requested the respondent to provide me with evidence of the current rates of hourly pay received by the complainant and each of the three comparators. I also asked the respondent to provide: (i) a copy of the rates of pay stated to be applicable to Comparator A and other members of the depot staff; (ii) a copy of the agreement reached at the time of the acquisition of Tesco Nutgrove to demonstrate the commitments said to have been given to Comparator B and others that their pay would be retained; and (iii) a copy of Comparator C's contract of employment or other document which would demonstrate the stated contractual obligation for him to work a 45- hour week, being 39 hours at the standard rate and 6 hours at double time. None of these documents was received despite several reminders issuing over a period of five months. I must therefore base my conclusions on the somewhat contradictory information provided to me.
5.4 In relation to Comparator A, the respondent argued that the depot was subject to a separate agreed rate. Among the pay scales provided to me by the respondent were included one headed "Depot Adm. Staff" and another titled "Tesco Distribution". I was unable to ascertain which of these related to Comparator A's work location. In any case, as the union said, the rate apparently paid to Comparator A was higher than any rate appearing on the pay scales. Since the respondent failed to provide me with the clarification requested, I must find that it has not shown that there grounds other than gender for the difference in pay between the complainant and Comparator A.
5.5 However, the respondent and the union disagreed about whether like work existed between the complainant and Comparator A. Since work inspections were not carried out, I was unable to make my own determination about this issue. As Comparator A was in receipt of the lowest weekly pay of the three comparators, I do not propose to further consider his pay.
5.6 As the respondent accepted that like work existed between the complainant and Comparators B and C, the only issue for consideration is whether the reasons for the differences in pay are based on grounds other than gender.
5.7 The respondent explained the higher amount received by Comparator B by referring to the acquisition of the store by Power Supermarkets Ltd in 1986, when existing staff members were guaranteed retention of existing pay and conditions. The respondent failed to provide any evidence of the existence of such a guarantee, and I am therefore not satisfied that there were grounds other than gender for the difference in pay between the complainant and Comparator B.
5.8 The respondent claimed that Comparator C was contractually obliged to work a 45-hour week, and that his pay was calculated at 39 hours normal rate plus 6 hours at double time. I note however that, from the figures provided by the respondent, the amount stated to be earned by him is higher than the total of 39 hours plus 6 hours at double time. At the date of the respondent's submission, the maximum hourly rate on the store scale was £7.52. The respondent's explanation for his pay would result in a weekly total of £383.52, while the respondent said he was paid £393.06 (see 4.4 above). In any case, no evidence of the alleged contractual obligation was provided. Accordingly, I am not satisfied that there were grounds other than gender for the difference in pay between the complainant and Comparator C.
5.9 As like work between the complainant and Comparators B and C was conceded, and I have found that grounds other than gender for the difference in pay do not exist, I must determine which comparator's pay is to be used for the purpose of determining the complainant's correct rate of pay. In considering this, it appeared to me that the union had made an initial miscalculation of the hourly rate of pay of Comparator C. The respondent had provided information that he received a weekly rate of £346.27 for 45 hours. A simple division resulted in the union's assertion that he was paid £7.69 per hour. However, if the salary is based on 39 hours at the standard rate and 6 hours at double time, the correct hourly rate would have been £6.79. In the absence of the requested clarification from the respondent, I have therefore ignored the hourly rates of pay of the comparators.
5.10 According to the information supplied to me by the union, which it had obtained from the respondent, in October 2000 Comparator B was paid a weekly sum of £363.58 while Comparator C was paid a weekly sum of £346.27. However, the respondent's submission, received in January 2002, quoted a weekly amount of £391.25 in respect of Comparator B and an amount of £393.06 in respect of Comparator C. As the respondent failed to provide me with current pay scales, I am unable to determine which comparator now earns the higher amount.
5.11 On balance, it appears that the rates of pay which were current at the time of the referral of the claim are the rates that should be used. I find therefore that Comparator B is the comparator to be used to calculate the arrears of pay due to the complainant. If the information given to me was incorrect, and Comparator C was more highly paid, then the calculation of arrears should be based on his pay.
5.12 It should be mentioned that in the course of my reminders to the respondent I drew attention to sections 94, 95 and 96 of the 1998 Act. These sections provide extensive powers to Equality Officers in relation to the obtaining of information for the purposes of an investigation, including the imposition of sanctions on persons who fail to comply with a requirement to provide such information. Notwithstanding these provisions, the respondent disregarded my correspondence. There is clear caselaw precedent for the Labour Court and Equality Officers to draw inferences from a party's failure to supply relevant material. While I am satisfied that the complainant's claim succeeds in any case, I also deem it appropriate to draw an inference from this failure of the respondent. In the absence of any convincing explanation, the only possible inference is that the material would have supported the complainant's claim of discrimination.
6. DECISION
6.1 Based on the foregoing, I find that Tesco Ireland discriminated against Ms Mary Ginley on the basis of her pay in terms of section 19 of the Employment Equality Act, 1998.
6.2 I hereby order that, with effect from 13 February 2001, the respondent pay Ms Ginley the same rate of pay as that paid to Comparator B, or Comparator C if he was more highly paid at that time. Arrears of this payment should be made for the period of three years prior to the referral of the claim on 13 February 2001.
_____________________
Anne-Marie Lynch
Equality Officer
15 December 2003