Equality Officer’s Decision No: DEC-E/2008/055
Parties
Lynch
(Represented by Kieran O’Brien – Solicitor)
And
The Garda Commissioner
(Represented by Rosemary Healy-Rae BL
Instructed by the Chief State Solicitor)
File No: EE/2005/369
Date of issue 30 September, 2008
DISPUTE
This dispute involves a claim by Mr Brian Lynch that he performs “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2004 with a named female comparator and is therefore entitled to the same rate of remuneration as that paid to the comparator in accordance with section 19 of the Acts. The respondent rejects the assertion that the complainant and comparator perform “like work” for the purposes of the Acts and notwithstanding this contention submits that there are grounds other than gender which render the rates of remuneration paid to the parties lawful by virtue of section 19(5) of the Acts.
2. BACKGROUND
2.1 The complainant was a member of An Garda Síochána (now retired) and for the last fifteen years of his employment he was a Scene of Crimes Examiner attached to a station in the South-West of the country. He claims that in the course his employment as a Scene of Crimes Examiner he performed “like work” in terms of section 7 of the Employment Equality Acts, 1998 and 2004 with a named female comparator and is therefore entitled to the same rate of remuneration as that paid to the comparator in accordance with section 17 of the Acts. The respondent rejects this assertion and in addition argues that the rates of remuneration paid to the complainant and comparator are lawful in accordance with section 19(5) of the Acts – that is there are grounds other than gender for the difference in the rates of remuneration paid to the parties.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 21 December, 2005. In accordance with her powers under the Acts the Director delegated the complaint to Ms. Anne Marie Lynch, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from the parties but before the complaint came to Hearing Ms. Lynch transferred from the Equality Tribunal. The Director re-delegated the complaint to the undersigned, 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 complaint commenced on 9 October, 2007, the date the complaint was delegated to me. As the respondent submitted that the rates of remuneration paid to the parties were lawful in terms of section 19(5) of the Acts the Equality Officer decided to investigate this matter as a preliminary issue in accordance with section 79(3) of the Acts. A Hearing of the complaint took place on 17 April, 2008. A number of points emerged at the Hearing which required further clarification and gave rise to correspondence between the parties and the Equality Officer.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent states in the first instance that the complainant was a uniformed member of an Garda Síochána holding the rank of Garda and the comparator is a Detective Garda with the Technical Bureau who possesses a relevant 3rd level qualification in relation to her specialist field/discipline. It adds that all members of the Technical Bureau hold the title of Detective and that this has been the case since the early 1970’s. The respondent states that the remuneration of all members of the force at the rank of Garda is based on an incremental pay scale and a list of allowances which individual members receive based on their personal entitlement to same. It adds that the comparator is considered to be an “expert” in her particular field and is therefore entitled to the expert allowance –which is the subject of this claim. The respondent states that the complainant was never a member of the Technical Bureau and is therefore not entitled to that expert allowance. It adds that the complainant operated as a Scene of Crime Examiner and was remunerated accordingly- as were his male and female colleagues who were also Scene of Crime Examiners.
3.2 The respondent states that impugned allowance came into effect on foot of an Agreement between staff representatives and official side representatives under the Garda Conciliation Council (Agreed Report No. 572) which came into force on 1 April, 1999. It adds that the allowance was introduced in response to a number of difficulties which certain members of the force in the Technical Bureau at the rank of Garda were encountering. It states that the allowance relates only to those members who had to undergo a course of training and examinations to attain expert status. It adds that this expert allowance is paid to all members of the Technical Bureau who are considered to have acquired expert status and that this group comprises male and female members. The respondent submits that this collective bargaining process is a factor which can be taken into account when assessing whether or not there are grounds other than gender for the differences in the rates of remuneration paid to the complainant and the comparator[1]. In summary, the respondent submits that the gender breakdown of the complainant and comparator groups, the collective bargaining process, the career paths of the complainant and comparator and the qualifications and training requirement required to work in the Technical Bureau demonstrate that payment of the impugned allowance is not connected in any way with the gender of the complainant and/or comparator.
4. SUMMARY OF COMPLAINANT’S CASE
4.1 The complainant agrees with the respondent’s statement that he was a uniformed member of An Garda Síochána assigned to the Scene of Crime Examination Unit stationed in the South-West of the country. He contends that he performed “like work” for the purposes of the Acts with a named female comparator who is assigned to the Garda Technical Bureau and rejects the respondent’s assertions that there are grounds other than gender which render the rates of remuneration paid to him and the comparator lawful.
4.2 The complainant accepts that there are males and females in both the Technical Bureau and those uniformed members assigned duties at station level as Scene of Crime Examiners. He also accepts that all staff in the Technical Bureau hold the rank of Detective and that he never held that rank. He states that he was appointed a Scene of Crime Examiner following an application to the local Chief Superintendent and completed a number of training courses during his time in that post, a number of which were given by staff from the Technical Bureau. The complainant accepts that he does not possess any appropriate 3rd level qualification that would render him suitable for appointment to the Technical Bureau, although he submits that he has acquired a well defined range of knowledge over his twenty years experience in the Scene of Crime Examination Unit.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for consideration by me is whether or not there are objective factors unconnected with the gender of either the complainant or the comparator which render the rates of remuneration paid to them by the respondent lawful in terms of section 19(5) of the Employment Equality Acts, 1998 and 2004. As this argument has been advanced by the respondent and it provides an absolute defence to it under the Acts, it is for the respondent to produce the necessary facts to discharge that probative burden in the first instance.In reaching my Decision I have taken into consideration all of the submission, oral and written, made to me by the parties as well as the evidence given by witnesses at the Hearing.
5.2 Evidence was given at the Hearing by a senior officer of longstanding attached to the Technical Bureau to the effect that access to the Bureau to carry out duties in one of the five disciplines/fields of expertise within the Bureau is by way of competition amongst ranks and file members of An Garda Síochána. Candidates must have a relevant 3rd level or equivalent qualification in order to gain access. The respondent submitted a copy of the job specification/person profile for the most recent competition for access to the Bureau which supports this evidence. The comparator has a relevant 3rd level qualification and was selected following such a process. The complainant does not. Consequently, he is not eligible for appointment to the Bureau. The impugned allowance is one which is paid to personnel within the Technical Bureau who are considered to have “expert” status. The comparator is considered to have such status in her discipline. The allowance was introduced in April, 1999 following agreement between staff representatives and representatives of the Garda Síochána, the Department of Finance and the Department of Justice, Equality and Law Reform through the recognised Conciliation and Arbitration Scheme – the Garda Conciliation Council. A copy of the Agreed Report (Report 572) was furnished in evidence by the respondent. I note from the Report that the reasons for the allowance were, inter alia, the training and on-going development (with the consequential commitment and dedication) required to acquire and retain “expert” status, restricted promotional prospects due to specialisation and the anti-social aspects of the job. I further note that the allowance only applies to members of the force at the rank of Garda in the Technical Bureau who “had to undergo a course of training and examination to attain expert status”. The complainant has not completed such a process. Evidence was also adduced by the respondent indicating that the allowance is paid to male and female Gardaí in the Technical Bureau who have acquired “expert” status. The allowance has therefore nothing to do with the gender of the recipient, rather it is connected to the status and rank of the individual and his/her assignment to the Technical Bureau. In light of the foregoing I am satisfied that payment of the allowance is based on factors unconnected with the gender of the parties and the respondent is therefore able to avail of the protection provided at section 19(5) of the Acts.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of Mr Lynch’s complaint and I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts, 1998-2008. I find that there are grounds other than gender for the difference in the rates of remuneration paid to the complainant and comparator, that those rates are lawful in terms of section 19(5) of the Acts and the complainant’s claim therefore fails.
____________________________
Vivian Jackson
Equality Officer
30 September, 2008