DEC-E2005-035 Full Case Report

CASSIDY AND CITIBANK (REPRESENTED BY MATHESON, ORMSBY, PRENTICE – SOLICITORS)

1. DISPUTE
   1. This dispute involves a claim by Ms. Cassidy that she is entitled to the same rate of remuneration as that paid to six named comparators, all of whom are younger than her and with whom she contends she performs “like work” for the purposes of section 7 of the Employment Equality Act, 1998. The complainant contends that the difference in the rates of remuneration paid to her and the comparators is based on age and is therefore unlawful in accordance with section 29 of the Act. The respondent rejects the complainant’s assertions.
      
2. BACKGROUND
   1. The complainant is employed as a Senior Service Representative in the respondent’s Trustees Department since 2 April, 2001. She alleges that she performs “like work” with six named comparators all of whom are younger than her and all of whom receive a higher rate of remuneration to her. The respondent accepts that all the named comparators are younger than the complainant and that they receive a higher rate of remuneration to her. It disputes that “like work” exists between the complainant and the comparators and notwithstanding this argument, it contends that there are grounds other than age for the differences in the rates of remuneration paid to Ms. Cassidy and the comparators and consequently the rates of remuneration are lawful in accordance with section 29(5) of the Employment Equality Act, 1998.
   2. The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 8 May, 2003. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. A Preliminary Hearing was held on 4 February, 2004. In light of the respondent’s argument that the rate of remuneration received by the complainant was lawful by virtue of section 29(5) of the Employment Equality Act, 1998, the Equality Officer decided, in accordance with section 79(3) of the Act, to investigate this matter as a preliminary issue. Written submissions were received from both parties and a Final Hearing took place on 18 May, 2004. A number of issues emerged at the hearing which gave rise to further correspondence with the parties subsequent to the hearing. This process concluded on 8 March, 2005.
      
3. SUMMARY OF COMPLAINANT’S CASE
   1. The complainant is employed as a Senior Service Representative in the respondent’s Trustees Department since 2 April, 2001. Prior to that, from 4 January, 1999, she worked as a Credit Analyst in the respondent’s Diner’s Club Division. On her appointment to the Trustees Department she was given an upward adjustment in her salary so that her annual salary was €24,125 following her appointment to that Department. She asserts that she performs “like work” for the purposes with six named comparators all of whom are younger than her and all of whom are paid higher rates of remuneration.
   2. The complainant acknowledges that annual pay increases are calculated in January/February of each on foot on an appraisal scheme based on performance in the previous calendar year. The complainant did not agree with her appraisal ranking “Inconsistent performer” in respect of 2002 and refused to sign off on it, she consequently did not receive a pay increase at that time. She contends that her performance ranking was contrived by her Line Managers in a deliberate attempt to maintain her salary at a low level and as she is the oldest employee in the area she submits that this treatment is age discrimination. She was ranked as a “consistent performer” in respect of 2003 and received a 23% pay increase in 2004. She contends that this award was made as a consequence of her having referred her complaint to the Equality Tribunal.
      
4. SUMMARY OF RESPONDENT’S CASE
   1. The respondent accepts that all of the comparators cited by the complainant are younger than her and that all of the received a higher rate of remuneration than her. It submits that the differences in the rates of remuneration paid is based on performance and is therefore lawful under section 29(5) of the Employment Equality Act, 1998. In support of this assertion it cites the comments of Keane J (as in then was) in Minister for Transport v Campbell¹when he expressly recognised that a comparator’s “bigger output or productivity” could warrant a wage differential regardless of the gender of the complainant. The respondent submits that this principle applies equally to the discriminatory ground of age. It rejects the complainant’s assertion that her overall assessment ranking for 2002 was contrived and states that the complainant’s was ranked as an “inconsistent performer” by her Line Managers in respect of that year and was not therefore considered suitable for a salary increase. It adds five of the six named comparators received rankings of “Consistent”, “Strong” or “Top” performer for that year and were consequently awarded pay increases ranging between 2.8% and 12.6%. The final comparator only started in October, 2002 and did not receive an increase. The respondent submits that the salary increases are therefore made on the basis of objective grounds unconnected with the employee’s age.
   2. The respondent states that the complainant received an increase in salary on her appointment to the Trustees Division in April, 2001. It adds that none of the comparators received such an increase on their appointment/transfer to the Trustees Division – they were transferred on the salary they were on in the previous area of work. The respondent contends that the increase awarded to the complainant brought her to the correct rate of remuneration having regard to her experience and the higher level of work she was to perform in Trustees over her previous position. The respondent adds that the complainant was dissatisfied with her assessment ranking for 2002 and invoked the internal grievance procedure. At the end of this process she was offered an increase of 3.5% and her overall ranking to be amended to “consistent performer” and she refused this. Her overall assessment in respect of 2003 was “consistent performer” and she received an increase of 23%, which included a market adjustment of 18%.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. In light of the respondent’s argument that the rate of remuneration received by the complainant was lawful by virtue of section 29(5) of the Employment Equality Act, 1998, I decided, in accordance with section 79(3) of the Act, to investigate this matter as a preliminary issue. In reaching my decision I have taken into account all submission, oral and written, which were made by the parties.
   2. It is not disputed that all of the named comparators are younger than the complainant, that they are all employed in the respondent’s Trustees Division and that on 8 May, 2003 (the date the complainant’s claim was referred to the Equality Tribunal) they were in receipt of a higher rate of remuneration than the complainant. I note that the rates of remuneration paid to the comparators are also different. It is also not disputed that annual pay increases awarded to staff of the respondent are calculated at the beginning of each year on the basis of an individual’s performance during the previous calendar year. The rates of remuneration paid to employees at May, 2003 were therefore determined in January/February of that year on the basis of the overall performance ranking achieved in respect of 2002. The respondent’s system of Performance Ratings is as follows: 1 – Top Performer; 2 – Strong Performer, 3 – Consistent Performer; 4 – Inconsistent Performer and 5 – Under Performer. In order to qualify for a pay increase you must attain a Rating of 1, 2 or 3. The complainant was awarded an overall ranking of 4 - Inconsistent Performer for 2002 and did not therefore qualify for a pay increase.
   3. Copies of the completed Annual Assessment Forms for the comparators in respect of 2002 were furnished to me and I am satisfied that they accurately reflect the respective assessments of the comparators for that year. All achieved overall assessments of Consistent Performer or higher and therefore qualified for a pay increase- details of which were also furnished to me. The complainant was subjected to the same assessment process. I am satisfied therefore that pay increases in the respondent organisation are based on this performance assessment process and that it applied to all staff in the organisation at the complainant and comparators’ levels.
   4. I must now decide whether the Assessment Process operated by the respondent constitutes grounds other than age for the differences in remuneration and therefore lawfully justifies those differences. I note that five of the comparators started work with the respondent between May, 1997 and January, 1999, when the complainant also commenced her employment. The final comparator commenced employment with the respondent in October, 2002 as a Specialist, a grade which is above the complainant’s position and one to which she aspired by way of promotion. I further note that four of the comparators transferred to the Trustees Division during 2001 and another transferred in June, 2002. Their salaries had therefore undergone the assessment process for a number of years and were at different rates on their transfer to that Division following their respective performance ratings in the preceding years.
   5. In Brunnhofer v Bank de Osterreichischen Postparkasse²the European Court of Justice (ECJ) held that “individual work capacity or the effectiveness or quality of work actually performed by an employee” are factors which can be taken“into account and can have an effect on the employee’s…….posting and pay” in the course of a person’s employment The Assessment Process operated by the respondent is a process which awards pay increases on the basis of performance in the previous year and is a model of pay determination which, in my opinion, is covered by this ECJ case. The process is clear and transparent and employees are aware of what level of performance they need to attain in order to qualify for a pay increase. The complainant has not adduced any evidence to demonstrate that the assessment process and ranking of her in respect of her performance in 2002 was conducted in a manner which was other than fair and equitable and consistent with the manner in which the process was conducted in respect of the comparators. In light of my comments in this and the preceding paragraphs, I am satisfied that the rates of remuneration paid to the complainant and comparators are based on factors which are unconnected with their ages and are therefore lawful in accordance with section 29(5) of the Employment Equality Act, 1998.
      
6. DECISION
   1. I find therefore that the rates of remuneration paid to the complainant and comparators are based on factors which are unconnected with their age and are therefore lawful in accordance with section 29(5) of the Employment Equality Act, 1998.

Vivian Jackson ,
Equality Officer,
29th July, 2005

¹High Court [1996] ELR 106

²Case No. C-381/99