DEC-E2008-019 - Full Case Report

SUMMARY[1]

Ms. C. Connerty (complainant) Represented by Mr. Archbold  vs  Caffrey Transport (respondent) Represented by Mason Hayes Curran Solicitors:

Employment Equality Acts, 1998-2007  Sections 7 and 19(5)  -  Employment  -  Equal Pay  -  Gender

Background:

The complainant was employed by the respondent as an Accounts Assistant.  She claims that she performed ‘like work’ to a named male employee who was employed by the respondent organisation as the Transport Manager.   The respondent denies the claims and states that there are ‘grounds other that gender’ for the difference in pay to the complainant and the named male comparator. 

Conclusions and Decision:

The Equality Officer found that the complainant was not performing ‘like work’ with the named male comparator within the meaning of Sections 7(1)(c) of the Employment Equality Acts, 1998-2007.  The respondent had argued that there were ‘grounds other than gender’ for the difference in pay to the complainant and the named male comparator.  The Equality Officer found that there was no evidence to support such a contention.  As the Equality Officer had found that the complainant did not perform ‘like work’ with the named male comparator she held that the complainant has no entitlement to the same rate of remuneration as that paid to the named male comparator.

Cases Cited:

Employment Appeals Tribunal – Catherine Connerty v Caffrey Transport – UD336/2005

1.           DISPUTE      

1.1       The dispute concerns a claim by Ms. Connerty that she is entitled to equal pay with a named male comparator in accordance with Section 7 of the Employment Equality Acts, 1998-2007.

2.           BACKGROUND

2.1       The complainant was employed by the respondent as an Accounts Assistant.  She claims that she performed ‘like work’ to a named male employee who was employed by the respondent organisation as the Transport Manager.   The respondent denies the claims and states that there are ‘grounds other that gender’ for the difference in pay to the complainant and the named male comparator. 

2.2             Consequently the complainant referred her equal pay claim to the Director of the Equality Tribunal on 16^th March, 2005 under the provisions of the Employment Equality Acts, 1998-2004.  In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 29^th January, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act.  A preliminary hearing took place on 14^th January, 2008 after which both parties made submissions.  Work inspections took place on 18^th February, 2008 and these were followed by a final hearing on 14^th March, 2008.  Further information was received from the respondent on 31^st March, 2008.   

3.            SUMMARY OF THE UNION’S SUBMISSION

3.1            According to the complainant she was employed as a full-time Accounts Assistant in the respondent organisation from 9^th September, 2003 to 21^st February, 2005 and was in receipt of €597.00 at the termination of her employment.   It is her submission that the position she held developed and evolved over the period of her employment and expanded to include some additional tasks, which were not listed in her Contract of Employment.  The complainant asks the Equality Officer to note that the respondent has failed to respond to her request for information under the legislation and to ‘draw such inferences as seem appropriate from the failure to supply the information’.  She states that she is unaware of the exact earnings of the comparator but says that to her knowledge he was paid €125.00 per day for 7 days (even though he did not work 7 days).  The complainant says that part of this pay was treated as subsistence and was therefore tax exempt.  It is the complainant’s submission that the comparator was also in receipt of a company vehicle and a mobile phone which she estimates to be worth a total of €250.00 per week.   

3.2             According to the complainant there is no written statement of duties for the comparator as required by Section 3 of the Terms of Employment (Information) Act, 1994.  She contends that this failure to comply with the 1994 Act places a question mark over the job description submitted by the respondent for the named comparator.  The complainant has compared her job to that of the named comparator in terms of Responsibility, Skill, Mental Effort, Physical Effort and Working Conditions and her arguments under each heading are set out below:

               Responsibility

                The complainant notes that she was first in line if, for whatever reason, the owner (Managing Director) of the company was unavailable.  She submits that there was a high level of responsibility placed on her.  It is her submission that she was only one of four persons authorised to sign cheques for the respondent organisation.  The complainant contends that the level of responsibility placed on her was far more onerous than that placed on the comparator.

               Skill

                The complainant submits that the skill levels required of her were far superior to those required of the comparator.  She contends that the onerous duty required of the comparator is that of driving and there are no other serious demands on the comparator in terms of skill.  By comparison the complainant submits that her role required a very broad knowledge of the business and all of its financial, banking, clerical and payroll functions.  It is her submission that the requirement to liaise with clients, banks and debtors, the skill of preparing month-end accounts for the Financial Controller add up to a level of skill which far exceeds that expected from the comparator.  In addition the complainant states that she had the ability to deputise for the Managing Director and as a consequence this must place her in a skill bracket far in excess of anything demanded of the comparator.

               Mental Effort

                The complainant submits that the mental effort required of the comparator was negligible except when he was required to drive.  She maintains that at all times she was required to apply very intense levels of concentration and application in the demanding areas of finance and banking plus the overall supervision and running of accounts, lodgements, invoicing, credit control, payroll, etc.  The complainant has the view that the task of deputising for the Managing Director was one that demanded very significant mental effort.  It is the complainant’s contention that the mental effort required of the complainant was far superior to that required of the comparator.

               Physical Effort:

                The complainant notes that both she and the comparator were based in the respondent’s offices and therefore the physical effort required of both was equal.  While the comparator was required to drive for the respondent organisation on rare occasions the complainant says that she was required to collect or lodge monies at times.  The complainant submits that these tasks balanced each other out to the point that the physical demands made of both were equal. 

               Working Conditions:

                As both the complainant and the named comparator spent the vast majority of their working time in the respondent’s office, the working conditions applicable to both were almost identical.  Therefore the complainant submits that the working conditions under which they both operated were equal.

3.3       The complainant makes the following comments on the respondent’s job description for the comparator (which the respondent had submitted to the Director along with its request to have this claim dismissed as frivolous, vexatious and misconceived).            In relation to the contention that the comparator was required to substitute, where necessary, when drivers were absent, the complainant rejects this and says that he only carried out such duties on the rarest of occasions.  The complainant does not accept that the comparator collected parts to support maintenance as alleged.  According to the complainant this task was undertaken by two of the drivers.  It is the complainant’s submission that the workbook of collections/deliveries/shipping was maintained by both herself and the named comparator but not solely by the latter as suggested by the respondent.  The complainant does not accept that the comparator instructed drivers to ensure that trucks loaded onto correct ferries.  It is her contention that the responsibility for such an undertaking rested with the driver concerned and not with the comparator who was a number of hundred miles away.

3.4             In terms of the job description submitted by the respondent for the complainant she says that it represents her job differently to what the respondent stated in its previous submission to the Equality Tribunal on the issue of discriminatory treatment and victimisation.  In these circumstances the complainant refers to the Determination of the Employment Appeals Tribunal[2] as corroborating evidence which is more reliable.  She says that she was in a position of trust and held a key position in the organisation.  It is her contention that she held down a very responsible job and this she says is suggested by the EAT in its Determination.  The complainant submits that there are further glaring inconsistencies between the respondent’s job description for her job and the respondent’s submission in the discriminatory treatment and victimisation claims related to her hours of work.  While her working week was 9.00a.m. to 5.00p.m. on a five day week she sometimes worked weekends and she was contacted sometimes outside office hours.

3.5             The complainant submits that like work exists between herself and the named comparator in that the work of one is equal in value to that of the other.  In these circumstances the complainant asks that the Equality Officer recommends accordingly.

4.                 SUMMARY OF THE RESPONDENT’S SUBMISSION

4.1             The respondent states that it provides refrigerated transport services mainly to companies in the food sector, delivering to and from the UK.  It commenced trading in 1992 and now employs a total of 33 people.  The employees are made up mainly of drivers of the refrigerated trailer and truck units and there are 5 office staff employed on a full-time basis.  The complainant commenced employment as an Accounts Assistant with the respondent organisation on 9^th September, 2002 and resigned from her employment effective 21^st February, 2005.  In relation to her claim for equal pay the respondent submits that the manner in which the complainant processed her claim has prejudiced it in particular in relation to her pay claim.  The respondent denies that the complainant and the named male comparator carried out ‘like work’ within the meaning of the Employment Equality Acts, 1998-2007 and says that the job specifications for each role demonstrate that the duties, skill requirements and responsibilities attached to each role were entirely distinct.

4.2             The respondent says that as Accounts Assistant the complainant was responsible for the maintenance of up to date accounting records including computer system records and all related accounting duties including management of the respondent’s Purchase Ledger, debt collection, maintenance of bank records and the preparation of weekly payroll and monthly PAYE returns.  It is the respondent’s submission that the named comparator was the respondent owner’s main support person responsible for ensuring that the respondent’s customers were satisfied and that their needs were properly met.  He was required to ensure that loads were collected correctly and on time, that trucks were booked on the correct ferries, that drivers got to the correct ferries on time and that the loads were delivered on time to the end delivery point.  While both parties worked in the respondent’s offices the respondent says that the comparator was obliged at times to go out on the road attending to trucking problems, substituting for drivers and also collecting spare parts.

4.3             The respondent states that the complainant and the comparator did not perform work of equal value ‘having regard to such matters as skill, physical or mental requirements, responsibility and working conditions’ as required for work to be considered to be ‘like work’ for the purposes of Section 7(c) of the Acts.  The respondent says that the Accounts Assistant role, while an important part of the Administration team, was not critical to the day to day operation of the business.  If a mistake was made, such as a book-keeping mistake, or the complainant forgot to carry out some duty such as processing a supplier invoice, it was not critical to the respondent’s reputation or its interface with customers and in the main could be swiftly corrected without any real setback to the respondent.  By comparison the respondent says that the comparator’s role was vital to the respondent organisation as if a load was not collected or delivered correctly the respondent lost revenue or could suffer additional costs or customer claims.  The respondent says that its reputation and sales growth depended on the comparator ensuring the smooth operation of the customer collection and delivery service.

4.4             It is the respondent’s submission that the skill set required for each role was clearly distinct, non-interchangeable and was not of equal value.  The complainant, as Accounts Assistant, was required to have her Leaving Certificate and to have some experience in office accounts work.  The comparator was required to have a driving licence to E & C Level (HGV Licence), transport experience, mechanical knowledge, road/route knowledge and geographical knowledge regarding customer locations and driving/ shipping routes.  It is further contended by the respondent that the skills required for the role of the Accounts Assistant are more transferable from one employer to the next as the same general practices apply in relation to accounting roles whatever the nature of the business activity.  On this basis it is contended that it is not as challenging to recruit an Accounts Assistant as it is to recruit an employee with the comparator’s skills.  The respondent submits that the comparator’s role requires skills, which are specific to the transport industry.  It is contended by the respondent that, due to the specialized nature of the comparator’s role, the industry skills and experience required and the extra work hours and responsibilities involved, it was more difficult to locate suitable candidates for this role and therefore it commanded a higher salary.

4.5             The respondent notes that the working conditions for each role were distinct as, unlike the complainant, the comparator was required to be available on call outside of office hours to respond to customer calls and driver difficulties.  In all circumstances the respondent submits that it did not discriminate against the complainant as alleged in respect of equal pay and it asks the Equality Officer to find accordingly. 

5.                 CONCLUSIONS OF THE EQUALITY OFFICER

5.1             The issue for decision in this claim is whether or not the complainant performed ‘like work’ with the named male comparator within the meaning of Section 7(1)(c) of the Employment Equality Acts, 1998-2007.  At the preliminary hearing of this claim the complainant withdrew her claims of ‘like work’ in terms of Section 7(1)(a) and (b) of the 1998-2007 Acts.  The respondent has argued that there are ‘grounds other than gender’ for the difference in pay between the complainants and the named male comparator in accordance with Section 19(5) of the Acts.  In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.

5.2             In deciding on the issue of ‘like work’ I spoke with Ms. Connerty, the complainant about the work she performed.  As the named male comparator (Mr. David Smyth) was no longer with the respondent organisation I spoke with Mr. Dermot Doyle who was the person who replaced the named male comparator in relation to most of the duties undertaken by the named male comparator.  The Managing Director outlined the additional duties undertaken by the named male comparator, which are not being undertaken by his replacement.  My job descriptions for the complainant and the named male comparator are set out in Appendices A and B respectively. 

5.3             Under Section 7(1)(c) of the Acts -

                 “… in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if – 

              (c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions”

            In order to establish the question of whether or not the work of the complainant and the named male comparator is equal in value I have examined their work under the headings of skill, physical or mental requirements, responsibility and working conditions as follows:

           Skill:

            The complainant required a good understanding of accounts and computer skills to enable her use and understand the Accounts Package.  She needed good organisational skills to maintain records up-to-date and correct.  In terms of debt collection the complainant required the ability to be diplomatic yet assertive in receiving payment for outstanding debts.  The complainant needed to be able to drive to go to the bank to lodge cheques.  The named comparator required good organisational skills along with his transport knowledge to ensure the smooth running of the operation with deliveries being made on time.  He also required good communication skills to attract business so that trucks always returned with loads.  Furthermore the named comparator required good interpersonal skills to enable him to deal with management on the one hand and drivers on the other.  He required the skills necessary to enable him to drive trucks.

        I find that skill levels required of the Named male comparator slightly higher to equal to those required of the complainant.

           Physical Requirements:

            The complainant’s job and the named comparator’s job were not physically demanding.  I do note, however, that on occasion the named comparator did have to drive trucks which is more physically challenging than driving a car which the complainant was required to do on occasion. 

        In these circumstances I am satisfied that there was a slightly greater physical requirements associated with the job of the named male comparator than that of the complainant.

           Mental Requirements:

            The complainant had to input information into the Accounts Package and she had to transcribe data from the Accounts Package onto forms for transmission to Revenue and she had to ensure that she did this correctly.  I note that the complainant monitored receipts and payments and ensured that the accounts balanced.  In getting the ISO mark for the respondent organisation the complainant maintained records up-to-date and correct.  In the absence of the Managing Director the complainant checked the bank balance to ensure that it was sufficient and she ensured that all deliveries were entered into the logbook and onto the computer system.  The named comparator monitored driver whereabouts.  He kept a check on estimated arrival times.  In his job the named comparator was required to check everything to make sure that deliveries were on time, that there would be return loads for drivers, that bookings were made with the ferry companies and that broken down vehicles were repaired as soon as possible.

          I find that the demands made on the named male comparator in terms of mental requirements were somewhat greater to those made on the complainant.

           Responsibility:

            The complainant was responsible for the Accounting System in the respondent organisation.  She had responsibility for the payroll and for the payment of all invoices received.  The complainant carried out a debt collection role contacting clients who had failed to make payments.  She was also responsible for petty cash, for the lodgement of cheques to the bank and for the making of returns to Revenue.  If the complainant encountered any difficulties she could contact the Accountant attached to the respondent organisation.  The complainant undertook to draw up the necessary procedures to enable the respondent organisation get the ISO mark.  On occasion the complainant stood in for the Managing Director but only in relation to work related to Accounts.  The named comparator was responsible for a staff of 20 drivers.  It was his responsibility to ensure that deliveries were made on time and that trucks returned with loads.  The named comparator was responsible for ensuring that trucks were booked on ferry sailings as necessary.  He was on-call 24 hours a day, 7 days a week for the equivalent of 6 months every year.  It was the named comparator’s responsibility to get trucks repaired when they broke down and to ensure that the operation ran as smoothly as possible.  The named comparator stood in for the Managing Director in his absence.

          Having carefully considered the level of responsibility associated with both roles I find that the level of responsibility required of the named male comparator was higher than the level of responsibility required of the complainant.

           Working Conditions:

            Both the complainant and the named comparator spent the majority of their time working indoors in an office environment.  The named male comparator was required to be on call outside of office hours.  This was a very necessary duty which did generate some level of activity for the complainant but the respondent did not quantify in terms of the average number of times each week he was contacted while on call, despite this information having been requested.

          I find that the demands made on the named male comparator, in terms of working conditions, were greater than those made on the complainant.

5.4             In summary, I consider the demands made on the named male comparator in terms of skill, mental requirements, physical requirements, responsibility and working conditions were greater that than those made on the complainant. I am, therefore, satisfied that the complainant did not perform work of equal value to the named male comparator in terms of Section 7(1)(c) of the 1998-2007 Acts.

5.5             In terms of ‘grounds other than gender’ for the difference in pay to the complainant and the named male comparator within the meaning of Section 19(5) of the Acts I note that the respondent has argued that the pay levels for the complainant and the named male comparator were established independently of each other, by market rates.  The respondent has also stated that, as each employee was recruited, the rates of pay were agreed in the context of previous pay levels, and the rates for other candidates applying for the position.  I note that the respondent has been unable to support this contention with clear evidence, which showed that the pay levels of the complainant and the named male comparator were determined by market rates at the time.

Other Issues

5.6             There were a number of conflicts between the parties in this claim as follows:

·       Job Title for the Named Male Comparator:

The complainant submitted that the named male comparator was not the Transport Manager.  This was denied by the respondent.  I note that a witness on behalf of the complainant stated, at the final hearing of this claim, that the named male comparator was the Transport Manager.  I am satisfied that there is no evidence before me to support the complainant’s contention.  Having said that, I note that the job title is not the issue in an equal pay case.  Rather it is a comparison of the actual work undertaken by both the complainant and the named male comparator.

·       Driving duties undertaken by the Named Male Comparator:

The complainant, and a witness on her behalf, both contended that the named male comparator did not drive trucks as alleged by the respondent.  I note that the named male comparator was a qualified driver.  In a written statement from the named male comparator, which was submitted to me at the final hearing of this claim he has stated “on many occasions my work also included driving trucks …”.  I note that this was not the evidence of the respondent at the work inspections of this claim.  I am satisfied that the named male comparator did, on occasion, drive trucks.  It is clear from my analysis that this was not a significant element of the named male comparator’s job.

·       Pay awarded to the complainant and the named male comparator:

In terms of a claim for equal pay it is basic pay that is set out for both the complainant and the named male comparator.  I note that, on occasion, the complainant did overtime for which she was paid.  However overtime is not taken into account in determining pay.  The named male comparator was in receipt of a basic pay along with an allowance (which equated to what had previously been a driver’s allowance which the named male comparator received when he was employed as a driver).  I note that this allowance was a form of pay and was not related to overtime as the named male comparator did not work overtime but it was a compensation for being on call 24 hours a day, 7 days a week for the equivalent of 6 months each year.  There was a conflict between the parties as to the value of the benefits in kind.

6.                 DECISION

6.1             In view of the foregoing I find that Ms. Connerty did not perform ‘like work’ with the named male comparator in terms of Sections 7(1)(c) of the Employment Equality Acts, 1998-2007.  While the respondent argued that there were ‘grounds other than gender’ for the difference in pay between the complainant and the named male comparator, there was no evidence provided to substantiate that claim. 

6.2             As Ms. Connerty was not performing ‘like work’ with the named male comparator I find that she has no entitlement under the legislation to the same rate of remuneration as that paid to the named male comparator.

            ______________________

            Gerardine Coyle

            Equality Officer

            29^th April, 2008

Name:                         Ms. Catherine Connerty

Job Title:                   Accounts Assistant

Organisation:            Caffrey Transport Limited

Location:                   Merrywell, Drumree, Co. Meath

Reports to:                 Managing Director

Hours of Work:            9.00a.m. -  5.00p.m. (Monday to Friday)

Rate of Pay:               As at end of 2004  -            €572 per week (basic pay)

                                                                    €1,300 bonus

                                                                    €1,000 ex-gratia payment

                                                                    €85 Christmas bonus

DUTIES:

• Complainant entered Sales Invoices into computerised accounts system (using Accounting Package Take 5).
• Complainant put the total value of the invoices (automatically calculated by the accounts package) into the banking system.  She accessed the banking system via the internet.
• Complainant drew down whatever funds were available (i.e. a defined percentage of the overall amount of the sales invoices) from the invoice amount into the current account.
• Complainant printed off sales invoices and filed.  When the drivers came back with paperwork for deliveries the complainant matched them with the sales invoices.  The complainant scanned the paperwork she received from the drivers and she sent out the original paperwork with the sales invoice to the customer requesting payment.
• On a daily basis the complainant recorded each driver’s load in a logbook.  The Managing Director would call out the loads and the complainant would write them into a log book.
• On a daily or sometimes weekly basis the ferry invoices came in and the complainant matched them to loads, she checked the prices (manual check on the basis of a price list received from the ferry companies).  The complainant entered the details into the Take 5 Accounting Package.
• Complainant also checked all other invoices e.g. maintenance invoices and entered them into the Accounting Package.
• Complainant printed off cheques on a weekly or monthly basis to pay invoices received and she printed a Creditor’s Report.
• On a weekly basis the complainant undertook a debt collection task.  This entailed ringing customers to look for payment for Sales Invoices.  In the event of queries the complainant checked the original paperwork.
• At the end of each month the complainant issued debtor statements (i.e. printout showing invoices that had not been paid).  These were then sent to the customers.
• Complainant wrote up lodgements for cheques received.  She marked off the payment in the Accounting Package and matched the payment up to the invoice being paid.  The complainant filled out the lodgement book for the bank and drove to the bank in Dunshaughlin to lodge the money.
• Complainant recorded lease agreements for trucks and trailers in the Accounting Package on a monthly basis.  Any invoices received relating to lease agreements were recorded on the Accounting Package by the complainant.  She also matched direct debit payments for leases to the payments on the computer system. 
• Complainant undertook the weekly payroll.  She got the number of days drivers worked from the Managing Director or the Transport Manager and she entered them into the payroll system (micropay – the standard payroll package).  The complainant then executed a transfer of wages from the bank into each employee’s bank account.  As employees joined the organisation the complainant set up their account details on the payroll system.  The complainant printed a weekly report, which she filed until month end reports.  At the end of every month the complainant printed reports covering payroll, sales invoices, purchase invoices and leasing records and she gave these reports to the company’s Accountant.
• Complainant operated and managed the Petty Cash.  If a driver purchased a part for a truck he would bring in the receipt and the complainant would pay him from petty cash.  The complainant kept a record of payments out of petty cash.
• Every month the complainant did the P30 returns (i.e. PRSI and PAYE payments to Revenue).  She completed the appropriate figures worked out by the Accounting Package onto a P30 form and she wrote a cheque, which was signed by both herself and the Managing Director.  The complainant then sent the details to Revenue.
• At the end of the year the complainant transferred the relevant information required to complete a P35 onto a floppy disc, which she then posted to Revenue. 
• On an annual basis the complainant printed off each employee’s P60 from the payroll system and handed it to each employee.  At the time there were approximately 20 employees in the organisation.
• Every two months the complainant completed VAT returns.  She transcribed figures from the Accounting Package onto VAT Return Forms.  She wrote a cheque (signed by both herself and the Managing Director) and posted it off to Revenue.
• Complainant did all the filing in 1 filing cabinet.
• On a daily basis (in the evening) the complainant backed up the computer system.  This was the transfer of the information on the computer system onto a zip disc. 
• Complainant did bank reconciliation statements mostly once a week.  This entailed entering all items (e.g. bank charges, direct debits, etc.) and matching them up to ensure that the bank statement corresponded/matched the computer system.
• Complainant closed off accounts at the end of each month on the Accounting Package.  The purpose of this was to ensure that all accounts were in order and up-to-date.  The complainant then printed any reports required by the Accountant who analysed these and put the accounts into a format usable by Banks and management. 
• Complainant set up the ISO quality system for the Company.  This required her to set up the procedures the Company had to follow for tasks undertaken e.g. truck maintenance.  An outside consultant gave her guidelines to follow on what records to maintain in order to get the ISO mark.  These procedures covered records for each truck and trailer i.e. service records, vehicle maintenance records, etc.  The mechanic would provide the complainant with these details and she kept a manual record updated.  The records were inspected annually by an inspector from the ISO.  The Company did achieve the ISO mark.
• For approximately two weeks in every year the complainant stood in for the Managing Director in his absence.  In this regard she checked the bank balances daily to ensure that sufficient funds were transferred over from invoices and also that all deliveries were entered into the logbook and onto the system.