Tobin (Represented by SIPTU) V The Mid-Western Health Board (Represented by the HSEA)
1. DISPUTE
1.1 This dispute concerns a claim by Ms. Majella Tobin who is employed by the Mid- Western Health Board that she is entitled to equal remuneration with a named comparator in terms of Section 19 of the Employment Equality Act, 1998.
2. BACKGROUND
2.1 The complainant is employed as a Community Development worker with the respondent organisation. She claims that she is performing 'like work' with a named male comparator who is also employed as a Community Development worker. According to the complainant the named male comparator is in receipt of a higher rate of pay to her even though they perform 'like work' with each other. The complainant is seeking equal remuneration in accordance with Section 19 of the Employment Equality Act, 1998. The respondent accepts that the complainant does perform 'like work' with the named male comparator but says that there are grounds other than gender in terms of Section 19(5) of the 1998 Act for the difference in pay to the complainant and the named male comparator.
2.2 Consequently the complainant referred a complaint to the Director of Equality Investigations on 28th June, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Raymund Walsh, Equality Officer on 9th September, 2002. For operational reasons and with the consent of Mr. Walsh the case was reassigned in accordance with Section 75(7) of the 1998 Act to Gerardine Coyle, Equality Officer on 11th March, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received from both parties. As 'like work' was conceded by the respondent it was not necessary to carry out work inspections. A joint hearing took place on 5th June, 2003.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 It is the respondent's submission that the complainant is alleging discrimination on the grounds of gender contrary to Section 19(1) of the Employment Equality Act, 1998 by its failure to pay her the same salary which is being paid to a named male comparator. The respondent denies the alleged discrimination and contends that the difference in remuneration arises from their different qualifications and is permitted by reason of Section 19(5) of the 1998 Act which provides that "nothing .... shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees".
3.2 According to the respondent the complainant has been employed as a Community Development Worker in Traveller Health in the Mid-Western Health Board since 11th February, 2002. The named male comparator was appointed to the post of Community Development Worker on 1st May, 1999. The respondent states that community development work has been aligned with social work for pay purposes within Health Boards since 1977 when the posts were first introduced. The traditional entry point to the social work profession was via obtaining a social science degree i.e. Bachelor of Social Science (B.Soc.Sc) or equivalent. This, the respondent says, was the traditional entry route into community work/development. With the development of social work a higher level of qualification became the preferred entry qualification into the profession i.e. the Professionally Qualified Social Worker (CQSW) and later the National Qualification in Social Worker (NQSW). The respondent states that staff who hold the higher qualification are referred to as Professionally Qualified Social Workers and staff without the higher qualification are referred to as Social Workers i.e. those with the basic B.Soc.Sc. or equivalent. Social workers are encouraged to take time out to obtain the professional qualification and the respondent says that the higher degree is an essential requirement to obtain management positions i.e. Team Leader and Principal.
3.3 According to the respondent it maintains two salary scales for social work/community work. Social Workers and Community Development Workers with the higher qualifications i.e. the CQSW and now the NQSW are placed on the Professionally Qualified Social Worker salary scale and Community Development workers on the Professionally Qualified salary scale would be deemed to possess additional skills particularly in the area of research and evaluation which are considered central to good community work practice. The respondent states that Social Workers and Community Development Workers who do not possess the higher qualification are appointed to the Social Worker salary scale. Set out in Appendix A is the current gender breakdown in the respondent organisation for the respective salary scales. The respondent notes that the complainant, who is paid the Social Worker salary scale, claims that her non-receipt of the Professionally Qualified Social Worker salary scale which the named male comparator receives constitutes discrimination on the grounds of gender.
3.4 The respondent states that it does not dispute that the complainant and the named male comparator both carry out like work within the meaning of Section 7(1) of the Employment Equality Act, 1998. The respondent denies that it discriminated against the complainant on the grounds of gender and says that there are grounds other than gender for the difference in their remuneration. The respondent states that when a vacancy arises in the organisation an advertisement is prepared setting out the job title, service or area involved, closing date for applications and details of how to apply. The advertisement is placed in the Sunday Independent and other relevant publications (if required). A Grade Information Sheet outlining the qualifications for the post, job description, person specification, salary scale, particulars of office and rules of competition, etc. is then drawn up and this is sent with an application form to persons who respond to the advertisement. Qualified candidates are invited to attend for interview and following interviews a panel is formed and candidates are notified of their place on the panel, if successful.
3.5 In relation to the appointment of the named male comparator the respondent states that the generic post of Community Development Worker(s) was advertised in the Sunday Independent in August, 1999. According to the respondent the Grade Information Sheet which was sent to all applicants for the post contained, in error, only one salary scale, that of the Professionally Qualified Social Worker scale i.e. the higher of the two scales and the Social Worker salary scale was mistakenly omitted. The respondent says that while the omission was noted and highlighted by the Recruitment Officer it was not corrected before the Grade Information Sheet issued to applicants or at any later stage in the competition process. Furthermore the respondent submits that the Grade Information Sheet did not specify that candidates must possess an NQSW or equivalent to access the Professionally Qualified salary scale.
3.5 The respondent states that there were fifteen candidates called for interview in this competition and six candidates (three male and three female) were placed on the panel. According to the respondent the six candidates placed on the panel were offered positions and two male candidates did not accept positions offered. Of the four candidates appointed three (one male and two females) were placed on the Professionally Qualified salary scale and the other female was placed on the Social Worker salary scale. The named male comparator at the time of his appointment held a Masters Degree in Psychology. Because of the omission from the Grade Information Sheet of the necessity to hold the NQSW to access the Professionally Qualified salary scale, the named male comparator's higher qualification was deemed sufficient to access the Professionally Qualified scale and he was placed on the 6th point of the scale. In determining his appropriate point on the scale account was taken of his previous experience. Two of the three females appointed from this competition did not hold the NQSW but their qualifications were also deemed to be sufficiently high to allow them to be appointed to the Professionally Qualified Social Worker salary scale. The respondent states that the qualifications of the third female successful in the competition were not deemed sufficient to access the Professionally Qualified Social Worker scale and she was placed on the Social Worker salary scale. It is the respondent's submission that, because of the error in the Grade Information Sheet, this female was placed on point 7 of the Social Worker salary scale this being the nearest point to (but not lower than) the minimum of the Professionally Qualified scale. Had the error not been made in the Grade Information Sheet this female would have been put on point 4 of the Social Worker salary scale.
3.6 The respondent states that the named comparator's gender was not a determining factor in his appointment to the Professionally Qualified salary scale. The determining factor is whether or not the candidate holds a higher qualification at the time of appointment and, because the NQSW was not specified in the Grade Information Sheet for this competition, the named comparator's higher qualification was deemed enough to secure the Professionally Qualified Social Worker salary scale. In this same competition the respondent points out that two females were also appointed to the Professionally Qualified Social Worker salary scale on the basis of their higher qualifications. The respondent denies that gender was a factor in the decision.
3.7 The respondent states that approval was obtained from the Department of Health and Children on 26th October, 2000 for the appointment of two Community Development Workers in Travellers Health Initiative. The posts were advertised and in this competition the Grade Information Sheet included the two salary scales, one based on the Social Welfare unqualified scale and the other on the Professional Qualified Social Worker's scale. The Grade Information Sheet also specified that candidates in possession of the NQSW would be eligible to be appointed to the Professionally Qualified Social Worker salary scale. According to the respondent there were nine applicants for the positions five of whom held the appropriate qualifications for the posts and all five were invited to attend for interview. Only one of the five candidates attended for interview and this candidate was offered and accepted the position of Community Development Worker in Travellers' Health. As only one post was filled by this competition the respondent held another competition which was advertised in mid 2001. Again the Grade Information Sheet which accompanied the application form contained all the information about qualifications and salary scales. There were six applicants for the post of whom three had the necessary qualifications and were invited for interview. Only one of the three applicants attended for interview and was offered the position which she accepted. The respondent states that the complainant did not hold the higher qualification on appointment and she was placed on the minimum point of the Social Worker salary scale as she did not have any relevant experience.
3.8 In conclusion the respondent states that there had been a number of clerical errors in the competition from which the named male comparator was appointed. Because only one salary scale was made known to the candidates the respondent departed from the strict criteria that normally applies to the determination of starting salaries when appointing the successful candidates (including the named male comparator) in this competition. The respondent states that it endeavoured to be as fair as possible to all concerned. According to the respondent the competition from which the complainant was appointed was correctly advertised and processed. The complainant was paid correctly in accordance with her qualifications and experience. It is the respondent's contention that the difference in salary scales of the complainant and the named male comparator is for reasons other than gender. The respondent denies that it discriminated against the complainant contrary to the provisions of the Employment Equality Act, 1998.
4. SUMMARY OF THE COMPLAINANT'S SUBMISSION
4.1 The complainant states that she has been employed as a Community Development Worker in the area of Traveller Health since 11th February, 2002. She was placed on the minimum point of the Social Worker salary scale. According to the complainant she hold a third level qualification and has relevant community work qualifications and experience. The complainant notes the respondent's contention that the criteria for receipt of the Professionally Qualified Social Worker salary scale as being holding of the NQSW qualification and she says that this contradicts the information supplied by the respondent on section 3(b)(ii) of form ODEI 4 which was sent to the Union on 11th June, 2002. According to the complainant the respondent, not only identified the above salary scales on this form, but also identified a third scale applicable to the named male comparator specifying it as "the rate of remuneration applying to the post from which [the named male comparator] was appointed". The complainant notes that this 3rd scale equates with the Professionally Qualified Social Worker salary scale as identified by the Grade Information Sheet issued by the respondent to applicants in the competition from which the named male comparator was appointed. However the complainant states that this scale does not equate with the Professionally Qualified Social Worker scale as identified in section 3(b)(ii) of the ODEI 4 form. The complainant states that she has reason to believe that the named male comparator is not on any of the three scales identified but is on a higher scales as yet unidentified.
4.2 The complainant notes that the greater capabilities and skills identified by the respondent (paragraph 3.3 above refers), as deemed to be possessed by those on the Qualified scale, are not used in the course of community development work in the area of traveller health. It is the complainant's submission that this issue is not in dispute as the respondent is not contesting like work.
4.3 In relation to the three female identified by the respondent as having received the same treatment as the named male comparator the complainant notes that these females are all employed in the area of childcare which involves direct dealings with children. According to the complainant the work of the Traveller Health Unit is different given that one is dealing with community groups. Accordingly the complainant contends that there is no comparison between the areas i.e. it is not like work and, therefore, not relevant.
4.4 The complainant states that it would appear that the respondent applied a higher rate of pay to the named male comparator as a result of a series of errors in the recruitment process and that this culminated in acceptance by the respondent of a qualification unrelated to the work being an equivalent to the NQSW. The complainant states that she does not accept this as a legitimate response to the questions raised as she has qualifications relevant to her work and has not yet been considered for the payment of the Qualified rate or, indeed, the unidentified rate of the named male comparator.
4.5 In conclusion the complainant contends that she is being treated less favourably than the named male comparator for the purposes of pay and annual leave. According to the complainant the named male comparator has unrelated qualifications which have been considered for salary purposes even though the respondent has conceded that the actual work carried out by the named male comparator and the complainant is 'like work' for the purposes of the Employment Equality Act, 1998. The complainant contends that unrelated qualifications and an error by the respondent do not constitute grounds other than gender. Therefore, the complainant alleges that she has been discriminated against on the grounds of gender contrary to the Employment Equality Act, 1998.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether the complainant is entitled to equal pay with the named male comparator. In making my decision in this claim I have taken into account all of the submissions, both written and oral, made to me by the parties.
5.2 According to the respondent 'like work' within the meaning of Section 7 of the Employment Equality Act, 1998 is conceded i.e. the respondent is satisfied that the complainant and the named male comparator both perform 'like work' with each other. It is the respondent's submission that it is arguing grounds other than gender in terms of Section 19(5) of the 1998 Act which states:
".... nothing .... shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees".
Consequently the onus then fell on the respondent to set out its arguments on grounds other than gender by way of written submission and the complainant was given an opportunity to respond. These submissions have been summarised above.
5.3 According to the respondent the complainant and the named male comparator were appointed to the position of Community Development Worker in Traveller Health in two different competitions. In the competition held in August, 1999 through which the named male comparator was successful there had been two omissions from the Grade Information Sheet which had accompanied the application form for the position. Omitted from the Grade Information Sheet was the requirement for candidates to hold the NQSW qualification to obtain the Professionally Qualified salary scale. Furthermore only the Professionally Qualified salary scale was reflected on the Grade Information Sheet. The respondent states that the salary of the Community Development worker is aligned to that of the Social Worker. There are two salary scales namely the Social Worker Salary Scale and the Professionally Qualified salary scale. Candidates holding the National Qualification in Social Work (NQSW) are referred to as Professionally Qualified Social Workers and are placed on the Professionally Qualified salary scale.
5.4 I note that, in the August, 1999 competition, candidates were not informed about the requirement to hold the NQSW to be placed on the Professionally Qualified salary scale. Furthermore candidates were not informed that there were two salary scales associated with the position. Consequently the respondent was obliged to appoint candidates on the basis of pay which reflected the salary outlined in the Grade Information Sheet. There were six successful candidates in this competition, three male and three female. Four of the six candidates took up appointments (one male and three female). At the time of his appointment the named male comparator held a Masters Degree in Psychology and this qualification was deemed sufficient to give him access to the Professionally Qualified salary scale. His previous experience was taken into account in determining his appropriate point on the scale. A similar approach was taken in relation to the appointment of the female candidates two of whom were also placed on the Professionally Qualified salary scale. The third female candidate was placed on the Social Welfare salary scale at the nearest point (but not below) the minimum point on the Professionally Qualified salary scale.
5.5 The complainant was appointed from a competition which was advertised in early 2001. There were no errors or omissions in the Grade Information Sheet sent to all candidates for this competition. Hence candidates were aware of the requirement to hold the NQSW to be placed on the Professionally Qualified salary scale and candidates were notified of the two different salary scales. The complainant did not hold the NQSW and was, therefore, placed on the Social Worker salary scale. However account was taken of her previous experience in determining her point on this scale.
5.6 It is the complainant's contention that she performs 'like work' with the named male comparator and hence that she is entitled to equal pay. The reason that the named male comparator is on a higher rate of pay to the complainant is related to clerical error and I am satisfied that it is not related to gender. There are two female Community Development workers who are also being paid the higher rate of pay similar to the named male comparator. I note that the complainant has contended that the female Community Development workers who are in receipt of the higher rate of pay are not employed in the area of Traveller's Health. However the fact is that these females applied for the same position as the named male comparator namely Community Development worker and were appointed from the same competition and had the same salary scale applied to them. The work performed by the various Community Development workers, while maybe not the same, must be comparable given that the same salary scales are applied to all Community Development workers irrespective of their work area. I am satisfied that qualifications is the criteria which determines which salary scale to be applied to each individual Community Development worker and previous experience is the criteria which determines the appropriate point on the salary scale.
5.7 At the hearing of this claim the respondent clarified the confusion in relation to the various payscales cited in the ODEI 4 form and in their submission. According to the respondent the payscales cited in ODEI 4 from related to 1st July, 1999 and 1st October, 2000 and the differences were caused by pay increase in the period between these dates. The payscale included in their submission were in Irish pounds whereasthose set out in the ODEI 4 form were in Euro.
5.8 At the hearing of this claim the complainant stated that the respondent, in its submission, held that she had no previous experience which needed to be considered in determining her point on the salary scale and as a result she commenced pay at the minimum point. It was the complainant's contention that she had 12 years experience in the area which was more that any of her colleagues. I find that this issue was not appropriate to the claim before me for investigation.
5.9 In conclusion I find that there are grounds other than gender for the difference in pay between the complainant and the named male comparator in this case.
6. DECISION
6.1 In view of the foregoing I find that the Mid-Western Health Board did not discriminate against Ms. Majella Tobin in terms of Section 19 of the Employment Equality Act, 1998. I find that there are grounds other than gender for the difference in pay to the complainant and the named male comparator.
______________________
Gerardine Coyle
Equality Officer
25th June, 2003