Ciara O' Brien
(represented by the National Union of Journalists)
-v-
ComputerScope Limited
1. CLAIM
1.1 The case concerns a claim by Ms. Ciara O' Brien that ComputerScope directly discriminated against her on the grounds of gender and age in terms of section 6(2)(a), and (f) of the Employment Equality Acts 1998 and 2004 in contravention of sections 19 and 29 in relation to her pay. The complainant also claims that she was victimised within the meaning of section 74(2) of the Acts.
2. BACKGROUND
2.1 The complainant claims that she was not paid commensurate with her position as an Assistant Editor and was paid less than two older male colleagues for doing like work. The respondent submits that the issue of like work with one of the comparators is not in question, however the issue was superseded by market conditions and the company's financial situation. The respondent disputes the complainant's claim of like work with the other named comparator. The respondent also denies that it victimised the complainant by not offering her freelance work.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of Equality Investigations on 6 January 2005. On 3 April 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. The case had previously been assigned to another Equality Officer. Submissions were received from the complainant on 26 August 2005 and on 6 October 2005. Submissions were received from the respondent on 24 August 2005 and on 15 May 2006. A joint hearing of the claim was held on 12 July 2006.
3. SUMMARY OF THE COMPLAINANT'S FIRST SUBMISSION
3.1 The complainant was employed as a Staff Journalist in February 2002. In April 2002, she filled the position of Assistant Editor on a trial basis. In February 2003, she was appointed as Assistant Editor of PC Live and Smart Company magazine. She held the post until she was made redundant in November 2004. The complainant has a dedicated third level qualification in journalism and her experience includes work with a national newspaper. She also has the specialised technical skills of a sub editor.
3.2 The complainant claims that she was not paid commensurate with her position and was paid less than two older male colleagues for doing like work. The complainant claims equal pay with two male comparators, Mr. JC who was Assistant Editor of ComputerScope and Mr. CT who held the position of Assistant Editor of PC Live! before her.
3.3 Whilst the respondent is citing business reasons for paying the complainant less than her former colleagues, a 10% pay rise was given to a majority of NUJ members in June 2004 and the company invested in new technology.
3.4 The complainant submits that the respondent sought to intimidate the complainant into dropping her case by using her colleagues to put pressure on her. Notes of a meeting between Mr. D (Editor of ComputerScope) and Mr. Q (Chairman of the respondent) on Friday 5 November 2004 which were recorded by Mr. D were made available. The notes indicate that Mr. D, the Editor of ComputerScope magazine was asked by Mr. Q to "use whatever influence he had to convince her not to proceed." The notes also indicate that Mr. Q, the Chairman of the respondent also described the complainant as a "silly girl". The complainant submits that she has also not been offered any freelance work with the respondent since her redundancy yet the comparators have.
3.5 The complainant claims like work with Mr. CT as she carried out all the work that he did when he was Assistant Editor of PC Live!. Both were employed under the same conditions and carried out the same duties in relation to PC Live! except that the complainant also sub-edited.
3.6 The complainant claims work of equal value with Mr. JC in that the complainant and the comparator were both employed as Assistant Editors of magazines. The complainant was assistant editor of PC Live!, a technology magazine aimed at home users and Smart Company, a technology magazine aimed at small business whereas the comparator worked on ComputerScope, a technology magazine aimed at the corporate sector. The complainant also micromanaged LIVE!, a digital lifestyle magazine incorporated into PC Live magazine and she wrote for the careers section of ComputerScope. The comparator edited Channels magazine, a trade supplement to ComputerScope magazine.
4. SUMMARY OF THE RESPONDENT'S FIRST SUBMISSION
4.1 When the complainant was offered the position of Assistant Editor, it was on the clear understanding that the rate of pay for the position had changed, primarily due to the difficult trading conditions within the technology media sector and of the resulting financial constraints on the respondent.
4.2 The respondent disputes like work with Mr. C. Mr. C worked as both assistant editor of the corporate computing magazine ComputerScope and editor of the trade publication Channels. The journalistic skills and experience for both those positions clearly exceed those for the position of working on a consumer title which was the complainant's role.
4.3 The respondent submits that the issue of like work with Mr. T is not in question, however the issue has been superseded by market conditions.
4.4 In relation to the issue of grounds other than gender and age, in the period between Mr. T's and the complainant's filling of the Assistant Editor's role on PCLive!, the consumer technology advertising market had deteriorated dramatically. Audited accounts for the respondent show that at end 2001, the company had accumulated losses which by end 2002 had increased and had further increased by end 2003.
4.5 Market conditions at the time contributed significantly. Consumer technology advertising budgets, the mainstay of PC Live! had been on a continuous decline following the technology industry slowdown of the early 2000's. The company's primary responsibility was to stay in business and protect the employment of all its staff. The company adopted a pay freeze along with curtailment and subsequent deferment of directors' salaries. These cost control measures subsequently led to a number of roles being made redundant including the complainant's role. As of the present date, the role of Assistant Editor has not been reinstated.
4.6 Between January 2002 and February 2003, severely deteriorating market conditions dictated that the remuneration for the role of Assistant Editor had changed. While a pay freeze was in operation, the complainant understood and accepted that her acceptance of the role in February 2003 did not attract a pay increase over the position of Staff Journalist.
5. SUMMARY OF THE COMPLAINANT'S SECOND SUBMISSION
5.1 The respondent claims that the complainant accepted the position of Assistant Editor on the understanding that a salary increase was not possible due to a pay freeze. The complainant does not dispute that the complainant received an e-mail which stated "As we discussed, our present pay-freeze does not allow for any revision in salary, ..." but reassert the fact that this does not negate the complainant's rights under the Act.
5.2 Prior to the complainant's employment in August 2001, the respondent introduced a 10% pay cut to all salaries. At that time, staff were told that due to financial difficulties, their salaries would be reduced. It is important to note that salaries or rates for the job were frozen prior to the complainant's employment. However, upon her appointment to the position of Assistant Editor, the complainant did not receive the new "frozen" rate of €26,300 for the job but received the rate associated with the position of Staff Journalist. In January 2002, when Mr. CT, her predecessor, was appointed, the frozen rate for the job was €26,300. In February 2003, the complainant was paid €20,300 for doing the same job.
5.3 During the pay freeze, in February 2002, Mr. CT was appointed as Assistant Editor of PC Live! and his salary was adjusted to €26,300. This salary of €26,300 was the rate post August 2001 and reflected the 10% pay cut. Mr. CT was promoted again in March 2002 to the position of Editor with NUA and again, his salary was increased accordingly. The complainant was the only person whose salary remained at the level of a lower position upon promotion and no other member of the editorial staff was paid in this manner. Therefore, the company pay freeze does not provide objective grounds for the complainant's inequality in pay but supports her claim of discrimination.
5.4 The respondent stated in an e-mail dated 19 February 2003 that "Our present pay freeze does not allow for any revision in salary, however, we will review this if market conditions improve." The respondent reversed the pay freeze in June 2004 and reinstated the salaries of those who had suffered a pay cut in 2001. However, the complainant's salary was not adjusted at that time.
5.5 The complainant was paid less than her two older male colleagues for doing like work. She was told that this was because of a company pay freeze. However, the pay freeze only affected her salary. She was paid the rate of pay of a Staff Journalist for doing the work of an Assistant Editor. In contrast, Mr. CT was not kept at the rate of Staff Journalist when he was promoted to Assistant Editor. His salary was adjusted to reflect his position and the extra responsibilities of the job. Mr. JC was employed as Assistant Editor subsequent to the complainant's appointment and he was not paid the rate of pay of a Staff Journalist for the job either. The complainant who was the was the youngest and only female member of staff was the only person who was not paid commensurate to their position in the Editorial Department.
5.6 The poor trading position did not affect the purchase of new equipment. All staff in editorial received new laptops during the period of the pay freeze. New desktop machines were bought for certain members of staff and Mac G5's were bought for the production staff. Car allowances were also paid at this time and these represented a significant cost to the company. The respondent also paid for both Christmas parties during the period in question. The poor trading position only affected the complainant and therefore amounts to discrimination under the Act.
6. SUMMARY OF THE RESPONDENT'S SECOND SUBMISSION
6.1 The respondent submits that the complainant's claim of victimisation is not justified. It submits that no contracts for freelance work existed with any contributor and there was no obligation on the company to allocate work based on any prior relationship. Such work was sourced based on the experience and ability of the contributor. In this case, both comparators were more experienced journalists than the complainant and therefore, there was no implication that the respondent was victimising her by not commissioning freelance work.
6.2 Mr. D did not intimidate the complainant into withdrawing her claim. He suggested that he would talk to the complainant with a view to explaining (a) the seriousness of the company's financial situation and (b) the lack of options open to the business regarding pay claims. He reiterated that he did not encourage or support her claim and agreed that it was unhelpful in maintaining the viability of the business.
7. CONCLUSIONS OF THE EQUALITY OFFICER
7.1 In this case, the complainant alleges that the respondent directly discriminated against her on the gender and age grounds in relation to her pay. I must consider whether the respondent directly discriminated against the complainant on the gender and age grounds in terms of section 6(2)(a) and (f) of the Employment Equality Acts 1998 and 2004 in contravention of sections 19 and 29 of the Acts. I must also consider whether the complainant was victimised within the meaning of section 74(2) of the Acts. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Discrimination on the various grounds
7.2 Section 6(1) of the Employment Equality Act, 1998 and 2004 provides that:
"..... discrimination shall be taken to occur where-
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as "the discriminatory grounds"), ......."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as the "gender ground"),
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground"),
7.3 The Labour Court has stated in relation to the Burden of Proof in a case concerning gender and age discrimination:
" The allocation of the probative burden in discrimination cases is now determined by Section 85A of the Employment Equality Acts 1998 and 2004. This section gives legislative effect in domestic law to Directive 97/80 on the burden of proof in cases of gender discrimination and to Article 10 of Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Education.
This Section provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be presumed, it is for the Respondent to prove the contrary." (1)
I will firstly deal with the burden of proof in relation to the pay claim. At the time of her appointment to the position of Assistant Editor in February 2003, the complainant was twenty three years old. She submitted that the two male comparators were over thirty years old and this was later verified by the respondent. Whilst the respondent disputes that like work existed between the complainant and Mr. JC, it did not dispute like work between the complainant and Mr. CT, her predecessor as Assistant Editor of PC Live!. It is therefore not in dispute that the complainant and Mr. CT were engaged in like work and that the complainant received less pay than Mr. CT, her predecessor in the post who was older and male. I consider that the complainant has therefore established a prima facie claim of discrimination on the gender and age grounds in relation to her pay. I must therefore proceed to consider whether the respondent can rebut the complainant's claim.
7.4 Whilst the respondent does not dispute that the complainant was engaged in like work with Mr. CT who held the post of Assistant Editor of PC Live! prior to the complainant, it submits that there are grounds other than gender and age for the difference of pay. The Labour Court has stated "An employer, seeking to rely on this defence, must prove that the difference in pay is genuinely attributable to "grounds other than sex" (see Irish Crown Cork Co. v Desmond and Ors. [1983] ELR 1780). This requires that the respondent must establish to the Court's satisfaction that the reasons for paying the comparator the particular rate of pay are genuine, and that they do not apply in the case of the claimants. The Court must also be satisfied that there is objective justification for the difference in pay, and that the justification is not just historical but is also relevant at the date of the determination (see Flynn v Primark [1977] ELR 218. (2)" The respondent in this case submits that "severely deteriorating market conditions dictated that the remuneration for the role of Assistant Editor had changed, primarily due to the difficult trading conditions within the technology media sector, and of the resulting financial constraints on ComputerScope Ltd." I must consider whether the reason submitted for the difference in pay by the respondent is objective and unrelated to the complainant's gender and/or age.
7.5 An e-mail sent to the complainant by the Chairman of ComputerScope Ltd dated 19 February 2003 confirming her appointment as Assistant Editor states "As we discussed, our present pay freeze does not allow for any revision in salary, however we will review this if market conditions improve." The Chairman of the respondent, Mr. Q gave evidence at the hearing that a pay reduction of 10% to address difficult trading conditions began in August 2001 and ended in June 2004 when the company re-instated the salaries of those who took a 10% reduction. In relation to the reason why the complainant's salary was not reviewed when the pay freeze ended, he submitted that the company was still losing money and was not in a position to do so.
7.6 In January 2002 when Mr. CT was appointed as Assistant Editor of PC Live!, he was paid a salary of €26,300 which the complainant submitted was the rate post August 2001 and reflected the 10% pay cut. He was subsequently promoted to the position of Editor of NUA in March 2002 with a salary of €28,284. On both promotions, his salary was not frozen at the rate for the job which he previously held. At the hearing, the Chairman submitted that in relation to Mr. CT's first promotion to Assistant Editor, his salary reflected "his different level of skill and ability" and in relation to his second promotion, stated that Mr. CT was promoted to "a completely different job with a different salary attached."
7.7 In relation to skill, it does not appear that any minimum skill level was specified for appointment to the post of Assistant Editor of PC Live! and there was a lack of transparency in relation to skill as an element of remuneration. The European Court of Justice has stated "It follows that genuine transparency, permitting an effective review is assured only if the principle of equal pay applies to each of the elements of remuneration granted to men or women." (3) In relation to setting starting salaries, the European Court of Justice in the Brunnhofer case considered, inter alia, the issue of the effectiveness of an employee's work relative to that of a colleague in relation to the question of objective justification for the difference between a woman's and a man's pay. It stated "......, it follows from the foregoing that circumstances linked to the person of the employee which cannot be determined objectively at the time of that person's appointment but come to light only during the actual performance of the employee's activities, such as personal capacity or the effectiveness or quality of the work actually done by the employee, cannot be relied upon by the employer to justify the fixing, right from the start of the employment relationship, of pay different from that paid to a colleague of the other sex performing identical or comparable work." (4) Therefore as a person's ability can only be assessed after they commence working in the post, it cannot be used as a basis for a starting salary in a new position. It does not appear that the complainant's ability in the job was an issue during her employment. I note that an e-mail sent by the Chairman to everybody in the company dated 4 March 2002 states "Ciara has been doing a fine job in a short space of time and I have no doubt will be ready in six months or so to fill [Mr. CT's] present role as assistant editor." Indeed, the complainant was not told at the time of her appointment to the Assistant Editor's position that the non payment of salary commensurate with the post was due to her skill and ability but was told that the pay freeze did not allow for any revision in salary.
7.8 In the respondent's submission to the Tribunal received on 24 August 2005, it stated "Between January 2002 and February 2003, severely deteriorating market conditions dictated that the remuneration for the role of Assistant Editor had changed. While a pay freeze was in operation, Ciara understood and accepted that her acceptance of the role in February 2003 did not attract an increase over the position of Staff Journalist." I note that one month after the complainant's appointment to the post of Assistant Editor, Mr. CT was appointed to the position of Editor of NUA with a revised salary. The respondent's submission that the complainant accepted that her new role did not attract an increase in salary is irrelevant as it is not possible to contract out of the requirements of the Employment Equality Acts 1998 and 2004.
7.9 In the e-mail dated 19 February 2003 and referred to at paragraph 7.5 above, the respondent undertook to review the issue of the complainant's salary if market conditions improved. Salaries of employees who took a pay reduction of 10% in August 2001 had their salaries revised upwards in June 2004; however, it appears that the complainant who incurred a reduction or pay freeze in the region of 30% of the salary of Assistant Editor of PC Live! on appointment to the post did not have her pay revised. The Chairman of the respondent in his evidence at the hearing stated that the company was still losing money and was not in a position to pay the complainant a revised salary. The Chairman accepted the complainant's statement that during the period of the pay freeze, the respondent invested in new technology. Based on the evidence presented, I am not satisfied that the difference in pay between the complainant and Mr. CT, her predecessor in the post of Assistant Editor of PC Live! was genuinely based on a pay freeze. I find that there is no objective justification for the difference in pay and I find that the respondent has failed to rebut the complainant's claim of discrimination on the gender and age grounds in relation to her pay.
Claim of victimisation
7.10 Section 74(2) of the Employment Equality Acts 1998 and 2004 provides, inter alia, that "victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by the employee to the employer.
(b) any proceedings by a complainant.
(c) an employee having represented or otherwise supported a complainant.
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act.
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act of 2000 or which was unlawful under any such repealed enactment.or
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment. or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs."
7.11 The first issue for consideration by me is whether the complainant in the present case has adduced sufficient evidence to show that she was treated in an adverse manner by the respondent as a reaction to doing any of the actions listed in (a) to (g) of section 74(2). The complainant submits that the respondent sought to intimidate her into dropping her claim. She submits that the Editor of ComputerScope magazine was instructed by the Chairman of the respondent to convince her not to proceed with her claim before the Equality Tribunal. In support of her claim, the complainant submitted an e-mail from a Senior Journalist, Mr. D dated 25 February 2005 to the complainant detailing the record of a conversation that Mr. D had with the Chairman of the respondent on 5 November 2004. The notes refer to the Senior Journalist in question being asked to use whatever influence he had to convince the complainant not to proceed. The respondent in its written submission to the Tribunal on this matter refers to Mr. D suggesting at the meeting with the Chairman that "he would talk to Ms. O' Brien with a view to (a) explaining the seriousness of the company's financial situation and (b) the lack of options open to the business regarding pay claims." Whilst I did not hear direct evidence from Mr. D on the matter, the company is not disputing that the complainant was spoken to regarding her pay claim. I note in a letter dated 30 November 2004, the Managing Director of the company states "We would like to point out that we have already replied to ODEI.3. ODEI.3 was handed to me on the 4th November 2004, by you, during a meeting with Ciara O' Brien whereby we were sorting redundancy settlement and accompanying papers." In the first of the ODEI.3 forms provided to the respondent, the complainant refers to the rate of remuneration afforded to her being unlawful contrary to the Employment Equality Act, 1998. I find that the complainant was treated in an adverse manner by her employer as a reaction to raising the issue of equal pay. I therefore uphold the complainant's claim of victimisation in relation to being intimidated by Mr. D on behalf of the respondent to withdraw her claim.
7.12 In relation to offers of freelance work by the respondent, the respondent agreed that it offered freelance work to the comparators since they ceased work. The Chairman of the respondent submitted that a decision to offer freelance work is based on ability and experience and that the other people offered work were more experienced and were "simply working in the business longer." It must be borne in mind that any assessment of potential job applicants or offers of work made on the basis that the persons selected are simply working in the business longer may be indirectly discriminatory on the age ground. It was not submitted by the respondent that there was a problem with the complainant's ability and on the contrary and as referred to at paragraph 7.7 above, she was commended for her good work. The respondent did not submit that a particular type or level of experience was necessary to be considered for freelance work and it did not demonstrate transparency in the offering of freelance work. On the balance of probability, I find that the complainant was victimised by the respondent in not offering her freelance work.
7.13 In considering redress for victimisation, I have considered that any award must be dissuasive and that victimisation is totally unacceptable as it has the potential to undermine the effectiveness of the equality legislation.
8. DECISION
8.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground and age grounds in terms of section 6(2)(a) of the Employment Equality Acts 1998 and 2004 contrary to sections 19 and 29 in relation to her pay.
8.2 I also find that the complainant was victimised within the meaning of section 74(2) of the Act in relation to offering her freelance work.
8.3 In accordance with section 82(1) and (5) of the Employment Equality Acts 1998 and 2004, I hereby order that the respondent:
(i) pay to the complainant the same rate of remuneration as that paid to the comparator Mr. CT for the period 19 February 2003 until November 2004;
(ii) pay the complainant the sum of €5,000.00 compensation for the effects of the discrimination. (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income and is not therefore subject to tax);
(iii) pay the complainant the sum of €10,000.00 compensation for the effects of the victimisation. (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income and is not therefore subject to tax);
(iv) pay the complainant interest at the Courts Act rate in respect of half of the amount of the compensation referred to at paragraph (i) above in respect of the period beginning on 19 February 2003 and ending on the date of payment and in respect of half of the amount referred to at paragraph (ii) above beginning on 19 February 2003 and ending on the date of payment;
(v) draft an Equal Opportunities Policy to take account of the provisions of the Employment Equality Acts 1998 and 2004.
_______________________
Mary Rogerson
Equality Officer
1 August 2006
notes
(1) Concern v. Anthony Martin EDA0518 14 December 2005
(2) Roches Stores v. Mandate Determination No. DEP013 29 November 2001
(3) Jamstalldhetsombudsmannen v. Orebro lans landsting Case C-236/98 para 54
(4) Susanna Brunnhofer v. Bank der osterreichischen Postsparkasse AG Case C -381/99 26 June 2001 para 76