THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-082
PARTIES
Mr. Alvin Perocho
(represented by Migrant Rights Centre, Ireland)
and
Stannah Stairlifts. Ltd
(represented by IBEC)
File Reference: EE/2007/164
Date of Issue: 28 May 2010
1 Claim
1.1 This dispute involves a claim by Mr. Alvin Perocho, a Filipino national, that he performs "like work" in terms of sections 7(1)(b) and 7(1)(c) of the Employment Equality Acts 1998-2004 with a named Irish comparator and is therefore entitled to same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of those Acts on the race ground based on his nationality.
2 Background
2.1 The complainant was employed by Liberty Lifts as an engineer in 27 November 2000. Liberty Lifts was acquired by Stannah Stair Lifts and this process was completed on 7 November 2005 including TUPE arrangements. The complainant alleges that he performs like work with a named comparator who was also employed by the respondent since 2000. He alleges that at all times he undertook the same installation and maintenance/service work for €13 per hour as the comparator did for €16 per hour. The differential in pay has increased since the complainant refused to sign a new contract which brought with it a 10% pay rise which in turn has effected all subsequent pay rises. The difference on 12 June 2009 was €13.79 and €18.67.
2.2 The respondent accepts that since the acquisition in November 2005 the complainant has been engaged in like work with the comparator but argues that there are reasons unconnected with the discriminatory grounds for the difference in pay. In relation to the period before the acquisition the existence of like work is disputed notwithstanding a grounds other than argument.
2.3 The complainant referred a claim to the Director of the Equality Tribunal on 14 March 2007 under the Employment Equality Acts 1998-2008. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The case was delegated to me on 16 July 2009 and my investigation began on that date. The case was heard on 1 February 2010, 15 February 2010 and a work inspection, interviews only, took place on 9 February 2010.
3 Summary of the Respondent's case
3.1 The respondent took over Liberty Lifts on 7 November 2005 in accordance with TUPE. From that time, the business they were involved in was the installation and maintenance of stairlifts. They were also responsible for the service and maintenance of the larger commercial lifts that had been installed by Liberty Lifts until alternative arrangements could be made. Both the complainant and the named comparator were involved in all aspects of the remaining work from the time of the acquisition. On that basis the respondent concedes the existence of like work between the complainant and the comparator following the acquisition but asserts that there were reasons unconnected with the complainant's race for the difference in remuneration.
3.2 Prior to the acquisition, the respondent asserts that Liberty Lifts was involved in the installation and maintenance of a variety of lifts and other equipment for use by people with disabilities among others, such as specialised bathroom equipment. It asserts that the comparator, Mr. R, was the primary member of staff qualified and trained in the installation of large commercial lifts. He worked primarily as the lead engineer of a two man team, normally with Mr. D who was also an Irish employee, on the installation of those larger lifts. During the period before the acquisition business in relation to the large lifts was reducing and both Mr. R and Mr. D were increasingly involved in the installation of stairlifts. The respondent asserts that the complainant worked mainly as an assistant at that time. He did not work in the role as the lead engineer and as such never signed off on the 'installation test sheets' and 'commission sheets' during that time. It was the role of the lead engineer on a particular job to perform that function. On those occasions when he worked on large lifts the complainant was never the lead engineer and would have been equivalent to Mr. D who received the same remuneration as the complainant at the relevant time.
3.3 The comparator worked for 12 years as a mechanic with a bus company. He was regarded as a senior engineer in that role and was a relief supervisor of staff during that time. He also had experience as a carpenter prior to his employment with the respondent. He began working with the respondent following his selection during a recruitment process in 2000. His previous experience was considered to be highly relevant. The complainant worked as a warehouse operative for a company involved in the sales of tiles, (floor tiles etc.) for 8 months. The complainant was employed as a favour to his previous employer who was going out of business and who thought well of the complainant. He was not recruited as part of a normal recruitment process. The relevant skill and experience gained in the 12 years by the comparator prior to his employment with the respondent far exceed that accrued in a warehouse for a period of 8 months by the complainant. The complainant's training as an electrical engineer while useful was not essential or considered as useful as the experience had by the comparator.
3.4 In September 2007 the comparator's salary was frozen, following a benchmarking process, as it had been identified as too high for the responsibilities undertaken based on the respondent's reduced product portfolio.
3.5 The respondent cited Denise Wilton v Steel Company of Ireland in which the High Court concluded that where a female complainant was paid less than a male comparator with whom she was performing like work but where she was paid the same as another male performing like work then no case of gender discrimination arises.
3.6 The respondent no longer installs large lifts and therefore this aspect of the work could not be viewed as part of this investigation. The installation of stairlifts normally takes less than 6 hours while the installation of a large lift could take anything up to two weeks depending on the lift to be installed and the installation environment.
4 Summary of the Complainant's Case
4.1 The complainant asserts that like work existed between himself and Mr. R at all times. He does not accept that the comparator's previous experience was in any way more relevant than his and therefore he does not accept that this constitutes sufficient grounds for a difference in remuneration. Therefore he asserts that the only remaining reason for the difference in remuneration is his nationality.
4.2 He asserts that it was an implied term of the contract that he would at all times be entitled to the same rate of remuneration for the work he was employed to do, as another worker who is employed to do like work.
4.3 Following the acquisition the complainant was working as part of a team of four and was the only non-Irish team member. All team members performed the same work and shared the same responsibilities.
4.4 In relation to previous experience and qualifications the comparator had previous experience working as a mechanic for a bus company. The complainant has qualified as an electrical engineer and worked as such for a few months, and has worked as a warehouse operative for about 8 months. Neither worked with big lifts or stairlifts before joining the respondent company.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether the complainant and comparator were engaged in like work prior to November 2005 and whether there were reasons unconnected with the discriminatory grounds for the difference in pay between the complainant and the comparator following 7 November 2005.
'Like Work'
5.2 The issue of like work relating to the period prior to November 2005 is addressed in the appendices to this Decision. The complainant submitted the name of his comparator to this Tribunal on 14 March 2007 as part of his overall claim. As This Tribunal has the power to award equal pay only in respect of the three years preceding the receipt of a valid claim. Therefore, should the complainant's claim be successful, equal pay could be awarded from 15 March 2004. In that regard, the 'like work' aspect of this claim will address the period from 15 March 2004 to 7 November 2005.
5.3 In Susanna Brunnhofer and Bank der österreichischen Postsparkasse AG, case 381/99, paragraphs 57 to 59, the ECJ makes it clear that the burden of proof rests squarely with the complainant to show that the work was the same, similar or of equal value to the extent that the difference in pay can only be based on the discriminatory ground.
5.4 Having regard to my findings of the respective tasks associated with the complainant's post and that of the comparator, as set out in appendix 1 I am satisfied that the complainant and the comparator were not engaged in like work in terms of sections 7(1)(a) or 7(1)(b) of the Acts.
5.5 Appendix 2 sets out my analysis of the complainant's and comparator's jobs across the five subsections provided in section 7(1)(c). Appendix 3 sets out my comparison of the those jobs across those factors. I therefore find that the complainant and the comparator were not engaged in 'like work' in terms of section 7(1)(c). In light of my findings in this and the preceding paragraph I find that the complainant is not entitled to the same rate of remuneration as that paid by the respondent to the comparator during the period before 7 November 2005.
'Grounds Other than'
5.6 The existence of like work between the complainant and the comparator is not disputed in relation to the period beginning 7 November 2005. This was the effective date of the purchase of Liberty Lifts by Stannah Stairlifts. From that date the work undertaken by the respondent was primarily the installation and maintenance of stairlifts. It no longer undertook the installation of large lifts but retained some responsibility for the service and maintenance of those installed by Liberty Lifts. Both the complainant and the comparator were involved in all aspects of this work.
5.7 The respondent has argues that there were reasons other than the discriminatory grounds, in this case the race ground, for the difference in pay between the complainant and the comparator. It asserts that the comparator had historically been given a higher starting pay because his previous work training and experience was considered more relevant both in terms of its content, mechanics, hydraulics, carpentry and staff supervision, and its duration. The comparator was employed as part of a recruitment process. The complainant is qualified as an electrical engineer and worked as such for a few months, and has worked as a warehouse operative for about 8 months. In relation to his recruitment I find the respondent's description compelling and find that he was recruited based on an informal interview following a recommendation by the complainant's previous employer. While I am not qualified to assess the relative worth of the comparator's training and experience and the complainant's qualification in relation to the work carried out by the respondent I am satisfied, and find as a fact, that the respondent was of the view that the comparator's training experience was what they were looking for and he was recruited for that reason. I am satisfied that his rate of pay was negotiated or agreed on that basis. The complainant had limited practical experience at the time of his employment by the respondent and he presented no evidence to indicate that any of his experience was directly relevant to the work undertaken by the respondent. Nor has he established that his qualification in electrical engineering would be anything other than useful in his employment. I am satisfied that the level of relevant training and experience was the reason for the difference in pay at recruitment and subsequently.
5.8 In Susanna Brunnhofer and Bank der österreichischen Postsparkasse AG, case 381/99 The European Court of Justice took the following approach in relation to professional training:
Although professional training is a valid criterion not only for ascertaining whether or not employees are doing the same work, but also as an objective justification for a difference in pay granted to employees doing comparable work (see, to that effect, Angestelltenbetriebsrat der Wiener Gebietskrankenkasse, cited above, paragraph 19), that is because it is a factor which is objectively known at the time when the employee is appointed, whereas work performance can be assessed only subsequently and cannot therefore constitute a proper ground for unequal treatment right from the start of the employment of the employees concerned
5.9 Since the level of relevant training and experience is the reason for the difference in pay and since it is unconnected with the race ground I find that the difference in previous relevant training and experience constitutes a ground other than the race ground for that difference. Therefore, in relation to the period following 7 November 2005 I am satisfied that there were grounds, other than the race ground, for the difference in pay between the complainant and the comparator in respect of that and consequently the rates of remuneration are lawful in terms of section 29(5) of the Acts..
6 Decision
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts.
6.2 I find that the complainant was not engaged in like work with the comparator in terms of section 7 of the Acts in relation to the period 14 March 2004 - 7 November 2005. I also find that there were grounds, other than the discriminatory grounds, in this case the race ground, for the difference in pay following 7 November 2005 and that the rates of pay are lawful under section 29(5) of the Acts. The complainant is therefore not entitled to the same rate of remuneration as paid by the respondent to the comparator in accordance with section 29 of the Acts.
Bernadette Treanor
Equality Officer
28 May 2010