DEC-E2005-024 Full Case Report

Ms A Ms. Siobhan Howe (Represented by Muldowney Counihan & Co., Solicitors) vs Great Southern Hotel (Represented by IBEC)

1. DISPUTE
   1. The dispute concerns a claim by Ms. Siobhan Howe against the Great Southern Hotel that she is entitled to the same rate of remuneration as that paid to two named comparators on the grounds of marital status in terms of Section 7 of the Employment Equality Act, 1998.
      
2. BACKGROUND
   1. The complainant commenced employment with the respondent organisation in June, 2002 as a member of the Food Service Personnel working in O’Dea’s Bar and earning €7.54 per hour. The named comparator commenced employment with the respondent organisation in June, 2002 also as a member of the Food Service Personnel working in Potters Restaurant. Initially she was earning €7.54 per hour but this was increased to €9.38 per hour in October, 2002. It is the complainant’s contention that she is entitled to equal pay with the named comparator and that the reason for the difference in pay is related to their family status. The respondent denies the allegation and argues that there are grounds other than family status for the difference in pay between the complainant and the named comparator.
   2. Consequently the complainant referred a complaint to the Director of Equality Investigations on 2nd April, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 26th January, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A joint preliminary hearing took place on 18th March, 2004. The respondent indicated that it would be arguing ‘grounds other than marital status’ for the difference in pay between the complainant and the named comparators. The Equality Officer decided to investigate this as a preliminary issue first in accordance with Section 79(3) of the Employment Equality Act, 1998. Consequently the respondent was asked to make a written submission on the issue of ‘grounds other than marital status’ and this submission was passed to the complainant for a response which was subsequently received. A joint hearing on this issue took place on 6th April, 2005. Additional information was received from the respondent on 28th April, 2005.
      
3. SUMMARY OF THE RESPONDENT’S SUBMISSION
   1. While this submission relates to ‘grounds other than family status’ the respondent states that it does not accept that ‘like work’ exists between the complainant and the named comparators.
   2. The respondent states that in 2002 on commencement of employment with the respondent organisation an entry rate of €7.54 per hour was payable in the following Departments:
      • Accommodation
      • General Services (day porters)
      • Restaurant
      • Kitchen
      • Bar
      • Conference and Banqueting
      The respondent states that starting rates varied depending on the difficulty in attracting experienced staff. Increases were generally awarded in line with the National Wage Agreements or in exceptional circumstances e.g. exemplary performance, additional responsibility, for retention purposes, etc. The respondent notes that the complainant and the two named comparators joined the organisation at approximately the same time in 2002 and were paid a rate of €7.54 per hour.
   3. The respondent states that the complainant commenced employment in June, 2002 as a member of the Food Service Personnel until her resignation on 13th December, 2002. Her hourly rate of pay was €7.54. For the duration of her employment the respondent says that the complainant served food in O’Dea’s Bar. She was contracted to work a five day week, 39 hours per week. Two shifts were in operation from 10.00a.m. to 6.00p.m. or from 3.00p.m. to 11.30p.m. During the complainant’s employment the respondent states that there were 20 Food Service Personnel employed in the same capacity as her of which 18 earned €7.54 per hour and 2 earned €9.00 per hour. The respondent notes that of the 18 employees who earned €7.54 per hour, 17 were without family status and one (the complainant) was with family status. Of the two persons earning €9.00 per hour one had no family status and the family status of the other is unknown. It is the respondent’s contention that rates of pay in the bar were clearly unrelated to family status and most employees were paid an hourly rate of €7.54 regardless of their family status.
   4. In relation to the two named comparators the respondent notes that one of the named comparators commenced employment with the respondent as a member of the Food Service Personnel in the restaurant on 15th April, 2002 earning a rate of €7.54 per hour. In October, 2002 her hourly rate of pay was increased to €9.38 per hour and she remained at this hourly rate until her resignation on 25th April, 2003. The respondent notes that this named comparator, like the complainant, had family status yet was on a different rate of pay. It is, therefore, the respondent’s contention that family status could not have been a factor in determining the pay for the complainant.
   5. The respondent states that the other named comparator commenced employment with the respondent organisation on 4th June, 2002. She was also a member of the Food Service Personnel and worked exclusively in the Potters Restaurant. This named comparator was contracted to work a five day week, 39 hours per week and there were two shifts in operation. According to the respondent this named comparator’s basic rate of pay was increased to €9.38 in October, 2002 and this remained her hourly rate until her resignation on 25th April, 2003. This named comparator had no family status whereas the complainant had family status.
   6. The respondent notes that during the complainant’s employment 24 full-time Food Service Personnel were employed by the respondent organisation, including the named comparators. Of the 24 Food Service Personnel:
      • 11 earned €7.54 per hour
      • 5 earned €9.00 per hour
      • 1 earned €9.11 per hour
      • 7 earned €9.38 per hour (including the two named comparators)
      According to the respondent no Food Service Personnel, other than supervisors, earned more that €9.38 per hour. Of the 11 personnel in the Restaurant on the same hourly rate as the complainant (€7.54 per hour), 10 had no family status. The family status of the eleventh person is unknown to the respondent. Of those personnel earning €9.00 per hour or more, seven had no family status, one is unknown and five had family status. The respondent says that the two named comparators, despite being of a different family status to each other, received the same rate of pay. It is the respondent’s contention that family status could not have been a factor in determining rates of pay in the restaurant.
   7. In conclusion the respondent states that rates of pay are not determined on the basis of family status and notes that this is immediately apparent from the breakdown of hourly rates according to family status, both in the restaurant and the bar. The respondent, therefore, asks the Equality Officer to reject this claim for equal pay.
      
4. SUMMARY OF THE COMPLAINANT’S SUBMISSION
   1. The complainant accepts that one of the named comparators had family status and that she does not constitute a comparator for the purposes of this claim for equal pay on the grounds of family status.
   2. It is the complainant’s submission that the respondent has failed to demonstrate that the differential in pay between the complainant and the one remaining named comparator is on grounds other than family status. According to the complainant the respondent has failed to identify such a ground. The complainant states that reference to statistics, demonstrating that some of those on higher rates of pay also had family status, are not conclusive of the matter. Rather it is the complainant’s contention that it may well be for no other reason than the named comparator’s lack of family status for her higher rate of pay. The complainant therefore asks the Equality Officer to reject the respondent’s argument that there were grounds other than family status for the difference in pay and proceed to determine the question of whether the complainant and the named comparator were engaged in ‘like work’.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. The issue for decision in this claim is whether or not there are grounds other than family status 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. By the complainant’s submission of 7th September, 2004 one named comparator (whom it was held had family status) was withdrawn. In this case the respondent does not accept that ‘like work’ exists between the complainant and the remaining named comparator in terms of Section 7 of the 1998 Act. I have decided to examine, as a preliminary issue in accordance with Section 79(3) of the 1998 Act, the arguments on grounds other than family status for the difference in pay between the complainant and the named comparator. In making my decision in this aspect of the claim I have taken into account the submissions, both written and oral, from the parties.
   2. The complainant commenced employment with the respondent organisation in June, 2002 as a member of the Food Service Personnel. For the duration of her employment she was assigned to O’Dea’s Bar and her rate of pay was €7.54 per hour. In this case the complainant has chosen to compare herself with a named comparator who was employed by the respondent organisation as a member of the Food Service Personnel assigned to the Potters Restaurant. On commencement of employment (in June, 2002) the named comparator had a rate of pay of 7.54 per hour which increased in October, 2002 to €9.38 per hour.
   3. The respondent, in its submission, has indicated that starting rates varied depending on the difficulty in attracting experienced staff and that increases were generally only awarded in line with National Wage Agreements but could be awarded in exceptional circumstances for example exemplary performance, additional responsibility, for retention purposes, etc. At the hearing of this claim the respondent indicated that reason the named comparator’s rate of pay increased in October, 2002 was because of performance. Following the hearing in this claim the respondent submitted performance reviews for the complainant and the named comparator. I note that the complainant’s performance review was in fact better than the named comparator. It should be noted that the performance reviews were undertaken by different supervisors. Furthermore a colleague of the named comparator received a similar performance review and was awarded a similar pay increase. Both these staff members had different family status. In the restaurant a total of 13 staff members were in receipt of a higher rate of pay to the complainant of whom five, like the complainant, had family status. On this basis I am satisfied that the difference in pay between the complainant and the named comparator was unrelated to their family status and I find that there are ‘grounds other than family status’ for the difference in pay between the complainant and the named comparator.
      
6. DECISION
   1. In view of the foregoing I find that the Great Southern Hotel, Dublin Airport did not discriminate against Ms. Siobhan Howe in relation to remuneration in terms of Section 29(5) of the Employment Equality Act, 1998.