Equality Officer’s Decision No:  DEC-E/2009/046

Parties

Keigher

(Represented by Arthur Cox - Solicitors)

And

Brothers of Charity Services Roscommon Ltd.

(Represented by IBEC)

File No: EE/2006/070

Date of issue 10 June, 2009

               Headnotes:Employment Equality Acts, 1998-2004 – sections 6 and 19 – equal pay – gender –      grounds other than – red circled.

1.        DISPUTE

           This dispute involves a claim by Ms. Marian Keigher that she performs “like work”, in terms of section 7 of the Employment Equality Acts, 1998-2004, with two named male comparators and that she is therefore entitled to the same rate of remuneration paid by the respondent to those comparators in accordance with section 19(1) of the Acts. The respondent rejects the complainant’s assertion that she performs “like work” with the named comparators and notwithstanding this argument it submits that there are grounds unconnected with gender which render the rates of remuneration paid to the complainant and comparators lawful in terms of section 19(5) of the Acts.

2.         BACKGROUND

2.1       The complainant was appointed to the position of Regional Director of Services for Roscommon by Congregation of the Brothers of Charity in April, 1999 following a competitive selection process. In the period 2006-2007 the Congregation of the Brothers of Charity underwent a restructuring process which resulted in the formation of the Brothers of Charity Clare Ltd. Further to the provisions of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations, 2003[1] the obligations and liabilities of the former employer and the rights of the complainant transferred to the new employer. An issue arose as to whether or not the correct respondent was present at the Hearing on 9 July, 2008 and in circumstances where that was not established to the satisfaction of the Equality Officer the Hearing adjourned. The Equality Officer was satisfied that the correct respondent was present at all further Hearings on the complaint.

2.2       The complainant submits that she performs “like work” in terms of sections 7(1)(a) and 7(1)(b) of the Employment Equality Acts, 1998 and 2004 with two named male comparators and she is therefore entitled to the same rate of remuneration as paid by the respondent to those named comparators. She referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 7 March, 2006 in this regard. In accordance with her powers under the Acts the Director 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 17 October, 2007, the date the complaint was delegated to me. A Preliminary Hearing on the complaint took place on 30 November, 2007. At this Preliminary Hearing the respondent submitted that there were grounds other than gender which rendered the rates of remuneration paid to the complainant and the comparators lawful in accordance with 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. Further Hearings on the complaint took place on 9 July, 2008, 11 August, 2008 and 3/4 November, 2008. A number of points emerged at the Final Hearing which required further clarification and gave rise to correspondence between the parties and the Equality Officer. This process concluded late January, 2009.

3.         SUMMARY OF RESPONDENT’S CASE

3.1      The respondent states that in the mid-1990’s its structures underwent significant change and from that time onward lay people were appointed to carry out executive functions of the organisation, functions which had previously been carried out by religious members of the Brothers of Charity. It adds that lay people were appointed to the position of Regional Directors of Service and as there were no formal salary structures in existence for these posts at that time, salaries and other terms of employment were individually negotiated. It states that Comparator A was appointed to the post of Regional Director for Services for Galway under these arrangements in 1995. The respondent adds that Comparator B was appointed to the post of Regional Director of Services for Limerick in May, 1999 and that the level of his starting pay on promotion was set by reference to links he had with a previous salary scale. The respondent further states that the salaries of the complainant and comparators were the subject of separate review processes in 2001 and 2006 and that these processes have a bearing on the level of remuneration which was eventually paid to the parties concerned.  Finally, the respondent asserts that the salaries of the comparators were red circled and that the complainants were aware of this from April, 2006.

3.2      The respondent states that Comparator A was appointed to the post of Director of Services for Galway in 1995 following a competitive interview process. It adds that prior to this appointment he had held the post of Director of Psychology in the respondent’s Western region and on conclusion of his tenure in that post he was paid £41,070 per annum. The respondent states that there was no standard salary payscale in existence at that time for the post of Director of Services. It adds that in light of the fact that (i) this was a promotional post with new executive function, (ii) the comparator also retained a number of functions he had carried out previously as Director of Psychology and (iii) the workload and budgetary issues associated with the region,  the respondent’s central decision making body (the Provincial Council) agreed to a starting salary of £50,000 for the comparator on the recommendation of the then Provincial Superior of the Brothers of Charity - Br. Hassett. The respondent states it was the understanding at that time that the comparator’s salary would increase in a manner broadly in line with increases in salary of holders of the post of Director of Psychology. It accepts that his contract of employment did not provide an express link in that regard but states that it did contain a provision providing for “a review of the salary at two year intervals with note being taken, as appropriate, of any special increases awarded to Officers in the higher levels of Management in Health and other Public Services and appropriate adjustments agreed”.

3.3      The respondent states that Comparator Bwas appointed to the post of Director of Services for Limerick in 1999 following a competitive interview process. It adds that prior to this appointment he had held the post of Executive Director in the respondent’s Mid- Western Region (from 1991) and on conclusion of his tenure in that post he was paid £46,822 per annum. It states that his remuneration in this post was closely linked to the scale applicable to Programme Manager, Mid-Western Health Board. The respondent states that there was no standard salary scale in existence at that time for the post of Director of Services. It adds that due to the promotional nature of the post and the significant workload and budgetary issues associated with the region, the respondent’s Provincial Council agreed to a starting salary of £50,000 for the comparator on the recommendation of the then Provincial Superior of the Brothers of Charity - Br. Hassett. The respondent states that this level of increase aligned him more closely with the payscale of Programme Manager, which had increased somewhat since his last salary increase as Executive Director. It adds that although his contract of employment did not contain an express commitment to maintain the linkage with Programme Manager, it was the understanding at that time that the comparator’s salary would reflect such a link as it had existed since 1991.

3.4       The respondent states that the complainant was appointed to the post of Director of Services for Roscommon in April, 1999 following a competitive interview process. It adds that prior to this appointment she had held the post of Senior Social Worker in the same region and her total remuneration was £37,700- which included a supplement of £4,000 in respect of certain additional duties she performed (she ceased performing these duties on promotion). It adds that her starting pay on appointment to the Director of Services post was £40,000. This level was determined by Br. Hassett and Br.O’Shea in light of the promotional nature of the post and the workload/budgetary issues associated with the region. The respondent states that two other Directors of Services, both female, were appointed in 1999 and 2000. It adds that these were paid £45,000 and £51,000 as their respective starting salaries on promotion. The respondent submits that these figures reflect the size of the regions/budgets they were responsible for and have nothing to do with gender.

3.5       The respondent states that it was anxious to cease the situation where Directors of Services negotiated their salaries on an individual basis and move towards a common framework in which their salaries could be determined. It adds that the Department of Health and Children (as the primary source of funding for the respondent) had expressed a desire that the rates of remuneration of senior grades in the respondent organisation should reflect some linkage with public sector payscales and it suggested that the payscale for Director of Service should be linked to the payscale of Functional Officer in the health service. The respondent states that it conducted a review process in 2001 (although the process did not finally conclude until 2003) to deal with this matter. The respondent adds that the catalyst for this process was the staff themselves. It therefore engaged a company of Chartered Accountants and Business Advisors to negotiate with a person nominated by a group of the Directors of Services at that time (which included the complainant and the comparators) in respect of their remuneration packages. It states that the outcome of this process was that the payscale for Director of Services would be linked to the payscale of Functional Officer in the Eastern Health Board plus a percentage. The level of this percentage differential would vary according to the region in question. The respondent states these terms were agreed personally with the complainant.

3.6      The respondent states that both comparators negotiated terms which were not linked to the above arrangements but reflected the positions which they were in prior to the review. At the end of this process it was agreed that Comparator A was to be remunerated at the payscale of Director of Psychology plus a differential of 12.5%  and Comparator B would be remunerated at Point 6 of the Programme Manager scale plus a differential of 15%.  It submits that this is entirely permissible as the application of the above terms to either of the comparators would have resulted in a reduction in salary – a scenario which could have created legal difficulties for the respondent and may have resulted in the respondent losing in the respondent losing their services. It adds it was its intention that the rates of remuneration paid to the two comparators were on a personal basis and that their successors would not be remunerated on those lines but at the level applicable to the complainant. It submits therefore that the comparators were in a red circled situation. The respondent further submits that as the complainant (i) was represented throughout these negotiations, (ii)  accepted the revised terms in full and final settlement of her pay issues and (iii) was aware that that Comparator A was to be treated differently to the others, her acceptance of these terms compromise her claim for equal pay to this Tribunal.

3.7      The respondent states that it commenced a further review of the salaries for Director of Services in 2005. It adds that it decided to commission such a review because (i) the Functional Officer payscale was to become redundant and (ii) the respondent was again anxious to validate the rates of salary paid to Directors of Services in light of the report of the Comptroller and Auditor General in December, 2005 – entitled VFM Report 52- Provision of Disability Services by Non-Profit Organisations. It states that it engaged Mr. Jim Redmond, following consultation with IBEC, and requested him to review the current salary arrangement for Regional Services Director (formerly Director of Services) and to make recommendations on an appropriate payscale in light of the review. It states that as far as it was aware Mr. Redmond interviewed the staff involved and reported back to it making recommendations for a two-tiered incremental payscale. These recommendations were adopted by the respondent and offered to the complainant, but she refused to accept them. It adds that her failure to do so means that the new terms are not applied to her and this contributes to an element  (approximately €6,000) of the differential between her salary and those of the comparators). The respondent states that the comparators were still in receipt of a higher rate of remuneration than that recommended by the Report, that they remained in a red circled situation and received no increase. It adds that this situation was confirmed to the complainant and both comparators by letters dated 5 April, 2006 and that the Department of Health and Children was apprised of this situation.

3.8       The respondent states that given the Department of Health and Children and more recently the HSE provides almost all of its funding, it must have regard to the views of those bodies in a number of areas, but particularly in determining the level of remuneration for senior personnel. It submits that were it to depart dramatically from the recommendations of those bodies, or fail to consult with them on such matters, there would be serious consequences for it. It refers to the report of the Comptroller and Auditor General in December, 2005 – entitled VFM Report 52- Provision of Disability Services by Non-Profit Organisations and states that this Report indicated a requirement for closer involvement by the HSE in relation to the level of remuneration of senior personnel in the “voluntary sector”. 

3.9      The respondent accepts that the rates of remuneration paid to both the named comparators are higher than the rates paid to the complainant, but submits that the circumstances outlined in the previous paragraphs support the assertion that there were historical factors connected with the comparators rates of pay which red circle them and provide the respondent with a defence of grounds other than gender. The respondent submits that the comparators’ remuneration was red circled for a number of years prior to April, 2006 – the time at which the respondent notified the parties of this situation. In the course of the Hearing Br. Hassett stated that he understood the situation existed from May, 2002. The respondent states that it could not reduce the rates of remuneration paid to the comparators at a time when as an organisation, it was going through a period of transition. It cites the judgement of Phillips J in the joined cases of Early and Marriot (Witney) Ltd. V Smith and Another  and Snoxell and Another v Vauxhall Motors Ltd.[2] where the UK EAT held “it is seldom right or desirable, or indeed permissible, to reduce the wages of employees who are being asked to move, for reasons of economy or reorganisation or otherwise, from one sort of work to another”. The respondent submits that this is what happened in the case of Comparator B who was asked to divide his region and the complainant was appointed to that smaller region. In addition, the respondent cites the UK House of Lords judgement in Rainey v Greater Glasgow Health Board[3] in support of its contention that it was permissible to retain the comparators on the rates of remuneration that they had enjoyed previously in circumstances where the organisation is undergoing reorganisation. The respondent also seeks to rely on the judgement of Laffoy J in Flynn v Primark t/a Pennys[4] where historical reasons which could explain differences in the rates of remuneration paid to the parties constituted grounds other than gender. The respondent submits that the historical factors related to the determination of the comparators’ rates of pay fall within the scenario envisaged in the Flynn case.

3.10     In summary, the respondent accepts that the complainant is paid a lower rate of remuneration than each of the named comparators but asserts there are factors unconnected with the gender of the parties which account for the difference and thus render them lawful. It submits that the personal circumstances of the two named comparators meant that there were red circled from 2002 onwards. The respondent adds that it engaged in two separate processes to settle and validate the rates of remuneration for staff at Director of Services level within the organisation and that it has applied the outcome of those processes. It further states that the process in 2006 resulted in other female Director of Services receiving the remuneration at the higher band because they are responsible for regions with greater budgets. It asserts that this demonstrates that the rates of remuneration are not connected with the gender of the individual.

4.         SUMMARY OF COMPLAINANT’S CASE

4.1       The complainant takes issue with the respondent’s version of events as regards her appointment to the post of Regional Director of Services and her starting pay in that post. She states that she was originally offered a salary of £40,000 but that she subsequently requested and was given, an increase of £800 on that amount on learning that the previous holder of the post of Director had been paid £40,800 per annum. The complainant states that during 2001 it emerged that the Directors of Services in a number of the regions were unhappy with their respective rates of remuneration/conditions of employment and they engaged Mr. K to negotiate with the respondent on their behalf. She states that these negotiations culminated in individual and confidential meetings on 19 June, 2002 between each of the Directors of Services and the respondent. The complainant adds that in the course her meeting with the respondent she agreed to a remuneration package at a particular point on the payscale of Functional Officer in the Eastern Health Board plus a percentage (7%) because she believed she was being treated fairly in comparison to other colleagues, in particular Comparator B. The complainant asserts that the respondent subsequently entertained further approaches from Comparator B to negotiate his remuneration which concluded in October, 2003 and resulted in him being placed on Point 6 of the Programme Manager payscale plus a differential of 15% and giving rise to a salary of almost €89,000 per annum. The complainant accepts that the terms concluded by Comparator A on foot of this process (June, 2002) were implemented but asserts that their application increased the gap between the respective rates of remuneration. The complainant submits that there was no requirement on the respondent to maintain any linkage between Comparator A’s salary and the payscale of Director of Psychology and that the application of this arrangement – adding a differential of 12.5% to the payscale – was discriminatory and it cannot be justified by the respondent’s arguments that the comparators were red circled at this time.

4.2      The complainant states that in November, 2004 she and a colleague wrote to Br. Hassett expressing concern about the inequitable manner they considered they were being treated in relation to other colleagues at Director of Services level. She states that following several pieces of correspondence and a number of meetings/discussions on the matter the respondent advised her it had engaged Mr. Jim Redmond to conduct a review of the existing payscale for Directors of Services and to make recommendations for an appropriate payscale in light of the review. The complainant states that she and a colleague met with Mr. Redmond over coffee in a hotel lobby for approximately one hour as part of this review. She asserts that he took no notes and they did not speak with him again. The complainant contends that this could not constitute a comprehensive evaluation of her post so as to enable a real comparison with her colleagues. She states that she received a letter from the respondent dated 5 April, 2006 outlining the new rates of remuneration for Regional Directors following Mr. Redmond’s review and recommendations, indicating her new rate of remuneration following that review and requesting her to sign a new contract of employment on that basis, backdated to June, 2005 when her previous contract expired. The complainant did not sign the new contract because it included the caveat that she was happy with her revised salary (which she was not because the comparators continued to be paid a higher rate of remuneration that her) and the terms of the revised contract were not applied to her in the circumstances. The complainant adds that the letter of 5 April, 2006 also stated, for the first time, that the salary of the comparators was red circled setting out the reasons for same and submits that this is particularly significant as she had advised the respondent (by letter dated 3 February, 2006) that she intended to pursue her complainant through the Equality Tribunal.

4.3       The complainant submits the respondent must demonstrate that the reasons for the difference in the rates of remuneration paid to the complainant and the comparators are genuine and that the difference must be linked to those reasons[5]. She further submits that at the time of their appointment to the posts there was no requirement to retain any link either of the comparators may have had with their previous rates of remuneration and that if there was their contacts of employment should have expressly provided for same. The complainant further submits that the ad hoc way in which the respondent approached these matters and the fact that it continued with this approach during the 2001 negotiations could not be seen as satisfying the obligation placed upon it by these authorities. She submits that the circumstances of the instant case can be distinguished from those set out inEarly and Marriot (Witney)Ltd. V Smith and Another  andSnoxell and Another v Vauxhall Motors Ltd.[6]. She contends that in the instant case the comparators were not moved from one post to another through no fault of their own because of reorganisation (as was the situation in those cases), they competed for the posts and received an increase in salary on appointment. The complainant adds that the comparators’ rates of remuneration were not only protected but were increased by the respondent in 2001 in a process where the comparators were allowed to renegotiate at will – a process that was denied the complainant. The complainant asserts that the Rainey v Greater Glasgow Health Board[7]  is not relevant to the instant case as there is no public/private dimension at issue and the respondent produced no evidence to show that it would have encountered difficulty either retaining the comparators on their respective salaries at the time or filling the vacancies at the complainant’s rate of remuneration had they left.  In conclusion the complainant submits that section 19(5) of the Act provides an absolute defence for a respondent to depart from the principle of equal pay and the onus establishing that the requirement of that statutory provision is a heavy one[8]

5.         CONCLUSIONS OF THE EQUALITY OFFICER

5.1       The issue for consideration by me is whether or not the rates of remuneration paid to the two named comparators are red circled and thus provide the respondent with a defence which enables it to rely on Section 19(5) of the Employment Equality Acts, 1998-2008. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by witnesses at the Hearing.

5.2       Section 19(5) of the Acts provides “Subject to subsection (4) nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.”.  As this provides an absolute defence to the respondent it must satisfy me that the difference in the rates of remuneration paid to the complainant and comparators is genuinely attributable to grounds other than gender. The term “red circling” does not appear in the legislation and it is a phrase frequently used in industrial relations. It has been accepted in the past as a defence justifying different rates of remuneration between men and women under equality legislation[9]. In Irish Crown Cork Co. v Desmond and others[10]   Lynch J commented “that the term ‘red circling’…. can mean different things to different people” and went on to state  that what must be considered in the context of section 2(3) of the Anti-Discrimination (Pay) Act, 1974 (which is now section 19(5) of the Employment Equality Acts, 1998-2008) “is whether the difference in the rates of pay between the claimant and the defendants is or is not genuinely attributable to grounds other than sex.”.

5.3       The above comments of Lynch J were specifically endorsed by Keane J in Minister for Transport, Energy and Communication v Campbell & Others[11] and he added that “the Labour Court is entitled and indeed bound to approach such an issue on the basis that the employer must prove that the differentiation is genuinely attributable to grounds other than sex. In other words, the subsection cannot be used to uphold a practice which seeks to conceal discrimination on sexual grounds”. Keane J then went on to adopt the following passage (mutatis mutandis) from Lord Denning in Clay Cross (Quarry Services) Ltd. v Fletcher[12] which examined the issue of grounds other than sex in the context of the English equal pay legislation “ the issue depends on whether there is a material difference (other than sex) between her case and his. Take heed of the words between her and his. They show that the Tribunal is to have regard to her and him – to the personal equation of the woman as compared to the man, irrespective of any extrinsic forces which which led to the variation in pay. As I said in Shields v E Coombes Holdings Ltd. [1978] IRLR 263 section 1(3) applies ‘when the personal equation of the man is such that he deserves to be paid a higher rate than the woman’.  Thus the personal equation of the man may warrant a wage differential if he has much longer service …… or has been placed, due to downgrading in a protected pay category, vividly described as red circled, or to other circumstances personal to him.”.

5.4      From the evidence submitted to me in the course of my investigation it is clear that over the years the wage determination process operated by the respondent (and its predecessor the Congregation of the Brothers of Charity) was unstructured. The first time it actually used some form of objective assessment of the value of the post of Director of Services to it was the Redmond Review which concluded in 2006. The complex mechanism of wage determination operated by the respondent dates back to the mid/late 1990’s when lay people started to be appointed to posts which had previously been occupied (or at least the tasks were performed by) members of the religious order. Evidence was given by Br. Hassett that the starting pay for both comparators to the post of Director of Services was £50,000 because of the promotional element of the post, the duties attached to the post and the budgetary responsibilities attached to the post. In contrast the complainant received a starting salary (also after promotion) of £40,800. Br. Hassett stated that the level of remuneration paid to the comparators on appointment was approved by the respondent’s Provincial Council, on his recommendation, whereas the starting pay for the complainant was agreed between him and Br. O’Shea. This subjective assessment of the value of the respective posts creates an environment where discrimination can exist. I note in particular the judgment of the European Court of Justice in Finanzamt Koln-Altstadt v Schumacker[13]where it stated “that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations”.  In addition, the Labour Court has warned that the Court (and this Tribunal) must be alert to the “possibility of unconscious or inadvertent discrimination”[14]. I am of the view that such a scenario may have been made out by the complainant had the respondent not appointed a female to the post of Director of Services a short time later at a starting salary of £51,000. I am therefore satisfied that the gender of the individuals was not a factor in determining the rate of remuneration at that time. Nonetheless, it is a fact that on appointment the complainant found herself in receipt of £9,200 less that either of the comparators.

5.5      It is evident that the disparity in respect of the level of remuneration which the Directors of Services were receiving gave rise to disquiet and the 2001/2002 negotiations emerged to address that disquiet. The respondent states that at this juncture it was experiencing pressure from the Department of Health and Children to regularise the rates of remuneration for the post of Director of Services and the outcome of extensive correspondence and consultation with that Department was that the payscale for Director of Services should be linked to the payscale of Functional Officer in the Eastern Health Board plus a percentage. This percentage differential ended up at 7% in the complainant’s case. The complainant’s evidence was that she agreed to these terms at a meeting on 19 June, 2002 on the basis that she was being treated fairly and her remuneration was almost the same as that paid to Comparator B. Her assertion on this point was corroborated at the Hearing by Mr. K (who was engaged by the complainant and a number of other colleagues to negotiate on their behalf in those wage discussions) and who was present at that meeting. However, it is clear from complainant’s subsequent correspondence to the respondent (letters of 26 June, 2002 and 21 October, 2002) that, whilst accepting these terms, she was not completely happy with the outcome of the process. From the evidence adduced in the course of my investigation I am satisfied that these negotiations resulted in substantial increases in salary for both comparators. At the end of this process Comparator A secured a salary level of Director of Psychology plus a differential of 12.5% Comparator B was to be remunerated at Point 6 of the Programme Manager scale plus a differential of 15%. The respondent states in the first instance that if the terms which applied to the complainant had been applied to either of the comparators it would have resulted in a decrease in their respective salaries and that protecting these salaries at the existing levels is permissible in a red circling situation and I would agree that the caselaw permits such a proposition. However, that it not what happened in this instance. The comparators level of remuneration was not only kept at their existing level  it was substantially increased following negotiation, a process which  in comparator B’s case went on for fifteen months and as a result of which the difference in the rates of remuneration paid to the parties increased. The respondent also submits that both comparators may have resigned with the consequential loss of their skills and experience to it. No evidence was adduced by the respondent to support this assertion. Finally, the respondent contends that it was experiencing pressure from the Department of Health and Children to regularise the remuneration for Director of Services. However, no documentary evidence was submitted by the respondent to corroborate this assertion. Indeed, it is clear that whatever involvement the Department may have had in the process considerable discretion rested with Br. Hassett, who was able to agree terms which go beyond what he indicated the Department were happy with in the course of the discussions and take the consequences of his actions. Finally, I note that the Report of the Comptroller and Auditor General entitled VFM Report 52- Provision of Disability Services by Non-Profit Organisations was not published until December, 2005 and this could not therefore have impacted on the 2001/2002 negotiations, although it coincides with the retention of Mr. Redmond by the respondent.

5.6      The respondent states it was the understanding at that time that Comparator A’s salary would increase in a manner broadly in line with increases in salary of holders of the post of Director of Psychology. It accepts that his contract of employment did not provide an express link in that regard but states that it did contain a provision providing for “a review of the salary at two year intervals with note being taken, as appropriate, of any special increases awarded to Officers in the higher levels of Management in Health and other Public Services and appropriate adjustments agreed”. It further submits that the rate of remuneration which attached to the post of Director of Psychology had increased significantly over the six years Comparator A had occupied the post of Director of Services and the salary attached to the post of Director of Psychology at that time far exceed the rate of remuneration the comparator was on. Consequently, it was agreed (in the course of the meeting on 19 June, 2002) to set his salary at Director of Psychology payscale plus 12.5%. I note that Comparator A was appointed to the post of Director of Services following a competitive selection process. I am of the view therefore that all links with his previous payscale should have ceased at that time, unless his new contract of employment contained an express term that a link to same was to be maintained. The respondent agrees it did not do so but asserts that there was an understanding that would be the case. It has however, not produced any tangible evidence to support that assertion other than Br. Hassett’s evidence. I am not satisfied that this meets the burden required to avail of section 19(5). Even if this was the case, it does not explain why a premium of 12.5% was added to the payscale. The pay negotiation was shrouded in secrecy and wholly lacking in transparency, a situation which has been found by the ECJ to constitute prima facie evidence of discrimination[15]. The UK caselaw cited by the respondent Early and Marriot (Witney)Ltd. V Smith and Another  and Snoxell and Another v Vauxhall Motors Ltd.[16]   and Rainey v Greater Glasgow Health Board[17] are not relevant to the instant case as Comparator A was not  moved from one post to another through no fault of his own due to reorganisation. As mentioned previously he competed for the post and received an increase in salary on appointment. Having evaluated all of the evidence on this matter, I am not satisfied that a genuine red circling situation prevailed at the time in respect of Comparator A and the respondent has failed to demonstrate that the difference in the rates of remuneration paid to the complainant and comparator are genuinely attributable to grounds other than gender.

5.7       The respondent makes similar arguments to those outlined in the previous paragraph in respect of Comparator B, except this time it states that the link is to the post of Programme Manager. My comments in the preceding paragraph apply equally to Comparator B. Indeed, I note that this comparator succeeded in renegotiating a more favourable remuneration package than was originally on offer after the initial negotiations and that these negotiations concluded almost fifteen months after the meeting in June, 2002. No such latitude was afforded to the complainant.

5.8       The next occasion the respondent examined the remuneration of Director of Services was in late 2005 when it engaged Mr. Jim Redmond to undertake a review of the post and make recommendations on an appropriate salary level. At the end of this process Mr. Redmond recommended a two tier (Grade 1 and Grade 2) six point incremental payscale for the post. Those Directors whose budget exceeded €15m would be awarded the Grade 2 payscale and whose budget was below €15m would be awarded the lower Grade 1. It is not my function to opine as to whether or not Mr. Redmond carried out a comprehensive assessment of the value of the post of Director to the respondent. The recommendations of Mr. Redmond as regards the incremental payscale were adopted by the respondent and applied to those Directors who were prepared to sign a new revised contract containing those terms. The complainant refused to do so and the terms were not applied to her. The comparators were both in receipt of salaries which exceeded the maximum of the new payscale for Grade 2 so they did not receive any increase. However, as these salary levels flowed from the previous negotiation process and I have already found that they were not red circled it follows that the rates of remuneration which the comparators received at this time are also not red circled and they are not covered by the exemption at section 19(5) of the Acts.

5.9       One further issue requires attention. The respondent contends that the complainant compromised her claim of equal pay when she accepted the terms negotiated at the meeting of 19 June, 2002 and she therefore has no basis upon which to pursue her claim to this Tribunal. I do not accept that argument. Firstly, section 19(1) of the Acts implies a term into every contract of employment entitling an employee to equal pay with a person of the opposite sex in circumstances where both perform “like work”. At common law any departure from this principle must be expressly provided for and no such term exists in the complainant’s contract. Secondly, I am satisfied, on balance, that the complainant accepted the terms proposed by the respondent at that time on the basis that she was being treated fairly and had achieved a remuneration package which was the same as, or broadly similar to, that paid to Comparator B. This was not the case and indeed the respondent re-entered negotiations with that comparator after discussions with the complainant concluded, a process which resulted in the difference in salary between them increasing. Finally, the respondent was unable to furnish any documentary evidence that the complainant agreed that the terms accepted were in full and final settlement of all matters connected with her concerns about her remuneration. I do not accept the respondent’s contention that the complainant’s letters of 26 June, 2002 and 21 October, 2002 correspond to such an acceptance.

6.                 DECISION OF THE EQUALITY OFFICER.

           I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts, 1998-2008. I find the respondent has failed to demonstrate to my satisfaction that the difference in the rates of remuneration paid to the two comparators and the complainant is genuinely attributable to grounds other than gender and that the comparators’ rates of remuneration are red circled. Consequently, the respondent cannot avail of the defence set out at section 19(5) of the Acts.

           ______________________________________

            Vivian Jackson         

            Equality Officer

            10 June, 2009