DEC-E2010-007 - Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2008

Decision DEC – E2010-007

Patricia O’Brien

(represented by Alice Mary O’Reilly,  Solicitor)

versus

Eircom Ltd.

(represented by Rossa Fanning, B.L. instructed by Arthur Cox Solicitors)

File reference: EE/2006/415

Date of issue:    26th January 2010      

Keywords: Employment Equality Act, Equal Pay, Gender, Like work, Grounds other than gender, Victimisation

1.    Dispute

1.1 This dispute concerns a claim by Ms Patricia O’Brien against her employer Eircom Ltd that she is entitled to the same rate of remuneration as that paid to two named male comparators in accordance with the provisions os Section 19 (1) of the Employment Equality Acts 1998-2008 [hereinafter referred to as ‘the Act’].  The respondent denies that like work exists between the complainant and comparators and, should like work be found, Eircom states that there are grounds other than gender.

1.2 Through her legal representative, the complainant referred her complaint under the Act to the Director of the Equality Tribunal on 24^th October 2006.  In accordance with her powers under Section 75 of the Act, the Director delegated the case on 23rd September 2008 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 6^th January 2009.  At this initial enquiry issues emerged  which indicated there may have been victimisation. In  Siobhan Long v. The Labour Court, Mairéad Blackhall, and Powers Supermarkets Ltd t/a Quinnsworth[1]   Johnson J established the right of an Equality Officer to consider cases before him or her under provisions of the relevant legislation that the complainant or the complainant’s representative have not sought to invoke, if it appears from the evidence that those provisions should be applied to the case at hand. Therefore, I considered it appropriate to investigate whether victimisation had taken place and both parties had opportunities to make written and oral submissions on same. As like work is in dispute between the parties, interviews about the complainant’s and comparators work took place on 1^st April 2009. A final hearing was held on 6^th May 2009. The last piece of correspondence requested by the Equality Officer was received on 24^th July.  In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.

2.        Summary of the complainant’s case

2.1 The complainant has been employed by the respondent and the respondent’s predecessor Telecom Eireann since 1969 with the exception of the years 1976 to 1984 and remains an employee of the respondent. She submits that from September 2002 to date, she has been paid a lower amount, in respect of work which she submits is like work, than two male colleagues.

2.2 The customers of the respondent company are divided into 3 segments: Consumer Accounts, Business Markets as well as Corporate and Government Accounts. In September 2002, the complainant was promoted to the role of Consumer Mass Market Manager on a permanent contract with a performance-linked bonus. Previously she was on a fixed salary scale equivalent to the Executive Officer grade in the Civil Service. Prior to her official appointment, she acted as Mass Market Manager although she never received an ‘acting up’ allowance.

2.3 The primary objective of the Credit Management area was to collect debt. The complainant maintains this objective is core to the roles of all the managers operating within this area regardless of market segment. The complainant's role was to manage stakeholders and relationships within her area. The complainant initially managed a staff of 42 within the Consumer Mass Market area. These staff members were in separate locations in Dublin, Galway and Waterford. The complainant was responsible for driving her team’s performance and allocating and delegating work in order to optimise the performance of the staff.

2.4 The complainant submits that Consumer Accounts activity was not supported by a team of account managers as is the case with the Business Markets/Corporate and Government area. The consumer customer base exceeds one million customers and the complainant was responsible for implementing and improving business processes within her area.  The same information systems were used by both the Consumer and Business/Corporate and Government segments. At the work interview, Comparator A stated that he relied on the complainant’s knowledge of these systems to understand more about his customer base.

2.5 The complainant maintains that there were approximately 3000 calls per week to the Consumer Mass Market Area regarding accounts. Outbound calling was also undertaken by Consumer Mass market staff in certain circumstances. An example given is a teenager of a residential customer who had run up a substantial bill by making premium rate calls.

2.6 The complainant was also responsible for the Debt Recovery Unit which pursues delinquent debt in a legal context. This requires the issuing of summonses and registering judgements. This unit was responsible for debt collection for all market segments not just the consumer market. This responsibility was taken away when Comparator B replaced Ms O’Brien as Consumer Accounts Manager.

2.7 The complainant submits that two thirds of Business Market Accounts were handled in the same way as the Consumer Mass Market Accounts. The Consumer Mass Market generated approximately €600 million per annum (approximately 57% of revenue) during the complainant’s time as Consumer Accounts Manager. Although individual residential bills would be less than an individual business account, the overall value of the Business Market/Corporate and Government accounts was approximately €460 million (43%).

2.8 On her substantive appointment to the role of Consumer Accounts Manager, the complainant was given the salary of €43,045. She maintains that she understood at the time that this was the salary offered to all Service Level Agreement appointees in the Credit Management area within that recruitment campaign. She was not given an opportunity to negotiate for a different salary. Submitted as evidence was an email dated 10^th November 2006 from Mr Z, the Human Resources Partner for the Credit Management area within Eircom Ltd., to the complainant where he stated that the roles of the complainant and Comparator A were sized within the same salary band of €43,045 to €53,800. Comparator A’s starting salary on 29^th September 2003 was €55,000. According to the complainant, at no time during the recruitment campaigns of the various credit management roles was there any indication that one would attract a significantly different salary.

2.9 The complainant submits that the pay system lacks transparency and this deprived her of an opportunity to negotiate for a better positioning within the salary band in light of her experience  and length of service. She seeks to rely on Danfoss:

Pay systems lacking transparency could be sufficient evidence of discrimination to shift the onus to the employer to prove that the differential wages between male and female employees was not based on sex[2]

She also maintains that this is a secretive practice which is in breach of Section 8(4) (b) of the Act.

Role of Comparator A

2.10 When Comparator C (female comparator who the respondent suggests is a more appropriate comparator) was promoted to Head of Credit Management in the summer of 2003, she split her previous role as Managed Accounts Manager into two positions – Business Markets Manager and Corporate and Government Markets Manager. The complainant submits that both positions were advertised internally. According to Ms O’Brien, the Business Markets Manager was offered to a female candidate (Ms Y) already working in Eircom. However, this candidate was earning more than the salary offered and therefore turned it down. This position was then placed with a recruitment consultancy and Comparator A was selected. His starting salary was €55,000. Ms X, an internal female candidate, was selected for the Corporate and Government Markets Manager on a salary of €47,300.

2.11 As Business Markets Manager, Comparator A had 7 staff. He became Managed Accounts Manager in May 2006 when Business Markets and Corporate and Goverment segments were reunited. The number of staff he had then was 20.

2.12 There was occasionally a cross-over of junior staff between the Consumer Market and the Business Markets area and the complainant submits that no additional training was necessary by the team members when crossing over.

2.13 The complainant submitted as evidence role profile forms for the Consumer Accounts Manager and Managed Accounts Manager. The job descriptions are almost identical. The key objectives, the key tasks, the key performance indicators and the competency profile are nearly indistinguishable.

Role of Comparator B

2.14 Comparator B replaced the complainant as Consumer Accounts Manager from March 2006 to July 2007. At that time he replaced Comparator A as Managed Accounts Manager. Comparator B was appointed to Consumer Accounts Manager while the complainant was on sick leave for work-related stress.  Unlike when the complainant occupied the role, Comparator B did not have responsibility for the Debt Recovery Unit. Comparator B has responsibility for 30 staff while Consumer Accounts Manager while the complainant had initially 42. The complainant submits that she allowed some of her staff to be transferred elsewhere because the streamlining process which Ms O’Brien had initiated enhanced efficiency. The complainant submits that the fact her role was split and the Business Markets and Corporate and Government Accounts merged shows that her role was more responsible.

2.15 The complainant submits that, notwithstanding the diminution in responsibilities of the role of Consumer Accounts Manager on the appointment of Comparator B, his rate of remuneration was still higher than that of the complainant who held that position immediately prior to his taking up that role. He received a salary of €52,000 while her salary was €47,900 at the relevant time.

Comparator C (female named by respondent)

2.16 Comparator C was an external recruit to Eircom in September 2002. She had responsibility for Business Market Accounts and Government and Corporate Accounts. She had responsibility for a staff of 20. Comparator C was promoted to the Head of Credit Management in the summer of 2003. This was a promotion above the level of the complainant and the two male comparators.

Why like work is claimed in terms of Section 7(1) (b) and (c) of the Act with Comparator A and B

2.17 The complainant submits that the work she performed as Consumer Accounts Manager is like work to that performed by both comparators in both roles as Business Markets Manager and Managed Accounts Manager. All of these roles were at the same level to each other. In all cases they headed up a team of staff and had responsibility for debt collection in their relevant market segment. The same management information systems were used.

2.18 According to Ms O’Brien, her role as Consumer Accounts Manager was more valuable to the respondent than that of either Business Markets Manager or Managed Accounts Manager. As her market segment was larger, her targets were correspondently higher than the other roles.

2.19 This is because, the complainant submits, that the Consumer Market represents over half of the respondent’s revenue intake and she was responsible for 42 staff. She also maintains that the pursuit of debts in respect of ceased accounts and companies in liquidation required significant mental skill.  She submits one of her first tasks when appointed was to implement a customer contract process. This process utilised systems which were not configured for debt management. Therefore, considerable interrogation of these management information systems was required to identify delinquent debt. A dedicated suite of letters is used to contact customers with unpaid debt. This led to up to 3000 incoming calls a week. Her team also did this for 2/3 of business accounts also. While she was Consumer Accounts Manager she also had responsibility for the Debt Recovery Unit. This area was responsible for the management of bad debt across all business segments. The complainant made the call as to whether pursuance of a debt should proceed to judgment or not.

2.20 The complainant acknowledged that the Managed Account Manager has a more diverse range of products sets but this was offset by managing less staff and greater level of support from the sales department.

Grounds other than gender

2.21 Unlike Glen v Ulster Bank[3] the complainant submits that market forces are not responsible for the higher remuneration paid to the two comparators. The complainant relies on Enderby[4]   and Bilka Kaufhaus which states that market forces may only be permitted to justify unequal pay if three conditions are met:

(i)                the unequal pay meets a genuine need

(ii)              the unequal pay is vital for obtaining the objectives legitimately pursued by the enterprise, and

(iii)            the unequal pay must be necessary to obtain the objectives legitimately pursued by the enterprise.[5]

The complainant submits that the most objective way of justifying pay in an enterprise is to base it on the economic value brought to the company. As her role was responsible for the 57% of revenue collection, she maintains she should be paid at least the same as her named comparators.

2.22 Although the training manager was classified as a lower grade than the one Ms O’Brien held he was paid at a higher salary (€46,000 in 2002) than hers (€43,045). The complainant submits this is clear evidence of gender-based discrimination.

Victimisation

2.23 The complainant submits that she was subject to victimisation within the meaning of the Act by the adverse treatment she received at the hands of her employer and its servants or agents. She contends that this treatment arose as a direct result of bringing the difference in her salary to those of her male colleagues to the attention of Mr W, Head of Credit Management. Ms O’Brien submits that at a meeting Mr W expressed surprise that her salary was so low and undertook to discuss it with Human Resources Division. She submits that nothing was done by the respondent in response to her complaint.

2.24 In 2005, the complainant submits that she was awarded an underperforming rating by Mr W despite having exceeded her targets by €11 million. The complainant appealed to Human Resources division and she was successful in having this rating overturned and replaced with a strong rating. The complainant contends that the earlier rating constitutes victimisation and that the delay in hearing and determining her appeal (which took 17 months) was a further instance of victimisation. As a result of the delay, the complainant suffered financial loss as the rating affects salaries.

2.25 In 2006, Mr W again awarded the complainant an underperforming rating. The complainant submits that this was despite not having been invited to attend a performance review meeting as was the norm. Again the complainant appealed the decision and Mr W withdrew his negative rating and awarded a strong evaluation instead at a meeting attended by the complainant, her union representative and a senior Human Resources representative. According to the complainant as a result of the strong rating it was confirmed at this meeting that she was to receive a salary increase of 4.5%. However, the complainant only received an increase of 3%.

2.26 According to Ms O’Brien, Mr W undermined her in front of her staff by:

·        When the complainant challenged a staff member about excessive travel expenses, she sought his support. The complainant submits that he was initially supportive, he subsequently back-tracked and signed off on the expenses. Ms O’Brien maintains that this has the effect of undermining her authority in front of her staff.

·        The complainant submits that he was threatened and imtimidated by another staff member. She states that she received no support from Mr W

·        Ms O’Brien contends that she was removed from the circulation lists of various financial reports and was asked to complete financial analysis to over-strict deadlines.

2.27 As a result of work-related stress, the complainant submits that she went on sick leave. While on sick leave, she received a letter from Mr Z, the Human Resources Partner in the Credit Management area, saying her role was being advertised and that she could apply. He gave two reasons for this. The first reason was because Credit Management was being restructured. According to the complainant this was news to her. Only one role was advertised and that was her position. The complainant submits that she was not given a real opportunity to apply for the position as the closing date was shortly after the receipt of this letter. The other reason given was because she held the role of Consumer Accounts Manager on an interim basis only. This reason was later retracted.

2.28 As in most organisations, when a new manager is appointed the Head of  Unit would normally circulate an email to the manager’s direct reports welcoming him/her to the role and acknowledging the contribution of his/her predecessor. On 7^th September 2006, Mr W circulated an email welcoming Comparator B to the role without mentioning the contribution of the complainant. The complainant was not sent this email but had sight of it as colleagues brought it to her attention. The complainant submits that she was humiliated by the usurpation of her role and the public nature of her exclusion from the team.

2.29 The complainant submits that she was left for 20 months without any work to do amongst staff that she previously managed. From having a staff of 42, she had no direct reports. Ms O’Brien contends that she was offered only demeaning roles. Under protest, the complainant was assigned to a role reporting to Comparator B. While he was initially welcoming, as time went on the complainant submits that he micro-managed her. On one occasion he refused to authorise annual leave for her.

2.30 On returning from sick leave, the complainant contends that Comparator B asked her to leave the building and not to return until she had a fit-to-work certificate from her doctor. The complainant did not require this certificate as she had taken less sick leave than necessitated this certificate. Comparator B subsequently apologised for the upset he caused her.

2.31 Comparator B was subsequently appointed to the role of Managed Accounts Manager without the role being advertised. The complainant states that this denied her an opportunity to apply for a meaningful position.

2.32 Ms. O’Brien submits that the respondent put her on pension pay too soon. She further submits that Eircom Ltd failed to provide the complainant’s insurance company information which would allow the complainant to avail of her income continuance plan.

3.     Summary of the respondent’s case

3.1 The respondent denies that like work exists between the complainant and Comparator A and Comparator B and, without so conceding, that there are grounds other than gender.

3.2 The respondent points out that roles within the Credit Management division of the respondent are subject to constant realignment based on business needs. However the respondent maintains the distinctions between specific business areas within the credit management division remain constant. Eircom submits the critical distinction in this regard is Managed Accounts and Non-Managed accounts also called Consumer/Mass Market Accounts.

3.3 Non-Managed Accounts is the term Eircom give to accounts that are not directly managed on an individual basis due to the fact they operate off a single automated billing system and are relatively low-yielding accounts in terms of income. They include consumer accounts and small business accounts. Typically they are confined to household telephony and internet charges. These accounts are not supervised and an automated process is used to oversee these accounts creating a ‘chase path’ to identify any arrears and to automatically generate template letters to customers. The chase path culminates in customer being cut off if they have not paid their bills unless the automated process is interrupted by a ‘query’ where a customer seeks clarification from Eircom. A customer's phone-line or internet service cannot be disconnected while there is a query on their account.  The role of those involved in the non-managed accounts is to close off these queries i.e. to deal with any exceptions to the automated chase path.

3.4 Managed Accounts are customer accounts that are directly managed both in terms of the Retail Account Manager selling products and services to customers an in relation to credit management representatives liaising with these customers in relation to bill payments and debt management.

3.5 Managed Accounts are divided into Business Markets and Corporate and Government accounts. Business markets are the term given to customer accounts involving SMEs (small to medium business enterprises). Business markets are subdivided into three types of accounts

      (i) KEYBAM (Key Business Account Managed) accounts. These are relatively high revenue-yielding accounts with relatively complex product and service requirements. Credit Management Representatives in Business Markets liaise with Retail Account Managers and directly communicate with the customer. The focus is on individualised solutions and customer service. There is no automated chase path with KEYBAM accounts. If the value of KEYBAM accounts increase beyond a certain threshold they become a Corporate Account.

(ii) Premier Customer Accounts are middle-sized accounts. Business Markets Credit Management Representatives liaise with Retail Account Managers before any disconnection can occur.

(iii) Mass market accounts are low-yielding accounts for which there is an automated chase path in place.

Government and Corporate Accounts are high-yielding accounts that require customised billing solutions. All such accounts are managed on an indiviual basis by Credit Management Representatives in conjunction with Retail Account Managers. Credit Management Representatives bear a responsibility to provide solutions to complex billing issues and are required to meet clients directly. They also meet Account Managers on a weekly basis. Establishing and maintaining direct customer relationships are key responsibilities of a Credit Management Representative. A loss of a single customer in this area can have profound adverse financial implications consequent to the respondent’s organisation.

3.6 In light of Paragraphs 3.2 to 3.5, the respondent argues there is little correlation between the Managed accounts and the Non-Managed Accounts business areas in terms of processes used, the complexity of issues arising and the possible impact of poor performance to the fortunes of the company. Eircom submits that therefore there is little correlation between the roles of Managed Accounts Manager and Consumer Accounts Manager.

3.7 The respondent suggests the logical comparator is comparator C as she was the Managed Accounts Manager when the complainant was appointed to the Consumer Accounts Manager. In this regard, Eircom relies on  the Andrew Lally v Citigroup equal pay case where the Equality Officer held that ‘the complainant cannot be selective in who he names as a comparator to the exclusion of others employed as Service Representatives but who do not qualify as comparators because they are not of the same gender as him or they earn less than him.’ [6]

Chronology of Events – Restructuring and Realignment of roles

3.8 In July 2002 the management function of Credit Management was restructured and all management roles within the area were advertised on aon individual contract basis. Four management roles reporting to the Head of Cash Management were identified namely:

(a) Consumer Accounts Manager with responsibility for consumer and small business accounts, the Debt Recovery Unit and inbound calling

(b) Managed Account Manager with responsibility for Government and Corporation Accounts and business markets

(c) Development Programme Manger

(d)Training Manager

All four roles were contract roles. Therefore, they are distinct from graded roles n that they are individually negotiated and are not subject to collectively bargained agreements. Any increases in salary were based on annual performance reviews. They were also eligible for annual performance-related bonus payments. Individual contract roles were sized using the Hays job evaluation methodology and were assigned a salary band and contract type. However there may be variation in terms of remuneration between identically sized roles. This could be because of market forces, individual negotiation, lack of suitably qualified candidates or a pressing need to fill a role. The first three roles were sized as Service Level Agreement roles while the Training Manger was sized at the lower personal contract role. All roles were  initially advertised internally.

3.9 The complainant successfully applied for the role of Consumer Accounts Manger and entered into a contract with Eircom for this role on 2^nd September 2002. By entering into this contract the complainant increased her salary from €35,754 to €43,045 per annum.

3.10 Comparator C was appointed to the role of Managed Accounts Manager with a base salary of €50,000. The role of Development Programme Manager went to a woman (Ms U) on a salary of €50,050.

3.11 In May 2003, following the departure of the incumbent, Comparator C become Head of Retail Cash Management. Based on the business needs of the time, it was decided that the Managed Accounts would be subdivided between Business Markets and Government and Corporate Accounts.

3.12 Following an unsuccessful internal recruitment process, in respect of which the complainant did not apply, a Business Markets Manager was advertised externally. Comparator A applied for this role and was appointed to the role on 29^th September 2003 with a base salary of €55,000 per annum. The complainant remained as Consumer Accounts Manager.

3.13 While the complainant was on sick leave her role was revised - responsibility for the inbound calls and managing the debt recovery unit was removed. She was notified of the realignment of roles and was invited to apply for the newly created Non- Managed Accounts (formerly Consumer Accounts) role. No application was received from the complainant. Comparator B was appointed to the role. This role attracted a base salary of €52,000. As part of this realignment the Business Markets and Corporate and Government role were merged back into one role (Managed Accounts Manager) and Comparator A was appointed to this role with a base salary of €65,000.

3.14 The complainant was reassigned to a role as Sarbox Implementation Specialist in September 2006 with a base salary of €51,662. This reassignment was resisted by the complainant.

3.15 In July 2007 Comparator B replaced Comparator A as Managed Accounts Manager. Ms O'Brien was reassigned to the role of Credit Manager/Process Manager (Current Debt) a role that reports to Comparator B. She has held this role since December 2007.

3.16 The respondent did not submit job descriptions for the complainant, Comparator A, Comparator B or Comparator C as Eircom submits that the day-to-day responsibilities of each role and of each person who occupied a particular role at any given time can only be viewed through the prism of the role as it existed at that particular time.

Reasons under Section 7(b) and (c) as to why the complainant's claim of like work is rejected

3.17 The respondent argues that the complainant's role was largely process-driven and was almost entirely an automated process. Eircom Ltd describe Ms O'Brien's role as focussed on managing people who were dealing with the exceptions in an automated process. Customer interaction was at a minimum and only arose from inbound customer calls. The risk of losing individual customer was not a primary focus of the role. The respondent maintains that Ms O'Brien was also in a position to largely delegate day-to-day management responsibilities to the managers of call centres outside Dublin.

3.18 According to the respondent, the difference between the complainant's role and that of Comparator A, B and C were not of such small importance in relation to the work as a whole and occurred with such irregularity as not to be significant to the work as a whole as to fall within Section 7(1)(b) of the Act.

3.19 Eircom submits that the skill, physical or mental requirements, responsibilities and working conditions for Ms O'Brien's role were less than that of her comparators. While the respondent maintains it is difficult to compare two management roles by reference to criteria that are arguably more suited to roles that are radically different in content, Eircom submit that the focus on providing flexible, individualised billing and debt mediation solutions require a greater mental capacity and confers a higher degree of responsibility than the management of an automated process.

Grounds other than gender for the difference in remunerations between the complainant and comparators

3.20 The respondent submits that Comparator C and Ms U (Product Development Manager) were both women and were awarded higher salaries than the complainant in 2002. On the basis of the fact the respondent submits that it is illogical to suggest that gender was an issue in determining the relative salaries on offer.

3.21 When Comparator A joined the respondent in September 2003, he did so following an unsuccessful internal recruitment process. As he was externally recruited and the position needed to be filled with some urgency the respondent submits that it had little option but to pay market rates for his services. If the respondent could have secured his services (or the services of another suitably qualified candidate) for a lower rate of remuneration, Eircom submits they would have done so.

3.22 When Comparator B took over as Non-Managed Accounts Manager (a variation of the complainant's role) the salary was comparable to the salary Ms O'Brien was offered as Sarbanes Oxley Implementation Specialist.

3.23 The Non-Managed Accounts role has always attracted a lower salary than the Business Markets Manager and subsequently the Head of Managed Accounts. This is illustrated in a practical sense by the fact that Comparator B left his position as Non-Managed Accounts Manager in favour of Head of Managed Accounts in July 2007.

3.24 The respondent refers to the European Court of Justice case Susanna Brunnhofer v Bank der Osterreichischen Postsparkasse AG where the Court held that ' a difference in pay is capable of being justified by circumstances not taken into consideration under the collective agreement applicable to the employees concerned, provide that the constitute objective reasons unrelated to any discrimination based on sex and in conformity with the principle of proportionality'.[7]

3.25 Eircom states that the complainant does not fall within a larger representative category. The respondent submits that the complainant asks the Tribunal to accept that her personal dissatisfaction with her own level of remuneration to be legally vindicated by reference to a complex body of law that is notable for having been established to protect entire classes of workers from systemic institutionalised discrimination that is manifestly a far cry from any issues the complainant has raised.

3.26 The respondent relies on Rosaleen Forde v Tesco Ireland[8], Gay Byrne v Tesco Ireland[9] and Marian Walker v Tesco Ireland[10] were in each case there was factual finding that the reasons for different rates of pay were not gender-based.

Victimisation

3.27 The respondent did not submit a written submission on victimisation. Regarding the issues raised in 2.23, Mr W stated in direct evidence that he saw the complainant’s salary as a Human Resources issue and he did not pursue her case with them. In relation to altering her performance ratings, he agreed that he did so twice on advice from Human Resources division. He said that he did not recall whether Ms O’Brien exceeded her targets by €11 million in 2003 but has no reason to disbelieve that this was the case. Regarding the issues stated in 2.26, Mr W does not deny these events occurred but that Ms O’Brien is interpreting them in an overly-personalised way. In relation to leaving the complainant out of an email announcing her successor, Mr W maintains he was trying to be sensitive about the situation.

3.28 Comparator B submits that he handled managing Ms O’Brien as well as he could. He stated that while reporting to him she took an ad hoc approach to attendance and he felt obliged to pull her up on it. Regarding the incident mentioned at 2.30, he maintains he handled it in a non-aggressive way and apologised afterwards for what was a genuine mistake.

4.        Conclusions of the Equality Officer

4.1 Section 19 (1) of the Act provides that where A and B represent two people of the opposite sex it shall be a term of the contract under which A is employed that A shall at any time be entitled to the same rate of remuneration for the work A is employed to as B who, at that or any other relevant time, is employed to do like work by the same or associated employer.

4.2 The existence of like work between a complainant and comparator is a condition precedent to any entitlement to equal pay under the Act. Therefore I will first examine whether like work exists. For the purpose of establishing whether or not there was like work, it is useful to separate the comparator positions into when they were Managed Accounts Manager and when they were Business Markets Manager.

4.3 Like work is defined in Section 7 of the 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 regards to such matters as skill, physical or mental requirements responsibility and working conditions

In order to see whether or not the work of the complainant and the named comparators in their various roles is equal in value as per Section 7(1) (c), I  will examine same under the headings of skill, physical or mental requirements, responsibility and working conditions. As the complainant has also claimed like work within the meaning of Section 7 (1) (b), I  will also consider whether each of roles constitutes like work as per that subsection.

Comparison of Consumer Accounts Manager (complainant) to Business Markets Manager (Comparator A)

4.4 Skill:

I find the skills required by the complainant as Consumer Accounts Manager and Comparator A as Business Markets Manager as equal. Literacy in Management Information Systems would be necessary as would time management and people management skills.

Physical or Mental Requirements:

Similar levels of physical effort for both positions. Neither the complainant nor comparator had any physical demands in their position over and above what would be normal for a person carrying out office duties. The same management information systems were used for both Consumer Markets and Business Markets except for the upper third in value of Business Markets – the KEYBAM accounts. The Consumer Accounts Manager was required to do reports for Business Markets as well as Consumer Accounts identifying delinquent debt. The targets for Consumer Accounts Manager were higher as it was responsible for 57% of Eircoms’s debt. While there were more product sets for Business Markets, I do not consider that this constitutes a significant mental demand. I find that that the mental demands made on the complainant as Consumer Accounts Manager were at least equal to Comparator A as Business Markets Manager.

Responsibility:

Making the call on whether Eircom Ltd should proceed to judgment regarding bad debts in all market segments is an important responsibility which the Business Markets Manager did not have. The Consumer Accounts Manager was responsible for 42 staff (albeit centre managers were responsible for performance reviews etc) while the Business Markets Manager was responsible for a staff of 7.  Therefore, I find that there is greater responsibility associated with the work performed by the Complainant as  Consumer Accounts Manager than the Business Markets Manager.

Working Conditions:

Occasionally the Consumer Accounts Manager travelled to Eircom call centres around the country. This was not an onerous demand so I find  the differences in the working conditions of both positions were negligible.

4.5  The Labour Court point out  that ‘it is well settled that the law does not require a mathematical exactitude of equality between jobs before they can be regarded as equal in value under Section 7 (1) (c ) of the Act.’[11]I find that the demands made on the complainant as Consumer Accounts Manager in terms of skill, physical or mental requirements, responsibility and working conditions are equal to the demands made on Comparator A as Business Markets Manager. I, therefore, find that Ms O’Brien performs 'like work' with  Comparator A in terms of Section 7(1)(c) of the Act.

4.6 Both Comparator A and Ms U, Product Development Manager, stated in evidence that the Consumer Accounts Manager was a more stressful job than Business Markets Manager. Ms U described Consumer Accounts Manager as ‘a dog of a job’ as it had responsibility for Debt Recovery Unit as well as day-to-day work of credit management. While  there would be some debt mediation for the Business Markets Manager (1/3 of value of revenue), it was of  such small importance to the work as a whole to say it was other than like work under Section 7 (1) (b).  Comparator A specifically requested a more challenging position from Mr W, the Head of Credit Management which was one of the reasons that Corporate and Government Accounts were merged back with Business Markets to create a Managed Accounts Manager. Therefore I am satisfied that between 29^th September 2003 and 1st September 2006 the complainant was engaged in like work with the Business Markets Manager  (Comparator A) within the meaning of 7 (1)(b) and 7(1)(c) of the Act.

Comparison between Consumer Accounts Manager (the complainant) and Non-Managed Accounts Manager (Comparator B)

4.7 Comparator B replaced the complainant in May 2006 but was given a different job title - Non-Managed Accounts Manager. At this time the overseeing of the Debt Recovery Unit and Inbound Calling functions were removed.

Skill:

I find the skills required by the complainant as Consumer Accounts Manager and Comparator B as Non-Managed Accounts Manager as equal. Familiarity with the IT packages and people management skills was required.

Physical or Mental Requirements:

Neither position required significant levels of physical activity. Mental requirements did not differ hugely although familiarity with legal proceedings was necessary for the complainant in her role.

Responsibilities:

As the Debt Recovery Unit function was removed when Comparator B became Non-Managed Accounts Manager, I find the complainant had greater responsibility as Consumer Accounts Manager. The complainant gave evidence that she frequently had to take phonecalls from irate customers with bad debts (who had received letters threatening legal proceedings) which her staff in the Debt Recovery Unit escalated to her. Motivating staff there was also difficult as they were generally dealing with ‘bad news’. The complainant also made the call on whether Eircom should proceed to judgment regarding bad debts. The complainant also had more staff reporting to her than Comparator B. Therefore I find that the complainant had greater responsibility as Consumer Accounts Manager than Comparator B while Non-Managed Accounts Manager.

Working Conditions:

The working conditions of both were similar.

4.8 I consider that the complainant had greater responsibilities than Comparator B. Section 7(3)(b) states that where work performed by the primary worker is greater in value that the work performed by the comparator then for the purposes of 7(1)(c) the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator. Therefore, I find that the demands made on the complainant as Consumer Accounts Manager in terms of skill, physical or mental requirements, responsibility and working conditions are equal to the demands made on Comparator A as Business Markets Manager. I, therefore, find that Ms O’Brien performs 'like work' with Comparator A in terms of Section 7(1)(c) of the Act.  I also find that as Comparator B replaced the complainant, the work performed by both is of a similar nature to each other and therefore also constitutes like work Section 7 (1)(b).  Consequently I find that the complainant was engaged in like work with Comparator B between 2nd September 2006 to 1st July 2007.

Comparison between Consumer Accounts Manager (the complainant) and Managed Accounts Manager

4.9 The complainant has claimed like work with the Managed Accounts Manager since her appointment in September 2002 to July 2007. The complainant did not name the Managed Accounts Manager between September 2002 and September 2003 (who was a woman) as a comparator as her claim is on the grounds of gender. Therefore, I will only examine whether there is like work between the two positions between September 2006 and July 2007 when Comparator A (who she did name as a comparator) was Managed Accounts Manager.

Skills:

I am satisfied that additional interpersonal skills are required for the Managed Accounts Manager than the Consumer Accounts position as it is more of a relationship management role than a process-driven role. For the smaller business accounts or the household accounts, customer interaction is minimal.

Physical or Mental Requirements:

There were no significant differences in between both positions regarding physical effort. Regarding mental requirements the individual accounts in the Corporate and Government Accounts are Eircom’s most valuable accounts. Their billing structures are more complicated and the product sets more complex. I therefore concur with the respondent that the Corporate and Government Accounts (which formed part of Managed Accounts with Business Markets) requires greater mental skill than consumer or small business accounts.

Responsibilities:

Losing one of their major customers can have a significant impact on the respondent’s turnover. Comparator A stated that when he became Managed Accounts Manager, the pressure on him was considerably greater. The Head of Credit Management would phone him a few times a day asking about various accounts. Previously it was unusual for his manager to call him more than once every couple of days while he was Business Markets Manager. The Managed Accounts position was also more time-consuming. Interaction with high-level customers was frequent. The role required attending meetings with these customers and understanding their accounts inside out. I also think it is significant that on two out of the three occasions from 2003 to 2007 where a Head of Credit Management vacancy emerged it went to the Managed Accounts Manager. On the other occasion it went to an external candidate. Therefore, even though the Consumer Accounts Manager had responsibility for the Debt Recovery Unit and Inbound Calling I think the amalgamation of Corporate and Government Accounts with Business Markets work confers greater responsibility on the Managed Accounts Manager.

Working Conditions:

The working conditions were quite similar.

4.10 Based on the foregoing, I do not consider that the demands placed on the complainant as Consumer Accounts Manager were equal in terms of skill, physical or mental requirements, responsibility or working conditions to the demands placed on Comparator A as Managed Accounts Manager. Therefore I find the complainant did not perform like work with Comparator A between the period of September 2006 and July 2007. I do not consider the extra staff responsibility of the Consumer Accounts Manager to be of sufficient magnitude to claim like work within the meaning of Section 7 (1) (b) of the Act. Therefore I find the work of Consumer Accounts Manager is not like work under 7 (1)(b) or (c) with the work of Managed Accounts Manager.

Grounds other than gender

 4.11 Once like work is established, the respondent must demonstrate that the difference in pay is on grounds other than the discriminatory grounds as per Section 29 (5) of the Act. As I have found like work in relation to the period when the complainant was Consumer Accounts Manager and Comparator A was Business Markets Manager and the period where Comparator B was Non-Managed Accounts Manager  the respondent must bear the burden of proof that the difference in pay is not connected to gender. The respondent states Comparator A was appointed following an unsuccessful internal recruitment campaign. Eircom submits that they do not have any records remaining of that recruitment campaign. The complainant contends that an internal candidate Ms Y was offered the position of Business Markets Manager but the salary for same was lower than what she was on at that time. However, the salary Comparator A agreed with Eircom was higher than Ms Y’s 2003 salary. No evidence was presented to me by the respondent that this was not the case. Comparator A was unemployed at the time Eircom offered him the position (he had been made redundant a few months previously) so the respondent was in a strong negotiating position. I accept the complainant’s contention that she was not given an opportunity to negotiate her salary when she was appointed in 2002.

4.12 The respondent repeatedly made the point (one which I concur with) that the Corporate and Government accounts role require greater interpersonal skills and confer greater responsibilities than Consumer Accounts. However I note that Ms X was given a significantly lower salary (€47,300) when she became Corporate and Government Accounts Manager than Comparator A when he became Business Markets Manager (€55,000). The respondent cited Lally in its defence but in that case the respondent addressed the anomaly that had developed due to economic forces prior to the complainant making a complaint to the Equality Tribunal. Ms O’Brien had brought the issue of unequal pay to her line manager, Mr W and the Human Resources Department and nothing was done to redress this. In fact she was victimised for so doing. Therefore, I find that the respondent cannot claim the grounds other than gender defence in relation to Comparator A.

4.13 Comparator B was an internal recruit. I consider it bizarre that his salary increased from €43,255 to €52,000 when he took on the complainant's role minus the Debt Recovery Unit and Inbound Calling. This was at least €2000 more than the maximum the complainant earned while doing this job with the additional responsibilities mentioned above. Furthermore, Comparator B gave evidence that he was told that the role attracted a salary of €52,000 i.e. he did not negotiate that salary. Therefore the respondent cannot use the grounds other than gender defence in relation to Comparator B.

4.14 Regarding redress, the complainant has argued that she should be entitled to claim equal pay from her date of appointment on 2nd September 2002. As previously stated, I have only found like work from when Comparator A become Business Markets Manager on 29th September 2003 to 1st September 2006 and from 2nd September 2006 to 1st  July 2007 with Comparator B. Section 82 provides:

         82.—(1) Subject to this section, the types of redress for which a

Decision of the Director undersection 79may provide are such one

or more of the following as may be appropriate in the circumstances

of the particular case:

(a) an order for compensation in the form of arrears of

remuneration (attributable to a failure to provide equal

remuneration) in respect of so much of the period of

employment as begins not more than 3 years before the

date of the referral undersection 77(1)which led to the

decision;

(b) an order for equal remuneration from the date referred to

inparagraph (a);

The complaint was referred to on 24th October 2006. Consequently the redress open for me to award is an order for compensation in the form of arrears for a period of three years prior to the referral of the claim and/or an order for equal remuneration from the date of referral. I can award arrears of remuneration from 24th October 2003 to  24^th October 2006 (date of referral) and from 24^th October 2006 I can make an order for equal remuneration.  I think it is appropriate that Ms O'Brien be paid in full, and continue to be paid, the necessary adjustment in salary to Comparator A as Business Markets Manager and any other rights, entitlements or benefits (including average performance bonuses) accruing with effect from  24^th October 2003. For the avoidance of doubt, this means her salary scale is to mirror that of Comparator A as if he had remained as Business Markets Manager i.e.  the  starting point of the complainant’s salary scale is to be €55,000 from 24^th October 2003. This is so that the complainant is put in the position as if discrimination had not occurred.  

Victimisation

4.15 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant,  the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.

4.16 Claims of victimisation have to be taken seriously or otherwise Employment Equality legislation could be undermined. In 2005 the complainant raised the issue of her unequal remuneration with Comparator A with Mr W. It is common case that Mr W said to her that he was surprised her salary was so low although he denies promising to raise the subject with Human Resources Division. In direct evidence Mr W said he saw her salary as a HR issue. It is common case that Mr W gave the complainant two low ratings despite reaching her targets following her complaint to him regarding her unequal remuneration. In direct evidence, Mr W said he could not recall why he initially gave the complainant low ratings. In the absence of evidence to the contrary, I accept the complainant’s contention that this was because she made a complaint to him regarding her unequal pay.

4.17 While the complainant was out on work-related stress leave there was a reshuffle of positions within Credit Management Division. However, only one position was advertised - that of the complainant. Responsibilities were taken away from the role yet the salary offered was higher than what the complainant earned. While it may have been prudent for the complainant to apply for her old position, I note that Comparator A became Managed Accounts Manager (and in so doing got a payrise of €5000) without having to participate in a competition for this position. In this context, I find this occurrence and what happened subsequently to be victimisation.  I consider placing the complainant in a reporting position to her successor, among people who previously reported to her, without giving her real work to do constitutes adverse treatment as a reaction to Ms O'Brien making a complaint of discrimination. I appreciate that Eircom have a business to run  and Ms O'Brien resisted the role  as Sarbox Implementation Specialist initially offered (this role has never been filled) but more meaningful efforts should have been made to find a suitable role for the complainant. Having evaluated all the evidence adduced to me, I find that the complainant was victimised within the meaning of the Act.

Decision

 I have concluded my investigation of Ms O’Brien’s complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that

(i)                The complainant and Comparator A were engaged in like work within the meaning of Section 7 of the Act from 29th September 2003 to 1st September 2006.There are not grounds other than gender as per Section 29 (5).

(ii)              The complainant and Comparator B were engaged in like work within the meaning of Section 7 of the Act from 2nd September 2006 to 1st July 2007. There are not grounds other than gender as per Section 29 (5).

(iii)            The complainant was not engaged in like work within the meaning of Section 7 of the Act with comparator A from 2nd September 2006 to 1st July 2007.

(iv)            The complainant was victimised within the meaning of  Section 74(2) of the Act.

  In accordance with Section 82 of the Act, I therefore order that

 (a) that the complainant  is entitled to equal remuneration with Comparator A, as Business Markets Manager, from 24^th October 2003 to present. This is to include any other rights, entitlements or benefits (including average performance bonuses) accruing with effect from then. As this portion of the redress is in relation to remuneration, it constitutes income for the purposes of the Income Tax Acts.

(b) the respondent to pay the complainant €55,000 in compensation for the distress caused by victimisation. This portion of redress is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

______________
Orlaith Mannion

Equality Officer

26th January 2010