Fleming
-v-
Department of Finance
1. CLAIM
1.1 The case concerns a claim by Ms. Noreen Fleming that the Department of Finance discriminated against her on the disability ground in terms of section 6(2)(g) of the Employment Equality Act 1998 in contravention of the Act in relation to her non inclusion in an equal pay settlement concluded between it and the CPSU.
2. BACKGROUND
2.1 The complainant claims that she performed the same work as two colleagues in the Department of Social Welfare and that the two officers received the monies due under the equal pay settlement and she did not as she had retired on ill health grounds. The respondent denies the allegation of discrimination on the disability ground and submits that the complainant did not meet the criteria for inclusion in the settlement.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of the Equality Tribunal on 6 July 2005. On 19 September 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 15 August 2006 and from the respondent on 29 September 2006. A joint hearing of the claim was held on 8 October 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that she was employed by the Department of Social Welfare as a Clerical Officer from 1972 to the date of her retirement in January 2001 when she was forced to retire due to ill health. The complainant claims that she performed the same work as two named comparators but was not included in the Equal Pay Settlement concluded between the CPSU and the Minister for Finance.
3.2 She submits that as she was employed during the relevant time and carried out the same duties as colleagues who received the settlement, she believes that she was discriminated against on disability grounds. She submits that if it were not for her suffering ill health, she would have been eligible for the payment.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 Following equal pay proceedings taken by the CPSU, the Department of Finance and the Union reached agreement in relation to the claim. A legal agreement was then drawn up between the Department and the CPSU which provided for a settlement amount of €5,000 to be paid to eligible people. The two categories of eligible people were:
(a) Clerical assistants or Clerical Officers serving on the 31 October 1997 and who were still serving Clerical Officers on 16 May 2003
and
(b) Clerical Assistants or Clerical Officers who filed equal pay claims on or before April 1998.
Additionally, a number of people were specifically excluded by the settlement. These were:
CA/CO's recruited since 31 October 1997
CA/CO's promoted prior to 31 October 1997
CA/CO's on 31 October 1997 who were promoted prior to 16 May 2003 who had not lodged their equal pay claim by end April 1998.
4.2 The respondent submits that the complainant lodged her claim on 6 July 2005 which is outside the timeframe set out in the Acts and the claim should be dismissed. Indeed, the complaint was not lodged until more than 2 years and 7 months after the operative date of the agreement.
4.3 The complainant was not included in the settlement because she did not meet the criteria for inclusion in the settlement. The complainant was not serving on 16 May 2003 so she was not included in the first category and as she did not file an equal pay claim on/before April 1998, she was therefore not included in the second category. People who had left the Civil Service for whatever reason prior to 16 May 2003 were not included in the settlement unless they were in the second category. This includes people who retired on reaching the age limit, people who retired voluntarily after age 60 and people who retired on health grounds. Similarly, people in the service but who had left the Clerical Officer grade prior to 16 May 2003 were not included in the settlement unless they were in the second category.
4.4 The complainant states that she did the same work as the comparators or that her work was interchangeable, however, as stated previously, the complainant left the service on 5 January 2001 and she had been absent on sick leave since 16 August 1999. Therefore, she was not performing like work with the comparators in 2005 at the particular time she lodged her claim.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant in this case alleges that she was discriminated against in relation to her pay on the disability ground when she was not included in the settlement agreement reached between the CPSU and the Department of Finance. The settlement agreement was concluded on 20 November 2003 in relation to an equal pay claim initially referred by 26 Clerical Assistants claiming equal pay with Paperkeepers. A further 2200 Clerical Assistants subsequently lodged claims. The number of people to whom the settlement eventually applied was extended for industrial relations purposes beyond the original two groups of claimants prior to signature. There were two main categories of beneficiaries, (i) those who were serving clerical staff on 31 October 1997 and who were still serving as Clerical Officers on 16 May 2003 and (ii) clerical staff who filed equal pay claims on or before 30 April 1998.
5.2 The complainant was serving as a Clerical Officer on 31 October 1997 but retired on ill health grounds in January 2001 and was not therefore serving in May 2003 and did not benefit from the terms of the settlement agreement under the first category of beneficiaries. She also did not benefit under the second category of beneficiaries as she had not submitted an equal pay claim by the end of April 1998. The complainant has referred an equal pay claim against the Department of Finance on the basis that they were signatories to the settlement agreement from which she was excluded. The Labour Court held in Department of Finance and CPSU v. PSEU/AHCPS and anor that the relevant date of discrimination in any claim in relation to the settlement agreement in issue is 16 May 2003 when the CPSU conference decided who should benefit from the settlement rather than 20 November 2003 when the terms of settlement were finally concluded and signed. Section 77 of the Employment Equality Act, 1998 provides that a person who claims not to be receiving remuneration in accordance with an equal remuneration term may seek redress by referring a case to the Director. Section 29(1) provides that it shall be a term of the contract under which a person is employed that s/he shall be entitled to the same rate of remuneration for the work which s/he is employed to do as a person who differs in relation to any of the eight grounds who at that time or any other relevant time is employed to do like work by the same or an associated employer. Equal pay claims are referred against one's employer and "employer" is defined in section 2 as meaning in relation to an employee, "the person with whom the employee has entered into or for whom the employee works under ........... a contract of employment." Section 2(3) of the Acts provides that
For the purposes of this Act -
(a) a person holding office under, or in the service of, the State (including a member of the Garda Siochana or the Defence forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, under a contract of service.
It is therefore the case that the complainant may be regarded as an employee of the State.
Direct discrimination
5.3 The complainant in this case has referred a complaint against the Department of Finance citing two comparators in the clerical grade who received the settlement monies and who did not have a disability. Section 29(5) of the Equality Acts provides that "... nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees." In this instance, it is the case that not all clerical staff received the settlement monies. This was the situation irrespective of whether they had a disability or not. The question of whether clerical staff were entitled to the settlement monies depended on them satisfying the criteria that (i) they were serving as Clerical Assistants/Clerical Officers on 31 October 1997 and were still serving as such on 16 May 2003 or (ii) Clerical Assistants/Clerical Officers who filed equal pay claims on or before the end of April 1998. Whilst the complainant was in service on 31 October 1997, she retired on ill health grounds in January 2002 and was not therefore serving on 16 May 2003. She also did not file an equal pay claim before the end of April 1998. It is therefore the case that the reason that the complainant did not benefit from the equal pay settlement was not related to her disability but arose from different issues entirely, i.e. her failure to satisfy the relevant criteria to be a beneficiary under the settlement agreement. I find therefore that there were grounds other than disability for the non payment of the settlement monies to the complainant.
Indirect discrimination
5.4 I will also proceed to consider whether the requirement to be in service on 16 May 2003 could be considered to be indirectly discriminatory on the disability ground. Section 29(4) of the Acts provide that indirect discrimination occurs where an apparently neutral provision puts persons of a particular group at a particular disadvantage in respect of remuneration compared with other employees of their employer. The section also provides that statistics are admissible for the purpose of showing disadvantage. In this instance, I must consider whether the requirement to be in service on 16 May 2003 put persons with a disability such as the complainant at a disadvantage vis a vis those without a disability. The respondent submits that people who had left the civil service for whatever reason prior to 16 May 2003 were not included in the settlement unless they were in the category of persons who had filed claims before the end of April 1998. It submitted that the group who had left the service before 16 May 2003 included those who retired on reaching the age limit, people who retired voluntarily after reaching age 60 and people who retired on health grounds and people who resigned from the civil service. The requirement to be in service on 16 May 2003 did not just disadvantage those who retired due to ill health but all those who resigned for various different reasons. Statistics are not available on this issue and I consider that it would be difficult for the complainant to show that only people with a disability who retired on ill health were adversely affected in relation to the service requirement. In the circumstances, I find that a prima facie case of indirect discrimination on the disability ground has not been established.
Collective agreement
5.5 The complainant referred her complaint against the Department of Finance on the basis that they were party to the settlement agreement with the CPSU from which she was excluded. In accordance with section 86 of the Employment Equality Act, 1998, the complainant could have referred a complaint in relation to a collective agreement to the Director on the basis that a provision of the agreement is null and void. The respondents to a claim in relation to a collective agreement are defined in section 86(2) (c) as meaning "the parties to the agreement, other than (where relevant) the complainant." In accordance with section 87, the Director may then proceed to identify which provisions, if any, are null and void and may provide guidance to the parties to the agreement as to how alternative provisions might be devised which would be lawful. The appropriate redress in a reference under section 86 is therefore a declaration that a provision or provisions are null and void. The Labour Court stated in Department of Finance v. 7 Named Complainants:
"...., as already stated in this Determination, an application under Section 86 of the Act is not analogous to an equal pay claim and the Section does not provide an alternative means of pursuing such a claim.
If the Complainants wish to pursue an equal pay claim under Section 77 of the Act in reliance on Section 19, and cite as a comparator a man whose pay is determined by parallel benchmarking, they could, of course, mount a collateral attack on both pay determination systems if they were raised in defence of unequal pay for equal work."
5.6 The Employment Equality Act, 1998 did not contain a clear definition of 'collective agreement' other than to provide at section 86 that
(a) the expression "collective agreement" shall be taken to include an order or agreement falling within paragraph (b) or (c) of section 9(3),
Subsections (b) and (c) of section 9 refer to employment regulation orders and registered employment agreements.
A definition has now been incorporated in section 2 by the amendments made in the 2004 Act. In any case, whilst I have concerns in relation to whether the settlement agreement amounts to a collective agreement, in the instant case, no complaint was made under sections 86 and 87 of the Act that a collective agreement or a provision thereof is null and void by virtue of section 9, accordingly, it is not necessary for me to determine whether the settlement agreement is a collective agreement. It is also the case that even if a claim under section 86 had been referred, it would not have satisfied the complainant's objective in receiving the settlement monies as the only redress available under section 87 is a declaration that a provision or provisions are null and void by virtue of section 9 of the Act.
6. DECISION
6.1 On the basis of the foregoing, I find:
(i) that there are grounds other than disability for the non payment of the settlement monies to the complainant;
(ii) that a prima facie case of indirect discrimination on the disability ground has not been established;
(ii) that a complaint was not made under section 86 that a collective agreement or a provision thereof is discriminatory and void by virtue of section 9 and I have no justification to investigate such a claim against the named respondent.
__________________
Mary Rogerson
Equality Officer
4 December 2007