FULL RECOMMENDATION
SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974 PARTIES : NATIONAL UNIVERSITY OF IRELAND, CORK (REPRESENTED BY RONAN DALY JERMYN SOLRS) - AND - 42 NAMED CLAIMANTS REPRESENTED BY THE SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Re-hearing arising from DEP021.
BACKGROUND:
2. A Labour Court hearing took place on the 7th April, 2006 and the 8th June, 2006, in accordance with Section 8 (1) A, of the Anti-Discrimination (Pay) Act, 1974. The following is the Court's Determiniation.
DETERMINATION:
This appeal by the University has come by way of remittance by the Supreme Court to this Court. The University had appealed this Court's original Determination DEP021, dated 28th January 2002, on a point of law to the High Court. The Determination was upheld but on appeal the Supreme Court allowed the University’s appeal of the Determination, and set aside the High Court Order.
The facts upon which the Supreme Court based its decision together with its findings set out are summarised in the headnote as follows:
- The appellant employed the respondents, all male workers, as security operatives. The respondents claimed discrimination against them in their rate of pay on grounds of gender in comparison with certain female workers chosen by them as comparators. The female workers were employed as switchboard operators, initially on a full-time basis. They subsequently switched to part-time work for family reasons, as a consequence of which they ceased performing part of their original duties. They retained their original rate of remuneration, equal to that of other switchboard operators.
Section 3(c) of the Anti Discrimination Pay Act 1974 provides that two persons shall be regarded as employed on like work where “the work performed by one is equal in value to that performed by the other in terms of the demands it makes in relation to such matters as skill, physical or mental effort, responsibility and working conditions”. Section 2(3) of the Act provides that: “Nothing in this Act shall prevent an employer from paying to his employees who are employed on like work in the same place different rates of remuneration on “grounds other than sex”. The Labour Court found the work performed by the respondents to be equal in value to that of the comparators and that there were no grounds within the meaning of s.2(3) justifying the pay differential. The appellant claimed the grounds on which the comparators retained the same rate of remuneration as other switchboard workers, namely family grounds, similarly justified the pay differential between the respondents and the comparators. It was submitted that the Labour Court had erred in law in not having regard to the position of the comparators in relation to the other switchboard workers. The High Court (Lavan J.) dismissed the appeal on a point of law.
Held by the Supreme Court (McCracken J.; Murray C.J., Denham, Hardiman and Geoghegan JJ. concurring) in allowing the appeal and remitting the matter to the Labour Court:
(1) Whilst matters of fact found by the Labour Court must be accepted by the court in any appeal from its findings, the relevance or admissibility of the matters relied on by the Labour Court in determining the facts was a question of law.
(2) The question raised by s.2(3) involved totally different considerations from those relevant to a comparison of like work. The Labour Court ought to have looked at the position of the comparators, not only in isolation, but also in the context of the remaining switchboard operators.
(3) The facilitating of family responsibilities might be a ground for discrimination in remuneration. The comparators were paid the same rate as other switchboard operators although they had fewer duties, on the grounds of facilitating the family obligations of the comparators. The Labour Court ought to have considered the question whether the difference in remuneration between the respondents and comparators might have the same basis.
There were no cases referred to in the Judgment.
The Supreme Court directed the Labour Court to reconsider the matter in the light of its findings in its judgment.
In the original complaint and in the first appeal to this Court both the Equality Officer and this Court found that the Security Services Officers were performing “like work” with the chosen comparators – two female job sharing switchboard operators, as provided for in section 2 and 3 of the Employment Equality Act, 1974. The University appealed this finding.
The Equality Officer found that the work of another chosen comparator – a female full time switchboard operator - overall was of greater value than the work of the Security Services Officers and therefore found that “like work” did not exist. This finding was not appealed to this Court.
This Court determined that the Security Services Officers had been discriminated against in relation to pay and held that different rates of remuneration between the complainants and the comparators were not justified on grounds other than sex.
From that finding, the University appealed first to the High Court and then to the Supreme Court.
The Supreme Court found that there was an error of law in the Labour Court’s findings. McCracken J.stated:
- “In particular, I consider that the Labour Court erred in not differentiating between the matters properly to be taken into consideration when considering the concept of “like work” under s.3(c) and those relevant to the determination of the grounds for differing remuneration under s.2(3).”
- “it quite clearly altered. The comparators worked shorter hours and did not have accounts duties. It is of course very significant that the Respondents did not choose any full-time switchboard operators as comparators, although they were paid the same remuneration as the comparators.”
- “the Labour Court ought to have taken into account the fact that the comparators were paid at the same rate as the full-time operators, although they did less work, and ought to have asked why this was so.Clearly that difference in remuneration was not based on grounds of sex but on grounds of a policy of facilitating the family obligations of the comparators. This being so, the Labour Court ought then to have considered the question whether the difference in remuneration between the Respondents and the comparators might have the same basis. The Labour Court failed to give any consideration whatever to the fact that the comparators worked shorter hours and lesser duties than their full-time colleagues.”
- “it should be emphasised that the facilitating of family responsibilities is not something which is confined to female employees. It seems to be clear that it may in itself be a ground for discrimination in remuneration.”
In the light of these findings the complaint was remitted to this Court to consider the matters outlined by the Supreme Court in its Judgment.
The University’s case
The University submitted that the Labour Court must reconsider the matter in the light of the findings of the Supreme Court and overturn the Decision of the Equality Officer, EPO9/1999 and make a finding that the University has not been guilty of any breach of the Anti Discrimination (Pay) Act, 1974.
The University submitted that it is quite clear that the difference in remuneration between the Security Services Officers and their chosen comparators is not on grounds of sex but rather as a result of the University’s laudable attempt to enable its employees – including its male employees – to job-share in order to facilitate their family responsibilities in a way that will not cause them undue financial detriment. Rather than forming the basis of a claim of unlawful unequal pay, Counsel for the University submitted that it should be commended and encouraged.
Furthermore, Counsel for the University stated that this policy of facilitating family responsibilities without causing undue financial detriment is also evidence of objective justification of any indirect discrimination on grounds of sex.
Counsel for the University cited three cases in support of its position:
Hill and Stapleton v Revenue Commissioners and Department of Finance [1998] ECR 1- 03739,wherein it was accepted that 70% - 80% of job-sharers are women who avail of such working arrangements for family friendly reasons.Marie Inoue v NBK Design Ltd [2003] 14 ELR 98was also cited. In this case the Labour Court decided that Ms. Inoue (a part-time worker) was discriminated on gender grounds, when she was dismissed for refusing to undertake full time duties, as it would impact on her family responsibilities. The University did not contend that a failure to facilitate job-sharing arrangements could not constitute discrimination on the grounds of gender. It merely stated that the main reason for people seeking job-sharing arrangements was to allow them to take increased responsibility for their families.
Counsel for the University also contended that the Supreme Court’s judgement meant that the decision inWilson v Irish Steel[1999] ELRI,where the High Court held that a complainant could chose his or her own comparator has been overruled. Counsel contended that complainants cannot willy-nilly choose a comparator, they must have regard to the comparators“not only in isolation, but also in the context of the other persons in the same grade who had not been chosen as comparators”.
Witness evidence was given on behalf of the University by Ms. C, Supervisor of Switchboard operator for the period. She explained that in 1991 the University had a policy on job-sharing which was available to junior administrative staff and which allowed staff to avail of job-sharing arrangements in order to facilitate family rearing responsibilities. Ms. C was of the opinion that it was only women who availed of these arrangements and she explained that granting the job-sharing arrangements to the two operators “was a huge concession at the time”.She explained that in 1996 the University introduced a Job-Sharing Policy for reasons other than family responsibilities.
Ms. C explained that in 1998, due to the University’s operational requirements, it was decided to extend the operating hours of the switchboard, from 9.15am to 5.00pm to the longer operating times of 8.00am to 6.30pm. At the time the University sought volunteers to work the extended hours on a rostered basis while still retaining their normal weekly working hours of 32.9 hours per week. Ms. C told the Court that all full time operators willingly volunteered for the new working arrangements, as the new roster suited them. Therefore, the new rosters devised were as follows:
Full Time Switchboard Operators
8.00am - 3.45pm
9.00am - 4.45pm
9.15am - 5.00pm
10.45pm – 6.30pm
•70 minutes for lunch
•normal working hours 32.9 per week
•roster changes on a weekly basis
•accounts duties carried out on 10.45pm – 6.30pm roster only
Job Sharing Switchboard Operators
9.15am - 5.00pm
•70 minutes for lunch
•normal working hours 32.9 per week divided by two persons
•week commences on Wednesday and finishes on Tuesday for each job sharer
Ms. C explained that the most popular rosters were the early rosters, those commencing at 8.00am, 9.00am and 9.15am. Furthermore, as the late roster (commencing at 10.45am) was unpopular among the operators, therefore the University decided to allocate the accounts duties to this roster. These duties were popular with the switchboard operators as it took them away from the phones at those times.
The job-sharing switchboard operators indicated that it would not be possible for them to work the new extended hours due to their family commitments. Ms. C explained that the University honoured their special working arrangements and did not require them to change to the extended hours roster. However, the job-sharing operators were unhappy with the withdrawal of the accounts duties, and the Union on their behalf raised the issue with the University. The matter was eventually resolved after it was referred under the Industrial Relations Act, 1990, to the Labour Relations Commission (LRC). An agreement on the matter reached at the LRC provided that the job-sharing switchboard operators would accept that they would not be required to carry out the accounts duties; however, in the event that they reverted to full-time hours, they would be included in the newly devised roster and carry out accounts duties.
The Respondent contended that this change did not impact on the job-sharing comparators. They were retained on their existing pay, although due to their non-availability for the extended hours, they were deprived of the accounts duties and consequently changed the relationship with their full time counterparts as henceforth they were on different conditions of employment.
Ms. C. gave details to the Labour Court of the job sharing policy in place at the time. Once an application was received, the job was assessed in terms of its suitability and sanction was sought from the University. If considered suitable, then the applicants were given permission to share that job. The arrangement would then be put in place for a trial period of twelve months. Once the trial period expired and full sanction granted by the University, the staff members were entitled to work on the job-sharing arrangement indefinitely.
The Union’s Case
Counsel on behalf of the Union contended that the Supreme Court was incorrect when it held that the relationship between the job-sharing operator and the full-time operator altered when the comparators opted to job-share. Counsel maintained that while the hours of work altered for the comparators, they were employed to carry out the same tasks as the full-time operator and the fact that they were no longer required to carry out accounts duties did not amount to a qualitative change in their employment status.
Counsel further contended that it is the sole prerogative of the complainant to choose their comparators. The Supreme Court was not correct when it held that the complainants did not choose a full-time switchboard operator as a comparator.
The University’s Job Sharing Arrangement 1996 policy document does not restrict job-sharing to those who wish to avail of it for family reasons only; it is neutral on the matter and it is open to everyone to apply, regardless of family commitments or gender. Counsel for the Union contended that the scheme in its application cannot discriminate and therefore cannot be a cause for discrimination in remuneration.
Counsel also stated that the decisive factor that separates the full-time switchboard operator from the job-sharing operator is the requirement to do the accounts duties; however, it pointed out that these duties were given by way of an inducement for operating the late roster and were not based on any family-friendly reasons.
Furthermore, Counsel submitted that the Supreme Court had directed the Labour Court to have regard to the full-time operators and their relationship with the job-sharing operators, and not that the Court must compare full-time operators with the complainants - Security Services Officers.
Counsel disputed the finding made by the Supreme Court that the relationship between the job-sharing operator and the full-time operator altered when the comparators opted to job-share in 1992. He stated that while the working arrangement became a job-sharing one, the comparators were carrying out the same tasks as the full-time operator and working the same daily hours, and it was not until 1998 that the position changed.
Findings of the Labour Court
In its Judgment the Supreme Court stated that the test under Section 3(2) was in essence a two-tier test:
(i) Was there like work between the Security Services Officers and the job-sharing switchboard operator and was there a difference in remuneration between them?
Like work and the correct comparator
As the Supreme Court did not refer to any cases it must in consequence be taken that the Supreme Court did not overrule any previous decision in either its own jurisprudence or in that of the High Court.In the view of this Court, it did not overturn the previous findings of the High Court in theWilton Steel Caseand the finding of the ECJ in C-129/79Macarthys Ltd v Smith[1980] IRLR 210to the effect that a person may choose their comparator. The latter case found the rationale for the use of a comparator in a claim for equal pay is to provide an evidential basis on which to establish the value which an employer places on a particular job when it is performed by a person having a different gender to that of the complainant. It is clearly a matter for the complainant to chose the evidential basis upon which to ground his or her claim and to have their case decided on the basis of that evidence is subject to whatever defence may be mounted by the Respondent.
A complainant is entitled to choose the person or persons with whom they claim to be engaged in like work. This proposition was set down in emphatic terms by Kilner-Brown J inAinsworth (appellant) v. Glass Cubes and Components Ltd (respondent)[1977] IRLR 74 when he stated: -
- “In other words, in broad terms, the Industrial Tribunal was choosing the person with whom to make the comparison as to whether or not there was like work and ignored the proposition put forward by the applicant that it was another person with whom comparison should be made in assessing whether or not there was like work. This is so obviously a misdirection that it is unnecessary to deal with the matter in any further detail”.
The reasoning of Kinler-Brown J. was followed in this jurisdiction by O’Sullivan J. inWilton v Steel Company of Ireland 3[1999] ELR 1 and is consistent with the decision of theMacarthys Ltd case. There is nothing in the Judgement of the Supreme Court which could, as a matter of law, be construed as authority for the proposition that in ascertaining whether or not like work exists a Respondent or the Court can substitute a comparator of its choosing for the person chosen by the complainant.
The Supreme Court upheld the finding of this Court that there was like work, but it held that when considering whether there might be grounds other than sex, the Court should take cognisance of all the surrounding circumstances and in this case the reasons why the job-sharing switchboard operators were retained on the same rate of pay as the full-time telephone operators who were found not to be engaged on like work.
The Burden of Proof
The plea of grounds other than sex is a defence and must be proved by the Respondent.
The Burden of Proof Directive is quite clear on this point. Where men and women are engaged in like work for unequal pay there is prima facie discrimination and it for the Respondent to prove the contrary (seeFlynn v Primark[1997] ELR 218).
The Respondent must show that the difference in pay is genuinely attributable to the gender neutral ground relied upon. This was also made clear by Keane J. (as he then was) inMinister for Transport, Energy and Communications v Campbell and others,when he said he following: -
- "Secondly, the onus rests upon the employer. It is for him to satisfy the Labour Court that the practice he seeks to uphold is based on grounds other than sex. Thirdly, as held by Lynch J in Irish Crown Cork Co. v Desmond and others [1983] ELR 180, the Labour Court are entitled and indeed bound to approach such an issue on the basis that the employer must prove that the differentiation is genuinely attributable to grounds other than sex. In other words, the subsection cannot be used to uphold a practice which seeks to conceal discrimination on sexual grounds."
It is against those general principles that the Court has considered the respondent's submissions on the applicability in this case of Section 2(3) of the Act.
Grounds other than sex.
The essential point in contention in this case is whether the difference in pay between the complainants and their chosen comparators is based on grounds other than the sex. That, as the Supreme Court pointed out, can require a different approach than that used to determine the existence of like work.
Section 2(3) of the Act of 1974 provides what is essentially a defence to a claim for equal pay where it is established that a woman and a man are engaged in like work. It is, however, clear that an employer seeking to rely on that defence must prove that the differentiation is genuinely attributable to grounds other than sex (SeeIrish Crown Cork Co. v Desmond and Ors. [1983] ELR 180). This requires that the respondent establish to the satisfaction of the Court the actual reasons why the comparators are paid at a higher rate, that those reasons are genuine and that they do not apply in the case of the complainants.
The defence is different to that of objective justification for indirect discrimination where it is pleaded that there are countervailing factors of such a nature as to justify or excuse a practice which has a discriminatory effect.
In its original determination this Court when considering whether there were grounds other than sex for the difference in pay stated:
- "The Court is satisfied that the terms and conditions of employments for the comparators remained the same, both before and after the introduction of job-sharing arrangements. Therefore, the Court is satisfied that the argument that a difference in pay between the pay of the appellants and the comparators is based on grounds other than sex does not hold up - staying in the same job on the same terms does not constitute grounds other than sex. The fact that some employees in the same grade have different duties is of no relevance. The Union has chosen them as valid comparators.
It was the University who insisted that the job-sharers did not carry out the accounts duties. Their different hours of work may mean that their working conditions under Section 3(c) are somewhat different, but overall their duties are similar.
The Court does not accept these arguments as valid arguments under Section2 (3)and finds that the appellants were directly discriminated against."
However, the Supreme Court appears to have taken the view that this passage does not sufficiently indicate that the Court properly considered the concept of grounds other than sex as distinct from that of like work. McCracken J. stated
- "In particular, I consider that the Labour Court erred in not differentiating between the matters properly to be taken into consideration when considering the concept of “like work” under s.3(c) and those relevant to the determination of the grounds for differing remuneration under s.2 (3) ."
He went on to state:
- "On one view the comparators ought to have been paid less than the full-time switchboard operators, but the reason for not doing so is because of the generally accepted view that an employer should make due allowances for family responsibilities and should actively encourage initiatives such as job sharing without penalising those who benefit from such initiatives. This is not a matter which was considered at all by the Labour Court in the context of whether there was discrimination on the grounds other than sex, and it should be emphasised that the facilitating of family responsibilities is not something which is confined to female employees. It seems to be clear that it may in itself be a ground for discrimination in remuneration."
Findings
It is accepted that the work performed by the complainants and the job-sharing comparators are of equal value. The job-sharing comparators are paid the same rate of pay as full-time switchboard operators. The latter have been assessed by the Equality Officer as doing work of greater value than the complainants; this finding has not been challenged by the Union. However, the Respondent stated that there are reasons why the job-sharing operators are paid a higher rate than the complainants:
-the special arrangements put in place for the job-sharing operators led them to being relieved of certain tasks,
-they are in unique position in that the contents of their job are specific to the two named individuals; and
-the reason why they were allowed to work different rosters and undertake fewer duties than their full-time counterparts was solely because of their family responsibilities.
The Court accepts that the sole reason for their retention on their rate of pay (Administrative Grade 2) with different rostering arrangements and fewer duties was to respect the arrangement entered into by the University and the job-sharing comparators to enable them to fulfil their family responsibilities. The Respondent submitted that male workers are facilitated in a similar way (i.e. in relation to changing hours of work) without a reduction in pay, when special arrangements arise. Furthermore, the Court is satisfied that in the event that the comparators were no longer in need of these special arrangements to cater for family commitments, they would be required to work the same arrangements as the full-time operators.
Therefore, the job sharing switchboard operators maintained the same rate of pay as the full-time operators despite not being engaged on work of equal value. It follows by analogy that the reason for the difference in the rates of pay between the job-sharing switchboard operators and the full-time security officers was based on grounds other than their respective genders.
The Court also accepts the Respondent’s contention that to alter their rate of pay for effectively availing of different arrangements in order to fulfil their family responsibilities would not have been acceptable from an industrial relations perspective with the Union and its members.
Determination
The Court’s finding having been made, the Complainant's claim must fail on the basis that there are grounds other than sex for the difference in remuneration.
The appeal is allowed and the finding of the Equality Officer is overturned.
Signed on behalf of the Labour Court
Caroline Jenkinson
31st_October, 2006______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.