EDA0918

Introduction.

The Complainant is of Russian nationality. He was employed by the Respondent from March 2002 until November 2005. He brought a claim for equal pay pursuant to Section 29 of the Act. For the purpose of advancing his claim the Complainant nominated a comparator of Irish nationality (Mr. Philip Byrne) (“the Comparator”) whom he claimed he was paid less per hour than.

The Equality Officer found that the rates of remuneration paid to the Complainant and to the Comparator were lawful in terms of Section 29 (5) of the Acts and accordingly dismissed the claim. The Complainant appealed to the Court.

The Complainant’s Case

The Complainant stated that he was employed by the Respondent as a skilled builder, to work on the Hotel’s refurbishment programme, which commenced in March 2002 and was completed in 2005. He stated that his duties included tiling, plastering, electrical work, plumbing and painting. He also stated that when two other workers left the employment he was given extra duties (gardening, collecting food waste by tractor). While he was not furnished with a contract of employment he produced evidence to the Court indicating that the Respondent described his employment status in the hotel“as a tiler”,also doing“some general maintenance work when required”. He was paid €8.07 per hour plus board and accommodation.

The Complainant stated that the Comparator was employed in the maintenance department from March 2002, having previously been employed as a Barperson in the Hotel’s Bar. The Complainant stated that the Comparator’s duties during refurbishment work were restricted to removing old wallpapers, otherwise he carried out general maintenance work, e.g. replacing light bulbs, unblocking pipes, repairing broken furniture and cutting the grass. He contented that the Comparator was not a skilled tradesman, he had no experience or training in this area; he had never worked as a tiler, plasterer, electrician, plumber or at general maintenance before March 2002. He held that the Comparator had never reached his level of qualification. He also challenged the Respondent’s contention that the Comparator was in a supervisory role within the maintenance department, he contended that the Comparator had no managerial experience and questioned his suitability to carry out such a role. He stated that all work assignments came from either Mr. Murphy whom he stated was the sole Manager of the maintenance department or from the “Maintenance Book”. He stated that the Comparator never told him what to do, i.e. he never supervised his work or training.

The Complainant contended that the Comparator started working in the maintenance department as an apprentice, not as a manager and he was not trained to deal with plumbing or electrical faults. Furthermore, he contested the Respondent’s assertion that as Manager of the maintenance department, the Comparator was required to be on call in the event of an emergency.

The Complainant maintained that he took more responsibility for the greater part of the refurbishment works in the Hotel than the Comparator. And on the retirement of two maintenance employees he took over responsibility for additional maintenance duties in the Hotel and the Hotel’s garden.

The Complainant asserted that despite the Comparator’s lack of qualification and experience, he was paid more - €11.26 per hour (plus meals on an ad hoc basis only). He contended that this amounted to discrimination on the race ground, contrary to section 29 of the Acts.


The Respondent’s Case

Mr. Peter McKenna Solicitor for the Respondent denied that it had discriminated against the Complainant and held that the rate of pay paid to him and to the Comparators were lawful in terms of section 29 (5) of the Acts.

The Respondent operates a Hotel comprising of a medieval castle building. It stated that bearing in mind the age of the Hotel building and its protected status under planning and heritage legislation, the building has a high degree of ongoing maintenance requirements. To this end, management of the Hotel employ a small team of maintenance personnel and responsibility for the supervision and management of the maintenance of the Hotel is assigned to the maintenance department.

The Respondent stated that the Complainant was employed as maintenance operative to undertake heavy physical work as directed. It was clearly explained to him when he commenced his employment that he was being employed as a general maintenance operative since the Hotel only had 36 rooms and very limited tiling work needed to be done. When the limited refurbishment work was not being carried out (i.e. outside the winter months) the Complainant was required to provide general remedial touch-up or minor correction work to the fixtures and fittings of the Hotel. He did not have the same training and specialist knowledge of the various hotel systems, responsibility, range of duties, or dealings with suppliers as the Comparator. He did not have (a) to organise with work of the maintenance department team, (b) supervise any other employee, or (c) report directly to Hotel management. The Comparator was required to assist in the management and supervision of all areas of the hotel’s maintenance department’s portfolio of work, with 24 hour/7 days a week on-call availability, which was reflected in his rate of pay.

The Respondent stated that at no stage during his employment did the Complainant ever dispute the Comparator’s authority.

Mr. Shane Cassidy’s Evidence

Mr. Shane Cassidy, General Manager of the Hotel gave evidence that he recruited the Complainant when he was being let go from a Tiling company, where he had worked as a full time tiler. He explained to him that he did not need a full time craftsman, but required a worker to carry out general maintenance duties, refurbishment work on the hotel and other maintenance duties. He discussed his wages with him, found out what he had been paid previously, and offered him the job on €8.07 per hour with free board and lodgings, which he accepted willingly. Mr. Cassidy assisted him in his application for a work permit and the Complainant commenced work in March 2002 as part of the maintenance department team. At the time the team comprised of a Maintenance Manager, Mr. Murphy, newly appointed Assistant Manager, Mr. Byrne and two maintenance operatives, Mr. Moran and Mr. Kirwan.

Mr. Cassidy explained that Mr. Murphy had been employed with the Hotel for over 40 years, was an extremely valuable employee as he was familiar with the entire maintenance workings of the Hotel and was solely responsible for the supervising of the maintenance department until the appointment of the Comparator, whereupon he reduced his working week to 2/3 days.

The witness gave evidence that another member of the maintenance department team Mr. Moran, was required to carry out refurbishment works together with other general maintenance duties around the Hotel, he was supervised by Mr. Murphy, in his absence and on his retirement - by the Comparator. Mr. Moran was paid €7.12 per hour until his retirement in 2004. Mr. Kirwan, also a member of the maintenance department team undertook gardening duties and was similarly supervised by both Mr. Murphy, in his absence and on his retirement - by the Comparator. Mr. Kirwan was paid €6.91 per hour until his retirement in 2004.

The witness told the Court that in 2002 when Mr. Murphy requested a reduction in his hours with a view to retirement that both he and Mr. Murphy considered the Comparator as the most suitable replacement. The Comparator had been employed as Bar Manager in one of the Hotel’s Bars which was about to close. He had been employed as a Barman for 6 years and Bar Manager for 5 years. The Comparator was appointed initially as Assistant Manager in a learning capacity under Mr. Murphy, who taught him about the complicated and unique workings of the various systems in the Hotel (e.g. heating, biozone, plumbing, electric, gas, television systems etc.)
The Comparator’s duties also included dealing with numerous suppliers and wholesalers, purchasing maintenance equipment and supplies for the hotel and the Leisure Centre and liaising with the various contractors used by the Respondent, e.g. plumbing, electrical, TV specialists etc.

Mr. Cassidy told the Court that on days when Mr. Murphy was not present, the Comparator assumed the sole supervisory role over the maintenance team. He was also on 24 hour emergency call and was required to work at weekends, public holidays and after-hours as needed. He did not receive any extra payment for this requirement. The Comparator replaced Mr. Murphy as Maintenance Manager on his retirement.

Mr. Cassidy also informed the Court that the Complainant did not make any complaint when the Comparator was appointed to his supervisory role in the maintenance department.


Mr. Murphy’s Evidence

Mr. Murphy, Maintenance Manager gave evidence that he had worked for the Respondent for in excess of 40 years. He told the Court that he discussed the Complainant’s recruitment with Mr. Cassidy and explained that he was required to carry out general maintenance duties, particularly when refurbishment work was ongoing during the winter months in the Hotel. He said that the Complainant was not required to undertake any supervisory/ managerial duties.

The witness explained that in 2002 he sought to reduce his hours with a view to retirement and he was happy with the Respondent’s choice of replacement, as the Comparator was very suitable. The witness stated that the Comparator was introduced to the rest of the maintenance department as his replacement and informed them that in time he would be taking over as Manager of the department. The witness told the Court that the Comparator was a skilled tradesman however, as he did not have the specialist knowledge of the workings of the various systems in the Hotel so he had spent some considerable time teaching him.

The Comparator’s Evidence

Mr. Philip Byrne gave evidence that he had been employed by the Hotel for 6 years as a Barman and 5 years as a Bar Manager, prior to his appointment in the maintenance department in 2002. As Bar Manager he was responsible for managing the Bar staff, allocating tasks, drawing up staff rotas, ordering supplies, organising functions and entertainment for the Bar.

The witness explained that he had worked as a Cabinet Maker in a company for 1 ½ years and operated his own Flooring Company for 4 years.

The witness told that Court that in 2002 he was approached by the Respondent about a position at managerial level in the maintenance department. It was explained to him that the Hotel Bar he was working in was about to close and that Mr. Murphy the Maintenance Manager wished to reduce his hours with a view to eventually retiring. He accepted the offer and Mr. Murphy trained him in on the function of the Hotel’s maintenance systems, a process, which he said, lasted approximately two years. He explained that his role included supervising staff, allocating work to staff and organising the day-to-day running of the hotel’s maintenance functions. He was responsible for stock and purchasing materials. He was required to be on call at all times in the event of an emergency.

The witness said that the Complainant has no difficulty with him in his role as Assistant Manager and eventually as Maintenance Manager.

In cross-examination the witness accepted that he had no role in training the Complainant. He also accepted that at times he carried out other functions as necessary in the Hotel, e.g. waiter. However, he disputed that this interfered in any way with his on call arrangements.


Conclusions of the Court

The Complainant alleges that he has been discriminated against as he is paid less that his named comparator, there is a difference in nationality between him and his Comparator and accordingly he brought a claim for equal pay pursuant to Section 29 of the Act.

The Court heard evidence that the Complainant was recruited as a general maintenance operative in the maintenance department and paid at a rate of €8.07 per hour plus free board and lodgings, which was a higher rate that applied to workers of Irish nationality doing somewhat similar work. The Court accepts the veracity of that evidence.

The Complainant contends that the work, which he performed, is of higher value than that performed by his Comparator and therefore stated that he performed like work as set out in subsections (1) (a) (b) and (c) of Section 7.

The existence of like work between a Complainant and comparator is a condition precedent to any entitlement to equal pay under the Act. It is for the Complainant to prove, on credible evidence of sufficient weight, that he was engaged in like work within the statutory meaning.

Like work is defined by Section 7(1) of the Act. This provides as follows: -

• —(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—
  • (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,
    (b) 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, or
    (c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.