PTD102

Background

These are appeals by Pauline Mulvey and Mary Donnelly (hereafter the Claimants) against the decision of a Rights Commissioner in a complaint alleging an infringement of the Protection of Employees (Part-Time Work) Act 2001(the Act) by Women’s Aid (hereafter the Respondent). The Claimants are employed by the Respondent as Help-line Support Workers and work 20 hours per week. They claim that they are entitled to the same rate of pay and a named Comparator, Ms Cecelia Gunn, who is employed by the Respondent in a full-time capacity as an Outreach Support Worker.

The Rights Commissioner found that the Claimants were not engaged in like work with their nominated Comparator. The Claimants appealed to this Court. The Rights Commissioner dealt with the claims separately. As the issues arising in both cases are identical they were conjoined for the purposes of the appeals.

Statutory Provision
In advancing their claim the Claimants rely on the provisions of s.9 of the Act. That section provides: -

• 9.—(1) Subject to subsection (2) and (4) andsection 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee
  
  (2) Without prejudice tosection 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated
  
  (3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue ofsection 8, to a part-time employee.
  
  (4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.
  
  (5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.

• (2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—
  

• (3) The following are the conditions mentioned in subsection (2)—
  

Helpline Support Worker (the Claimants)
The Claimants work at the Respondent’s offices. Their work involves providing support to women who are subjected to violent abuse by men. They provide that support in the main over the telephone to women who ring the Respondent’s help-line. They provide callers with information on the options available to them and this requires an understanding of relevant provisions of family law. They deal with issues of physical, psychological and sexual abuse and provide appropriate support and assistance to victims. The provide information on family law remedies and child protection. They also assist callers by seeking to provide emergency accommodation where appropriate. Where appropriate, they would telephone the Garda� or seek medical assistance for victims. On occasions, they speak to solicitors on behalf of victims.

The Helpline Support Workers are required to remain on a call until the caller either terminates the call or hangs up. They take between four to nine calls per four-hour shift. There is no way of knowing how long a call will last once it is initiated. Callers are inevitably distressed and at times suicidal. In consequence the work is stressful and demanding on the Claimants.

The Claimants occasionally meet victims directly in what are referred to as holding visits. Normally if there is to be follow on contact with victims they are referred to an outreach worker. Normally victims who make return calls do not contact the same person but occasionally a caller will ask for a particular person and this is accommodated.

The Claimants prepare statistics on the calls received and input this information in a database.

Help-lime Support Workers receive 6 weeks basic training. They are involved in the training of newly recruited Help-line Support Workers and volunteers.

Outreach Support Worker (the Comparator)
The Outreach Support Workers work directly with victims. They provide a range of support and advocacy services on a one-to one basis to service users. They respond to queries and liaise with Helpline staff. They carry a case-load of approximately 30 active cases. The open and maintain a file on each case. They are not interchangeable with colleagues.

They provide advice on family law matters and other support services including advice on the housing and medical needs of the service users. They are required to liaise with other agencies including the Garda�, community welfare officers and social workers and to make representations on behalf of service users both verbally and in writing.

The Outreach Support Workers meet with service users in designated safe locations and in the community as well as at the Respondent’s offices. They are required to drive in the course of their work.

Outreach Support Workers provide support to service users in instructing solicitors where appropriate and provide advice, support and assistance to woman attending Court in both criminal and family law matters. In criminal cases, where an abuser is charged with an offence, the victim is usually required to attend Court and give evidence. The Outreach Support Workers meets with the service user before the Court sitting and explains the procedures of the Court. She remains with the service user during the proceedings. They then prepare a safety exit plan in conjunction with the Garda� to protect the service user from contact with their abuser.

In family law proceedings the Outreach Support Worker meets with the service user before the hearing and explains the procedure. These proceedings are in camera and the Outreach Support Worker cannot be present during the hearing. They remain in the precincts of the Court and meet with the service user after the hearing ends. They do not have regular hours or shifts and they must be available for as long as required by the exigencies of the job. They provide service users with a mobile telephone number and can be contacted at any time

The job places the Outreach Support Worker in some personal danger from the abusers of the service users for whom they are acting.

Outreach Support Workers are required to give evidence in Court in certain circumstances but this is an infrequent occurrence.

Outreach Support Workers receive the same basic training as Help-line Support Workers. They then undertake three months shadowing with a colleague (the first half with the colleague taking the lead and the second half taking the lead themselves. They then work for a further six months with intensive backup from a Senior Outreach Support Worker.

Findings
This case turns on whether the Claimants and their

The Employer appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on March 24th, 2010. The Court heard the appeal on July 22nd 2010, the earliest date suitable to the parties. The following is the Determination of the Court: are engaged in like work within the meaning of s.7(3) of the Act. Having considered the evidence tendered by the Claimants and the Comparator concerning the work which they perform the Court is satisfied that neither paragraph (a) or (b) of subsection (3) has any application in this case. Consequently the case falls to be considered under paragraph (c|) of that subsection.

The Court has, therefore, evaluated the respective roles under the headings of: -

•Skills

•Physical or mental requirements

•Responsibility

•Working conditions

Skills
Both the Claimants and the comparators are involved in the provision of support and information to women who are subjected to violence by their intimate partners. While the mode of delivering that service is different many of the skills required are the same. Both the Claimants and the comparators must have a clear understanding of the gender analysis of violence against women. They are both required to communicate effectively with service users in emotionally charged situations. They are both required to have a working knowledge of family law legislation and to distinguish between different reliefs available under that body of law. The Court is satisfied that in these respects the skills required by the Claimants and the Comparator are equal.

The comparators are, however, required to possess additional skills. They undertake advocacy work on behalf of service users and are required to communicate with other support agencies orally and in writing. The comparators are also required to possess report-writing skills and to maintain files on the cases for which they are responsible. The Comparator is also required to develop additional skills associated with providing support to service users attending Court. The Comparator is also required to drive in the course of her employment.

Conclusion
Overall, the Court is satisfied that the skills required by the comparators are greater than those required by the Claimants.

Physical or Mental Requirements

Physical Requirements

There is no appreciable quantitative difference in the physical requirements of both roles.

Mental Requirements

The Claimants
The Claimants are required to provide support to women who contact the help-line in a variety of traumatic situations. The work is stressful and requires a presence of mind and a capacity to remain objective and non-judgmental. The work is stressful and emotionally demanding.

The Comparator
The work performed by the Comparator also requires a capacity to support women in difficult and emotionally charged situations. They must maintain a calming and reassuring demeanour while remaining emotionally detached from the situations with which they are presented. The work is equally demanding in terms of mental requirements.

Conclusion
Overall there are no material differences in the mental requirements of the respective roles.

Responsibilities

The Claimants
The Claimants work as part of a team of five Helpline Support Workers, four panel staff and approximately 20 volunteers. They respond to a large number of calls. They also answer text and voicemail messages. They provide a supportive and non-judgmental response to service users.

They are responsible for providing appropriate and accurate information on a range of issues including the legal, housing and medical options available. They also provide information on safety and emergency accommodation options. Where necessary they can contact the Garda� or ambulance services.

They are responsible for maintaining records of calls and imputing the information into a database. They are responsible for making referrals internally to support workers, where appropriate, for face-to-face support or for accompaniment to Court. The Claimants are not required to maintain continuing contact with a particular service user.

They are responsible for training and monitoring new staff and volunteers. The Claimants have no involvement in the formulation of policy.

The Comparator
The Comparator is part of a team of three Outreach Support Workers and one Senior Outreach Support Worker. There is also a manager and administrator involved in the provision of this service.

They act for the Respondent in representing the interests of service users in dealing with the legal, social care and medical professions. They also deal with housing authorities and related non-governmental organisations.

Each Outreach Support Worker carries a caseload 30 active cases. Their work is not interchangeable and they are personally responsible for providing the full range of services to a service user from the time of their assignment. In that regard they are responsible for maintaining a continuing professional contact with their client service users.

They must maintain and update a file on each case. The files must be stored securely.

They provide a range of non-judgmental support services to service users, including the provision of information on legal, housing and medical options available.

They must meet with service users in a number of locations and are required to drive in the course of their employment.

They are responsible for accompanying service users to Court (in both criminal and civil proceedings) and providing them with moral support and appropriate information. They are also responsible for assisting in ensuring that the safety of service users are not put in danger from their abusers while attending Court.

The Comparator is involved in the process of policy development.

Conclusion
Overall the Court is of the view that a greater degree of responsibility attaches to the post of Outreach Support Worker than attaches to the post of Helpline Support Worker.

Working Conditions

The Claimants
The Claimants work in designated offices within the Respondent’s premises. They work regular and fixed shifts. Calls are directed to them on a random basis although occasionally a caller may request to speak to an individual Helpline Support Worker. They have regular breaks and have access to a canteen with basic facilities for food preparation. They work as part of a team and have access to support from colleagues and other staff. The Claimants work in a secure and safe environment.

The Comparator
The Comparator is based in the Respondent’s premises and has an individual desks with telephone and a PC.

Outreach Support Workers are responsible for each individual case to which they are assigned and lone working is a feature of the job. They provide support to service users in six designated centres in Dublin in addition to the Respondent’s main offices. They also provide support in the community so as to minimise the risk of being identified by abusers. The Comparator is required to travel to these locations in the course of her employment and provides her own transport. The Comparator also performs duties in Court buildings.

The Comparator’s work places her under treat of violence from abusers and they are required to remain vigilant of their own safety. In some situations they can obtain assistance from the Garda� or security staff. In other situations such assistance is not available and they are responsible for their own safety. The Comparator has no fixed hours and must be available to meet the need of service users as an when required.

Conclusion
The Court is satisfied that the working conditions of the Comparator are significantly more onerous than those of the Claimants.

Determination
Having regard to the findings detailed above the Court has concluded that the work performed by the Claimants is not equal in value to that performed by the Comparator in terms of s. 7(3)(c) of the Act. Accordingly, they are not entitled to the same rate of remuneration as that of the Comparator.

The appeal is disallowed and the decision of the Rights Commissioner is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
18th November, 2010______________________
JMcCChairman



NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.