DEC-E2005-031 Full Case Report

3 Named Female Employees vs ESB

DISPUTE
1. The dispute concerns a claim by Ms. Mary Lynn, Ms. Eileen Rowland and Ms. Geraldine Walsh against the ESB that they are entitled to the same rate of remuneration as that paid to three named male comparators in terms of Section 7 of the Employment Equality Act, 1998.
2. Consequently the complainants referred complaints to the Director of Equality Investigations on 6 th May, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the cases to Gerardine Coyle, Equality Officer on 1 st February, 2005 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 and exchanged. Work inspections took place on 4th March, 2005 and at these work inspections one of the named male comparators was withdrawn from these claims. A final hearing took place on 15th June, 2005.
SUMMARY OF THE COMPLAINANTS’ SUBMISSIONS
Ms. Walshe
1. It is the complainant’s submission that the reason for the claims for equal pay with the named male comparators (day workers) is that they assist the complainants when they are short staffed performing the exact same tasks. The complainant says that, in the past, as many as three of the named comparators have been in the kitchen together and even cooked the dinner. The complainant says that this is on-going and the named comparators earn a lot more money than the complainants. As a qualified cook the complainant considers this to be unfair. She notes that the named male comparators are permanent staff. One of the named male comparators has transferred to Networks and, according to the complainant, the respondent has taken on temporary staff to replace staff assigned to Networks. The complainant notes that the temporary staff are now assisting the complainants and they are earning more pay than one of the complainants (Ms. Rowland) who has been temporary for 10 years.
2. The complainant states that she is employed by the respondent as a Cook/ Housekeeper. Ms. Lynn is now retired and Ms. Rowland is employed in a temporary position as an Office Cleaner/Kitchen Helper. The named male comparators are employed as Day Workers and one of the named male comparators (Mr. Foley) has now been transferred to Networks. According to the complainant Day Work duties include cleaning, sweeping floors, delivering post, shovelling peat and driving to town to collect goods that are required.
Ms. Rowland
1. The complainant states that her work description was to make sandwiches on arrival at work, wash utensils that were used for cooking, wash and peel vegetables and mop the floor in the evening. The complainant states that it is the Day Workers that would replace her when she is on annual leave and would undertake the same duties as set out above.
2. No submission was received from the third named complainant (Ms. Lynn).
SUMMARY OF THE RESPONDENT’S SUBMISSION
1. According to the respondent the complainants as Canteen Staff are a separate category to Day Workers and in this respect have different duties, responsibilities, skills and working environment and are rewarded in line with existing category agreements. The respondent states that the named male comparators (Day Workers) are an integral part of the station operation and maintenance, working in a heavy industrial environment. The complainants (Canteen Staff) provide an ancillary service which is acknowledged in the PACT agreement for Canteen Staff which states that:
  
  “The parties agree in principle that the canteen service in Power Stations, where a full canteen service is required, will be provided by contract cleaners”.
  
  The respondent contends that the comparisons with the named male comparators on the grounds of performing ‘work of equal value’ are unfounded.
2. The respondent denies that the complainants perform work of equal value to that of the named male comparators. According to the respondent the large number of functions which are carried out by the named male comparators, and which are not carried out by the complainants, is clear evidence that the jobs are not of a similar nature. It is the respondent’s submission that there are significant differences in the work performed and the conditions involved in each of the jobs. In this regard the respondent states as follows:
  1. There is a low level of physical effort in the complainant’s work as staff are not required to lift or carry heavy items. This type of work is carried out by the named male comparators who carry out work with high levels of physical effort such as boiler washing (in confined spaces), fuel handling (under tipplers, steel cells), working in confined spaces and ask removal. The named comparators also erect scaffolding, pull cables and carry out civil works and ground maintenance.
  2. There is a high level of responsibility involved in the duties carried out by the named male comparators particularly in the areas of Safety and Environment. The named male comparators erect scaffolding for use by others. There is considerable responsibility regarding safety to persons and plant when slinging/lifting large loads, removing lagging, lubricating rotating machines, general station tidiness and ash field maintenance. The named comparators also carry out routine maintenance of fire-fighting equipment including standard checks and recording.
  3. The skill levels of the named male comparators is considerably higher and more numerous than that of the complainants. The named male comparators’ skills include forklift driving, crane driving, scaffolding, use of portable hand tools, operation of high pressure washing equipment, acting as PICW as well as relief duties in stores and water treatment plant. A number of the above duties require independent certification.
  4. Working conditions are significantly more difficult for the named male comparators than for the complainants. The complainants work in a kitchen environment with clean conditions and low noise levels and the need for Personal Protective Equipment (PPE) is minimal. By contrast the named male comparators work in an industrial environment of which high levels of noise, temperatures and dust are a feature. Working conditions include work within confined spaces, working at heights, working in close proximity to high voltages and high temperatures. Mandatory PPE includes safety helmet and safety footwear and recommended PPE includes ear protectors, dust masks, goggles and boiler suits.
3. In conclusion the respondent states that the jobs of the complainant and the named male comparators is not of a similar nature and, while there may be some similarity in a small number of tasks, there are significant differences in the content of the two jobs. The respondent says that the jobs of the complainants and the named male comparators are not of equal value as there is significantly greater physical effort, responsibility and skills involved in the jobs performed by the named male comparators. Furthermore the respondent contends that their jobs (the named male comparators) involve significantly more difficult working conditions. The respondent sees no merit in these claims and asks that they be rejected.
CONCLUSIONS OF THE EQUALITY OFFICER
1. The issue for decision in these claims is whether or not the complainants perform ‘like work’ with the named male comparators within the meaning of Section 7 of the Employment Equality Act, 1998. In making my decision in these claims I have taken into account all of the information, both written and oral, made to me by the parties.
2. The complainants contends that they performed ‘like work’ with the named male comparators in terms of Section 7 of the Employment Equality Act, 1998. They argue that the reason for the difference in pay was related to gender. My job descriptions for the complainants and the named male comparators are set out in Appendices A and B respectively and my analysis of the work of the complainants and the named male comparators are set out in Appendix C. It is important to note that my examination of the work of the complainants and the named male comparators is the work that was being performed at the time of the referral of these claims i.e. May, 2003.
3. Section 7(a) of the Employment Equality Act, 1998 states:
  
  “… in relation to work which one person is employed to do, another person shall be regarded as employed to do like work if –
  
  (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work”.
  
  Following my work inspections in this claim I am satisfied that the complainants did not perform the same work as the named male comparators. The complainants were based indoors in the kitchen. The named male comparators, while they worked on occasion in the kitchen, spent the most of their time performing station operation and maintenance duties and working with heavy industrial equipment/machinery. I am further satisfied that the complainants were not interchangeable with the named male comparators in relation to their work.
4. Section 7(b) of the Employment Equality Act, 1998 states as follows:
  
  “... in relation to work which one person is employed to do, another person shall be regarded as employed to do like work if –
  
  (b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole”.
  
  I am satisfied that, following my work inspections, the work of the complainants and the named male comparators was not so similar that any difference between their jobs was of small importance in relation to the work as a whole. The complainant worked full-time in the kitchen. The named male comparators were assigned to operational duties on the respondent site involving boiler washing, fuel handling, ground maintenance, erecting scaffolding, etc. While the named male comparators did, on occasion, perform kitchen duties (in the absence of the complainants) the complainants did not perform the duties carried out by the named male comparators in their absence. Hence the complainants were not interchangeable with the named male comparators in relation to their work.
5. Section 7(c) of the Employment Equality Act, 1998 states:
  
  “in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if –
  
  the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions ”.
6. Having carried out work inspections and undertaken an analysis of the work of the complainants and the named male comparators I find that the demands made on the named male comparators in relation to skills, physical requirements, responsibilities and working conditions were greater than those required of the complainant (Ms. Walsh). In terms of mental requirements I am satisfied that the demands on the complainant (Ms. Walsh) and the named male comparators were the same. In relation to Ms. Lynn and Ms. Rowland I find that the demands made of the named male comparators in relation to skills, physical requirements, mental requirements, responsibilities and working conditions were greater than those required of these complainants.
DECISION
1. In view of the foregoing I find that Ms. Lynn, Ms. Rowland and Ms. Walsh did not perform ‘like work’ with the named male comparators in terms of Section 7 of the Employment Equality Act, 1998. They were not, therefore, discriminated against by the ESB and have no entitlement to equal pay in terms of Section 19 of the 1998 Act.

Gerardine Coyle,
Equality Officer,
7th July, 2005