THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010 - 058
John Cogan
versus
The Commissioner, An Garda Síochána (represented by Anthony Kerr, B.L. instructed by the Chief State Solicitors Office)
File reference: EE/2007/099
Date of issue: 29th April 2010
Keywords: Employment Equality Act, Equal Pay, Age, Grounds other than age, Conditions of Employment
1. Dispute
1.1 This dispute concerns a claim by John Cogan against his former employer the Commissioner of An Garda Síochána that he is entitled to the same rate of remuneration as that paid to a named younger comparator in accordance with the provisions of Section 29 (1) of the Employment Equality Acts 1998-2008 [hereinafter referred to as 'the Acts']. The respondent denies that like work exists between the complainant and the comparator. Notwithstanding this argument, it submits that there are grounds other than age which render the rates of remuneration paid to the complainant and comparator lawful in terms of Section 29 (5) of the Act. Mr Cogan has also claimed that the respondent discriminated against him on the ground of age regarding his conditions of employment.
1.2 The complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 28th February 2007. He named his comparator on 8th March 2007. In accordance with her powers under Section 75 of the Act, the Director delegated the case on 19th January 2009 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. An initial enquiry took place on 22nd December 2009. Submissions were exchanged and a Hearing was held on 1st April 2010. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
2. Summary of the respondent's case
2.1 Mr Cogan claims that, as a Civilian Driver, he should have equal pay with Gardaí who carry out driving duties. As part of the "civilianisation process" which began in December 1999, the recruitment of Civilian Drivers has displaced many Garda Drivers. Prior to the recruitment of civilians, there were 45 Garda Drivers in the driving pool. This number reduced to 18 by 2008. The civilianisation process is designed to free up Gardaí, to the fullest possible extent, for police operational duties. The respondent submits that there is a need for the retention of a complement of Garda Drivers where policing expertise or armed protection is required.
2.2 The rate of pay of Civilian Drivers was set at a rate sanctioned by the Department of Finance. Garda Drivers are remunerated at the standard rate of pay for Gardaí generally. The comparator joined An Garda Síochána in March 1983. He is now 49 years of age and has 26 years of service. Members of An Garda Síochána reach the highest point on their incremental pay scale after 17 years of service. In common with many Gardaí, the named comparator is at the top of the incremental pay scale. The respondent submits this is irrespective of age; it is service dependent. The respondent cites examples of a 52-year-old Garda with 32 years of service and a 41-year-old Garda with 19 years service both of whom would be at the same level of remuneration as the comparator.
2.3 The respondent submits that Garda Drivers carry out considerable additional duties and responsibilities over and above those carried out by Civilian Drivers. These duties usually involve armed protection and the need for a physical response which only a Garda could provide. Civilian Drivers are not placed in situations where there is a potential for harm or danger. The additional duties and responsibilities assigned to Garda Drivers include:
- Driving Ministerial cars
- Escorts to the Special Criminal Court
- Driving Garda-marked vehicles (except in limited circumstances such as within Garda Headquarters)
- Driving official vehicles on security duties or on duties of sensitive nature
- Driving official vehicles where it is expected that speed limits and/or other traffic laws will have to be breached
- Driving official vehicles when blue lights and sirens have to be used.
2.4 Garda Drivers have other duties other than official driving responsibilities e.g. working in the Details office where they would be involved in the logistics of driving duties e.g. arranging cars, taking requests for transport etc. They may be re-assigned to normal Garda duties or carry out such duties on overtime. Garda Drivers are rostered for weekend work while Civilian Drivers are only rostered for either of two Monday to Friday shifts - namely 08:30 to 16:30 and 15:00 to 23:00.
2.5 Civilian Drivers were recruited following an open competition and are aged between 43 and 66. Therefore, some are younger and some are older than Mr Cogan.
2.6 Regarding his conditions of employment, the respondent accepts that the complainant was paid a different rate of subsistence than his comparator. However, the respondent submits that this is not connected to Mr Cogan's age but because he was a Civilian Driver rather than a Garda Driver.
Summary of the complainant's case
3.1 The complainant submits that his duties and that of his comparator are broadly similar (although he concedes there are some differences) and that his comparator is younger than he is. Therefore, they should receive the same rate of remuneration as well as the same rate of subsistence.
Conclusions of the Equality Officer
4.1 There are two issues for consideration by me:
- whether there are grounds other than age for paying a different rate of remuneration to the named comparator than the complainant within the meaning of Section 29 (5) of the Act.
- whether the respondent discriminated on the ground of age against the complainant regarding his conditions of employment
4.2 I accept the respondent's contention that any duties connected with policing should be reserved for police officers and consequently it is necessary to retain a complement of Garda Drivers to meet the operational needs of the force. These arguments are well-ventilated in the Labour Court Determination Department of Justice, Equality and Law Reform and Civil, Public and Services Union (CPSU) . Without going into the examination of like work, a Garda Driver has additional duties and responsibilities (which the complainant accepts) to a Civilian Driver. While the comparator is younger than Mr Cogan and earns more, I am satisfied that this is not because of his age. It is because he is employed as a Garda and Mr Cogan was employed as a Civilian Driver. For these reasons, I find that the respondent did not discriminate against the complainant in paying him less than his comparator.
4.3 In relation to his conditions of employment, I am satisfied that the reason Mr Cogan was paid a lower rate of subsistence than his comparator was not connected to age. It is because Gardaí are paid a different rate of subsistence than Civilian Drivers.
Decision
I have concluded my investigation of Mr Cogan's complaint and hereby make the following decision in accordance with Section 79(6) of the Act:
(i) I find that that the difference between the rate of remuneration paid to Mr Cogan and the rate paid to his named comparator is genuinely attributable to grounds other than age. Consequently, the respondent can avail of the defence set out at Section 29 (5) of the Acts
(ii) I find that the respondent did not discriminate against Mr Cogan in relation to his conditions of employment.
Therefore, Mr Cogan's complaint fails.
______________
Orlaith Mannion
Equality Officer
29th April 2010