FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : HEALTH SERVICES EXECUTIVE NORTH EASTERN AREA - AND - T P SHERIDAN AND 12 OTHERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal against the Equality Tribunal's Decision DEC-E2008-010 under Section 83 of the Employment Equality Act, 1998.
BACKGROUND:
2. The Union referred its appeal to the Labour Court on the 12th April, 2008. A Labour Court hearing took place on the 3rd October 2008. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by T.P. Sheridan and 12 others (the Complainants) against a decision of the Equality Tribunal in a claim for equal pay against their employer, the HSE, North Eastern Area (the Respondent). The Complainants, who are all men, are employer as porters and they name as their comparator a woman who is employed as a telephonist/ receptionist. The Complainant’s contend that they are engaged in like work with the Comparator. The Complainants and the Comparator are employed at Cavan General Hospital.
The claim was referred to the Equality Tribunal pursuant to Section 77 of the Employment Equality Acts 1998 – 2008 (the Act). It was investigated by an Equality Officer who found that the Complainant and the Comparator were not engaged in like work. The Complainants appealed to this Court.
Background
The terms and conditions of employment, including pay, of both the Complainants and the Comparator are determined by collective bargaining involving trade unions. The Complainants are classified as support staff and their conditions of employment are governed by a collective agreement entitled“ Recognising and Respecting the Role- Development and re-structuring Agreement for support staff in the Health Services 2003”. This Agreement provides that all jobs covered by its terms be ranked within a four band structure. The jobs of the Complainant are ranked at band four. Porters receive some allowances in addition to the pay appropriate to band four.
The Comparator is classified as a clerical officer assigned to telephone / reception duties. The pay and conditions of clerical officers is set out in Department of Finance circular 49/97, which is revised from time to time in agreement with relevant trade unions.
As part of their duties the Complainants provide telephonist / receptionist cover after the designated telephonists leave in the evening. The telephonists generally work from 9.00 a.m. to 5.00 p.m. Thereafter porters take over this role on a rostered basis. It would appear that over a 10-week cycle this work accounts for approximately 23% of the working time of a porter.
It is accepted that the grade of Porter / Attendant is made up predominately by men whereas the grade of Clerical Officer is made up predominantly by women.
The position of the parties.
Complainant
The Union submitted that the Complainants perform the same work as that of the Comparator for a significant amount of their working time. They say that the environment in which they work is that of a busy general hospital and that there is no material difference in the nature of the duties whether they are performed during the day or at night.
The Union relies on the definition of like work contained at Section 7(1)(b) of the Act and contends that since a significant proportion of the work of the Complainants and the Comparator is identical, they come within the ambit of that provision. In the alternative, it was submitted that the Complainants are engaged in like work with the Comparators in terms of Section 7(1)(c) of the Act. It was submitted that if a significant portion of the work is of equal value to that of the Comparator, it could reasonably be assumed that the remainder of the work is also of equal value.
The Respondent
The Respondent supported the conclusions reached by the Equality Officer and adopted the findings in her decision. The Respondent submitted that the telephone and reception duties of the Complainants are undertaken outside of core hours and are significantly less onerous than those undertaken by the Comparator. The Respondent further contends that there are grounds other than sex for the difference and in that regard the Respondent relies on the defence available under Section 19(5) of the Act.
Conclusions of the Court
In this case the Union, on behalf of the Complainants, presented a detailed submission to the Court. Much of the submission was devoted to a criticism of the manner in which the initial investigation was conducted by the Equality Tribunal and at the delay in bringing the matter to finality. This Court has been assigned an appellate role in cases decided under the Act at first instance by the Equality Tribunal. It is not the Court’s role to entertain criticism of another statutory body or any officer thereof. Rather, the Court has been assigned the task of considering anew all questions of fact and law arising in the case and on that basis deciding if the decision of the Equality Officer, on the question of whether or not discrimination occurred, is correct.
It is clear to the Court that what is alleged in this case is indirect discrimination on the gender ground. The difference in pay between the Complainants and the Comparator arises from the different grading of the two posts and the determination of pay within separate negotiation units. The rates are not based on gender and arise from factors, which, on their face, are gender neutral. However the decision of the European Court of Justice in C-127/92Enderby v Frenchay Health Authority and Secretary of State for Health[1993] ECR 1-5535 indicates that where a group made up predominantly of one gender is paid less than a group made up almost exclusively of the other, and both groups are engaged in like work, a prima facie case of indirect discrimination arises. The Court went on to hold that where a prima facie case is established it is for the employer to prove that the difference in pay is objectively justified by factors unrelated to gender. A similar conclusion was reached in this jurisdiction inFlynn v Primark[1997] ELR 218. In the latter case Barron J., having reviewed the applicable law, had this to say: -
- The principles of law established by the case law to which I have referred are not in my view in dispute between the parties. Once as between workers doing like work there is a difference in pay which prejudices significantly more women than it does men then, whatever the reason, there is a prima facie discrimination and an onus rests on the employer to establish that this difference is not gender based but that the reasons for such difference are objectively justifiable on economic grounds.
However bothEnderbyandFlynnboth make it clear the principle of law which they enunciated only comes into play where the existence of like work between the two groups in question is established.
Burden of proof
Council Directive 97/80/EC, on the burden of proof in cases of discrimination based on sex, governs the evidential requirements in cases in which discrimination on the gender ground is alleged. Section 85A of the Act now given statutory effect to the requirements of this Directive.
The test for applying the requirements of the Directive was developed inSouthern Health Board v Mitchell[2001] ELR 201. Here the Court adopted the following analysis of Article 2 of the Burden of Proof Directive: -
- “ The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to rely in seeking to raise a presumption of unlawful discrimination.
It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
The test thus formulated has three stages: -
1. The complainant must prove the primary facts upon which they rely is alleging discrimination,
2. The Court must evaluate those facts, if proved, and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination
3. If the complainant fails at stage 1 or 2 he or she cannot succeed. If the complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination.
In this case the Complainants contend that the job which they do is either the same or of equal value to that of the Comparator. The Complainants rely on the definitions of like work contained at Sections 7(1)(b) and 7(1)(c) of the Act. They provide as follows: -
(b) the work performed by one is of a similar nature to that performed by the other and any difference 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 irregularity as not to be significant to the work as a whole, or(c) the work performed by one is equal to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
The construction of these statutory provisions is, of course, a question of law. However, the question of whether or not the conditions specified in either paragraph of the subsection exist in a particular case is, essentially, one of fact. It seems to the Court that the onus of proving the facts necessary to bring a particular case within the ambit of either paragraph rests with the Complainant.
Section 7(1)(b)
The Complainants contend that since a significant segment of their work is the same as that performed by the Comparator they are entitled to succeed under this provision. It is noted that the Respondent disputes the contention that the telephone / reception duties carried out by the Complainants is the same as that undertaken by the Comparator. Both sides relied upon submissions and assertions to advance their side of the argument.
Even if the Court was to take the Union’s case at its height and to accept that the telephone/ reception duties undertaken by the Complainants was similar to that undertaken by the Comparator, it would not, in the Court’s view, be sufficient to bring them within the ambit of Section7(1)(b). This provision contemplates a situation in which the duties entailed by the jobs being compared have the same character or quality in terms of their overall content without being identical and with minor or immaterial difference in the range or type of duties of one post relative to the other. That is not the case here. From all of the information available it is clear that there are significant difference in the overall job content of the porter / attendant grade and the telephonist / receptionist / clerical officer grade. The wording of Section 7(1)(b) indicates that the totality of the jobs at issue must be considered. This is clear from the reference in the section to the“work as a whole”.There are overlapping duties between both grades but they do not alter the essentially different character of the compared posts.
Having taken account of all of the arguments and submissions made by the Union the Court does not accept that they establish that the factual conditions contemplated by Section 7(1)(b) exist in this case.
Section 7(1)(c).
Here the Union contends that since a significant part of the Complainants' work is equal in value to that of the Comparator, it must be assumed that the remainder of the work is also of equal value. The Court does not accept the rationale of this line of argument. Even, without so finding, if the telephone / reception duties of the Complainants and the Comparator are equal in value, there is no reason in law or in logic to assume that the other duties can be similarly valued.
No evidence was adduced to establish an equality of value between the overall job of the Complainants with the overall job of the Comparator. The onus of establishing equal value is on the Complainant and in circumstances where that onus is not discharged the claim cannot succeed.
Accordingly, and for the reasons set out above the Court is not satisfied that the Complainants and the Comparator are engaged in like work with the statutory meaning of that terms. In these circumstances no prima facie case of discrimination is established and the onus of proving objective justification for the difference in pay does not shift to the Respondent.
Determination
The appeal herein is disallowed and the decision of the Equality Tribunal that the Complainants were not discriminated against in terms of their pay isaffirmed.
Signed on behalf of the Labour Court
Kevin Duffy
17th November, 2008______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.