FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL - AND - RICHARD MORRISSEY DIVISION : Chairman: Mr Flood Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Act, 1998 Dec-E2003-039
BACKGROUND:
2. The Labour Court investigated the above matter on the 17th February, 2004. The Court's determination is as follows:
DETERMINATION:
Background:
This is an appeal against the Equality Officers Decision DECE2003-039 in relation to a claim that the appellant had been discriminated against on the grounds of his age within the meaning of Section 6(2)(f) of the Employment Equality Act 1998.
The Equality Officer found that the rate of remuneration paid to the complainant at the time of his retirement was lawful by virtue of Section 29(5) of the Employment Equality Act, 1998. Consequently his claim failed.
Appellant’s Case:
The appellant claims that following the upward re-grading of his post and his assimilation on a new scale using the promotional rules (circular EL5/67) his service was reduced to the equivalent of 7 years for salary purposes.
Having been on the maximum (second long service increment) on his old scale he was put back to the first long service increment on the new scale.
Because he was less than three years from retirement age this prevented him from reaching the second long service increment on his new salary scale despite the fact that he had been in the post for 23 years.
He argued that re-grading was not the same as promotion and that the normal rules applying to promotion were not appropriate in a re-grading situation. Point to point assimilation is, he claimed, also used, and is more appropriate in circumstances such as his as relative seniority is not lost.
He cited two comparators Mr. A (A Water Pollution Inspector) and Mr. B (A County Librarian) both of whom he contented were assimilated to new pay scales on a point-to-point basis, in similar circumstances to his case.
He further stated that there was no consistency in the approach by the local authority and arbitrary decisions are made on the use of one method or the other in any particular case.
His fundamental complaint is that the use of the promotional rules in re-grading as exemplified in his particular case discriminated against persons with long service in their old grade. The longer the service (and the older the officer) the greater the discrimination.
Grounds of Appeal
1. The appellant states that while he had used as comparators the twenty-seven colleagues, who were all re-graded at the same time, this was merely intended to show how the regrading upset relative seniority. It was not intended to show that he had been treated any differently than his colleagues.
- The comparisons with his colleagues therefore was not the basis of his case as stated by the Equality Officer but was simply used to illustrate how using promotional rules when regrading can diminish the value of long service.
- However the process of re-grading is different, it is not intended that it should upset the existing seniority of service for salary purposes and as a consequence pension calculations. Even if there were clear rules for the application of different methods of assimilation (and there does not appear to be) the fact remains that the use of promotional rules in cases other than promotion, discriminates against persons with long service and can have the effect of reducing effective service for salary and pension purposes. Point for point assimilation is clearly the equitable way to assimilate persons continuing in the same post but who have been upgraded from one scale to another.
The respondent’s case is that as part of the agreement on the implementation ofBetter Local Governmentit was agreed with the relevant Unions, following a ballot and acceptance of the proposals by all of the relevant grades that a number of posts would be re-graded from Grade 5 to Grade 6 (28 individuals were effected in total). The appellant was included in this group.
The re-gradings were agreed on the condition that the grades involved accepted a number of productivity measures including: -
1. The revised salary would be fully inclusive of payment in respect of after hours/weekend callouts in cases of emergencies.2. The grades would co-operate fully with the introduction of new technology affecting their areas of operation.
3. The grades would co-operate fully with any new operational arrangements introduced as part ofBetter Local Government, subject to local consultation.
Re-gradings were to be carried out in accordance with circular EL5/67, as if re-grading was promotion.
These grades were the only grades that were up-graded automatically without a competitive process as a result ofBetter Local Government.
Dublin City Council, Fingal County Council and South Dublin County Council had confirmed that they also applied circular EL5/67 when carrying out similar re-gradings under theBetter Local Governmentagreement in their authorities.
All twenty eight individuals concerned, including the appellant’s were assimilated to the new scales in accordance with the rules and the Equality Officer ruled that the other twenty seven employees were appropriate comparators for the purposes of the appellant’s case and that he was treated in the exact same manner as the other twenty seven were.
The respondents argued that the circumstances surrounding the two cited cases of Mr. A and Mr. B were different to those of the appellant.
In the case of Mr. A he was required to carry out duties which were more wide ranging and onerous than those of his colleagues in the other local authority areas, some of which were carried out at Assistant Engineer level.
The respondents also rejected the appellants claim in relation to Mr. B on the grounds that Mr B’s post was re-graded following national negotiations in relation to a claim for parity between County Librarians and Senior Executive Officers.
The negotiations were part of the implementation of “Branching Out - a new Public Library Service” which set out measures to improve availability and for infrastructure development. It was not part of the implementation of“Better Local Government”.The respondents claim that the circumstances of Mr B’s case differ considerably from those of the appellant.
Labour Court Findings:
The Court is satisfied that the method of assimilation applied to the appellant was part of a negotiated agreement between the employer and the Unions involved and it was accepted in a ballot by the relevant staff. The Court is conscious that this agreement resulted in this group being up-graded automatically without a competition.
The Court agrees with the Equality Officer remarks that “flexibility must be permitted to allow negotiations to reach conclusions which best fit the needs of both parties at any given time”. However any such agreement must be in compliance with the Act.
Section 31 of the Act in essence states that:
Where a provision relating to employment applies to a particular class and operates to the disadvantage of one member of that class as opposed to another then an employer shall be regarded as discriminating against that person unless the treatment cannot be justified as being reasonable in all the circumstances of the case.
Payment of long service increments is usually based on time served on the maximum scale and reflects service given to the organisation. Long service increments reflect service not age.
The other colleagues re-graded with the appellant, who could achieve LS12, could only do so by virtue of having completed a fixed period of service. The appellant was treated no differently than those colleagues. The Court therefore finds that the appellant was not placed at a disadvantage compared to any of his colleagues. To have implemented a different system for the appellant might in fact have given the appellant an advantage over his colleagues and could have constituted unequal treatment of them.
Even if the Court were disposed to find that the appellant had been placed at a disadvantage due to his treatment, which it is not, the Court would also have found that the treatment was justified as being reasonable in all the circumstances of the case.
The appellant cited two named officers that he believed had been up-graded and assimilated to the new pay scales at the corresponding point in similar circumstances to his case. The Court cannot see the relevance of these comparators to the plaintiffs claim that he was discriminated against on the grounds of his age, but in any event the Court is satisfied based on the written and oral submissions that the circumstances surrounding the re-grading of the two posts referred to, differed significantly to the circumstances applying to the appellants up-grading.
The Court having carefully considered the evidence and submissions agrees with the Equality Officers findings that the fact that the appellant was unable to fulfil the necessary service requirements before retirement does not constitute discrimination on grounds of age.
The Court is satisfied that the appellant has not established a prima facie case to support his claim of discrimination.
The Court therefore finds that the Dun Laoghaire/Rathdown County Council did not discriminate against the claimant on grounds of age.
The appeal is disallowed and the decision of the Equality Officer is upheld.
Signed on behalf of the Labour Court
Finbarr Flood
31 May, 2004______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jo O'Connor, Court Secretary.