Equality Officer’s Decision No:  DEC-E/2008/072

Parties

Power

(Represented by  Oran Doyle BL Instructed by The

Equality Authority)

And

BlackrockCollege

(Represented by IBEC)

File No: EE/2005/476

                                                                                                                                Date of issue 23 December 2008

1.         DISPUTE

           This dispute involves a claim by Mr. Colm Power that that he was discriminated against by Blackrock College on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 19 of those Acts, when it terminated his employment with it in August, 2005 on the basis of redundancy and refused  him (i)  a redundancy payment at that time because he was over 66 years of age at the time and (ii) an ex-gratia payment in recognition of services rendered which it had made to two other employees.

2.         BACKGROUND

2.1      The complainant was employed by the respondent as a security guard between January, 1993 and August, 2005, with a break of a number of months in 2002. Prior to this break he worked on a full-time basis and after that break he worked mostly on a part-time basis. He states that his employment was terminated by the respondent in August, 2005 in circumstances amounting to redundancy and that the failure of the respondent to make a lump sump redundancy payment to him in those circumstances constitutes discrimination of him on grounds of age contrary to the Employment Equality Acts, 1998 and 2004. The respondent rejects the complainant’s assertions that it discriminated against him and notwithstanding this, submits that (i) the complaint is one of equal treatment and not equal pay, (ii) if the complaint is one of equal pay the complainant has failed to name an actual comparator, (iii) the complaint was not referred to the Tribunal within the timelimit(s) prescribed at Section 77 of the Acts and is not therefore validly before the Tribunal for investigation, (iv) if the complaint is validly before the Tribunal there are grounds other than age for any difference in treatment of the complainant and (v) the Employment Equality Acts, 1998 and 2004 exempts redundancy schemes from the scope of the Acts, insofar as less favourable treatment on grounds of age is concerned.

2.2      The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 30 November, 2006.  In accordance with her powers under the Acts the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaints commenced on 30 March, 2007, the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 22 January, 2008. A number of points arose which required further clarification and gave rise to correspondence between the Equality Officer and the parties for some months.

3.         SUMMARY OF COMPLAINANT’S CASE

3.1       The complainant states that he was employed by the respondent as a security guard between January, 1993 and August, 2005, with a break of approximately 4 months (March-June) in 2002. This break in service was a voluntary one and he returned following an approach from Fr. Healy, who was the respondent’s Bursar at that time. Prior to this break he worked on a full-time basis but only worked part-time (17 hours per week) after he returned. He states that he was advised in writing on 29 July, 2005 that his employment would cease with the respondent on 31 August, 2005 because his position was being made redundant. He was subsequently refused a lump sum redundancy payment by the respondent because he was over 66 years of age – the statutory age limit to qualify for such a payment under the Redundancy Payments Acts. The complainant submits this constitutes unlawful discrimination of him contrary to the employment equality legislation. He further argues that the payment of an ex-gratia payment to both of the other employees made redundant at the same time as the complainant constitutes less favourable treatment of him contrary to the Acts.

3.2      It is submitted on behalf of the complainant that this case is one of equal pay and he seeks to rely on the judgement of the European Court of Justice (ECJ) in Barber v Guardian Royal Exchange[1] in support of the argument in this regard. It is further argued on the complainant’s behalf that there is no need for him to identify an actual comparator for the purposes of his complaint. Counsel submits that the starting point must be the appropriate Directive – the Framework Directive[2] - and in particular Article 2 of same. It is argued that the wording of that Article provides there shall be no discrimination whatsoever on the proscribed ground(s) and that it envisages a scenario where another person “would” be treated less favourably in a comparable situation. Counsel adds that any other interpretation would render the principle of equality ineffective. He adds that comparator approach evolved from gender based discrimination and whilst useful, it does not encompass all scenarios. Counsel states that the respondent clearly used the complainant’s age as a factor in reaching its decision and then sought to use the redundancy legislation as a defence. He submits that it is irrelevant whether or not the respondent terminated the employment of two other employees over the age of 66 years at the same time as the complainant and treated them in a similar fashion to him insofar as a redundancy payment is concerned. He further argues it is also irrelevant that the respondent did not apply similar arrangements to an employee under that age merely because it did not employ someone with that characteristic at that time. In this regard Counsel refers to the judgement of the ECJ in Allonby v Accrington and Rossendale College & Others[3] . Counsel also refers to the UK House of Lords in Shamoon v Chief Constable of the RUC[4] as a source of helpful comments on the use of a hypothetical comparator in claims of equal treatment. He concludes on this point by stating that the question to answer is why was the complainant treated the way he was and would someone under the age of 66 years be treated in a similar fashion in the same situation – an approach which is explicitly endorsed by Article 2 of the Framework Directive.

3.3       Counsel for the complainant states that the redundancy payments legislation established a basic minimum entitlement for certain workers to a lump sum payment where their employment was terminated in certain circumstances. This entitlement was capped insofar as it ceased when the person reached a certain age – at the time relevant to this complaint this age limit was 66 years. He adds that section 17(4) of the Employment Equality Act, 1998 provided an exemption from that Act on grounds of age in respect of “any act done in compliance with paragraph 1 of Schedule 3 of the Redundancy Payments Act, 1967.”. It is argued however, that this provision was repealed by section 17 of the Redundancy Payments Act, 2003 and that at the relevant time the provision in the employment equality legislation was not in force and therefore provides no defence to the respondent. He further submits that the subsequent attempt to rectify this lacuna (via the Equality Act, 2004) was flawed and unconstitutional[5] and cannot be relied upon. In any event, Counsel argues that national redundancy legislation must be interpreted in the context of the principle of equal treatment – which emanates from EU law – and the supremacy of EU law must prevail.

4.         SUMMARY OF RESPONDENT’S CASE

4.1      The respondent rejects the assertion that this complaint is one of equal pay and submits that it is a claim for equal treatment instead. In support of this assertion the respondent cites the judgement of the ECJ in Burtonv British Railways Board[6]. It further argues that if the complaint is one of equal treatment then it was referred to the Tribunal outside of the timelimits prescribed at Section 77 of the Acts and is not therefore validly before the Tribunal for investigation.

4.2       The respondent submits that if the Tribunal is satisfied the complaint is validly before it as an equal pay matter, the complainant must establish that he performed “like work” with a named comparator. It adds that the complainant has failed to name an actual comparator and therefore he cannot sustain his complaint. It states that it is not permissible for the complainant to cite a hypothetical comparator and cites the ECJ judgements in Mccarthys v Wendy Smith[7] and Brunnhofer v Bank der Osterreichischen Postsparkasse AS[8] as authority for this proposition. It accepts that these judgements deal with the issue of gender discrimination but submits that the same principles must apply in non-gender complaints. It submits that the burden of proof rests with the complainant to establish a prima facie case of discrimination on grounds of age in respect of pay and argues that he has failed to do so.

4.3       The respondent further submits, notwithstanding the arguments in the preceding paragraphs, that there are grounds other than age for the way in which it behaved toward the complainant. Firstly, it argues that the two other security guards were made redundant at the same time as the complainant. Both of these were over 66 years of age – the age limit for eligibility under redundancy legislation – and they did not receive a redundancy payment on that basis either. It accepts that it made an ex-gratia payment to each of these two employees but states that the decision was made to make the payment because of the personal circumstances of each individual and in recognition of their long service. It adds that the ages of both employees were similar to that of the complainant and asserts that this issue had nothing to do with the decision to make the payment.

4.4       Finally, the respondent states that the complainant had no statutory entitlement to a redundancy payment. It submits that section 17(4) of the Employment Equality Act, 1998 provided an exemption from the ambit of that legislation on the age ground as regard any act done in compliance with the national redundancy payment legislation. It further  submits that any anomaly (as regards section 17(4) of the Acts) which may have existed following the enactment of the Redundancy Payments Act, 2003 was rectified by section 10 of the Equality Act, 2004.  The respondent further argues that section 34 of the Employment Equality Acts, 1998 and 2004 provides an exemption on grounds of age in relation to certain occupational benefit schemes such as the matter at issue.

5.         CONCLUSIONS OF THE EQUALITY OFFICER

5.1      The issues for decision by me are (i) whether the claim is one of equal treatment or equal pay, (ii) if the complaint is one of equal treatment, has it been referred within the timelimits prescribed at Section 77 of the Acts and is it therefore validly before the Tribunal for investigation, (iii) if the complaint is one of equal pay can the complainant use a hypothetical comparator for the purposes of comparison for “like work” (iv) if the complaint is validly before the Tribunal are there grounds other than age for any difference in treatment of the complainant and (v) do the Employment Equality Acts, 1998 and 2004 exempt redundancy schemes from the scope of the Acts, insofar as less favourable treatment on grounds of age is concerned. In reaching my decision I have taken into consideration all of the submissions, both oral and written, made to me by the parties as well as the evidence given by witnesses.

5.2      The first issue for consideration by me is whether the claim can be categorised as equal pay or equal treatment. If I find it is the latter then the complaint will fall because the complainant ceased employment with the respondent on 30 August, 2005 and his complaint was not received in this Tribunal until 30 November, 2006. Consequently, the complainant will not have referred his complaint within the timelimits prescribed by section 77 of the Acts and it will not therefore be validly before the Tribunal for investigation. The respondent seeks to rely on the ECJ judgement in Burtonv British Railways Board[9] in support of its argument that this complaint is one of equal treatment. I cannot accept that proposition. The circumstances involved in that judgement concerned access to a voluntary redundancy scheme operated by the employer. However, what is involved in the instant case is a failure by an employer to make a redundancy payment to an employee in circumstances where a redundancy situation was forced upon him. The ECJ has developed what constitutes “pay” for the purposes of Community law over the past thirty years. In Barber v Guardian Royal Exchange[10] it defines pay as follows “any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer. ….The fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being in the nature of pay, within the meaning of Article 119 of the Treaty.”. The ECJ goes on to say in that judgement “the benefits paid by an employer to a worker in connection with the latter’s compulsory redundancy falls within the scope of Article 119, whether they are paid under a contract of employment, by virtue of legislative provisions or on a voluntary basis.”. I therefore find that the instant complaint is one of equal pay. As the timelimits prescribed at section 77 of the Employment Equality Acts, 1998 and 2004 do not apply to complaints of equal pay I find that this complaint is validly before the Tribunal for investigation.

5.3      The next question which I must consider is whether or not the complainant can use a hypothetical comparator to advance his complaint. It is argued on behalf of the complainant that Article 2 of the Framework Directive[11]  permits the use of such an approach. In support of this assertion Counsel relies on the judgement of the ECJ in Allonby v Accrington and Rossendale College & Others[12] and the judgement of the UK House of Lords in Shamoon v Chief Constable of the RUC[13]. The respondent rejects this assertion and states that an actual comparator who is performing “like work” with the complainant must be identified in order for the complaint to be valid. It cites the ECJ judgements in Mccarthys v Wendy Smith[14] and Brunnhofer v Bank der Osterreichischen Postsparkasse AS[15] as authority for this proposition. The complainant is incorrect in his assertion that the Allonby judgement endorses the use of a hypothetical comparator. The facts of that case centre on the use of an actual named comparator who worked in the same location as Ms. Allonby, performing similar duties, but who was employed by a different employer. The ECJ held that the use of such a comparator was not permissible because the pay of Ms. Allonby and her comparator was not determined by a single source. Similarly, I do not accept the complainant’s assertion that the Shamoon case is an authority for the use of a hypothetical comparator. That case concerned issues around Ms. Shamoon’s conditions of employment and was in no way related to matters concerning remuneration. In addition, it would only be of persuasive authority.

5.4          The principle of equal pay, albeit between men and women, is enshrined in Article 119 (now 141) of the EU Treaties. It is premised on the requirement that the person claiming the equal pay must perform “like work” or “work of equal value” with a person of the opposite sex with whom the comparison is made. Neither of these terms has been defined by the ECJ although it has given some guidance as to the factors which might be considered by a national court in an evaluation of these concepts[16]. Whilst the issue of pay is referred to at Article 3(1) of the Framework Directive[17]  it does not define pay for the purposes of that Directive. However, Recital 13 of that Directive  refers to the concept of pay in terms of Article 141 of the Treaty. It appears to me that the concept of pay envisaged by the Framework Directive is the same at that encompassed by Article 141 of the Treaties, the Equal Pay Directive[18] and the corpus of jurisprudence from the ECJ over the years. InMccarthys v Wendy Smith[19]the ECJ unequivocally rejected the notion of a hypothetical comparator when it stated “in cases of actual discrimination falling within the scope of direct application of Article 119, comparisons are confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex…..”. This methodology was endorsed by the ECJ in the Brunnhofer judgement when it stated “it must be ascertained that the employees concerned are performing the same work or work to which equal value may be attributed.”[20]. This approach has been adopted in this jurisdiction by Budd J in the High Court when he stated  “that an applicant employee is only entitled to rely directly on Article 119 in the national court of a Member State when the applicant can produce a comparator drawn on the basis of a concrete or actual appraisal of work in practice done by employees of different gender…. In short, one has to find an actual concrete real life comparator of the other sex.”[21]. I am satisfied that these principles apply to claims for equal pay on non-gender grounds prohibited by the Employment Equality Acts, 1998 and 2004. As the complainant has failed to identify an actual comparator with whom he performed “like work” his complaint must fail. There is therefore no need to address the other defences submitted by the respondent in respect of this element of the complaint

5.5             The respondent made an ex-gratia payment to each of the two employees who were made redundant at the same time as the complainant. It states that (i) these employees were both in the same age bracket as the complainant and therefore age discrimination cannot be inferred from this and (ii) there were personal circumstances pertaining to these two employees which prompted the respondent to make those payments. I am satisfied that the nature of these payments constitutes “pay” for the purpose of the employment equality legislation (as outlined in the preceding paragraphs of my conclusions). On the basis of comments made by the respondent in the course of the Hearing I am willing to accept that these two employees performed “like work” with the complainant without making a formal finding in that regard. It follows therefore that these two employees are valid comparators for the purposes of the complaint. It is trite law that discrimination can arise through the application of different rules to comparable situations as well as the application of the same rule to different situations[22].  The comparators had 13½ and 15 years’ service respectively. The complainant had a total of 12 years’ service, approximately 3 years of which was on a part-time basis. The age of the comparators was 69 and 70 respectively whereas the complainant was 68 years old. I am therefore satisfied that the complainant and the two comparators were in a comparable situation. It is therefore clear that the respondent treated the complainant in a different manner to the comparators in making the payments.

5.6      However, different treatment does not necessarily translate into less favourable/ discriminatory treatment under equality legislation. The respondent detailed the personal circumstances of the two comparators which informed its decision to make the payments and I accept the bona fides of those reasons. Having evaluated all of the evidence on this issue I find, on balance, that the respondent’s decision was not influenced by the ages of the parties and that there were grounds other than age for the decision. However, as I have said above the complainant was in a very similar situation (from an age and service perspective) to the two comparators. In the course of the Hearing the respondent stated that the complainant never suggested to it that he encountered personal circumstances similar to those which existed in respect of the comparators and it therefore did not give any consideration to such an arrangement for him. In the present circumstances it might wish to reconsider this situation and as a gesture of goodwill, make some financial acknowledgement of the complainant’s service to it. I would point out that my comments on this point are merely a suggestion.  They do not form part of any formal decision of the Tribunal on the complaint and therefore cannot be enforced under the Acts.

6.         DECISION OF THE EQUALITY OFFICER.

           I have completed my investigation of these complaints and make the following Decision in accordance with section 78(6) of the Employment Equality Acts, 1998-2008.  I find that -

(i)                this complaint is one of equal pay and is therefore validly before the Tribunal for investigation.

(ii)              the complainant is required to identify an actual comparator for the purposes of his complainant with whom her performs “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2004. He cannot rely on a hypothetical comparator. As the complainant has failed to identify an actual comparator with whom he performed “like work” his complaint must fail.

(iii)            the respondent’s decision not to make the complainant an ex-gratia payment on termination of his employment with it was not connected with his age and it does not therefore constitute discrimination of him contrary to the Acts

           _______________________________

            Vivian Jackson         

            Equality Officer

            23  December,  2008