THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 083
PARTIES
Ms. Ann Collins Harrington
and
Irish Blood Transfusion Service
(represented by IBEC)
File Reference: EE/2005/394
Date of Issue: 28 May 2010
1 Claim
1.1 This dispute involves a claim by Ms. Ann Collins Harrington that she performs "like work" in terms of sections 7(1)(b) and 7(1)(c) of the Employment Equality Acts, 1998 - 2004 with named male comparators and is therefore entitled to the same rate of remuneration in relation to overtime as paid to the comparators by the respondent in accordance with section 19 of those Acts.
2 Background
2.1 The complainant, a Donor Attendant with the respondent, claimed equal pay with Driver Clerks who, she alleged, were the same grade as her. She alleged that the comparator grade receive overtime daily after the completion of a 7.5 hour shift while she only received overtime after the completion of 37.25 hours, her full working week. The respondent denied the allegations and asserted that the complainant was not engaged in like work in comparison with the comparator grade and notwithstanding that argument, asserted that the differences in pay relating to overtime are objectively justified in terms of section 19(4) of the Acts.
2.2 The complainant referred a claim to the Director of the Equality Tribunal on 6 December 2005 under the Employment Equality Acts 1998-2004. 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 28 April 2008, having been delegated twice previously to other Equality Officers, and my investigation began on that date. The hearing was originally scheduled to take place on 24 July 2008 but was rescheduled to 7 October 2008, to 3 November 2008, to 7 April 2009 and ultimately took place on 28 July 2009 and 30 September 2009 while work inspections took place on 21 and 22 September 2009. The complainant identified a number of comparators some of whom were no longer available to the respondent. She also named a comparator who was a senior Driver Clerk. The work inspections took place in relation to the complainant's duties, one comparator Driver Clerk and one comparator Senior Driver Clerk.
3 Summary of the Respondent's case
3.1 The respondent disputes the existence of "like work" between the complainant and the comparator and notwithstanding this, argues that the complaint is one of indirect discrimination and that the different treatment in relation to overtime is objectively justified in accordance with section 19(4) of the Acts. The respondent concedes that the majority of the Donor Attendants (complainant's Grade) are female and the Driver Clerk category is exclusively male.
3.2 They argue that as the complainant works part-time she is not entitled to have her overtime calculated in the same manner as a full time person and quoted ECJ case Stadt Lengerich and Angelika Helmig (C-399/92 which related to pay for overtime, (determined to be an equal pay matter),worked by part-time employees.
4 Summary of the Complainant's Case
4.1 The complainant submitted that she performed "like work" in terms of section 7(1)(c) of the Acts with named comparators and that she is therefore entitled to the same rate of pay and treatment in relation to overtime. She asserted that the majority of her grade was female while the comparator grade was exclusively male.
5 Conclusions of the Equality Officer
5.1 The issues for decision by me are (i) whether or not the complainant performed "like work" with the comparators in terms of section 7(1)9b) and(c) of the Employment Equality Acts 1998 - 2004, (ii)whether or not the methods of calculation of overtime constitute indirect discrimination of the complainant in terms of section 6(2) of the Acts and (iii) whether or not the rates of remuneration are objectively justified in terms of section 19(4) of the Acts. In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the information furnished to me during the work inspections.
5.2 The first issue for consideration by me is whether or not the complainants perform "like work" in terms of sections 7(1)(b) or 7(1)(c) since if "like work" is not found the complainant has no entitlement to equal pay relating to overtime. Having regard to the job descriptions included in appendix 2 of this Decision I am satisfied that the jobs undertaken by the complainant and the comparators are significantly different. Since these differences are not of small importance and do not occur irregularly I am satisfied that the complainant and the comparators are not engaged in like work in terms of section 7(1)(b).
5.3 Section 7(1)(c) describes "like work" in terms of work of equal value. An analysis of the complainant's and the comparators' jobs across the five factors provided in the subsection is included in Appendix3. Appendix 4 sets out my comparison of the posts across those factors. I therefore find that the complainant and the comparator Driver Clerk are not engaged in "like work" in terms of section 7(1)(c). Since the demands placed on the Senior Driver Clerk exceed those placed on the Driver Clerk, the complainant and the Senior Driver Clerk are likewise not engaged in "like work". In light of my findings in this and the preceding paragraphs I find that the complainant is not entitled to the same rate of remuneration in terms of overtime as that paid to the comparators.
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 and the comparators are not engaged in "like work" in terms of either section 7(1)(b) or 7(1)(c) of the Employment Equality Acts, 1998-2004 and they are therefore not entitled to the same rate of remuneration as paid to those comparators by the respondent in accordance with section 19 of the Acts. As I have found that the complainant is not engaged in "like work" it is not necessary to address the other arguments raised by the respondent.
Bernadette Treanor
Equality Officer
May 2010