EMPLOYMENT EQUALITY ACTS, 1998-2004
EQUALITY OFFICER'S DECISION NO: DEC-E2007-021
PARTIES
Mr. Pat McManus
(Represented by Bourke & Co. Solicitors)
vs
Diageo Ireland Limited
(Represented by Arthur Cox Solicitors)
SUMMARY (1)
Mr. McManus (complainant) Represented by Bourke & Co. Solicitors vs Diageo Ireland Limited (respondent) Represented by Arthur Cox Solicitors:
Equality Officer Decision DEC-E2007-021 (Coyle G.) 26th April, 2007
Employment Equality Acts, 1998-2004 Sections 7 and 19(5) - Employment - Equal Pay - Grounds other than gender - Red Circling
Background:
The complainant alleges that he is being discriminated against in relation to pay in circumstances where he carried out 'like work' with three named female comparators but is paid less than each of the named female comparators. The respondent accepts that the complainant and the named female comparators perform 'like work' with each other. However the respondent argues that there are 'grounds other than gender' in terms of Section 19(5) of the Employment Equality Acts, 1998-2004 for the difference in pay between the complainant and the named female comparators.
Conclusions and Decision:
The Equality Officer upheld the respondent's submission that two of the named female comparators were 'red-circled' i.e. at a higher grade in the organisation but assigned to lower graded work on a personal basis. The Equality Officer also upheld the respondent argument that the third named female comparator, who was at the same grade as the complainant, was in receipt of a higher salary because of her longer length of service in the grade as opposed to her gender. It was, therefore, the Equality Officer's conclusion that there were 'grounds other than gender' for the difference in pay between the complainant and the three named female comparators in accordance with Section 19(5) of the Employment Equality Acts, 1998-2004.
Cases Cited:
Equality Officer Recommendation:
EP 03/1996 - Ms. Denise Wilton v Steel Company of Ireland
Labour Court Determinations:
DEP 915 - Eastern Health Board v SIPTU
DEP937 - Department of Tourism, Transport and Communications v 4 Workers
DEP977 - Department of Tourism, Transport and Communications v Four Workers
DEP 013 - Roches Stores v Mandate
DEP 993 - DTTC (Irish Aviation Authority) v CPSU
DEP 971 - Ms. Denise Wilton v Steel Company of Ireland
High Court Judgements:
Minister for Transport, Energy and Communications v Campbell and Others (1996) ELR 106
Irish Crown Cork Co. Limited v Martina Desmond and Others - 1993
Flynn v Primark - 1997 (No. 2)
Wilton v Steel Company of Ireland - (May, 1998)
UK Cases:
Rainey v Great Glasgow Health Board - House of Lords (1987)
ARW Transformers Limited v Cupples - (1997) IRLR 228
European Court of Justice:
Case C-17/05 - Cadman v Health and Safety Executive
(1)This Summary is provided for convenience only and is not part of the Decision for legal purposes.
1. DISPUTE
1.1 The dispute concerns a claim by Mr. McManus that he has been discriminated against by Diageo Ireland Limited on grounds of gender in relation to his pay within the meaning of Section 7 of the Employment Equality Acts, 1998-2004. It is his contention that he is entitled to the same rate of remuneration as that paid to three named female comparators. In his referral form the complainant contended that he was discriminated against by Diageo Ireland Limited under an equality clause and in relation to a collective agreement contrary to the provisions of the Employment Equality Acts, 1998-2004.
1.2 Consequently the complainant referred his complaint under Section 7 of the Employment Equality Acts, 1998-2004 to the Director of Equality Investigations on 1st April, 2005. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 28th September, 2006 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act.
1.3 A preliminary joint hearing took place on 7th November, 2006 at which the complainant confirmed the withdrawal of his claim under an equality clause. He indicated that if he intended to pursue his claim in relation to a collective agreement he would set out the arguments in this regard by way of written submission by 19th December, 2006. No submission was received hence this aspect of the claim has also been withdrawn. As regards the equal pay claim the respondent accepted that the complainant performed 'like work' with the named comparator and held that there were 'grounds other than gender' in accordance with Section 19(5) of the Acts for the difference in pay between the complainant and the named female comparators. As a result the respondent submitted its arguments by way of submission and the complainant responded also by way of written submission. A further joint hearing of this claim took place on 28th February, 2007. Additional information was received from the respondent on 5th April, 2007.
2. SUMMARY OF THE RESPONDENT'S SUBMISSION
2.1 The respondent notes that this claim arises in the Control Office (at St. James's Gate) in the Logistics function in the respondent's Supply business where the complainant and each of the named female comparators work, in Customer Services Co-ordinator roles. According to the respondent its Supply business consists of its procurement, brewing and logistics/distribution businesses while the Demand business consists of its sales and marketing activities. The female comparators named by the complainant in his claim are Ms. McCabe, Ms. Proudfoot and Ms. Doyle.
Background
2.2 The respondent states that there has been a succession of change programmes across its organisation in Ireland since 1996. Hundreds of employees have left the business on redundancy terms during this period. Except in circumstances relating to site closure, the respondent says that it rarely implements compulsory redundancies and redundancies occur on a voluntary basis only. According to the respondent it makes every effort to redeploy those whose positions are redundant and who either opt not to take a voluntary separation package or for whom such a package is not available. In cases of redeployment in these circumstances the respondent states that individuals retain their existing grade and benefits on a red circle basis when moving from a higher to a lower graded position. The respondent submits that this practice on its part is central to an understanding of the manner in which the pay of two of the three named female comparators (Ms. McCabe and Ms. Proudfoot) has been determined.
2.3 The respondent states that historically it operated an incremental pay structure for monthly paid employees (i.e. staff categories for whom the Guinness Staff Union (GSU) has recognition) which structure is known as the Staff Graded Structure. The grading structure is as follows with A1 being the lowest grade and D3 being the highest grade.
| A | B | C | D |
| 1 | 1 | 1 | 1 |
| 2 | 2 | 2 | 2 |
| - | 3 | 3 | 3 |
| - | 4 | - | - |
The respondent notes that the grade appropriate to the position of Customer Services Coordinator was C1.
2.4 According to the respondent the pay structure for monthly paid employees received a fixed rate increment yearly, regardless of performance. National pay agreement increases were also applied. The minimum and maximum pay points for each grade, along with the increments, were set by the respondent organisation in consultation with the GSU each year. When an employee reached the maximum of their graded band they received, every 3 years, an increment called a "personal service award". This applied to all grades in the structure and was added to basic salary. In 2001 the minimum and maximum of the C1 grade was €32,284.48 and €42,983.12 respectively.
2.5 Then in 2002 the Total Reward Framework (TRF) was introduced in the Demand and Global functions in the respondent business but not in the Supply (including Logistics) function where the complainant and the named female comparators work. The respondent states that employees were given the option of transferring onto the TRF contract and the majority of Demand and Global functions employees did so opt. All new staff recruited after this time to this area automatically entered the TRF. The respondent says that salary reviews under this system are performance related and a bonus is also paid through Profit Share and cash. While the system of pay is performance related the respondent agrees with the GSU ranges of percentage increase, taking account of inflation and national pay agreements for each performance rating. There are four ratings namely 'below expectations', 'mostly meets', 'fully meets expectations' and 'exceeds expectations'. The respondent says that as it was moving to a performance related pay system company wide any new employees taken on in the Supply function were issued with a Performance/Personal contract. On a Personal contract grades were as per the Graded Staff Structure but with a 'PC' prefix and without the numbers, for example B3 became PC-B. These contracts were performance related and relevant employees did not receive national pay increases nor did they get a cash bonus.
2.6 The respondent says that in 2003 the TRF was implemented in the Supply business where the complainant and the three named female comparators work. The levels/grading system under the TRF are as follows:
Level 6 (Lowest)
Level 5 (Professional) Level of Customer Service
Co-ordinator/previously C1
Level 5 (Managerial)
Level 4
Level 3
Level 2
Level 1 (Highest) (now 'Executive')
For Levels 5 and 6 there is a review every October each year with individual pay being determined through a performance related pay system. The respondent says that bonus is based on compulsory performance - some goes to Profit Share and the remainder is paid in cash through the payroll. The old structure mapped across to the new structure as follows:
| Diageo Level | Band/Zone Description | Old Grades |
| 5 | Management Zone Professional Zone | D1, D2, D3 C1, C2, C3 |
| 6 | Clerical | A1, A2, B1, B2, B3, B4 |
The respondent notes that SIPTU and TEEU rejected the option of entering the TRF as they reject performance related pay mechanisms. Therefore, the respondent's drivers are still paid by reference to national wage agreements, work pattern allowances and meal allowances, etc. The complainant was employed as a driver in the Logistics function in the Supply business prior to the period to which this claim relates. The respondent says that for many years it has had a development policy, whereby employees might be moved, for a development period into a vacant permanent position as a result of a development need identified in their personal development plan if the employee is identified as one having the potential to move into a bigger role. During the period on development the employee retains their previous pay and conditions.
2.7 The respondent notes that in 1996 two separate companies existed within the Guinness Ireland structure to deal with distribution of beer products. Guinness Dublin (St. James's Gate) had responsibility for distribution of Guinness Stout, while Irish Ale Breweries (Ballyfermot) had responsibility for distribution of ales and lagers. While many of the roles and jobs across the two companies were similar the respondent states that the employees in both companies were employed on different terms and conditions of employment. In 1997 the respondent, in discussions with the Unions, started the process of forming a single Logistics/Distribution operation for all stout, ale and lager. The combined workforce totalled 247 with the depot network totalling 25. Through a series of negotiations since 1997 the workforce has been reduced to 98 and the depot network has been reduced to 5. In 2003 the Ballyfermot depot was closed. The respondent notes that large numbers of staff and general workers either left its organisation on voluntary terms or were redeployed within the business.
2.8 The respondent states that the Control Office has responsibility for converting daily customer key orders into deliveries and scheduling of these deliveries onto the transport fleet. In 1996 the Control Office in St. James's Gate was staffed by three permanent C1 graded positions. In 1997 one member of this staff retired and was replaced by a person who was promoted from a B-graded position to a C1 graded position. In 1999 another member of the original three staff members retired and was replaced by a person who was redeployed from the Exports area which was being rationalised and reorganised at the time. This redeployed person was a grade C3 at the time (as Exports Customer Service Executive) and she held this grade on a red circle basis when she was redeployed to the Control Office. The respondent says that in 1999 a development role in the Control Office was advertised among the SIPTU population. There were 20 applications including that from the complainant. The complainant was successful in his application. The respondent notes that in May, 2000 Ms. Proudfoot was redeployed to Ballyfermot to work in the Control Office. She held the C3 grade on a red circled basis. In 2001 the complainant moved to the Ballyfermot depot by agreement covering for staff shortages following the promotion of two employees. According to the respondent the Control Office was redesigned in 2003 and the redefined position of Customer Service Co-ordinator in Logistics evolved and was ranked at the grade C1 which subsequently migrated to Level 5 P. In June, 2003 the Ballyfermot depot closed and staff (including the complainant and Ms. Proudfoot) were moved back to St. James's Gate. Ms. Proudfoot was assigned to a Customer Service Co-ordinator (C1) position while still retaining her C3 grade on a red circled basis. Between August and September, 2003 three persons who were assigned to the Control Office in C1 grade positions left on retirement or resignation. As a result Ms. Doyle was assigned to the Control Office from October, 2003. Ms. Doyle had been a C1 since December, 1999. The respondent notes that in November, 2003 Ms. McCabe agreed to redeploy from her position as Key Planning Manager (a D1 grade) in the key deployment area (then being reorganised) to the position of Customer Service Co-ordinator in the Control Office to meet a skills shortage in the team at that time. Ms. McCabe retained her D1 grade under the respondent's red circling policy. The respondent says that since November, 2003 the Control Office has been staffed by the complainant and the three named female comparators and it is noted that:
§ Ms. McCabe holds a D1 grade on a red circled basis
§ Ms. Proudfoot holds a C3 grade on a red circled basis
§ Ms. Doyle holds a C1 grade since December, 1999
§ Mr. McManus (the complainant) is on a personal contract since 2001
The complainant's career to date
2.9 The complainant commenced employment with the respondent organisation on 28th September, 1977 as a boy messenger (juvenile employee) and was issued with another contract of employment on 10th February, 1979 as a 'general employee'. Between 1977 and 1984 he worked in the Messenger's Section of the respondent organisation. Then between 1984 and 1987 he worked as a plumber's helper in the Engineers Department. The respondent says that between 1987 and 1988 the complainant worked as a Gate Security Officer and between 1988 and 1999 he worked as a Delivery Truck Driver in the Distribution Department. The respondent notes that all of these positions are ones for which SIPTU has recognition.
2.10 The respondent says that in 1999 the complainant and 20 other drivers applied for an advertised 'Development Position' in the St. James's Gate Control Office. The complainant was successful in his application (following a selection process and interview) and in accordance with custom and practice the complainant retained his SIPTU status and Drivers Pay rates and Work Pattern Allowance while on development in the Control Office. The period of development was unspecified but the respondent says that it would have been unusual for a successful period of development to extend beyond 2 years without an offer of a permanent staff contract being made to a non-staff worker. The respondent notes that at any time during the period on development the complainant had the right to resume his original job without penalty. According to the respondent the hiring manager at the time was Michael King, Road Transport Manager and not Dermot Kane as stated by the complainant. He was not 'head-hunted' into the Control Office as he has asserted. During the period 1999 to 2001 the complainant applied himself well to the role in the Control Office and in 2001 he was offered and accepted a Staff Contract (performance based salary). The respondent says that this contract known as a Personal/Performance contract was introduced as a transition from a graded pay structure to a performance-related pay structure. The complainant was not given the opportunity to move onto the graded pay structure in the Control Office as no new employees were been placed on the old graded structure. As the work in the Control Office was a day-work role the complainant received the appropriate Work Pattern Allowance for day work i.e. WPA3. The respondent states that up to that point the complainant was in receipt of the Driver's Allowance i.e. WPA1 which was significantly higher in value. (In today's terms a WPA1 amounts to €22,000 whereas a WPA3 amounts to €3,500). In line with agreed practices at the time the complainant received an income protection 'cushion' scheme to compensate him for the financial loss involved in moving from the higher to the lower Work Pattern Allowance. The respondent says that the cushioning scheme ran for 3 years during which time the complainant was paid out a total of 180% of the difference between WPA1 and WPA3. These cushion payments ceased in 2004. The details of the 'cushion' scheme was explained to the complainant at the time by his Line Manager (Mr. Kane) and the HR Manager (Mr. Boylan).
2.11 The respondent denies that the complainant was promised that his salary would be equalised to the level of his previous salary as a driver over a three year period (as was alleged by the complainant at the preliminary hearing of this claim). According to the respondent the complainant was advised that if he made progress over time he would be in a position to apply for future promotions/vacancies as they arose. The respondent states that he was not given any promises or guarantees of salary advancement or promotion. It is the respondent's submission that his work performance left him in a position to compete for higher graded roles in the staff/managerial areas and the senior management team in Logistics at that time considered him to be a potential candidate for managerial positions.
2.12 The respondent says that later in 2001 the complainant agreed to move to the Ballyfermot depot. The intention was for the complainant to primarily act in the role of Customer Service Co-ordinator in the Ballyfermot Control Office and he also had the opportunity to stand-in for day-to-day responsibilities of the Depot Manager (Mr. Whitehead) during any absences. According to the respondent the complainant performed well in Ballyfermot and contributed to the management effort to successfully wind down operations in Ballyfermot and relocate the operation to St. James's Gate as part of the Dublin Key Distribution Plan. In 2003 the complainant relocated to St. James's Gate and resumed his role as Customer Service Co-ordinator in the Control Office team. The respondent says that during the Continuous Improvement (CI) Plan which spanned this period of time the Total Reward Framework (TRF) was implemented and staff members who were on Personal Contracts were offered the opportunity to transfer to the TRF.
2.13 According to the respondent the complainant in July, 2003 formally approached management and voiced his frustration and disappointment about the lack of progression in terms of pay and promotion. It was the respondent's view at this time that the complainant would be promoted into a managerial position in the future. However due to reorganisations and recruitment freezes promotional opportunities did not arise as frequently. In September, 2003 the complainant was asked to take on the task of Health and Safety advisor for the Logistics Department which he would combine with his existing role in the Control Office. The respondent states that this offer was made to him with a view to enhancing his promotion prospects and career development. The complainant took on the role but continued to be frustrated and disappointed at his lack of promotion and he approached management in this regard on numerous occasions. Management in the Logistics Department suggested to the complainant that he amend his role profile of Customer Service/Health & Safety Co-ordinator during September, 2003 and after 6 months working in this role his amended role profile was sent to Employee Relations Manager (Ms. O'Sullivan) for assessment and grading. The respondent says that the outcome of that assessment was that the amended role profile was not to change and the complainant would stay at a level 5P. In March, 2004 the complainant was advised of the outcome of the assessment and he was unhappy with this outcome. The respondent notes that the pay of the complainant's former Delivery Van Driver colleagues (who had remained outside the TRF system) had by then substantially exceeded that of the complainant. The complainant was advised that he could make a formal case through the GSU to have his job assessed on appeal, but in the meantime he would be expected to perform his role. According to the respondent the complainant said that he would not be going to the GSU but would be making an approach to a solicitor.
2.14 In April, 2004 the respondent's Employee Relations Manager (Ms. O'Sullivan) received correspondence from a solicitor, on behalf of the complainant, in which it was stated that the complainant's rate of pay was substantially less than that of his colleagues in the Control Office despite the fact that his responsibilities were the same. It was alleged that this amounted to discriminatory treatment and the Employee Relations Manager (Ms. O'Sullivan) responded by rebutting the assertions made by the solicitor for the complainant. The respondent notes that for the remainder of 2004 relations between the complainant and management in the Logistics Department were formal and, at times, hostile. According to the respondent the Manager with immediate responsibility for the St. James's Gate Control Office team (Mr. Whitehead) temporarily transferred in January, 2005 and it was decided to offer the complainant the opportunity to take the development role of Team Leader/Control Office with additional responsibility for Health and Safety. The complainant agreed to take on the work despite expressing his dissatisfaction with his overall development opportunity. The respondent says that the complainant stated that he was prepared to do the work despite his unhappiness with this amended role profile and new job title being included in his Performance Review Document. He felt that if the respondent wanted to change his role profile then it should be done through his solicitor. The respondent says that by May, 2005 the complainant's behaviour was on occasions inconsistent with that of someone in a leadership role and following a number of difficult discussions with Mr. Kane the complainant was advised that his period on development would formally conclude in June, 2005 and the complainant raised no objections.
2.15 In June, 2005 the respondent met with the complainant's solicitor with a view to exploring methods of resolving his grievance regarding his pay. The respondent offered to increase the complainant's salary by 3,800 to 50,000 with immediate effect and to back date this increase to June, 2003. The offer was rejected and the meeting concluded. From July, 2005 to the present day the complainant continues to work in the role of Customer Service Co-ordinator in Control Office. In early 2006 a Level 4 Health and Safety Manager's position was advertised and the respondent states that the complainant did not submit an application.
Ms. McCabe's career to date
2.16 Ms. McCabe commenced employment in the respondent organisation in June, 1979 working in an administration role in the wages office as an A1 Grade. In 1984 she moved to the Catering Department as the Administrative Assistant as an A2 grade reporting to the Catering Manager. In 1988 she applied for a role in St. James's Gate Distribution Control Office and was appointed to a role in the Control Office at B3 Grade. Around 1991 the Dispatch Office role and Control Office roles were merged and a new combined role at Grade C1 was created. In 1997 she applied for the position of Keg Planning Manager Stout and was appointed to the role which attracted a D1 Grade. The respondent notes that D1 positions are effectively middle management/supervisory grades.
2.17 The respondent notes that Ms. McCabe was absent from work on long-term sick leave in 2002 and during that time the Product Development area underwent a reorganisation. She did not return to work until March, 2003 and in the reorganised structure she was given responsibility for wines/spirits deployment. In November, 2003 following discussions with the Head of Logistics Ms. McCabe agreed to redeploy to the Control Office into a Customer Service Co-ordinator role. The team in the Control Office was being reformed, post-merger with Ballyfermot and due to retirements/skills gaps, etc. there was a need to put an experienced person into the team. The respondent says that, as was normal practice, Ms. McCabe held her D1 Grade on a red-circled basis, despite the position being graded at a C1 grade. In 2005 Ms. McCabe transferred to the Total Reward Framework with effect from January, 2006.
Ms. Proudfoot's Career to date
2.18 Ms. Proudfoot commenced employment with Guinness Dublin in 1977. Between 1978 and 1981 she worked as Assistant Secretary/Fermentation Department, Grade A2. In 1981 she moved to the Bottling Department on promotion to the post of Clerical Assistant, Grade A2. She moved to a Grade B1 grade in 1985 in the same Department. The respondent says that in 1988 Ms. Proudfoot moved to the Traffic Department on promotion as Accounts Official, B2 Grade. In 1990 she was appointed as Assistant Customs Manager, Grade B3 and then in 1993 she was appointed as a Clerical Assistant, Export Warehouse, Grade B4. According to the respondent Ms. Proudfoot's role was regrouped in 1996 as part of a staff assessment panel which resulted in a C1 grade for her position as Export Warehouse Planner and Scheduler. Then in 1997 she was appointed Officer Manager Exports Section, Grade C2 and in January, 1999 she was moved from a C2 to a C3 grade due to an increase in her responsibilities following a reorganisation.
2.19 The respondent states that Ms. Proudfoot was redeployed from Exports Section which was going through major reorganisation to the Control Office. She retained her C3 grade on a red-circled basis. In June, 2003 following the closure of Ballyfermot depot and in line with an agreement reached between the respondent and the Guinness Staff Union Ms. Proudfoot returned to St. James's Gate to work as a Customer Service Co-ordinator in the merged Distribution Control Office remaining on her C3 grade on a red-circled basis, while in a C1 position. In 2005 Ms. Proudfoot transferred to the Total Reward Framework with effect from January, 2006.
Ms. Doyle's career to date
2.20 The respondent states that in 1980 Ms. Doyle commenced employment with the respondent organisation as secretary to the Managing Director, Murtagh Properties as a Grade A1. On 1st December, 1986 she was appointed to the staff and in 1987 she moved to the Accounts Payable office of Murtagh Properties as a Grade A2. Then in 1990 Ms. Doyle moved to the position of Cash Controller Guinness Group Sales as a Grade B2 and in 1992 she moved to the position of Accounts Official, Guinness Ireland also at Grade B2. The respondent says that Ms. Doyle moved to the position of Bookkeeper, Guinness Ireland as a Grade B3 in 1994 and in 1996 she moved to the position of Bookkeeper, Production Services Department also at Grade B3. In 1997 Ms. Doyle moved from Grade B3 to B4 and in 1999 she moved to the position of Business Controller Shared Services as a Grade C1. According to the respondent Ms. Doyle went on a period of development to the Purchasing section of the Supply business from 1st September, 2000 to 8th February, 2001 and then returned to the Finance Department. In 2001 Ms. Doyle moved to the position of PA to the Head of Logistics following reorganisation in the Finance Department - a B graded post but she held her C1 grade on a red-circled basis.
2.21 The respondent states that in October, 2003 Ms. Doyle moved to a Customer Service Co-ordinator role in the Distribution Control Office following discussions with the Head of Logistics. She has worked a four-day week since 1st November, 2004 and earns 80% of her former salary. In 2005 Ms. Doyle transferred to the Total Reward Framework with effect from January, 2006.
Analysis of Comparators' pay by reference to that of the Complainant
2.22 The respondent notes that the rates of pay of Ms. McCabe and Ms. Proudfoot since 2003 show that their rates of pay were higher than the maximum and minimum of the C1 graded staff band due to the fact that they were red-circled at grades higher than C1 i.e. Ms. McCabe at D1 and Ms. Proudfoot at C3. Prior to the complainant's arrival to the Control Office in February, 1999 his basic rate of pay was approx. €28,000 and his Work Pattern Allowance was €14,515. By 2001 having continued on the rate of pay and the Work Pattern Allowance 1 of a driver for 2 years his basic rate reached €31,469 (inclusive of national wage agreement increases). The respondent notes that in March, 2001 he switched to a performance/personal contract and his base salary was €34,008 and the minimum of the C1 grade at that time was €32,284. According to the respondent the complainant received a further 2% increase in April, 2001 after the switch to the new contract despite the fact on a personal contract he should not have received this increase. Then in October, 2001 he received a 6.5% increase in a salary review as per the terms of his personal contract which increased his salary to €36,943.
2.23 The respondent says that it agreed to compensate the complainant for the change from the Work Pattern Allowance 1 to 3 termed 'cushioning' and 'income protection'. Over the 3 year period from March, 2001 the complainant then received the following amounts by way of a lump sum:
Year 1 - €8,645 (2001)
Year 2 - €6,119 (2002)
Year 3 - €3,569 (2003)
In October, 2002 the complainant received a 13.7% increase to €42,000 which was an extraordinary increase when compared to normal wage increases for that year. The respondent says that the reason for this increase was the fact that it recognised that his earnings were at the low end of the band and that his performance in the role was very satisfactory up to that point. In October, 2003 his salary review resulted in a 4.5% increase (€43,890) in circumstances where his performance rating was at 'fully meets expectations' which has a 4.1% to 4.5% range of increase.
2.24 The respondent says that in July, 2000 following Ms. Doyle's move to a C1 Graded position (December, 1999) in the Business Shared Services centre her salary was €39,943. At this point in time the complainant was earning €29,244 and his Work Pattern Allowance of €14,515. The respondent notes that Ms. Doyle continued on increments and national wage increases for a C1 graded position from this point until 2005 when she transferred to the Total Reward Framework (TRF). Ms. Doyle moved onto a C1 graded position in 1999 (2 years prior to the complainant moving into an equivalent role), she received increments in accordance with the incremental scale and she received national wage increases. The respondent notes that this has meant that her rate of pay is higher than that of the complainant. From 2001 onwards the only available increases for the complainant on his Personal Contract were by way of his annual salary review.
2.25 At the time of the complainant's move to the Control Office in 1999 the respondent states that Ms. McCabe was still in the position of Keg Planning Manager Stout (D1 Grade) and was earning a salary of €46,548 (April, 1999). She remained in this position until 2002. By comparison the complainant was earning €28,036 plus a Work Pattern Allowance of €14,515. The respondent says that Ms. McCabe received all increases due to her under relevant national wage agreements up to the point at which she was deployed to the Control Office in November, 2003. Her salary at this point was €62,037 and she held her D1 grade on a red-circled basis. According to the respondent the complainant was earning €43,890 (October, 2003 figures). Ms. McCabe continued to receive national wage agreement increases up to January, 2006 when she transferred to the Total Reward Framework (TRF).
2.26 In 1999 when the complainant arrived in the Control Office Ms. Proudfoot was in an Office Manager position (Exports section) and her grade had been moved from a C2 to a C3 grade in January, 1999 due to a reorganisation in her Department and an increase in the scope of her position. At this stage she was earning €43,211 and the complainant was earning approx. €28,000 and a Work Pattern Allowance of €14,515. The respondent says that in May, 2000 Ms. Proudfoot was redeployed to the Control Office and retained her C3 grade. By July, 2000 she was earning €44,308.78 and at this point the complainant was earning €29,224.28 plus a Work Pattern Allowance of approx €14,000. According to the respondent Ms. Proudfoot continued on national wage agreement increases for a C3 graded position from this point to 2005 when she transferred to the Total Reward Framework (TRF). By 2003 the respondent says that Ms. Proudfoot was earning €55,205.31 due to national wage increases and the complainant following his October salary review (his only means of achieving a pay increase on a Personal Contract) was earning €43,890.
2.27 In summary the respondent states that Ms. McCabe and Ms. Proudfoot are both performing Customer Services Co-ordinator roles which are properly graded C1 on a red-circled basis consequent on a re-deployment and under the Red-Circle policy, while holding their higher substantive grades, respectively D1 and C3. The respondent notes that Ms. Doyle has been paid the pay appropriate to someone who reached the C1 grade in December, 1999 two years before the complainant was appointed into a Customer Services Co-ordinator role on a substantive basis and paid accordingly. It is, therefore, the respondent's contention that the higher pay of the named female comparators has nothing to do with their gender.
The Law
2.28 The respondent notes that this claim arises under Section 19 of the Employment Equality Acts, 1998-2004 and it relies on Section 19(5) to justify paying the three named female comparators more than it pays the complainant. The respondent accepts that the onus of proof is on it to prove that the differentiation is genuinely attributable to grounds other than the gender ground as confirmed by the High Court in Irish Crown Cork Co. Limited -v- Martina Desmond & Others (2). In the cases of Ms. McCabe and Ms. Proudfoot the respondent relies on the defence of red circling. The respondent notes that 'red circling' has been accepted in certain circumstances as constituting grounds other than gender so as to justify a pay differential. It also notes that the precise test to be applied has been the subject of some controversy. The Labour Court in the case of Eastern Health Board and SIPTU (3) held as follows:
"The Court accepts that "red circling" is a recognised practice in industrial relations and has even on occasions been the means by which industrial disputes have been resolved. If, however, such a concept is put forward as a defence against a claim for equal pay it is essential that the Court in reaching its determination consider, (1) the reasons for the application of "red circling", and (2) be satisfied that there was an acknowledgement by the parties of its existence ...
In considering the issue of "red circling" the Court reverts initially to (1) above, - the reasons for its application. On this point the Court does not consider that it has to decide whether or not there were valid reasons for "red circling" . ...What the Court does have to consider however, it being the principal point in dispute, is, in line with (2) above whether or not a recognised, factual and acknowledged position of "red circling" existed.
On the evidence available to it the Court has come to the conclusion that, on balance, no such position existed. Even if it is conceded that a "formal agreement" is not required to substantiate the existence of such an arrangement, it is essential in the Court's opinion that all who are party to such arrangements are fully aware of the circumstances which brought it into operation, and the manner in which it is being operated. For example, amount involved, terms of payment, etc. In these incidents not one of these factors exist."
2.29 The respondent notes that the Labour Court followed this decision in Minister for Transport, Energy and Communications v Campbell and Others (4) which was then the subject of a point of law appeal to the High Court. The High Court allowed the appeal holding that the Labour Court had erred in holding that it was not sufficient for the employers to prove the comparator had been placed, for health reasons, in a protected pay category, but that in addition the employer must prove that the assignment had been "recognised" and "acknowledged". The High Court held that this interpretation of the relevant statutory provision introduces a pre-condition to its operation which had not been enacted by the Oireachtas and which might subvert the object of the subsection which is to exclude the prohibition on pay discrimination if based on grounds other than sex. In Flynn v Primark (5) in which the employer relied on grounds other than gender (namely different industrial relations contexts, different trade unions, different collective agreements, etc.) to justify a pay differential the following passage appears in the judgement of the High Court dismissing the claimant's appeal:
"It seems to me that the Labour Court did precisely what it was enjoined to do by Barron J. in his judgement. It found that there was a reason unconnected with sex for the difference in remuneration between the applicants' group and the comparator group. That reason was rooted in history: between 1974 and 1979 the comparator group traded the removal of inflexible, uneconomic and unproductive work practices for increases in pay and in so doing its pay scale passed out the pay scale of the sales assistants and the clerical assistants, who did not have the same negotiating leverage. Moreover the Labour Court found that the reason still subsisted at the date of its second determination in that the flexible and productive work practices introduced between 1974 and 1979 continue to be applied and continue to generate economic benefits for the company. The Labour Court found not only that the pay differential between the two groups was historically objectively justified on economic grounds, in that it would be economically disadvantageous to the respondent to revert back to the old work practices and, in any event, the extra pay could not be removed from the comparator group without serious industrial relations consequences."
2.30 In the case of Roches Stores v Mandate (6) the Labour Court addressed the employers grounds other than gender defence in the following terms:
"An employer, seeking to rely on this defence, must prove that the difference in pay is genuinely attributable to "grounds other than sex" ... 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 determination ...
The Company advances the argument that the comparator was employed in May, 1977 as a General Distribution worker. The Company states that it quickly became clear that due to certain innate difficulties, which could be described as a disability, the comparator was not capable of performing the job for which he was recruited. He found the paperwork associated with the position impossible to complete. Nevertheless, the Company decided to retain him in his position as a General Distribution worker with a reduced range of duties. The Court has been provided with a psychological assessment which states that due to his disabilities, if the decision to alter his duties had not been taken, his work situation would have become very stressful and that this would have had an adverse effect of his health and well being. The clinical psychologist stated that the decision to alter his original duties was a correct one and represented a sensible and sensitive response to real difficulties, which he was having.
The Company further states, and this evidence is accepted, that it has adopted this policy in other instances in the main involving female workers, where the worker was incapable for health reasons of fully performing their duties.
In essence, the Company's claim is that the comparator, as a result of his inability to perform certain functions, has had his duties downgraded but his status and pay have not been adjusted accordingly, and, therefore, he has been "red circled". The Company has not used that term in its submission but the Court is of the view that this term would apply to the employee's position.
Red Circling
The issue of red circling has been dealt with in the case of the Minister for Transport, Energy and Communications v Campbell and Ors (1996 ELR 106) in which Keane, J. approved the following passage in the judgement of Lord Denning in Clay Cross (Quarry Services) Limited v Fletcher (1978 IRLR 361):
"... the issue depends on whether there is a material different (other than sex) between her case and his. Take heed of the words which mean her case and his. They show that the Tribunal is to have regard to her and to him - to the personal equation of the woman as compared to the man, irrespective of any extrinsic forces which led to the variation in pay. As I have said in Shields v E Coomes Holdings Limited ... section 1(3) applies "when the personal equation of the man is such that he deserves to be paid at a higher rate than the woman. Thus the personal equation of the man may warrant a wage differential if he has much longer length of service or has superior skill or qualifications or gives bigger output or productivity or has been placed owing to downgrading, in the protected pay category, vividly described as red circled, or to other circumstances personal to him.
In quoting Lord Denning above, Keane J. stated " I would accept that passage mutatis mutandis, as a correct statement of a law applicable to Section 2(3) of the 1974 Act.
Keane J. also held that it was not necessary for an employer to prove that a reassignment in a protected pay category was recognised and acknowledged.
He further stated that in arriving at a conclusion as to whether persons were being genuinely reassigned to the protected pay posts on compassionate health grounds, that the Labour Court is entitled to take account of all the facts surrounding the reassignment.
The Court accepts that in these particular circumstances the red circling of the comparator's pay was justified as an industrial relations practice.
However, the Court would strongly advise parties that such measures should not be taken in an ad-hoc manner, but after due consultation with all relevant parties in order that the policy and its implication be clearly understood by both management and workers ...
The final question, therefore, which this Court must consider is whether the policy of the Company is objectively justifiable. In this case, uncontradicted evidence has been given that it was the policy of the Company at the relevant time that, where workers were incapable for health reasons of completing the tasks associated with their grade, they would be given much reduced duties but retained on their old pay scale in order to ensure that they did not suffer financially. This policy was applied equally to both male and female workers and indeed more female than male workers benefited from it. This policy has continued and there is no reason to believe that in the event of a similar position arising again, the Company would not treat that case in an identical manner.
The Court accepts that in the circumstances, the Company's objective:
Of retaining an employee in an employment position where it has been found that that person, due to a disability, is incapable of carrying out the full range of duties associated with that job; and
Retaining him/her on the rate of pay that he/she was recruited on, and
thereby allowing the person to retain his/her dignity instead of terminating his/her employment when it was discovered that he/she was incapable of carrying out the full range of duties of that job
constitutes a legitimate economic goal on the part of the Company and that a policy such as this would constitute objective justification for the differences in pay between the comparator and the claimants."
2.31 The Houses of Lords in Rainey v Great Glasgow Health Board (7) declared that the test set out by Lord Denning in his Clay Cross case was too onerous on employers. The following passage appears in the speech of Lord Keith of Kinkel (with whom the other law Lords agreed) where, having set out the Denning test (see above paragraph) he continues:
"In my opinion these statements are unduly restrictive of the proper interpretation of section (1)3. The difference must be "material", which I would construe as meaning "significant and relevant", and it must be between "her case and his". Consideration of a person's case must necessarily involve consideration of all the circumstances of that case. These may well go beyond what is not very happily described as "the person equation", i.e. the personal qualities by way of skill, experience or training which the individual brings to the job. Some circumstances may on examination prove to be not significant or not relevant, but others may do so, though not relating to the personal qualities of the employee. In particular, where there is no question of intentional sex discrimination whether direct or indirect (and there is none here) a difference which is connected with economic factors affecting the efficient carrying on of the employer's business or other activity may well be relevant."
2.32 The respondent submits that in circumstances where its operations have been undergoing significant change and consequent reduction in headcount, which is ongoing and where it seeks to bring about that change/reduction on a voluntary basis without compulsory redundancies (except where avoidable), it is entitled, in the context of change driven redeployment and so as to avoid coming into conflict with the Unions and to facilitate agreed change, to assign people on a red circled basis to lower positions, while maintaining their pay, without infringing its equal pay obligations.
2.33 In the case of Ms. Doyle the respondent relies on the defence that Ms. Doyle was in the appropriate grade (C1) since 1999 and progressed up the incremental scale thereafter. By comparison the complainant moved into the C1 grade in 2001 on a personal contract basis. It is submitted by the respondent that longer service in a grade constitutes a ground other than the gender ground so as to justify paying Ms. Doyle more than the complainant. The respondent notes that this has been accepted in the UK in ARW Transformers Ltd v Cupples (8).
Conclusion
2.34 It is the respondent's contention that this case has nothing to do with gender. According to the respondent the complainant is aggrieved that his pay has not increased more quickly since he accepted a staff contract in the Control Office in 2001. In particular he is aggrieved that his pay has not kept pace with that of his former Driver colleagues who are still employed and whose total earnings (including pensionable pay) now significantly exceeds that of the complainant. While the complainant has sought to use the fact that his colleagues in the Control Office are female in order to provide a forum and a supposed legal basis for addressing his pay grievance the respondent submits that there are clear grounds other than gender on which the higher pay of the comparators can be justified. These relate to red circling (as outlined above) and the payment of a higher pay to someone who is longer in the grade by way of incremental progression. The respondent asks the Equality Officer to reject this claim.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant notes that he and the three named female comparators work in the same office in the respondent organisation. According to the complainant he is the senior staff member in the office and in 2005 he was the manager in the office. He states that he earns a salary far inferior to the other staff members and notes the respondent's reliance on the concept of 'Red Circling' to justify the salary difference. The complainant says that he will show that he was discriminated against by the way the respondent has manipulated the 'Red Circle' process to protect some staff and refused to do so for others. It is the complainant's submission that he was guaranteed his salary would be protected when he changed employment within the respondent organisation. He claims that other members of staff changed employment and received the same guarantees with other members of staff having their guarantees honoured but his was not. The complainant submits that he was entitled to the same benefits and same protection as the other 3 staff members. He says that he was guaranteed the same protection but the magic words 'Red Circling' were not attached to his salary.
3.2 The complainant states that the reference by the respondent in its submission to 'Red Circling' is most vague. He says that the policy document attached to the respondent submission provides no explanation for the origin of the policy or indeed any detail of the policy itself beyond the bare statement relating to re-organisation of individuals in other roles. The complainant notes that there is no evidence as to the elements of any such scheme as would be expected to allow it to be tested by a third party as to its legitimacy or to an assessment of fairness or otherwise with which the purported scheme is applied across the board. According to the complainant such elements would include:
(a) A clear objective policy
(b) The criteria applied to the two named female comparators in respect of the redeployment
(c) In relation to Ms. McCabe the respondent simply says "Following discussions Ms. McCabe agreed to redeploy ...". As regards Ms. Proudfoot it was said that "She was redeployed from Exports Section which was going through major reorganisation". The complainant states that Ms. Proudfoot asked to be moved and was not redeployed on account of a major re-organisation as alleged. It is the complainant's contention that Ms. Proudfoot's case has been defined to fit the narrow definition as set out in the respondent's policy document attached to its submission. The complainant says that Ms. Proudfoot was one of a number of persons who worked in Export Section and it is his belief that Ms. Proudfoot sought a move to the Ballyfermot Depot by the then HR Manager of Logistics (Mr. Kane). Two other female staff who were working in the Export Office are still working there. On this basis the complainant submits that Ms Proudfoot's move was not the result of redeployment but rather to facilitate her. The complainant notes that in the case of Ms. Doyle the respondent says that she "moved following discussions ...". It is his understanding that Ms. Doyle requested the move from her position as Personal Assistant to Mr. Kirwan to the Control Office and she was replaced as Personal Assistant.
(d) The complainant states that no specific information regarding the circumstances underpinning the red circling or the protection for long service is given at all. He submits that this gives rise to an inference that the named female comparators are not in fact the beneficiaries of a genuine red circling policy which has legitimate standing and general application in the respondent organisation. Rather the complainant argues that they appear to be the beneficiaries of individually negotiated agreements to move within the organisation. He says that this is entirely in concert with his experience in relation to his own transfer to the Control Office although the respondent has refused to honour the agreed terms of that transfer.
3.3 The complainant re-iterates that in the cases of Ms. McCabe and Ms. Proudfoot the respondent has singularly failed to provide any information whatsoever which would enable a comparison to be made between the circumstances and criteria surrounding their moves within the respondent organisation. For the alleged red circling policy to be accepted as a defence the complainant submits that the absence of information regarding
(a) The policy applied to each;
(b) The criteria applied which gave rise to the transfer in each case;
(c) The choice given to the named female comparators;
(d) Whether each move/agreement was negotiated on an individual basis;
gives rise to an inference that it is not a genuine Red Circling policy which is being relied upon by the respondent to justify the discrimination in pay terms against him.
3.4 The complainant notes that the respondent's argument on red circling is essentially that Ms. McCabe and Ms. Proudfoot had previously worked as managers on higher pay and he asks if this is a justification for red circling. In DTTC (Irish Aviation Authority) v CPSU (9) the Labour Court refused to accept that red circling was genuine, concluding that the higher rate paid to comparators was simply the rate paid to comparators who had previously worked as Radio Officers. In the instant case the complainant on the same basis should have had his salary preserved. In essence the complainant is arguing that he has been discriminated against on the grounds of his gender by reason of the respondent's refusal to protect his salary in circumstances where the only apparent criteria which give rise to the protection are the fact of a previous higher salary and an agreed redeployment to the Control Office.
3.5 The complainant denies that there was any agreed practice at the time whereby he received an income protection 'cushion' scheme to compensate him for the financial loss in moving from the higher work pattern allowance to the lower allowance as alleged by the respondent (see paragraph 2.10 above). According to the complainant there was no such agreement in place in general terms but he was specifically promised that the purpose of this payment was to provide him with a measure of income protection until the expiry of the 'cushion' period after which he would be back on the salary he had been on. The complainant says that, in the course of preliminary discussions with Mr. Kane, he was informed that it had taken him (Mr. Kane) almost 10 years to get back where he was in terms of salary when he moved from blue collar to white collar work. It is the complainant's submission that he informed Mr. Kane that he would not be interested in moving on that basis and he says that Mr. Kane reassured him that by the time the cushioning payments had expired he would be 'back to where he was'.
3.6 The complainant says that he took Mr. Kane at his word. In July, 2003 Mr. Kane reassured him again that the respondent would honour its bargain. The complainant says that on 14th February, 2004 Mr. Kane informed him that he was prepared to settle the complainant's dispute by changing his Work Pattern Allowance from WPA 3 to WPA 1. According to the complainant he indicated to Mr. Kane that he would settle his claim if he was offered a WPA 1 and he expected the respondent to settle his legal bills. Mr. Kane did not respond to this. The complainant says that in March, 2004 Mr. Kane's attitude had completely changed and he flatly denied ever having made the representations.
3.7 The complainant notes that respondent's contention that he lost his entitlement to the Work Pattern Allowance 1 because he left the job of Driver in Transport and that this job required employees to work shifts. It is the complainant's submission that the reality is that drivers did not work shifts and were granted the Work Pattern Allowance 1 as an incentive to vote in favour of the Annual Time Contracts (ATC) in 1996. The complainant states that a fellow employee was awarded a Work Pattern Allowance 1 to resolve a dispute with him. This employee only works the early shift (7.00a.m. to 3.00p.m.) which would only entitle him to a Work Pattern Allowance 2. On this basis the complainant submits that the respondent has flexibility in relation to the allocation of Work Pattern Allowance 1 which is being operated arbitrarily against him.
3.8 In relation to Ms. Doyle the complainant notes that the respondent is relying on her long service as a justification for the disparity between the two salaries. He notes that she joined the respondent organisation in 1980 whereas he joined in 1977. The complainant cites the case of the European Court of Justice in Cadman v Health and Safety Executive (10) where at Page 1641 in its conclusion states:
"Where the use by an employer of the criterion of length of service as a determinant of pay has a disparate impact as between relevant male and female employees, Article 141 EC, together with Article 2(2) and Article 4 of Council Directive 97/80, require the employer to demonstrate that the way in which the criterion is used as a pay determinant in respect of the post concerned takes into account the business need of the undertaking and that the criterion is applied proportionately so as to minimise the disadvantageous impact it has on women".
It is submitted, therefore, that there is an onus on the respondent to explain how the named female comparator (Ms. Doyle) is better able to perform her job than he (the complainant) is on the basis of her service especially when he has longer service. The complainant contends that in the absence of any proper explanation the discrimination must clearly be solely on the grounds of gender.
3.9 The complainant says that from February to the end of 2005 he deputised for the Customer Services Manager (Mr. Whitehead) with responsibility for, inter alia, Ms. Doyle. He states that he had also deputised for Mr. Whitehead on a previous occasion after the Control Office moved from Ballyfermot. It is the complainant's submission that his appointment is prima facie evidence against any assertion by the respondent that Ms. Doyle is better able to do her job by reason of her long service. He notes that Ms. Doyle has been under his supervision for long periods of time.
3.10 The complainant states that the entirety of the respondent's response to his claim is predicated on the factual dispute taken with his assertion that at all material times acting on foot of representations made to him by Mr. Kane in relation to the equalisation of his salary after 3 years. He notes that the response of Mr. Kane at subsequent meetings and his behaviour since making these representations had been to deny the truth of his (the complainant's) case. The complainant asks the Equality Officer to take into account his very clear recollection in this regard and to weigh up the blanket denial by the respondent (in the light of the obvious hardship caused to him by reason of his move to the Control Office) in determining the veracity of either version of events.
3.11 The complainant takes issue with a number of statements of fact in the respondent's submission as follows:
(i) It is alleged that the complainant moved to the Ballyfermot Depot due to staff shortages (see paragraph 2.8 above). The complainant states that he was in fact promoted to the Ballyfermot Depot as an Assistant Manager and shortly thereafter sent on a "Newly Appointed Managers Course" to the Irish Management Institute.
(ii) The respondent states that the complainant was not 'head hunted' into the Control Office (see paragraph 2.9 above). The complainant says that this is not correct. While the respondent is obliged to advertise all jobs within the organisation it does have various methods for ensuring that the people they want are appointed to the advertised position. According to the complainant he was approached by the Road Transport Supervisor (Mr. Reilly) and the Road Transport Manager (Mr. King) before the job was advertised and advised that the job would be advertised and that he was to apply for it. The complainant did apply for the post and not surprisingly was successful in his application.
(iii) The respondent at paragraph 2.10 makes reference to the allocation of Work Pattern Allowances within the respondent organisation. There are three grades of Work Pattern Allowances (WPA) namely:
(a) WPA I for 3 cycle shift workers - 6.00a.m. to 2.00p.m.; 2.00p.m. to 10.00p.m. and 10.00p.m. to 6.00a.m.
(b) WPA II for 2 cycle shift workers - 6.00a.m. to 2.00p.m. and 2.00p.m. to 10.00p.m.
(c) WPA III for day workers.
The complainant notes that the Transport Section is made up of 3 distinct groups - Transport Controllers, Shunters and Drivers. The said 3 groups all receive WPA Grade I. The drivers are day workers and receive WPA I. The Transport Controllers and Shunters work 2 cycle shifts and all receive WPA I. The complainant submits that the use of the WPA grades is a shifting sands policy used by the respondent to solve, inter alia, Union problems.
(iv) The complainant denies that he discussed his Contract and Cushion with anyone other than Mr. Kane (see paragraph 2.10 above). He re-iterates that the agreement he reached with his Line Manager is that the 'cushion' was to tide him over until his earnings were back to his starting level.
(v) The complainant denies the respondent's assertion that he agreed to move to the Ballyfermot Depot (see paragraph 2.12 above). According to the complainant he was approached by Mr. Kane and invited to apply for the job as Assistant Manager in the Ballyfermot Depot. The complainant notes that 2 other persons were interviewed for the post and he says that Mr. Kane advised him that the purpose of his move was that it would be very good experience for him in his development for managerial responsibility.
(vi) It is submitted by the respondent that the complainant stated that he would "not be going to the GSU but would be going to a solicitor". The complainant says that he did go to the Union for assistance.
(vii) The respondent submits that relations with the complainant were hostile (see paragraph 2.14 above). The complainant refers to the fact that he was promoted in 2005 to the position of Customer Services Manager and submits that he would not have received his promotion if his relationships with his immediate supervisors were hostile. He also cites his review form FY06 for end of year review dated 20th June, 2006 wherein it is stated that he "tried very hard over the last 12 months to deal professionally with his long running and unresolved salary dispute" and "when the situation required Pat took on leadership role within Control Office".
(viii) It is submitted by the respondent (see paragraph 2.14 above) that the complainant's behaviour was inconsistent with that of somebody in a leadership role. The complainant denies these allegations and says that at the commencement of his period as Customer Services Manager it was agreed with Mr. Kane that their issues would be put to one side for the team. According to the complainant it is suggested that his occupation of the role of Customer Services Manager ended in June, 2005 but in fact it concluded in December of that year.
(ix) The respondent submits that the complainant failed to apply for a Level 4 Health & Safety Manager's position (see paragraph 2.15 above). The complainant denies that a Level 4 Health & Safety Manager's position was advertised in early 2006 or at all. He states that it is Mr. Kane's obligation to inform him of any new post that becomes available and he was not informed of the above post. According to the complainant a Risk Management position was advertised in early 2006 but it contained the prerequisite that candidates have a University Degree, hence he was excluded.
3.12 The complainant contends that he has been discriminated against on the grounds of gender. He is the most senior person in the Control Office based on experience, longevity and responsibility. It is submitted by the complainant that the respondent manipulated its own procedures to safeguard the salary of the three named female comparators when they moved position within the respondent organisation. The complainant states that he has no issue with the actions taken to protect the three named female comparators and simply seeks to be treated in like manner. He contends that there are no grounds on which the higher pay of the three named female comparators can be justified. The complainant says that he was guaranteed by Mr. Kane, on behalf of the respondent, that his salary would be guaranteed, Red Circled or whatever scheme the respondent chose to use. He submits that the respondent has not honoured its agreement. In the circumstances the complainant asks the Equality Officer to find in his favour.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision in this claim is whether or not the respondent has discriminated against the complainant in relation to his pay. It is the complainant's contention that he performs 'like work' with three named female comparators but is paid less than each of these comparators. The respondent does not dispute 'like work' but argues that there are 'grounds other than gender' for the difference in pay between the complainant and the named female comparators in terms of Section 19(5) of the Employment Equality Acts, 1998-2004. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
4.2 The complainant works in the Control Office of the respondent's Supply function. There are four employees working in this office namely the complainant who is male and three females, all of whom have been named as comparators in this case. The complainant earns less than each of the named female comparators and contends that he is being discriminated against in relation to pay in circumstances where they all perform 'like work' with each other. The respondent accepts that all of the employees in the Control Office perform 'like work' with each other but argues that there are 'grounds other than gender' for the difference in pay between the complainant and the named comparators.
4.3 In this regard the respondent states that two of the three named female comparators are 'red-circled' and the third named female comparator is on a higher salary to the complainant because she has longer service in the grade. While each of the three named female comparators are on a higher pay than the complainant they are each paid differently to each other. I will examine each of the three named female comparators individually.
Ms. Proudfoot
4.4 The details of Ms. Proudfoot's career in the respondent organisation are set out in detail by the respondent organisation at paragraphs 2.18 and 2.19 above. According to the respondent the Export area where Ms. Proudfoot worked was undergoing re-organisation/restructuring during the end of 1999 and early 2000. The respondent was unable to provide any documentary evidence of this but Ms. Proudfoot attended the hearing of this claim and stated that, as a result of restructuring her position no longer existed in the Exports area as contractors were recruited to carry out many of the tasks undertaken in the Exports area including some of the tasks undertaken by her. According to Ms. Proudfoot this was a very stressful time for her resulting in her taking a few weeks sick leave because she was unsure of her position/status in the organisation. Ms. Proudfoot stated that if the respondent had not offered her a position in Ballyfermot she would have been made redundant. The offer of a C1 position was made to Ms. Proudfoot in Ballyfermot which she accepted and she retained her grading position of C3 on a 'red-circled' basis. Having heard the above evidence from Ms. Proudfoot the complainant indicated that he accepted that Ms. Proudfoot was 'red-circled' and, therefore, there were 'grounds other than gender' got the difference in pay between him and this named female comparator. I concur with this view.
Ms. McCabe
4.5 The details of Ms. McCabe's career in the respondent organisation are set out at paragraphs 2.16 and 2.17 above. Ms. McCabe was employed as the Keg Planning Manager Stout (a D1 position) in 2002 when she went out of work on long-term sick leave. On her return to work she was offered a position in Wines/Spirits. After almost 9 months in this position Ms. McCabe was offered a position on a 'red-circled' basis as Customer Services Co-ordinator (a C1 grade) in the Control Office due to a skills shortage in that office. The respondent was unable to provide any documentation in relation to any of the above and, as a result, Ms. McCabe attended the hearing of this claim to outline what happened from her perspective. According to Ms. McCabe she was asked to take over responsibility for Wines/Spirits on her return from sick leave in March, 2002. Ms. McCabe stated that if she had not taken this position she could have returned to the position she held prior to her absence on sick leave where the work was being performed by a relief person. It was Ms. McCabe's submission that in November, 2003 the Head of Logistics offered her a move to the Control Office where she would hold a C1 position on a 'red-circled' basis. The reason for this move was because of skill shortages in the Control Office due to the departure of three staff members from that Office during 2003. Ms. McCabe stated that if she had not accepted this position in the Control Office she could have reverted to her original position.
4.6 After Ms. McCabe had departed from the hearing Mr. Kirwan, Head of Logistics stated that, unknown to Ms. McCabe, the position she held prior to going on sick leave, no longer existed on her return from sick leave. Mr. Kirwan stated that the Product Development area (where Ms. McCabe worked prior to her sick leave as Keg Planning Manager Stout) had two staff members. When Ms. McCabe went out on sick leave the work was performed by one member of staff and a relief person was available when the member of staff was absent on leave. The Wines/Spirits position which was offered to Ms. McCabe was, according to Mr. Kirwan, an interim position which was due to be taken over by other staff coming to the organisation. Three members of staff were leaving the Control Office and as Ms. McCabe had previously worked in this area during the 1990s she was offered a Customer Services Co-ordinator position on a 'red-circled' basis as it was deemed necessary to put an experienced person in this position given the skills shortage resulting from the loss of three staff members.
4.7 The complainant noted the conflict in the evidence of Ms. McCabe and Mr. Kirwan and he considered that Ms. McCabe's evidence should be deemed to be a more accurate reflection of the position. At the hearing of this case it was the complainant's contention that the respondent's actions in relation to Ms. McCabe did not constitute 'red-circling' within the true meaning of that definition given that on Ms. McCabe's own evidence there was no threat to the position she originally held before she went on sick leave. It is clearly the case that the respondent was implementing a series of changes within its organisation. These changes resulted in large numbers of employees opting for voluntary redundancy. In an effort not to impose compulsory redundancies the respondent endeavoured to facilitate employees whose jobs would no longer exist following the restructuring as in the case of Ms. Proudfoot. The impact of this rationalisation was that some employees were offered positions at grades which were lower than they had attained in their previous now defunct positions. In circumstances such as these the employees were 'red-circled'. This policy of putting employees into lower graded positions was as a result of the restructuring policy in the organisation and it was applied to staff as the need arose irrespective of gender. I note that in the Supply business (including but not limited to Logistics) of the respondent organisation a total of 28 persons were red-circled of whom 6 were female and 22 were male.
4.8 If I accept what Mr. Kirwan, Head of Logistics has stated about Ms. McCabe's situation that the position she vacated on going on sick leave was no longer in existence on her return then her assignment to the lower graded post in the Control Office was similar to the position which pertained for Ms. Proudfoot and, therefore, 'red-circled'. Ms. McCabe's version of events differs from that of Mr. Kirwan's and it was her submission that her original position was filled by a relief person and this position was open to her on her return from sick leave. Due to three staff members leaving in another area Ms. McCabe was asked to occupy one of these lower graded positions because she had previously acquired the skills necessary to carry out the duties of the position. In these circumstances it is held that Ms. McCabe was 'red-circled'. I am satisfied that Ms. McCabe was place in a lower graded position because of her expertise in the area. There is no evidence that the reason she was given this position was related to her gender. I, therefore, find that Ms. McCabe was 'red-circled' by the respondent.
Ms. Doyle
4.9 Ms. Doyle was transferred to the Contol Office as a Customer Services Co-ordinator at the grade of C1 which was the grade for this position. Ms. Doyle entered the C1 grade in December, 1999 and her salary was subject to increments in accordance with the incremental scale and national wage increases. While the complainant commenced work in the Control Office in 1999 he did so, on the basis of a development role, for a period of two years. Then from 1st March, 2001 the complainant was offered a Graded contract with a performance based salary. As a performance-related pay structure had been introduced to the respondent organisation from 2001 all new employees or employees like the complainant, moving to a Graded contract, were paid on the basis of the performance-related pay structure (i.e. an annual salary review) and not be way of increments and national wage increases. While I accept that the different pay structures would have resulted in a difference in pay I am satisfied that even if both the complainant and Ms. Doyle had been paid on the basis of increments and national wage increases Ms. Doyle's salary would have been higher than the complainant's because she would have received more increments than the complainant given her longer service in the grade. This higher salary would be unrelated to performance. I am satisfied that the higher pay to Ms. Doyle was not related to her gender.
4.10 As already stated the three named female comparators each received different remuneration to each other. Ms. McCabe was in receipt of the highest salary of all staff (i.e. the complainant, Ms. Proudfoot and Ms. Doyle) in the Control Office. I note that the complainant has accepted that Ms. Proudfoot is not a valid comparator in this claim as he accepts that she was genuinely 'red-circled'. Had the complainant been aware of this prior to referring his claim he would not have named Ms. Proudfoot as a comparator. In those circumstances he would have been selective in the comparators he named. In this case the respondent has conceded 'like work'. Hence the complainant and the named female comparators perform 'like work' with each other. If Ms. Proudfoot and Ms. Doyle sought equal pay with Ms. McCabe it could not be argued that they were discriminated against in relation to their pay on the grounds of gender. The difference in pay between the complainant and the named female comparators is not because of gender. The finding of the Equality Officer in the case of Ms. Denise Wilton v Steel Company of Ireland (11), which was upheld by both the Labour Court (12) and the High Court (13), supports this view.
4.11 In conclusion, therefore, I find that the complainant has no entitlement to equal pay under the provisions of the Employment Equality Acts, 1998-2004 in circumstances where he is claiming equal pay with Ms. Proudfoot, Ms. McCabe and Ms. Doyle.
4.12 In his submission the complainant has referred to guarantees he was given that his salary would be protected when he changed from driver duties to working in the Control Office. He has also referred to a meeting on 14th February, 2004 (which transpired at the hearing to be 14th February, 2005) at which he alleges that a settlement offer was put to him. The complainant advanced the issue of credibility and argued that his version of events in relation to guarantees was more credible than Mr. Kane's of the respondent organisation. In his submission the complainant indicated that the respondent organisation had flexibility in relation to allowances and could have used the allowances to settle his case. He further alleged that he was the most senior person in the Control Office and held positions of Assistant Manager and Team Leader on the basis of development where at least one of the comparators was under his supervision. It is important to clarify that none of these issues are relevant to the equal pay case before me under the Equality Legislation which deals specifically with a claim for equal pay by the complainant in relation to named female comparators where the claim is made on the grounds of gender.
5. DECISION
5.1 In view of the foregoing I find that Diageo Irleand Limited did not discriminate against Mr. Pat McManus in relation to his remuneration in terms of Section 19 of the Employment Equality Acts, 1998-2004.
______________________
Gerardine Coyle
Equality Officer
26th April, 2007
notes
(2) High Court - 1993
(3) Labour Court Determination - DEP915
(4) Labour Court Determination - DEP937
(5) High Court - (No. 2) 1997
(6) Labour Court Determination - DEP 013
(7) UK House of Lords (1987)
(8) UK (1977) IRLR 228
(9) Labour Court Determination - DEP 993
(10) ECJ - Case C-17/05
Equality Officer Recommendation - EP 03/1996
Labour Court Determination - DEP 971
High Court (May, 1998)