O'Sullivan (Represented by Cathy Maguire BL, instructed by Becker Tansey & Co, Solicitors) AND Diageo, Dublin (Represented by IBEC)
- DISPUTE
- This dispute concerns a claim by Ms Noeleen O'Sullivan, employed as a cleaner/canteen assistant at the respondent's Ballyfermot premises, that she is entitled to the same rate of remuneration as that paid to male comparators, employed as yardmen by the respondent, in accordance with the provisions of section 19 (1) of the Employment Equality Act 1998 on the basis that she is performing like work with the comparators as defined in section 7 (1) (c) of that Act. She also claimed victimisation by the respondent, contrary to the provisions of section 74 (2) of the Act.
- Becker Tansey & Co, Solicitors referred a claim on behalf of the complainant to the Director of Equality Investigations on 30 May 2001 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 22 April 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A preliminary hearing was held on 6 September 2002, work inspections were carried out on 29 May 2003, several submissions were received from both parties and a final hearing was held on 23 June 2004. Subsequent correspondence concluded on 28 June.
- THE COMPLAINT
- The complainant submitted four ODEI 1 (complaint referral) forms when referring her complaint. Three of these were equal pay claims, as follows: (i) claim for equal pay citing a named male colleague employed at the Ballyfermot location; (ii) claim for equal pay citing "The claimant is unable to name a comparator due to the respondent's failure to supply the information requested."; (iii) claim for equal pay citing "Waterford Yardman - the claimant is unable to name a comparator due to the respondent's failure to supply his name." The fourth ODEI 1 form claimed victimisation.
- The issue of whether I had jurisdiction to investigate an equal pay claim which did not name a comparator was considered in some detail in the course of my investigation, and I consider it would be useful to deal with the matter at this stage.
- Claim citing unknown comparator
The complainant said that she had made repeated attempts to obtain information required to make her claim under the 1998 Act. Her original request was made in July 2000. The respondent replied in October 2000, but only provided information relating to employees at its Ballyfermot location. The complainant said that the respondent was specifically asked to supply all information in relation to all employees of the respondent and all associated companies. Despite several reminders, the respondent had failed to provide the information sought. - The complainant said that the respondent's failure to supply the information meant she was unable to identify a male comparator. She requested that the Equality Officer draw the appropriate inferences from the respondent's failure and, unless the respondent could demonstrate that it had not discriminated against her on the ground of sex with regard to her remuneration, to find for her and to make an order for the payment of arrears and an order for equal pay together with such other orders are were appropriate in the circumstances.
- The respondent denied that it had any case to answer where an allegation of pay discrimination on the ground of gender is made and the complainant had not identified with whom she is comparing her job. It referred to the European Court of Justice (ECJ) decision in Macarthys Ltd v Wendy Smith (Case 129/79) where it said “…in cases of actual discrimination falling within the scope of the direct application of Article 119, comparisons are confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same establishment or service.”
- I agree with the respondent’s argument in this regard. It is clear from the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations (SI No 337 of 2001) that
where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party to prove the contrary.
Thus, it is apparent that the complainant must first establish facts to support her claim. There is no provision for shifting the burden of proof to the respondent in circumstances where the complainant cannot establish any facts regarding her claim, and ECJ caselaw consistently rejects the idea of a hypothetical comparator in equal pay claims. Accordingly, I find that this is not a valid claim. - Claim citing the Waterford Yard Man
The complainant said that, while she did not know the name of the male comparator employed in Waterford, he was an identifiable person. She said the relevant information could be provided by the respondent, and asked that its failure to provide it be used as a basis to draw such inferences as were appropriate. - The respondent denied like work existed between the complainant and the comparator, and provided job descriptions for both roles. The complainant acknowledged that she was unable to provide such job descriptions in relation to the comparator, as she had no information regarding his job or conditions of employment.
- A similar issue arises in this claim as arises in the matter of a hypothetical comparator. While the individual involved in this instance is readily identifiable, as opposed to being hypothetical, the complainant’s lack of knowledge of his job results in her being unable to establish, or even propose, any facts on which to ground her claim. The ECJ reiterated its position in its decision in Susanna Brunnhofer and Bank der Osterreichischen Postsparkasse AG (Case C-381/99), where it said “It is accordingly for the plaintiff to prove by any form of allowable evidence that the pay she receives from [her employer] is less than that of her chosen comparator, and that she does the same work or work of equal value, comparable to that performed by him, so that prima facie she is the victim of discrimination which can be explained only by the difference in sex.” As the complainant has no evidence of these facts, I find that this is not a valid claim.
- Claim citing a named comparator
The complainant’s case was referred under the provisions of section 19 (1) of the Act which provides
It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
Section 18 states that “A” and “B” represent two persons of the opposite sex so that, where “A” is a woman, “B” is a man, and vice versa. - The complainant claimed like work with the comparator in the context of section 7 (1) (c) of the Act. This provides
...for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—
(c) 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.
As the complainant was able to name this comparator, and provide job descriptions, this was a valid claim and was the subject of the work inspections carried out on 29 May 2003.
- SUMMARY OF THE COMPLAINANT'S CASE
Equal Pay- The complainant claimed that she performed work of equal value to that performed by the comparator. Her initial referral also included a claim of “like work” under section 7 (1) (a) of the Act, ie that the work performed was the same, and a claim of work of a similar nature under section 7 (1) (b) of the Act. However, at the initial hearing, the complainant confirmed that the claim being pursued was the claim under section 7 (1) (c).
- The essence of the complainant's equal pay claim was that she was the only woman employed in the depot and the only employee not to be included in the depot grading structure. Her comparator was employed at the lowest grade in the structure, and in December 2000 he was paid at a weekly rate of approximately £557, received weekly service pay of £2.54 and a daily operational allowance of £30.40. He also received further payments depending on productivity. At that time, the complainant received weekly pay of approximately £400, service pay of £1.90 per week and a daily operational allowance of £8.30. She received no further productivity payments.
- The complainant said that her work was equal in value to that of the comparator, but it was undervalued because it was a job traditionally performed by women. She said her job was considered by the respondent to be of less value than any job performed by any man in the yard.
- The complainant said the respondent obtained significant value from her work. It was obliged by law to provide a safe workplace for its employees and her work was vital in achieving this. If the toilets or kitchen were not clean, the employees may become ill and be unable to carry out their duties for the respondent. If floors were not cleaned and dried properly, employees may fall and injure themselves. The productivity of all other employees was therefore dependent on the complainant's productivity.
- The complainant also asserted that her role was vital in protecting the respondent from legal action. If employees became ill or were injured due to lack of hygiene or slippery floors, they would certainly sue the respondent.
- Vicitimisation
The complainant’s claim of victimisation is based on two incidents alleged to have occurred during discussions prior to the closure of the respondent’s premises in Ballyfermot in December 2000. She said that her solicitor had been in correspondence with the respondent during 2000 regarding her rights under the Employment Equality Act 1998. - In November 2000, her solicitor demanded that she be offered early retirement on terms identical to those being offered to her male colleagues. She was being offered a sum of £2,830 to be applied for pension purposes, while her male colleagues were being offered £4,330 for pension purposes. The complainant said that on 10 November 2000 a male colleague shouted to other members of staff that they had better be quiet or they would get solicitor's letters, which she took to be a reference to her pursuit of her claim.
- The complainant said that on 14 November 2000 she was confronted by the Distribution Operations Manager, in the presence of the Depot Manager. He told her "in a bullying and intimidatory manner" that the offer of £2,830 was ex gratia and did not have to be given to her. He protested that the respondent was continually getting solicitor's letters and said they would have to withdraw the offer from her if she continued with her claim. The complainant said she was left in no doubt that the offer would be withdrawn if she proceeded. She said the threat continued until 4 December 2000 when her early retirement took effect.
- SUMMARY OF THE RESPONDENT’S CASE Equal Pay
- The respondent denied that “like work” as defined in section 7 (1) (c) of the Act, ie work equal in value, existed between the jobs of the complainant and the comparator. It said that the complainant started work when one of two previous cleaners became ill and later retired. The complainant was paid the same rate as her predecessor. When the remaining more senior cleaner retired, the complainant's salary was raised to the senior cleaner level.
- The comparator's salary was that which was applicable to the helper/yardman roles, which was part of the grading system negotiated between management and the union. The respondent said that the comparator's work involved liaising with customers, familiarity with company products, heavy lifting, working under pressure to meet operational deadlines while at the same time being vigilant for fraud and working out of doors in all weathers. It said the complainant's work was a support service, which did not affect the productivity of the workplace in any way.
- The respondent said that the comparator's job involved significantly greater skill, physical requirements, mental requirements, responsibilities and more difficult working conditions.
- Victimisation
The respondent asserted that the claim of victimisation was out of time, denied that the incidents alleged to constitute victimisation occurred and denied that they amounted to victimisation. - The respondent said that section 76 (5) of the 1998 Act stipulated that claims in respect of discrimination or victimisation may not be referred after the end of a period of six months after the date of the most recent occurrence of the act to which the claim relates. It pointed out that the last incident of alleged victimisation occurred on 14 November 2000, while the claim was referred on 30 May 2001, and it said that the claim was clearly out of time.
- In the alternative, the respondent stated that the work colleague referred to by the complainant had no recollection of the remark attributed to him. It said that the complainant had spoken openly about her claim to her colleagues, with whom she had good relations. If the remark was made, it must be assumed it was the complainant had imparted the information. The respondent itself had no knowledge of the remark being made, and no complaint in this regard was made by the complainant. Further, she had not shown that the alleged remark constituted any detriment.
- Regarding the second incident, the respondent agreed that a conversation took place between the complainant and the Distribution Operations Manager on 14 November 2000, but argued that the facts as outlined by the complainant were incorrect. At that time the respondent had been engaged in negotiation with the site employees for the integration of the Ballyfermot location with another site. It had concluded a deal with the union in September 2000 whereby each operative would have a sum of £2,830 (from a non-pensionable operational allowance of £5000) applied for pension purposes. The complainant was in receipt of an operational allowance of £1,500, but the respondent reached agreement with the union that she also would have the sum of £2,830 applied for pension purposes. A further amount of £1,500 was paid to all operatives, whether retiring or re-locating, in connection with the disestablishment of the Ballyfermot supervisory structure. The complainant was not part of this supervisory structure.
- The respondent denied that the Distribution Operations Manager threatened to withdraw the offer, and said it was not in his power to do so as the figure had already been agreed with the union. It also denied the allegation that he had behaved in a "bullying and intimidatory" manner. It pointed out that the complainant did not withdraw her claim, but nonetheless she received her agreed pensionable emolument on 4 December 2000, less than three weeks later.
- INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
- In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties, as well as the work inspections which I carried out. Both the complainant and the comparator described their work to me in detail. Job descriptions for the complainant and the comparator are attached as Appendices.
- The complainant's argument was that her work constituted like work with that of the comparator in terms of section 7 (1) (c). The respondent rejected this argument. It is necessary for me to consider the work of the employees under each of the matters referred to in the subsection.
- Section 7 (1) (c): Work of equal value
The complainant asserted that she performed like work with the comparator in that they performed work of equal value. The respondent said there was significantly greater skill, physical effort, mental effort and responsibility in the comparator's job, and it involved significantly more difficult working conditions. - Skill
The complainant's work involved the operation of a vacuum cleaner, buffer machine, dishwasher and burco boiler. The comparator's job involved him moving kegs from one bay to another as necessary, and noting keg numbers. Contrary to the respondent's assertions, he had not accompanied product deliveries for a number of years. - Following the work inspections, I am satisfied that both jobs were essentially unskilled in nature, both workers learning on-the-job as opposed to being formally trained or qualified. I find that equivalent skill was required for the jobs of the complainant and the comparator.
- Physical effort
The complainant job required her to lift and carry items such as the vacuum cleaner, buffer machine and buckets of water from location to location. She had to move and stack furniture prior to cleaning the floors, and she had to remain on her feet throughout the day. The comparator had to lift and roll kegs on the yard. A full keg weighed approximately 62.5kg, and he handled some 30-40 kegs per day, and more at times like Christmas. He also remained on his feet throughout the working day. - While it appears that that the respondent may have overestimated the physical element of the comparator's job, and I am satisfied that the complainant's job was not without physical effort, on balance I consider that the requirement to handle that number of full kegs each day was a significant physical demand on the comparator. I find that the physical requirements of the comparator’s job were more onerous than those of the complainant’s job.
- Mental effort
The complainant was required, as part of her duties, to assess requirements for the stock of cleaning materials and equipment, as well as condiments. The comparator was required to record keg batch numbers to facilitate stock control and administration records. As he dealt with returned kegs, the comparator checked keg seals for signs of tampering to ensure defective product was not delivered to other customers. - The comparator's supervisor was responsible for all allocation of stock and dealt with most of the relevant documentation. It appeared to me at the work inspections that both workers were required to be conscientious and vigilant in the performance of their duties. I find that both the complainant and the comparator were required to exercise a similar level of mental effort in carrying out their functions.
- Responsibility
The complainant was responsible for maintaining hygiene standards in relation to the canteen, the kitchen, the toilets, the doctor's surgery, the offices and all other areas of the respondent's premises. The comparator's job contributed to managing the problems of keg tampering and fraud in relation to returned product. - I cannot accept the respondent’s argument that the comparator had greater responsibility. Each of the workers had a responsibility to perform his or her duties conscientiously. The comparator's failure to do so could result in loss of productivity, while the complainant's failure could result in significant health and safety problems for the respondent. I find that the responsibility required of the complainant and the comparator was comparable.
- Working conditions
The complainant's job required her to be on her feet all day. She carried out some of her duties in the kitchen and the ladies' toilet. The comparator was obliged to work outdoors all year round in all weather conditions, except when carrying out his ancillary duties of cleaning the men's toilets. - I am satisfied that the comparator was obliged to work outdoors in the yard while the complainant worked indoors in a typical office/canteen environment. I find the working conditions of the comparator to be more difficult than those of the complainant.
- I have found that the skill, mental effort and responsibility required by the complainant and the comparator in the performance of their respective duties are similar. However, I have found that the physical effort required by the comparator is greater than that required by the complainant, and I have found that their working conditions are not comparable. Taking into account the totality of the work performed by the complainant and the comparator, I am satisfied that the work performed by the complainant is not work of equal value to that of the comparator in the context of section 7 (1) (c) of the Act.
- Victimisation
As stated above, the claim of victimisation is based on a comment attributed to a work colleague of the complainant, allegedly made on 10 November 2000, and a conversation on 14 November with the Distribution Operations Manager. The respondent argued that the referral of the claim on 30 May 2001 was therefore out of time, while the complainant argued that the alleged threat to withdraw the pensionable emolument did not cease until she received the relevant payment on 4 December 2000. - Having considered the arguments of both parties, I am satisfied that a threat of withdrawal of financial benefit, particularly in circumstances where an employee was eager to maximise retirement income, could constitute ongoing victimisation of the employee until such time as the threat was removed by the payment of the benefit. I find that the claim of victimisation was referred within the six-month limit specified in section 77 (5).
- However, I am not satisfied that the complainant was in fact victimised by the respondent. She was unable to produce any evidence that the comment attributed to her work colleague was actually made, or that it was made at the behest of the respondent. Nor did she make a complaint to the respondent about the matter. Regarding the conversation with the Distribution Operations Manager, I am satisfied from documents provided by the respondent that the complainant's retirement benefits had been agreed with the union and the Manager was not in a position to resile from the agreement. I note also that the complainant did not withdraw her claim for equal pay and that she did receive the benefit just three weeks after the conversation. Finally, I note that the first time the allegation of victimisation was notified to the respondent was by letter of 1 May 2001 (five months after her retirement) even though correspondence between the parties had been ongoing during the intervening period.
- DECISION
- Based on the foregoing, I find that
- the claim citing unknown comparators is not a valid claim under the 1998 Act;
- the claim citing the Waterford Yardman is not a valid claim under the 1998 Act;
- Diageo did not discriminate against Ms Noeleen O'Sullivan on the ground of gender in relation to her pay, in terms of section 19 of the Employment Equality Act 1998, in respect of her claim citing a named male comparator at the Ballyfermot location;
- the respondent did not victimise the complainant
- Based on the foregoing, I find that
Appendix I
Job description for the complainant
Title: Cleaner/Canteen Assistant
Salary per week: £400.92, plus service pay of £1.90 and daily operational allowance of £8.30
Hours: 9am to 4pm, Monday to Friday
Qualifications: None required
Duties:
- Cleaning kitchen area, including washing pots and pans, cleaning oven, loading and unloading dishwasher
- Cleaning canteen
- Cleaning ladies' toilet
- Cleaning doctor's surgery
- Vacuuming offices and hallways
- Washing, sweeping and polishing floors
- Cleaning bain-marie, cooker hoods etc on a weekly basis
- Cleaning paintwork, mirrors, walls etc as necessary
- Ordering cleaning materials and condiments
- Assisting with serving food, as required
Appendix II
Job description for the comparator
Title: Yardman
Salary per week: £557.03, plus service pay of £2.54, daily operational allowance of £30.40, weekly stayback allowance of £409.93 and weekly turnaround allowance of £83.62
Hours: 8am to 3pm, Monday to Friday
Qualifications: None required
Duties:
- Organising kegs into discreet batches for delivery
- Organising kegs into manageable groups for lifting by forklift
- Supervising off-loading of returned kegs and detecting product tampering
- Ensuring the integrity of the batch system
- Recording keg batch numbers to facilitate stock control and administration records
- Sweeping yard and cleaning up dirt/rubbish
- Cleaning men's toilet