DEC-E2007-038 - Full Case Report

Kane
(Represented by Impact)

AND

Sligo Leitrim Home Youth Liaison Services Ltd
(Represented by Hegarty & Armstrong, Solicitors)

1. DISPUTE

1.1 This dispute concerns a claim by Ms Patricia Kane, employed as a Home Youth Liaison Officer by Sligo Leitrim Home Youth Liaison Service Ltd, that she was entitled to the same rate of remuneration as that paid to a male colleague, in accordance with the provisions of section 19 (1) of the Employment Equality Act 1998. She also claimed to have been discriminated against in relation to access to promotion, conditions of employment and classification of posts.

1.2 The complainant's legal representative referred a claim to the Director of the Equality Tribunal on 31 May 2004 under the Employment Equality Act 1998. Following an unsuccessful mediation process, the complainant notified the Tribunal in June 2005 that she was now represented by Impact trade union. In accordance with her powers under section 75 of the Act, the Director then delegated the case on 1 July 2005 to Anne-Marie Lynch, 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. Submissions were sought from both parties and a joint hearing was arranged for August 2006. Neither party was available on the scheduled date and the hearing ultimately took place in Sligo on 9 March 2007. Subsequent correspondent concluded on 19 April 2007.

2. THE COMPLAINT

2.1 The complainant's case for equal pay was referred under the provisions of section 19 (1) of the Act which states
It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
Section 18 states that "A" and "B" represent two persons of the opposite sex, so that where "A" is a woman, "B" is a man and vice versa.

2.2 Section 19 (5) of the Act provides that
...nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.

2.3 The respondent disputed like work in respect of the complainant and the comparator, but contended also that there were grounds other than gender for the different rates of remuneration, and the investigation proceeded on that basis.

3. SUMMARY OF THE RESPONDENT'S CASE

3.1 The respondent says the Sligo Leitrim Home Youth Liaison Service (the Service) is a community project whose main aim is to provide support and counselling to young people who have already left school early, or who are - by reason of poor attendance or disruptive behaviour - likely to drop out of school. It began in the late 1980s as an initiative from school principals, probation services and other agencies with a remit for young people. The Service is basically funded by the Department of Education and Science and the Health Service Executive, with some additional monies from the Programme for Peace and Reconcilitiation.

3.2 The respondent says the named male comparator (Mr H) was employed as a Home Youth Liaison Officer (an Officer) in October 1997. He and another person appointed at the same time were placed on point 3 of the house parent scale, as they both had previous experience. The respondent says that Mr H's experience would have merited a higher remuneration, but financial resources were inadequate. The second person's post was funded by monies received from the Programme for National Recovery, which ran out in 1999. The respondent says that, in addition to his main responsibilities as stated in his job description, Mr H carried out administrative duties such as reporting to the relevant statutory bodies, liaising with the Service's accountants and ensuring that the terms of the funding bodies were met. The respondent says that Mr H received no extra remuneration for this work, and points out that during the first half of 2000 he was the only employee of the Service.

3.3 The respondent says that management of the Service considered the situation to be unfair, and in June 2000 proposed to the Health Board that Mr H be paid an annual allowance of £1,000 in respect of his extra duties, details of which were supplied to the Health Board in support of the submission. This extra payment was approved. The respondent points out that the complainant had not commenced her employment with the Service at this stage.

3.4 The respondent says the complainant was employed as an Officer in August 2000 and placed on the 4th point of the scale, as she also had previous experience. At this stage, Mr H had been in employment for almost three years and was approaching the 6th point of the scale.

3.5 Minutes of a management meeting on 29 May 2001 record "[Mr H] to hold post of responsibility on an ongoing yearly basis to be reviewed each year. A payment of £1,500 will be paid this year. All members of the Committee have passed this." In the event, a payment of £1,200 was approved by the Health Board. In December 2002, approval was sought from the Health Board for a contribution to Mr H's pension fund. The letter refers to the necessity for extra responsibilities to be taken on by a member of the Service, without going through the process of creating a new post and the consequent re-structuring. The letter continues "These duties have been taken on for the past two and a half years by [Mr H], the Senior Worker, and his colleagues are satisfied with the arrangement." The respondent says that the reason for the proposed change was tax efficiency. The annual allowance had been paid by cheque and was subject to tax. The contribution to Mr H's private pension would allow him to receive the full value of the payment.

3.6 The respondent says that in June 2003 the Service was restructured, following the withdrawal of certain schools from the Service. A document circulated to staff at the time indicates that the management committee had agreed that "a management role should be created involving staff support and supervision along with overall accountability for the service...Office management will be a significant aspect of this role. The duties of the management post will be more clearly defined and added to the responsibilities currently held by [Mr H]."

3.7 The respondent says that the existing situation was queried by the complainant at a staff meeting in November 2003. The minutes of the meeting record that the complainant sought clarity of Mr H's role, title and remuneration. The respondent says Mr H passed on this concern to the Community Worker of the Health Board, chairperson of the management committee, who in turn passed it on to the Director of the Social Services Council by letter dated 11 November 2003. At a subsequent management committee meeting on 2 December 2003, it was agreed that all staff members would be circulated with a memo regarding Mr H's role and responsibilities as co-ordinator of the Service. The respondent says this memo was circulated on 9 January 2004, and led to a written complaint from the complainant addressed to the Board of Directors.

3.8 In this complaint, the complainant indicated that she was unhappy with the apparent creation of a hierarchical structure in the Service, which she said had traditionally worked well as a team. She said she was professionally frustrated, upset and disempowered by the way things had been conducted, and she requested a meeting with the Board of Directors. By letter of 31 March 2004, addressed to the management committee, the complainant indicated that what she was looking for in relation to her grievance was €2,000 per annum pension and a 2 point increase on the pay scale, both backdated to June 2003, as well as the withdrawal of the post of co-ordinator.

3.9 The respondent says the management committee responded on 19 April, advising the complainant that current resources did not permit the payment of additional pension contributions, that the complainant received annual increments in accordance with her contract of employment and that there was no intention to withdraw the co-ordinator post. By letter of 21 October 2004, the complainant resigned her position citing increasing difficulty in working within the new staffing structure and in the existing atmosphere in the workplace.

3.10 The respondent says that it is apparent from the foregoing sequence of events that Mr H's additional responsibilities pre-dated the employment of the complainant. It acknowledges that he is paid a modest additional amount, but says that it is clear that this is justified by his additional responsibilities and is not in any way discrimination against the complainant. The respondent submits that, even if it was in some sense a discrimination, there was no basis for suggesting that it was on grounds of gender.

3.11 Notwithstanding the above argument, the respondent submits that the complainant's complaint is clearly based on the alleged promotion of Mr H. The respondent disputes that he was so promoted as claimed. However, if the Tribunal were to find otherwise, the respondent submits that on the complainant's own case this occurred in June 2003 and the complainant became aware of it, at the latest, in November 2003. The respondent says that both of these dates are more than six months before the referral of the complaint on 31 May 2004, and the complaint is therefore out of time.

4. SUMMARY OF THE COMPLAINANT'S CASE

4.1 The complainant says she commenced employment with the Service in August 2000. She says that prior to this the only Officer in the employment of the Service was Mr H. The complainant says she was appointed on the basis of the exact same contract and job specification as Mr H, as was a third Officer appointed two years later. The complainant says that she attended a management committee meeting about a year after she started work where the question of additional resources to fund a promotional post was raised. The complainant says she has a clear recollection of a committee member raising the point that, if additional resources could be sourced, there were now two members of staff to be considered. The matter was not pursued at the time because of lack of resources.

4.2 The complainant says a complete departure from normal practice, whereby all three Officers attended management committee meetings, emerged in June 2003. The management committee arranged one-to-one meetings with each Officer. At her meeting, the complainant was informed that Mr H's position was now going to be office-based, and she says she sought clarification regarding the motivation for this decision. She says she was assured she would receive clarification before the end of August, but this failed to materialise.

4.3 The complainant asserts that Mr H began receiving post addressed to him as manager or co-ordinator after June 2003. She claims that he also received an enhancement of pay by securing a two point increase on the incremental scale in October 2003. The complainant contends that this constituted less favourable treatment of her and at no point was she invited to participate in the establishment of Mr H's promotional post. She contends that, based on the chronology of events, she has established a prima facie case of discrimination and that the burden of proof accordingly shifts to the respondent.

4.4 The complainant contends that until June 2003 she was undertaking "like work" with Mr H in terms of section 7 of the 1998 Act. She contends that her job was identical to his and that they could have interchanged with each other (Equality Officer Decision in Treanor and others and Donegal Democrat [DEC-E2003-049] cited in support). She further contends that the work performed by her was of a similar nature to that performed by Mr H, and that any differences occurred only infrequently and were of small importance in relation to the overall work as a whole.

4.5 The complainant contends that she is entitled to retrospective payment of all enhanced payment arrangements to Mr H up to June 2003, when he was appointed co-ordinator without competition, or without inviting interest or application from the complainant or the other Officer. She further contends that Mr H was facilitated with a private pension by the employer, which was denied to her. She claims that this pension is clearly a benefit received in respect of employment and therefore covered by employment equality legislation. She contends that she should be paid retrospectively for all employer contributions to the scheme from the commencement of Mr H's assimilation onto same to December 2004.

4.6 The complainant says that enhancements afforded to Mr H have not been supported by any objective grounds advanced by the respondent. She says it is clear from the documentation submitted that the respondent was initially unable to afford to provide a pension scheme to either the complainant or Mr H, and for the respondent to proceed by stealth to solicit Mr H with a pension scheme without disclosure to the complainant constituted unfair treatment of her.

4.7 The complainant notes that the respondent has argued that the enhancements afforded to Mr H were based on facts unrelated to gender, but she says it has failed to produce any evidence to support this. She argues that, in fact, the respondent has failed to demonstrate that the difference in pay was objectively justified.

4.8 In relation to the respondent's argument that the complaint is out of time, the complainant submits that she was subjected to a continuing pattern of discrimination, which continued until she resigned from her employment. The complainant submits that the acts constituting this pattern must be considered as separate manifestations of the same disposition to discriminate, following the determination of the Labour Court in Department of Health and Children and John Gillen (Determination No 0412). The complainant also refers to UK decisions on the concept of continuing discrimination, in particular Calder v Finaly Corporation (ICR [1989] 157) and Hendricks v Commissioner for the Metropolis ([2003] IRLR 96). In the latter decision, the Court of Appeal found that a series of incidents could be evidence of a "continuing discriminatory state of affairs" covered by the concept of continuing discrimination.

5. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER

5.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.

5.2 The facts of the complaint are not in dispute. Mr H was paid an extra allowance on an annual basis from 2000. In 2002, the respondent obtained sanction to alter the allowance to become a contribution to Mr H's pension. The complainant contended that the payment of an extra allowance to Mr H constituted a breach of section 19 of the Acts. She claimed further that the contribution to Mr H's pension constituted a benefit received in respect of employment and so was covered by employment equality legislation.

5.3 Claims in relation to equal treatment in pensions are referred under the Pensions Acts 1990 - 2004, as amended by the Social Welfare (Miscellaneous Provisions) Act 2004. The complainant did not in fact refer a complaint under the Pensions Acts, but I am satisfied that this does not mean the matter is not properly before the Tribunal. Section 2 of the Employment Equality Acts 1998 to 2007 provides that
"pension rights" means a pension or any other benefits flowing from an occupational pension scheme.
The respondent in this case did not operate an operational pension scheme, but made a contribution to Mr H's private pension. I find that this contribution was remuneration in accordance with section 2 of the Acts, which states
"remuneration", in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment.

5.4 As I am satisfied that the allowance and pension contribution received by Mr H constituted remuneration, it follows that the complaint is not out of time as submitted by the respondent. Time limits for referral of complaints are dealt with in section 77 (5) of the Acts, which provides
(a)...a claim for redress in respect of discrimination or victimisation may not be referred...after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates...
(b) [extensions of time]
(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

5.5 From documentation supplied by the respondent, it is evident that financial difficulties in the Service meant that Mr H could not progress on the increment scale as would have been expected. The respondent submitted, and there is no evidence to the contrary, that Mr H would have been placed on the scale at a higher point had resources permitted. His expected and actual progressions were as follows:

It will be noted that, while Mr H attained point 6 on the scale at approximately the right time, he did not receive an increment in 1998 and was placed on the 5th point some three months late.

5.6 I am satisfied, from the evidence provided, that the matter of an extra allowance for Mr H arose in mid-2000, when a submission was made to the Health Board. As stated, he was at that time the only employee of the Service. The approval of the allowance to Mr H pre-dated the employment of the complainant, and I am satisfied that gender had no bearing on the decision to make the payment. It should be noted that the complainant denied that Mr H had any supervisory role, but the respondent provided evidence that he had consistently signed her travel and subsistence claims as "authorising officer" or "certifying officer". The subsequent contribution to Mr H's private pension represented an alternative mechanism for the same payment, and I am satisfied that this also was not influenced by gender.

5.7 The complainant asserted that Mr H was promoted in June 2003, without her being given an opportunity to compete. The respondent denied that he had been promoted, saying that it had merely confirmed changes which had evolved over a period of time. From the document referred to in 3.6 above, it is clear that the management committee had agreed to the creation of a management role, the responsibilities of which were to be added to Mr H's existing additional duties. It is also clear from the evidence that Mr H received an enhanced incremental progression to compensate for his new responsibilities.

5.8 The Chairperson of the management committee met the three Officers in June 2003 to discuss the proposed re-structuring of the Service, following the withdrawal of some schools. His handwritten contemporaneous note of these discussions was submitted in evidence at the hearing. In relation to the complainant, he noted "Overall happy with post. Recent events have changed - uncertainty." With regard to Mr H, the note reads "Define [Mr H's] duties. Note to [payroll] re salary. Compensate for loss of travel - increment."

5.9 On considering all of the evidence submitted, I am satisfied that the re-structuring carried out in June 2003 involved the creation of a new post, with additional duties and an enhanced salary. However, Mr H had been carrying out extra duties since prior to the employment of the complainant, and the management committee considered that it was formalising the arrangement. I note that the complainant's complaint to the management committee criticised the introduction of a "hierarchal structure" in the Service and called for the withdrawal of the co-ordinator role. She did not make a complaint about being excluded from a promotional opportunity, nor did she refer to gender discrimination. It would appear that the changes to the Service were seen internally, by the management committee and by the complainant, as a further alteration to Mr H's already distinct duties. I am satisfied that it was the fact that he was already carrying out distinct duties that influenced the decision of the management committee, and that gender had no bearing on the fact that Mr H's role was changed.

6. DECISION

6.1 Based on the foregoing, I find that there were grounds other than gender for the difference in the pay between the complainant and the named comparator, in terms of section 19 of the Employment Equality Acts 1998 to 2007.

_____________________
Anne-Marie Lynch
Equality Officer

11 July 2007