THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009 - 086
PARTIES
Ms Maria Intencion
(represented by Mr John Ferris, Philippine Consul to Ireland)
and
International Leisure Ltd.
File Reference: EE/2006/139
Date of Issue: 7th of October, 2009
Claim
1.1. The case concerns a claim by Ms Maria Intencion, a national of the Philippines, that she is entitled to equal pay with a named comparator who is a Polish national, in accordance with S. 7(1)(b) of the Employment Equality Acts, and she is therefore entitled to the same rate of remuneration as paid by the respondent to this comparator in accordance with section 29 of the Acts. That the complainant wished to litigate her complaint under S. 7(1)(b) was clarified at the preliminary hearing of her complaint, where the meaning of the various provisions of S. 7(1) were explained to her and her representative. The complainant worked as a receptionist in one of the respondent's fitness clubs. It is her contention that her named comparator performed like work within the meaning of S. 7(1)(b) of the Acts, yet earned more than she did. The respondent disputes that the complainant and the comparator performed like work within the meaning of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 6 May 2006. On 24 October 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On 19 March 2008, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. A preliminary hearing took place on 31 October 2008, after which both parties made submissions. A work inspection took place on 3 September 2009. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a final hearing of the case on 9 September 2009.
2. Summary of the Complainant's Written Submission
2.1. It is the complainant's contention that during the time of her employment with the respondent, there were four receptionists on rostered shifts who all performed like work with each other and all reported to Mr. P., the assistant manager. The complainant submits that she earned approximately €5000 less per annum than her named comparator, and that this constitutes a breach of the equal pay provisions of the Acts on the ground of race pursuant to S. 6(2)(h) of the Acts.
3. Summary of the Respondent's Written Submission
3.1. The respondent accepts that there was a difference in remuneration between the complainant and her named comparator. It is the respondent's contention that this difference arose because the named comparator was a senior receptionist, whereas the complainant was employed as a junior receptionist. It is the respondent's case that the position of senior receptionist carried greater responsibilities, and that it cannot be said, therefore, that the complainant and her comparator performed "like work" within the meaning of the Acts. In particular, the respondent argues that the senior receptionist's duty included acting up as duty manager; supervision duties with regard to the reception staff; re-stocking inventory and overseeing complaints handling. The respondent contends that any of the above is never the responsibility of a junior receptionist, and was not among the responsibilities of the complainant during her employment with the respondent.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant and her comparator are engaged in like work as defined in S. 7(1)(b) of the Acts, and if so, whether there are grounds other than their different nationalities for the difference in their remuneration.
4.2. S. 7(1)(b) defines "like work" as follows: "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 irregularity as not to be significant to the work as a whole."
4.3. Both the complainant and the comparator worked at the respondent's premises in Westmanstown, Co. Dublin. The complainant had lost contact with her original named comparator and was not in a position to produce him to be questioned for a work inspection, or to be available as witness. Likewise, the respondent did not have any contact details for the complainant's original comparator. Accordingly, I interviewed Mr Sch., a French national, who has been performing the duties of senior receptionist in the club since 2007, since it was the respondent's contention that the complainant's original comparator had also been a senior receptionist.
4.4. During my work inspection, it became clear that the duties of the complainant and those of Mr Sch. are indeed similar to a considerable extent. These duties are described in the Appendix. Mr Sch. had additional duties in staff supervision and inventory control which appeared to me to be of altogether small importance in relation to the work as a whole. If Mr Sch.'s additional duties had been confined to these, it would not be fatal to the complainant's claim.
4.5. However, Mr Sch. has the regular additional duty of acting up as duty manager. This happens on one weekend per month, comprising two nine-hour shifts, and involves a clear instruction from management. Through the wearing of a badge that identifies Mr Sch. as duty manager to the club's patrons, it carries visible and significant additional responsibilities. These occur on a planned, regular basis, comprising a total of 216 work hours per year. The respondent's operation manager further stated that weekends were busy at the club, since it was a family-oriented facility with many patrons frequenting the club at weekends. This again underlines the extent of additional responsibility placed on the complainant during these shifts. I am therefore not satisfied that the complainant and Mr Sch. perform "like work" within the meaning of S. 7(1)(b) of the Acts.
4.6. During the final hearing of the complaint, it was the complainant's case that these additional responsibilities did not exist for her comparator five years ago, and indeed, that the job titles of junior and senior receptionist did not exist at that time. She also sought to argue that during early morning shifts, before the manager arrives, the receptionist de facto performs this role. While I found it to be the case that the receptionist is on his or her own from app. 6:45am to 8am, this is also the case with the comparator when he works the early morning shift, and therefore cannot be said to balance his additional duty manager duties in any way.
4.7. In terms of the burden of proof that rests on the complainant, the Labour Court has consistently held that "the existence of like work between a Complainant and a comparator is a condition precedent to any entitlement of equal pay under the Act. This is a question of fact and degree. It is for the Complainant to prove, on credible evidence of sufficient weight, that he was engaged in like work within the statutory meaning." [Donegal Meat Processors v. Rodrigo Da Silva Dias, EDA093]
4.8. As these principles apply to the case on hand, I find that the complainant has not provided evidence of sufficient weight to support her contentions. I further wish to note that job titles are of no relevance with regard to establishing a prima facie case of like work, and that establishing such a case depends solely on the actual work performed by the complainant and the comparator.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the complainant did not perform "like work" with a named comparator of French nationality in terms of S. 7(1)(b) of the Employment Equality Acts 1998 - 2008. Hence I find that the complainant has no entitlement under the legislation to the same rate of pay as that paid to her original comparator.
___________________________
Stephen Bonnlander
Equality Officer
7 October 2009
6. Appendix: Work Descriptions of the Complainant and the Comparator
Complainant: The complainant reported to the Reception Manager.
Morning shift (6:45am to 3:45pm):
- start at 6:45, open the club for 7am: turn on lights, music, tv sets, computers and disable alarms. One person would cover reception and one would be in the gym. There would usually be a queue of regulars outside for the 7am opening.
- Scan membership cards of patrons. This brings up the patron's details on the computer. In case the patron owes money or there are irregularities in payment, the complainant had to ask the client for an explanation, and takes a note of their name. The complainant had a wide remit in decision-making as to whether to admit a patron into the club. The complainant does not remember criticism from senior management for any decisions she took.
- Phone calls: the phone is busy and typically there is a phone call every couple of minutes throughout the day. The reception phone doubles as switchboard for the entire club. The complainant had to know how to clarify queries, which queries to answer herself; and where to refer calls that needed referring. The switchboard had six extensions during the time the complainant worked for the respondent.
- Entering new members into the system, of people who had taken out membership in the club the previous day.
- Take deliveries: with couriers, the receptionist needs to check the address to make sure the courier is delivering to the correct address. Drinks deliveries had to be put in storage until they could be put into the fridge. The drinks packages were delivered on a trolley, and occasionally it became necessary for the receptionist to haul around the trolley herself.
- Deal with complaints: The complainant would seek to specify the complaint and empathise with the customer. Her most important duty was to de-escalate the emotion contained in the conflict.
Lunchtime shift (11:30am to 8:30pm):
- Ensure cash flow and that there was sufficient float in the till. There was also another spike in attendance at lunchtime. The scanning of membership cards and associated duties were the same as during the morning shift. There would normally be one person at reception, but there was overlap with the colleague from the evening shift.
- The complainant could not remember how busy the phone typically was during the lunchtime shift, or how many deliveries were received during that time.
Evening shift (1:30pm to 10:30pm):
- The complainant was in charge of closing the club, which included checking fire alarms, intruder alarms.
- Follow up by phone with people interested in joining the club.
- There would be lots of walk-in enquiries in the evenings, which necessitated giving people interested in joining the club a guided tour of the premises, and take their details on a form.
- Stocktaking: the complainant would ensure there were enough stationery supplies. If there were close to running out, she would tell the Reception Manager. The complainant stated that she had no access to the details of the ordering process.
- The complainant stated that she had no authority to discipline fellow reception staff members.
Comparator:
The comparator reports to the Reception Manager.
Morning shift (6:45am to 3:45pm):
- start at 6:45, open the club for 7am: turn on lights, music, tv sets, computers and disable alarms. One person would cover reception and one would be in the gym. There would usually be a queue of regulars outside for the 7am opening.
- Scan membership cards of patrons. This brings up the patron's details on the computer. In case the patron owes money or there are irregularities in payment, the comparator has to ask the client for an explanation, and takes a note of their name. It does not happen very often. The comparator has a wide remit in decision-making as to whether to admit a patron into the club. If there is a serious amount of money outstanding, the comparator would escalate the matter to management.
- Entering new members into the system, of people who had taken out membership in the club the previous day.
- Check float.
- Stocktaking: the comparator would ensure there were enough supplies of stationery, drinks, towels (which the club sells to patrons), locks, pens, candles and other items for sale at reception. If there were close to running out, he would place an order for replacements. Drinks orders were placed fortnightly and other orders as needed. The comparator has authority to re-order stocks and access to the relevant information.
- According to the comparator, the phone gets busy from around noon, especially when the club is having special courses, such as swimming or yoga, for which the receptionist takes bookings. The comparator has to know how to clarify queries, which queries to answer himself; and where to refer calls that needed referring. The switchboard still has six extensions.
- Deliveries: most come between 10am and 12noon. Drinks are delivered every Friday, but also spare parts for various pieces of equipment. It is not necessary for the comparator to haul the drinks around any longer.
- Liaise with Reception Manager once the Reception Manager comes in. The complainant emphasised that prior to the Reception Manager starting work, she would have been responsible for reception duties on her own. In her view, this equals acting as duty manager for that time period.
Lunchtime shift (11:30am to 8:30pm):
- Ensure cash flow and that there was sufficient float in the till. The comparator confirmed that there is another spike in attendance at lunchtime during which the gym is extremely busy. The scanning of membership cards and associated duties were the same as during the morning shift. There would normally be one person at reception, but there was overlap with the colleague from the evening shift.
- Deal with issues that come up, and liaise with colleagues.
Evening shift (1:30pm to 10:30pm):
- The comparator is in charge of closing the club, which included checking fire alarms, intruder alarms. The gym staffs check the upstairs fire alarms, and the comparator the downstairs fire alarm. The receptionist also does a walk-around and makes a note of any problems. A manager is present until 10pm, when the doors are locked. Gym staffs check that all patrons have left the facilities by 10pm.
- After 10pm, the comparator checks the membership list, that is, everyone who signed up for membership on that day and paid in advance. A cash sheet about new members is then filled in. The float is checked, to be reconciled by the reception manager the next morning.
- Deal with complaints: The comparator would seek to specify the complaint and empathise with the customer. His most important duty was to de-escalate the emotion contained in the conflict. If it was a minor complaint, patrons would fill in a form which he would pass on to the Reception Manager.
- The comparator further stated that he had authority to discipline staff if they did not show up for work, returned late from their lunch, or appeared unkempt. However, it was stated that this almost never happened.
- The comparator further stated that he acts up as duty manager once a month for two nine-hour shifts on one weekend. In such an acting-up situation, he would have been instructed by the club manager, and been given the badge "Duty Manager", which he would then return after the weekend. This badge makes it visible to all staff and patrons that the comparator is the person in charge, and responsible for addressing any problem that might arise; during the time he acts as duty manager. The comparator stated that in particular, this position carries enhanced responsibility for dealing with complaints, staff supervision and timekeeping. Mr Sch. gave the example of the Jacuzzi not working: instead of simply escalating the problem to the manager, he would first try to fix the Jacuzzi himself (a task for which he had received training to enable him to carry out minor maintenance), or take guidance over the phone from Mr. P. In terms of staff supervision, Mr Sch. gave the example of making enquiries, and if necessary, reprimanding, a staff member who would not report back on time at the end of their lunch break.