FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : ENTERPRISE IRELAND - AND - IRENE MC MAHON (REPRESENTED BY HARTE AND ASSOC) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Act, 1998 against Equality Officer's Recommendation No. Dec-E2006-045.
BACKGROUND:
2. The following is the Labour Court's Determination:-
DETERMINATION:
The respondent referred a claim of discrimination under the Act to the Director of Equality Investigations on 22nd July 2003. This claim was against Bio Research Ireland (BRI). A reply was received from Enterprise Ireland, a statutory body of which BRI is a constituent part. At a preliminary Equality hearing held on 17th June 2004, Enterprise Ireland (EI) argued that the respondent’s employer was University College Dublin (UCD). It was agreed that this matter would be decided as a preliminary point. UCD was joined as a respondent and a hearing took place on 1st June 2006.
The Equality Officer found on the 19th September 2006 that the appropriate respondent in the equality claim was Enterprise Ireland. On 19th October 2006, Enterprise Ireland appealed this decision to the Labour Court and a Labour Court hearing was held on 1st May 2007.
History:
In July/August 1999, the respondent applied for, and was interviewed for a position of “Executive Assistant Secretary” with BRI, based at the National Agricultural & Veterinary Biotechnology Centre (NAVBC) on the campus of UCD in Belfield, Dublin 4.
On 24th August 1999, she received a letter from Dr W, General Manager of BRI offering her the position on an initial one-year contract at a salary of €17,250 p.a. The letter contained an acceptance space, in which the respondent signed, and she began work on 13th September 1999.
Around the end of 1999, she took on the expanded role of Centre Administrator, reporting to the General Manager of BRI in the first instance and to the Director of NAVBC in the second.
This procedure continued as the Respondent worked on one-year fixed term contracts until made redundant in September 2003, leaving on 16th October 2003. From 2001, however, she had queried the level of her salary with BRI and felt it should be at a higher level. This matter was not resolved and remains at issue.
What is at issue in this preliminary point is whether the correct respondent in the initial action is Enterprise Ireland or UCD for the purpose of the Act.
Appellant’s Arguments:
1. UCD has openly conceded to the Equality Officer that it was at all times the respondent’s employer pursuant to a number of written contracts of employment.2. Her position was at all times within the domain of the Head of Department (NAVBC) at UCD.
3. Enterprise Ireland is not mentioned in the respondent’s contracts of employment.
4. She was paid by UCD, who issued all of her P.60s and, on termination of her employment, her P.45 to her.
5. Her then proposed Contract of Employment (by letter from the Personnel Officer, UCD dated 15/9/01) clearly emphasises that she was solely a UCD employee.
6. UCD terminated her employment by means of redundancy. She received and accepted a redundancy payment from UCD.
7. She initiated a claim for unfair dismissal against “BRI UCD” and these proceedings were resolved without any involvement from Enterprise Ireland by the payment of €10,000 in accordance with the recommendations of a Rights Commissioner dated 11th January 2005.
8. The fact that she initiated and pursed unfair dismissal proceedings and resolved them with UCD, accepting the sum of €10,000, should now estop her from maintaining that Enterprise Ireland was her employer and therefore “the correct respondent in this claim” (as decided by the Equality Officer).
9. The Act deals with discrimination as between employers and employees (definitions, S2, S8 and S77 (4)(h).
10. Just because Enterprise Ireland had control over Dr.W as his ultimate employer, it does not follow that there is therefore an employment relationship between Enterprise Ireland and the respondent.
Respondent’s Arguments:
1. The respondent was engaged by Dr.W, General Manager of BRI. He determined her remuneration and there was no mention of UCD. BRI is a division of Enterprise Ireland. Dr.W was and is an employee of Enterprise Ireland, not of UCD. He clearly represented BRI/himself as the employer.
2. In an internal memo to the respondent Dr.W says “I have personally valued your ability to deal effectively with a large organisation like UCD”. He would not, logically, have said this if she were actually an employee of UCD.
3. Dr. W told the respondent in a memo that salary levels and reviews “are set at Centre level by myself and not by Enterprise Ireland. It is also clear from this memo that her salary came out of the Centre’s budget, set by Enterprise Ireland (“approved by BRI at Glasnevin”) – Enterprise Ireland is based in Glasnevin.
4. In August 2001, the respondent wrote to Ms G, a senior employee of Enterprise Ireland (and BRI) inquiring as to who dictated the salaries for the employees of BRI at the Universities.
- Two days later, by email, Mr F, an Employee Relations Executive in the Personnel Department in UCD wrote to the Respondent saying
“the funding of your temporary post comes entirely from BRI, therefore the issue of your salary should be raised appropriately with Dr.W as your post does not have a pay relationship with UCD scales”.
6. In correspondence with the Equality Tribunal, and by her Trade Union, the respondent is described as being employed by Dr.W, an employee of Enterprise Ireland/BRI, General Manager of BRI UCD. He does not take issue with this.
7. The fact that UCD and Enterprise Ireland both state that the Respondent was an employee of UCD should not be determinative. It was very confusing for the respondent, who could only access her situation from her own limited vantage point. This confusion was created by Enterprise Ireland and not by the respondent.
8. The term “employee” and “respondent” have distinct meanings under the Act. The question here is whether BRI or UCD is theproper respondentin this case.
9. In its letter dated 20th April 2005 from the Head of Personnel in UCD to Enterprise Ireland, the former states that UCD is the respondent’s employer but goes on to state that “her salary was funded by Enterprise Ireland and through BRI. Her terms and conditions were as advised by BRI to UCD.
10. Given the above, the respondent relies on the general principles set out in"Henry Denny & Sons Ireland Ltd v Minister for Social Welfare [1998], IR34"and"Phelan v Coillte Teo[1993], IR18"and maintains that she was an employee of Enterprise Ireland.
11. She also places particular reference on“Rooney v Diageo Global Supply”[2004] E.L.R, 133where the Labour Court concluded that Ms Rooney was employed by Diageo, not withstanding that she was actually paid by a recruitment agency. The facts of that case mirror closely those in the instant case. It is submitted that the role of the recruitment agency in that case is analogous to that of UCD in the instant case.
12. To find that UCD was the employer will create the anomaly that the respondent will be faced with the task of pursing an equal pay claim against an entity that, by its own admission, had no decision making responsibility for her remuneration.
The Evidence:
Mr F, Employee Relations Manager, UCD, gave evidence regarding the respondent’s contracts – a 3 month probationary one followed by one-year fixed term contracts until she was made redundant in September 2003 when the funding for the programme stopped. She was one of about 500 similar contract staff working on research programmes in UCD.
He testified that the respondent wished to be put on a UCD scale, but that this did not happen for contract staff, as their salaries were reviewed by their managers annually within the constraints of the Centre’s budget.
He also testified that when the respondent was having a problem with nuisance phone calls, it was to him, as Employee Relations Manager in UCD, that she turned to for assistance.
He confirmed that the redundancy terms and the extra €10,000 recommended by the Rights Commissioner in the respondent’s Unfair Dismissal claim was paid by UCD.
In cross-examination, Mr F testified that he did not become involved in the advertising, recruitment or the setting of salaries for the respondent’s position. He was engaged on the Industrial Relations side and these were administrative matters dealt with by her manager.
Mr F further testified that the grievance procedure activated by the respondent was the UCD Grievance Procedure. Her contract of employment was a UCD one and her Trade Union representative also took up her case with UCD. It was not significant or unusual that the funding for her position came as a grant from Enterprise Ireland as many others were in a similar position
Ms G,Head of Strategic Management, Enterprise Ireland Bio, Enterprise Ireland, gave evidence that she was the operations manager of the BRI programme, setting up partnerships with the Universities.
She testified that the respondent was the Centre Administrator, that Dr. W was her manager and that he was employed by Enterprise Ireland, but he reported to two successive Directors who were employees of UCD. The respondent was an employee of UCD. She had no personal file or other papers in Enterprise Ireland. All her dealings were with UCD. She got National Agreement increases at the same time they were paid in UCD.
While Ms G agreed in cross-examination that the BRI budget came from Enterprise Ireland, this was true of all the University partnerships and while, ideally all the salaries should be similar, this was ultimately administered by the host University. The NAVBC was a division of UCD.
The Respondent, gave evidence of applying, having an interview, being successful and starting work with Dr.W as her manager. She dealt with UCD as an external body. She felt her salary was lower than the average for the position and at her annual review (with Enterprise Ireland people only) they promised to look into the matter but, in her view, did not do so. Managers and UCD staff got regular pay increases but she did not. She did not sign the 2001 or 2002 contracts of employment.
She had a lot to do with Dr. W and very little contact with the Director of NAVBC.
Her job came to an end in 2003, Dr. W went back to Enterprise Ireland and she was let go.
She took her Rights Commissioner case against BRI. No one from Enterprise Ireland turned up, but UCD did.
It appeared to her that she had been employed by Enterprise Ireland and dismissed by UCD. This was very confusing to her as she was not sure who her employer had been.
Dr. W set her salary and decided what her annual increases should be.
Facts Established:
1. The letter from UCD confirming that it was at all times the respondent’s employer also stated that her terms and conditions of employment were as advised by BRI to UCD.
2. UCD refused to discuss her salary, saying that all the funding came for BRI for her position and she should discuss the matter with Dr. W.
3. Dr. W. set her salary and her annual increases.
4. Her Unfair Dismissals claim was paid by UCD.
5. She was not on a UCD pay scale.
6. BRI was run on a grant from Enterprise Ireland. The respondent’s salary was paid out of this grant.
7. Dr. W was an employee of Enterprise Ireland.
8. UCD provided the respondent with her P.60s and her eventual P.45.
The Law Applicable:
The following definitions in the Act are relevant as they are variously quoted by the parties: -
“Contract of employment"(S.2)
means, subject to subsection (3)
(a) a contract of service or apprenticeship, or
(b) any other contract whereby an individual agrees with a person carrying on the business of an employment agency, within the meaning of theEmployment Agency Act, 1971, to do or perform personally any work or service for another person (whether or not that other person is a party to the contract),
whether the contract is express or implied and, if express, whether it is oral or in writing;
“employee"(S.2),
subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment;
"employer"(S.2),
subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment.
In Section 8(1)(b) of the Act, it states that“an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker”in relation to (inter alia) conditions of employment. It is argued by the Appellant that only employers can discriminate against employees.
Section 15 of the Act (Liability of employers and principals) states as follows:
- “(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purpose of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
- (2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person”
- (2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person”
S.77 (4) of the Act is the section which defines the appropriate respondent, it does so as follows: -
- “(b) “the respondent” means the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration term relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation.”
- “(b) “the respondent” means the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration term relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation.”
- The evidence disclosed that on or about April 1991 the claimant became aware of a vacancy for a nurse to work part-time with the respondent. She wrote a letter of application to Ms Mary Ryan who was the sister in charge of the respondent’s Occupational Health Centre. The complainant was subsequently contacted by Ms Ryan and was interviewed by her for the post. Ms Ryan later offered her the post and her hours of work, rate of pay and other particulars of her duties and benefits were agreed with Ms Ryan.
- On being initially employed the claimant was told by Ms Ryan that her wages would be paid through IRC. Throughout the continuance of her employment the claimant’s wages were paid by IRC and her P60 tax form was issued by IRC.
However, the claimant never met with any person representing IRC and did not negotiate with them in relation to her conditions of employment.
- On being initially employed the claimant was told by Ms Ryan that her wages would be paid through IRC. Throughout the continuance of her employment the claimant’s wages were paid by IRC and her P60 tax form was issued by IRC.
- The Court is satisfied that there was an offer of employment made by Ms Ryan, which was accepted by the claimant. Whilst the agreement was not reduced to writing it defined the rights and duties of the parties inter se, and there was valuable consideration. There was also mutuality of obligations in the sense thatthe respondent undertook to provide work and the claimant undertook to perform that work. Whilst it was agreed that the consideration, in the form of wages, would be paid through IRC, this does not mean that consideration did not pass from the respondent. The Court is satisfied that IRC were acting on behalf of the respondent in paying the claimant’s wages from funds provided by the respondent. The law has long regarded it as possible in appropriate contexts that an act which A procures B to do should be regarded as done by A. Accordingly, the Court is satisfied that a concluded contract existed between the claimant and the respondent and that at all material times the claimant worked under that contract”.
- The Court is satisfied that there was an offer of employment made by Ms Ryan, which was accepted by the claimant. Whilst the agreement was not reduced to writing it defined the rights and duties of the parties inter se, and there was valuable consideration. There was also mutuality of obligations in the sense thatthe respondent undertook to provide work and the claimant undertook to perform that work. Whilst it was agreed that the consideration, in the form of wages, would be paid through IRC, this does not mean that consideration did not pass from the respondent. The Court is satisfied that IRC were acting on behalf of the respondent in paying the claimant’s wages from funds provided by the respondent. The law has long regarded it as possible in appropriate contexts that an act which A procures B to do should be regarded as done by A. Accordingly, the Court is satisfied that a concluded contract existed between the claimant and the respondent and that at all material times the claimant worked under that contract”.
- “the complainant's wages were paid through IRC and this might not seem consistent with the respondent (Diageo) being her employer. However, the Court is satisfied that IRC was at all times acting on behalf of the respondent as its paymaster”.
- “the complainant's wages were paid through IRC and this might not seem consistent with the respondent (Diageo) being her employer. However, the Court is satisfied that IRC was at all times acting on behalf of the respondent as its paymaster”.
1. It is quite clear that the respondent applied for a position and was employed by BRI operating from the NAVBC at UCD in Belfield. The person who employed her and dealt with her terms and conditions of employment was Dr. W.
2. It is true to say that the respondent terms and conditions “were as advised by BRI to UCD (UCD letter submitted to Equality Tribunal).
3. Even if the contract of employment was issued by UCD, that in itself, as pointed out in“Henry Denny & Sons (Ire) Ltd v Minister for Social Welfare [1998] 1IR”does not constitute proof that UCD is the employer, or the correct respondent in her case.
4. When the respondent wrote to Ms G in Enterprise Ireland inquiring as to who dictated the salaries, it was Mr F in UCD who replied saying: -
- “the funding for your temporary post comes entirely from Bioresearch Ireland, therefore the issue of your salary should be raised appropriately with Dr. W, as your post does not have a pay relationship with UCD scales”
- “the funding for your temporary post comes entirely from Bioresearch Ireland, therefore the issue of your salary should be raised appropriately with Dr. W, as your post does not have a pay relationship with UCD scales”
of the respondent’s salary. BRI is a Division of Enterprise Ireland.6. The analogy drawn with the case of “Diageo Global Supply v Rooney” ( [2004]
ELR 133) is an apposite one. While UCD administered the payment of the respondent’s salary and provided her with her P60s and P45, it acted, in disbursing the money, as paymaster. The respondent was paid her salary out of the Enterprise Ireland Grant to BRI.
7. While the Court noted UCD’s acceptance of liability, highlighted by its payment of monies due under the respondents unfair dismissal case, the case was taken by her against BRI, which she assumed at the time had a relationship with UCD. Enterprise Ireland did not appear at the case, and the respondent could hardly be expected not to accept the settlement on the basis of who it came from. She was not the person who raised the question of who the correct respondent should be.
8. The rate of remuneration was set by Dr. W, an employee of Enterprise Ireland, as Manager of BRI, (a division of Enterprise Ireland) and using Grant funds provided by Enterprise Ireland. The Court takes the view that this alone will indicate, in accordance with the provisions of Section 15 and Section 77(4) that BRI is the proper respondent in this case.
- Determination
Based on all of the above, the Court finds that Enterprise Ireland is the appropriate respondent in the claim taken under the Employment Equality Acts 1998-2004.
The Court so Determines and upholds the Decision of the Equality Officer.
Signed on behalf of the Labour Court
Raymond McGee
25th June, 2007______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.