FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : MINISTER FOR EDUCATION AND SCIENCE - AND - A WORKER (REPRESENTED BY ASSOCIATION OF SECONDARY TEACHERS IRELAND)) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal under Section 83 of The Employment Equality Act, 1998 Dec-2006-029.
BACKGROUND:
2. A Labour Court hearing took place on the 20th November, 2007. The following is the Court's recommendation:-
DETERMINATION:
Subject:
Appeal under S.83 of the Employment Equality Act 1998 against Equality Officer’s Decision No DEC-E2006-029.
Background:
The Complainant has been a permanent teacher of certain subjects in North Presentation School, Cork, since 1970. Following negotiations between the Department of Education and the unions representing teachers in early 2003 it was agreed that permanent and temporary whole time teachers who had been certified as having engaged in voluntary supervision and substitution over and above time tabled hours for the full school year would receive a lump sum payment of €1270. Teachers who were certified as having performed these duties until the 4th of March 2002 (a date on which a certain numbers of teachers withdrew from these duties) would receive €1000.
During the entire school year from August 2001 until May 2002 the Complainant was suffering from a serious illness, requiring transplant surgery, (which was agreed by both sides to constitute a disability) and was absent for the entire period and was therefore unable to perform her voluntary supervisory or indeed any duties.
Accordingly she did not receive payment of the supervisory allowance for the period (although she did receive her salary and other allowances in full in accordance with the Department’s sick pay policy). Ms Murphy claims that the failure to pay her the supervisory allowance while other able bodied teachers got the allowance constitutes discrimination with the meaning of sections 6, 8, 29, 30 and 31 of the Act. She claims that they were willing to perform the duties as she was and that since it was only her disability, which prevented her, she was discriminated against.
The Association of Secondary Teachers of Ireland (ASTI), on her behalf, referred a claim of Discrimination on the ground of disability to the Director of Equality Investigations on 1st October 2003. A number of issues were raised. A hearing was held on 24th March 2006 and on 27th July 2006, the Equality Officer decided as follows: -
(i) That the Minister of Education & Science was the appropriate Respondent for the purposes of the claim.
(ii) That the School in question was not the appropriate Respondent
- Note: (i) & (ii) are not in contention between the parties.
On 6th September 2006, the Complainant appealed to the Labour Court against the decision at (iii) above. A Labour Court hearing was held on 20th November 2007.
Complainant’s Arguments:
1. She had always performed the duties of supervision and substitution before suffering her disability and has continued to perform them since she returned from sick leave. The only thing that prevented her from performing the duties during the period in question was her disability.
2. Her comparator, a teacher who was not unable to attend work because of illness but who was willing to carry out the duties, as the complainant was, was paid the allowance for the relevant period.
3. Despite the fact that she was not at work and could not, because of her disability, be at work performing her teaching duties, the Complainant received her salary and her post of responsibility allowance in respect of that period. She was willing but unable to perform supervision and substitution duties, so she should have got the allowance also. The basis for the payment at the allowance was clearly to demonstrate willingness to co-operate, which she at all times demonstrated. Accordingly, she was directly discriminated against.
4. A requirement was applied which operated to the disadvantage of the complainant, in that she was: -
- “required to perform supervision and substitution duties in circumstances where she was not required to perform her teaching duties or post of responsibility duties, in order to receive pay for a period in which she was otherwise entitled to full pay by virtue ofher entitlement to sick pay but was unable to perform those duties due to disability”.
- “required to perform supervision and substitution duties in circumstances where she was not required to perform her teaching duties or post of responsibility duties, in order to receive pay for a period in which she was otherwise entitled to full pay by virtue ofher entitlement to sick pay but was unable to perform those duties due to disability”.
Respondent’s Arguments:
The Appellant was not paid the allowance because she was disabled but because she failed to satisfy the requirements set out in the relevant circular, which was sent out on foot of the agreement. In order to qualify each teacher must have: i.e.: -
- a) demonstrated a willingness to co-operate with and have assisted in the provision of supervision and substitution in the 2001/2002 school years.
- b) be certified by the School Principal/Board of Management as having so participated.
The decision is a practical, not a discriminatory one. The Department agreed to pay in respect of these duties only where they had actually been performed.
The Complainant received her salary and teaching allowances in accordance with the sick pay provisions of her Contract of Employment. There was no contractual entitlement to the allowance for supervision and substitution. This was for the voluntary performance of duties.
The rules for payment of the allowance were jointly agreed between the Respondent and the Complainant’s own Trade Union.
The Complainant is and was employed as a teacher. She was not “employed to do the work of supervision and substitution within the meaning of S.29 (1) of the Act. The work was voluntary and unpaid and it was only subsequently agreed as part of and industrial relations matter that there would be retrospection payment in respect of duties voluntarily performed.
S.29 (5) of the Act states “subject to subsection 4. nothing in this part shall prevent an employer from paying, on grounds other than disciplinary grounds, different rates of remuneration to different employees”.
- The respondents referred the Court to the 2007 decision of The UK Court of Appeal in “O’Hanlon v Commissioners of HM Revenue & Customs”[2007] EWCA Civ 283 which found that requiring an employer to treat disability-related absences differently from non-disability absences could create a sense of unfairness.
Findings:
The facts in this case are not in dispute. The Court finds that the allowance the subject matter of this dispute is remuneration within the meaning of Section 2 (1) which defines remuneration as;
- “any remuneration, whether in cash or in kind, which the employee receives, either directly or indirectly from the employer in respect of the employment…”
S.29 (1) of the Act states: -
- “It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer”.
“Line Work”, in turn is defined in Section 7(1) of the Act as follows: -
- “Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—
(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such
(c) irregularity as not to be significant to the work as a whole, or
(d) 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.
The Complainant states that she was employed on like work with the comparator. The Court cannot accept this contention. The like work in this case must be the supervisory duties. The complainant may have been willing to perform the supervisory duties but she was unable to do so. In the view of the Court therefore she could not be held to be performing like work with her comparator in terms of the supervisory duties. The Complainants case on this ground must therefore fail.
In relation to the Complainants claim that the respondent is in breach of Section 30 in that her contract must be held to have a non discriminatory equality clause, and the Respondents were in breach of that implied clause, Section 30 (2) of the Act states:
(2) a non-discriminatory equality clause is a provision relating to the terms of a contract of employment , other than a term relating to remuneration….
In view of the Courts finding that this is a claim relating to remuneration the complainant cannot avail herself of the provisions of this Section.
Finally the Complainant grounds her claim on the provisions of Section 31 which states:
31(1) Where a provision (whether in the nature of a requirement practice or other wise) relating to employment-
(a)applies to all the employees or prospective employees of a particular employer who include C and D or, as the case may be, to a particular class of those employees or prospective employees which includes C and D,
(b)operates to the disadvantage of C, as compared with D, in relation to any of the matters specified in paragraphs (a) to (e) of section 8(1),
(c)(c) in practice can be complied with by a substantially smaller proportion of the employees or prospective employees having the same relevant characteristic as C when compared with the employees or prospective employees having the same relevant characteristic as D, and
(d)cannot be justified as being reasonable in all the circumstances of the case
then, subject to subsections (4) and (5), for the purposes of this Act the employer shall be regarded as discriminating against C, contrary to section 8, on whichever of the discriminatory grounds gives rise to the relevant characteristics referred to in paragraph (c).
The Complainant has picked as her comparator an able-bodied teacher who was in a position to perform the work and who got paid for it. However the requirement is quite clear. To receive payment not alone must the able bodied teacher be willing to perform the duty, they must be certified as having performed the duty. In the Courts view therefore the only appropriate comparator having the same relevant characteristic as the Complainant is an able bodied teacher who was willing to do the work but for one reason or another did not so. Such a person would equally not have been paid, because they did not perform the work in question.
The Complainants case on this ground must also fail.
Determination
The Court upholds the Equality Oficer's Decision and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
31st March, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.