DEC-E2005-017 Full Case Report

Mr. Robert Hedderman (Represented by IMPACT) vs Dublin City Council (Represented by Mr. White B.L. instructed by BCM Hanby Wallace Solicitors)

1. DISPUTE
   1. The dispute concerns a claim on the grounds of age by IMPACT, on behalf of Mr. Robert Hedderman, against Dublin City Council that he is entitled to the same rate of remuneration as that paid to Mr. James Campbell, a named comparator, in terms of Section 7 of the Employment Equality Act, 1998.
      
2. BACKGROUND
   1. The complainant and the named male comparator are employed as Station Officers with the respondent organisation. The complainant had always been employed by the Dublin Fire Brigade under the auspices of the respondent organisation whereas the named comparator had previously been employed by Dun Laoghaire Fire Brigade. In May, 1994 the two Fire Brigades were amalgamated. The complainant was promoted to the rank of Station Officer in March, 1994 while the named comparator was promoted to that grade in August, 1994. The named comparator argued to the respondent that he was disadvantaged by the amalgamation agreement and as a result he was appointed to the District Officer pay scale with effect from 1st November, 1998 starting at the third point of the scale. The complainant contends that the respondent, by so doing, has discriminated against him on the grounds of his age. The respondent denies the allegation.
   2. Consequently the complainant referred a complaint under Section 7 of the Employment Equality Act, 1998 to the Director of Equality Investigations on 6th September, 2002. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 16th December, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A preliminary joint hearing took place on 16th January, 2004 at which the respondent accepted that the complainant performed ‘like work’ with the named comparator and held that there were ‘grounds other than age’ in accordance with Section 29(5) of the Employment Equality Act, 1998 for the difference in pay between the complainant and the named comparator. As a result the respondent submitted its arguments by way of submission and the complainant responded also by way of submission. A further joint hearing of the claim took place on 11th November, 2004. Additional information was received from the respondent with the final information being received on 15th April, 2005.
      
3. SUMMARY OF THE RESPONDENT’S SUBMISSION
   1. The respondent notes that the complainant is seeking equal pay with a named comparator and the respondent accepts that both the complainant and the named comparator perform ‘like work’ with each other. However the respondent relies on Section 29(5) of the Employment Equality Act, 1998 to argue that there are grounds other than the discriminatory ground of age for the difference in pay to these two employees. According to the respondent the difference in pay results from the resolution of a grievance raised by the named comparator that he had been adversely affected by the amalgamation of Dun Laoghaire and Dublin Fire Brigades in 1994. The respondent says that, had this amalgamation not taken place, the named comparator would have become a District Officer within a short period of time in Dun Laoghaire Fire Brigade. At the time of the amalgamation the named comparator was serving as Acting Station Officer. It is the respondent’s submission that his (the named comparator’s) particular situation arose in the course of the discussions between the respondent and the trade unions during the amalgamation process. However the matter was not dealt with at the time and required to be dealt with by Dublin City Council. The respondent states that agreement was ultimately reached with the named comparator whereby he was placed on the District Officer scale for pay purposes only, so as not to affect the seniority of Officers generally within the amalgamated Fire Brigade. According to the respondent a special arrangement was arrived at for the named comparator in recognition of the particular situation arising in his case as a result of the amalgamation. It is the respondent’s assertion that the reason for the difference in the rates of pay between the complainant and the named comparator is to be found in the terms of the Order of the Personnel Officer dated 22nd October, 2001.
   2. Section 38 of the Local Government (Dublin) Act, 1993 provides that where an agreement is made under the Local Government Act, 1955 between Dublin Corporation (now Dublin City Council) and Dun Laoghaire/Rathdown County Council in relation to the performance by Dublin City Council of Dun Laoghaire/Rathdown’s fire authority functions, the responsible Managers shall jointly designate Officers and Employees of Dun Laoghaire/Rathdown County Council for transfer to the service of Dublin City Council. In 1994 an agreement was reached whereby Dublin City Council would take over from Dun Laoghaire/Rathdown County Council the operation of the latter’s fire services. Accordingly the relevant fire services staff of Dun Laoghaire/ Rathdown County Council, including the complainant and the named comparator were transferred from Dun Laoghaire/Rathdown County Council to Dublin City Council.
   3. The respondent states that the details of the decision with respect to the amalgamation of the Fire Services are set out in the letter of the Assistant City Manager. According to the respondent discussions and correspondence took place over a considerable period of time with respect to the proposed amalgamation of the two Fire Services. The letter sets out the policy basis for the amalgamation as well as the proposed structure of the new amalgamated service. In relation to staffing it was proposed to substitute four permanent positions of District Officer for the four then existing posts of Station Officer with effect from the date of amalgamation of the two Services. The four most senior Station Officers in the Dun Laoghaire/Rathdown Fire Brigade were to be appointed as the new District Officers. With regard to Station Officers, two vacancies were to result from the filling of the newly created District Officer posts and in addition to these, an additional post of Station Officer was to be created in order to cover annual leave. The respondent says that these posts were to be filled on the basis of seniority from the existing permanent Sub-Officers in the Dun Laoghaire/Rathdown Fire Brigade. Seniority was determined on the basis of the length of permanent service in each particular grade. Where a number of Officers were promoted permanently from the same date then seniority was determined by the placings of the relevant promotional panel and where the permanent promotion was effective from the same date in the case of Officers from the two Authorities, seniority was determined on the basis of the total Fire Brigade service.
   4. At the time of the amalgamation the named comparator was serving as an Acting Station Officer in Dun Laoghaire. Following the amalgamation persons promoted to Sub Officer at approximately the same time as the named comparator had in fact already been promoted to District Officer while the named comparator’s promotion to District Officer from Station Officer, on the basis of the seniority list, was still some time away. Had the amalgamation not taken place the named comparator was fifth in line to be promoted to District Officer in Dun Laoghaire. Four District Officer posts had been allocated to Dun Laoghaire and would have been filled but for the amalgamation. The named comparator would have been next in line for a District Officer position, which would have arisen in or around August, 1998. According to the respondent this left the named comparator in a unique position. The respondent states that the named comparator argued that, had amalgamation not occurred, he could have expected to have obtained District Officer rank by reason of the pre-amalgamation seniority procedure. In recognition of the unusual situation affecting the named comparator a compromise was proposed whereby he was to be appointed to the District Officer pay scale with effect from 1st November, 1998 at the third point of the pay scale. The respondent notes that the appointment was for pay purposes only and the named comparator’s operational rank and substantive grade was to remain that of Station Officer until such time as his position was reached on the appropriate seniority listing. The named comparator would reach the maximum of the scale in November, 2001 and that was the figure which would be used for determination of his pension entitlements.
   5. The respondent contends that the difference in remuneration as between the complainant and the named comparator does not arise by reason of age. The reason for the different levels of pay lies in the decision of the respondent to resolve an individual grievance brought by the named comparator and supported by his Union arising from the amalgamation process. On amalgamation the named comparator claimed that he was treated less favourably than his colleagues within Dublin Fire Brigade and he evidenced the fact that people who attained the rank of Sub-Officer after him (Sub-Officer being the key grade that determined onward progression through the ranks) had long since achieved the rank of District Officer. The respondent states that the complainant was not in a similar position and has not contended for circumstances such as those contended for by the named comparator. It is the respondent’s submission that the named comparator’s age played no part in this decision. Rather the matter was raised through the normal industrial relations mechanisms and dealt with as such. The respondent respectfully submits that insofar as there may be any basis for an objection to the decision made, the matter remains an industrial relations issue and ought properly to be pursued in that context. It is further submitted that the complainant is seeking in a somewhat contrived manner to frame as an age discrimination matter his objection to what was decided in respect of the named comparator. The respondent argues that this is entirely inappropriate and without foundation.
      
4. SUMMARY OF THE COMPLAINANT’S SUBMISSION
   1. According to the complainant he is seeking the same remuneration as the named comparator with retrospection from the same effective date of 1st November, 1998 and compensation for the stress caused to him by the decision of the respondent. It is the complainant’s contention that the reason for the difference in remuneration is related to age. The complainant is 50 years of age while the named comparator is 60 years old. According to the complainant this matter was raised with the respondent by correspondence on 13th February, 2002 and efforts were made to resolve the matter through correspondence and direct discussions.
   2. The complainant says that prior to the amalgamation agreement in 1994 both he and the named comparator were employed as Sub-Officers serving as Acting Station Officers and the complainant was ahead of the named comparator in terms of seniority. According to the complainant at this time in Dublin Fire Brigade the opportunities for promotion through the rank structure, were for Officers appointed prior to 1990, on the basis of seniority, once they had been appointed Sub-Officer through selection panel interview. The complainant says that this system allowed Officers rise through seniority to the rank of District Officer. It is the complainant’s submission that the situation in Dun Laoghaire was similar but only allowed promotion to the rank of Station Officer. While there was some discussion around changing this, the talks were at a very early stage. On 10th March, 1994 the complainant was promoted to the rank of Station Officer and it is the complainant’s belief that the named comparator was promoted to Station Officer in August, 1994. Accordingly, on amalgamation in May, 1994 Officers in Dun Laoghaire were advantaged by joining Dublin Fire Brigade by allowing them to go to District Officer grade. The complainant says that this was the situation until 22nd October, 2001 when the named comparator was awarded higher pay some seven years after the amalgamation.
   3. The complainant notes that the respondent has admitted ‘like work’ in this case and has contended that the difference in pay is based on grounds other than age. It is the complainant’s argument that the facts do not support this contention. The complainant disputes the respondent’s contention that had the amalgamation not taken place the named comparator would have become a District Officer within a short period of time. According to the complainant the position of District Officer did not exist in Dun Laoghaire, therefore, the named comparator had no expectation of achieving such a post. The complainant also disputes the respondent’s further contention that the named comparator’s pay arrangement was part of the 1994 Agreement. According to the complainant the increased pay was awarded seven years after the agreement and there was no reference in any of the material relating to the agreement to outstanding issues of this nature. The agreement did refer to other employees but not the named comparator. While the respondent claims that the named comparator’s age played no part in the decision to award him the extra pay the Order sanctioning payment makes clear reference to the fact that the named comparator was to reach the maximum scale in November, 2001 and this figure would be used for determination of his pension entitlements. The complainant notes that this type of wording is not normally included in a Manager’s Order.
   4. It is the complainant’s belief that the pay arrangement was to facilitate the named comparator retiring at that stage on an enhanced rate of pay. However the named comparator since opted to remain in employment. The complainant states that it is difficult to understand the relevance to pension, etc. if age was not a consideration. According to the complainant he does not accept that there were special circumstances applying to the named comparator or that he was disadvantaged by the amalgamation. The complainant says that the named comparator was promoted to Station Officer as part of the amalgamation and as a result of the amalgamation had the potential to achieve District Officer, a grade that did not exist in the area prior to amalgamation. This should only have been achieved on the basis of seniority as per the agreement. The complainant notes that the fact remains that he is senior to the named comparator. It is the complainant’s desire that he be paid the same remuneration as the named comparator with the same effective date and compensation for the stress caused to him by the respondent’s decision.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. The issue for decision in this claim is whether or not there are grounds other than age within the meaning of Section 29(5) of the Employment Equality Act, 1998 for the difference in pay between the complainant and the named comparator. I note that the respondent accepts that ‘like work’ exists between the complainant and the named comparator in terms of Section 7 of the 1998 Act. 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.
   2. At the hearing of this claim it was clarified that prior to the Amalgamation Agreement the complainant had been employed with Dublin City Council whereas the named comparator had been employed with the Dun Laoghaire/ Rathdown Council. It was also clarified at the hearing that, prior to the Amalgamation Agreement, talks had taken place on the creation of four District Officer posts in the Dun Laoghaire/Rathdown Council and had the amalgamation not gone ahead these posts would have been created anyway.
   3. It is useful to note the hierarchical structure in the two organisations pre the Agreement and the structure in the amalgamated organisation post the Agreement as follows:
      
      Pre-AgreementDun Laoghaire/Rathdown Pre-AgreementDublin City Post AgreementAmalgamated Organisation
      Senior Officers Senior Officers Senior Officers
      Station Officers District Officers District Officers
      Sub Officers Station Officers Station Officers
      Fire Fighters Sub Officers Sub Officers
      Fire Fighters Fire Fighters
      
      At the hearing of this claim the respondent stated that appointment at sub officer level determined seniority for progression purposes thereafter. However, following the Agreement I note that seniority lists were maintained on the basis of employment as Station Officers.
   4. The named comparator was placed first on the panel for Sub Officer in Dun Laoghaire/Rathdown County Council in 1979 and appointed from that panel in December, 1980. The complainant who was with Dublin City Council was appointed to the position of Sub Officer in 1979. Then in March, 1994 the complainant was appointed to the position of Station Officer. The respondent states that the named comparator was acting in the position of Station Officer and was appointed to this position on a permanent basis in August, 1994.
   5. The respondent states that at the time of the discussions about the amalgamation of the fire services of Dun Laoghaire/Rathdown County Council and Dublin City Council the named comparator, through his Union, raised the fact that this Amalgamation Agreement would serve to disadvantage him in terms of promotion. As part of the Amalgamation Agreement four new positions of District Officer were created and it was agreed that these positions would be allocated to the four most senior Station Officers in Dun Laoghaire/ Rathdown County Council. According to the respondent the named comparator was placed 5th in seniority in Dun Laoghaire/Rathdown and, therefore, missed out on an appointment to District Officer. Had the amalgamation not taken place the four District Officer positions would have been created in the Dun Laoghaire/Rathdown County Council and the named comparator would have aspired to one of the District Officer positions as two of the original four appointed had since left these positions. As a result of the amalgamation the respondent says that the named comparator’s ability to attain the District Officer position was considerably disimproved as he had to compete with Station Officers who had been in Dublin City Council. Recognising this disadvantage to the named comparator the respondent agreed to pay the named comparator the equivalent of the District Officer pay scale without appointing him to the position of District Officer and that his pension would be based on the District Officer pay scale. In effect the named comparator is red circled.
   6. The complainant argues that the respondent had treated him less favourably to the named comparator on the grounds of age and he noted that the named comparator was some 10 years older than him. He specifically refers to the reference to pension provisions in the respondent’s order in which the named comparator is placed on the District Officer pay scale and contends that this is a clear reference to age. According to the complainant the named comparator was approaching retirement and that this arrangement was agreed to by the respondent to facilitate him with higher pension provisions on retirement. The respondent has denied this allegation. The complainant also denies that the named comparator raised this issue with the respondent at the time of the negotiations of the Agreement and points to that fact that there was documented references to other staff members who had raised issues but no reference to the named comparator. The respondent stated that, while it did not have any records itself, the named comparator had submitted a written record of a meeting between himself and the respondent at the time of the negotiations. The respondent contends that this is clear evidence that this issue had been raised at the time of the negotiations.
   7. Following the hearing of this claim the respondent submitted seniority charts pre and post the Agreement. The respondent also provided, on a confidential basis to me and with the agreement of the complainant, details of the ages of Station Officers who were placed below the named comparator and above the complainant on the Sub Officer seniority lists (Note: appointment at Sub Officer level determined seniority for progression purposes thereafter). When it was agreed to place the named comparator on the District Officer pay scale the complainant was 47 years of age while the named comparator was 58 years of age. Having examined the Sub Officer seniority list I note that two officers on that list who are placed between the complainant and the named comparator are younger and 29 are older than the complainant. I further note that 4 are the same age as the named comparator and two are older. On this basis I find that those officers who were younger than the complainant could also argue that they were treated less favourably to the named comparator but the reason for the less favourable treatment is unrelated to their age. I am satisfied that, in this instance, the respondent has red circled the named comparator for a specific reason which is unrelated to his age. In conclusion therefore I find that the respondent did not treat the complainant less favourably on the grounds of his age.
      
6. DECISION
   1. In view of the foregoing I find that Dublin City Council did not discriminate against Mr. Robert Hedderman in relation to his remuneration in terms of Sections 7 and 29 of the Employment Equality Act, 1998.

Gerardine Coyle
Equality Officer
28th April, 2005