THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 132
PARTIES
Ms Sinead Beirne
(represented by Mr Des Fagan, CPSU)
and
An Post National Lottery
(represented by John Dunne, Matheson Ormsby Prentice Solicitors)
File Reference: EE/2008/775
Date of Issue: 29th June 2011
Table of Contents
Claim 3
Summary of the Complainant's Written Submission 3
Summary of the Respondent's Written Submission 4
Conclusions of the Equality Officer 4
Victimisation Complaint - Time Limits 4
Complaint of Equal Pay 5
Decision 8
Appendix: Work Descriptions of the Complainant and the Comparator 9
1. Claim
1.1. The case concerns a claim by Ms Sinead Beirne that she is entitled to equal pay with a named male comparator, in accordance with S. 7(1)(a) and (b) of the Employment Equality Acts, and she is therefore entitled to the same rate of remuneration as paid by the respondent to this comparator in accordance with section 19 of the Acts. The respondent, An Post National Lottery, disputes that the complainant and the comparator performed like work within the meaning of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 11 November 2008. On 5 February 2009, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. A preliminary hearing took place on 22 April 2010, after which both parties made submissions. A work inspection took place on 28 September 2010. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a final hearing of the case on 21 October 2010. The final correspondence relating to the investigation was received on 16 May 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that when she succeeded her comparator in the respondent's HR department, she did the same work as he did, yet for lesser pay. The complainant, in her written submission, also appended a complaint of victimisation, in which she claims that problems with her performance and timekeeping, the veracity of which she accepts, were subject to excessive written documentation by her manager after she lodged her complaint with the Tribunal. It is her contention that this approach to performance management would not be followed with other staff in the respondent organisation.
3. Summary of the Respondent's Written Submission
3.1. The respondent accepts that there is a difference in remuneration between the complainant and her comparator, but disputes that the complainant and her comparator perform like work within the meaning of the Acts. The respondent submits that the reason for the pay differential is that the complainant performs less challenging work commensurate with her grade as Business Support Officer is that the HR function was re-organised, and a separate HR manager at Assistant Principal level was appointed to whom the complainant reports. Her predecessor comparator reported to the Logistics manager, also at Assistant Principal level, and since there was no specific HR manager to support him in his work, it had greater responsibilities attached to it.
3.2. The respondent denies victimising the complainant, and argues that her poor performance and timekeeping would not warrant a salary at the level her predecessor enjoyed.
4. Conclusions of the Equality Officer
Victimisation Complaint - Time Limits
4.1. With regard to the complainant's complaint of victimisation, I find that it was brought outside the time limits specified in S. 77(5) of the Acts. The complainant lodged her complaint for equal pay with the Tribunal on 11 November 2008, but no complaint of victimisation was made at the time. The Tribunal and the respondent were first put on notice of the existence of a complaint of victimisation in a submission filed by the complainant on 22 April 2010. The last documented alleged victimisation appended to the submission is a letter dated 6 October 2009. No application for an extension of the time limit pursuant to S. 77(5) was made prior to the hearing of the complaint.
4.2. Therefore, I find I am bound in this matter by the decision of the Supreme Court in The State (Aer Lingus Teo) v. Labour Court (No. 1) [1987 ILRM 373], where it was held that S. 19(5) of the Employment Equality Act of 1977, being the equivalent provision to S. 77(5) of the Acts, obliged the courts to interpret the time limit strictly where reasonable cause for extension had not been shown. I further note the finding of the High Court in The Minister for Finance v. The Civil and Public Service Union and others [2006 IEHC 145], which upheld, inter alia, a finding by the Labour Court that the onus is on the party wishing to avail of an extension of time pursuant to the provisions of S. 19(5) or S. 77(5), respectively, to make an application to this end to the court or judicial body seized of the matter.
Complaint of Equal Pay
4.3. The remaining issue for decision therefore in this case is whether the complainant and her comparator are engaged in like work as defined in Sections 7(1)(a) and (b) of the Acts, and if so, whether there are grounds other than their gender for the difference in their remuneration.
4.4. S. 7(1)(a) defines "like work" as follows: "Both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work."
4.5. S. 7(1)(b) says "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."
4.6. Both the complainant and her comparator work, resp. worked in the respondent's HR department. The detailed work descriptions of both the complainant and her comparator can be found in the Appendix. The complainant, in the grade of Business Support Officer, succeeded her comparator in the role, who was also a Business Support Officer, but received an acting-up allowance for the grade of Executive Officer in connection with his duties. Eventually, in 2003, Mr O. was promoted to a full Executive Officer position in his role as Personnel Administration Officer. The grade of Business Support Officer, in the respondent organisation, is equivalent to the civil service grade of Clerical Officer and is one grade and payscale below that of Executive Officer, which is generally regarded as an entry-level manager role.
4.7. With regard to the question as to whether the complainant and her comparator performed like work within the meaning of the Acts, considerable arguments were advanced on behalf of the respondent that the weekly staff meeting, which Mr O. chaired and during which announcements were communicated to staff, occurred frequently enough to prove that no like work existed. However, Mr O. was very clear in his evidence that this meeting served the purpose of disseminating information which his superior identified for this purpose, and that he had no particular responsibilities in this beyond the communications, which were pre-selected by his manager. Therefore, I find it similar enough in nature to the task of the complainant, when she was in the role, to upload the same information, also identified by her manager, on the company intranet. I am satisfied that the complainant and her comparator performed essentially the same task, only by different technical means, and in particular, that the level of responsibility attached to either was the same.
4.8. With regard to hiring, I note that on the one occasion of the Business Support Officer competition, the comparator had indeed different duties to the work the complainant carried out, but not extensively so. It is easily conceivable that the complainant would have been tasked with nearly all of the same tasks, like renting interview rooms, meeting candidates, and writing out to applicants, had such a competition taken place during her time in the role. It is true that Mr O. subsequently signed the contracts for the successful candidates, including the complainant, but this was a once-off event.
4.9. I also take note of Mr O.'s own statement that unusual queries were "sporadic", that unusual complaints that came to his knowledge occurred only two to three times a year, and that "90% of the job was administrative".
4.10. Upon careful deliberation on the evidence provided in interview by both the complainant and her comparator, and the work descriptions resulting from them which are annexed to this decision, I am satisfied that Ms Beirne and Mr. O performed "like work" within the meaning of S. 7(1)(b) of the Acts.
4.11. The respondent further sought to make the argument, in case like work would be established, that it was Mr O.'s long service with the respondent which led to his additional remuneration in the role. However, I can not accept this. Pay scales in the public sector expressly allow for the rewarding of long service, through yearly increments. Furthermore, separate higher pay scales exist at each grade from Clerical Officer (on which the respondent grade of Business Support Officer is based) to Principal Officer to acknowledge seniority and performance. Conversely, the pay differences in different service grades exist to reflect differences in the complexity and responsibilities attaching to the work persons at each grade level are tasked to do. Therefore, if it is found that an individual at a lower level is doing work which is commensurate with a higher grade level, such work would attract a so-called "acting up allowance" to bring the worker on par with the lowest salary point of the next grade. To decide what kind of work merits such an allowance is a local issue to an extent.
4.12. The relevance of these common practices to the case on hand is that the respondent saw fit to pay Mr O. an acting-up allowance at Executive Officer level for the work he performed. Mr O further stated in evidence that when he went on holidays, a colleague whom he had trained in his duties, would take over for him and would also be paid the allowance. After the hearing, I made further enquiries about this with the respondent, and the respondent confirmed that this was indeed the case. However, it also stated that all officers at BSO level who did carry out this work and were paid the allowance, with one exception, were female. I find this detail to be fatal to the complainant's case that it was her gender that led to her not receiving the allowance which attached to Mr O.'s duties, and accordingly, her complaint before this Tribunal cannot succeed.
4.13. That said, from all the evidence I have heard in this case, I am of the opinion that lack of transparency and communication, with regard to the payment of acting-up allowances, within the respondent organisation contributed to the claim coming before the Tribunal in the first place, and I feel therefore it is apt to make a recommendation to the respondent in this regard in the context of my decision below.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the complainant performed "like work" with the named comparator in terms of section 7(1)(b) of the Employment Equality Acts, 1998 to 2008, but that the respondent has succeeded in rebutting the assumption that the discrepancy arose because of the complainant's gender, and has discharged the burden on it to demonstrate that the rates of remuneration paid to the parties are lawful in terms of section 19(5) of the Acts.
5.2. However, I do recommend that the respondent review its processes of allocating allowances for particular types of work with a view to establish a system of greater transparency, and to ensure that it is clearly communicated to its staff.
______________________
Stephen Bonnlander
Equality Officer
29 June 2011
Appendix: Work Descriptions of the Complainant and the Comparator
Complainant:
The complainant reported to the Assistant Principal Officer for Human Resources. Her grade was Business Support Officer, which was confirmed by both parties to be the equivalent of the Civil Service Clerical Officer grade. She had no staff reporting to her.
Mondays were her busiest days. Her tasks on that day were:
Calculating each staff member's flexi-time balance for the previous week from sign-on sheets. This was a paper-based system and covered approximately 90 staff. This took a couple of hours as it was usually necessary to check back with staff by email or phone when records were not up to date.
Complete the overtime report, encompassing both the previous work week and the weekend for staff who were involved in the respondent's draws. The respondent has a regular roster for this weekend overtime. This again is a paper based system, divided by grade and section. There are 30 different overtime sheets. Staff would fill in their own overtime, and then the complainant would contact their managers to countersign the sheets.
These were then entered into a database, and any night duty allowances due to staff. An automatically generated weekly report would be run from the database, which was then forwarded to the payroll division which the respondent shared with An Post, either late Monday or occasionally on Tuesday, to be included in the following week's payroll. The complainant's liaison in payroll division was an Executive Officer (EO), one grade above her own.
The complainant explained that a lot depended on the cooperation of both staff and managers in providing and countersigning the data. The complainant would send around an email to remind staff to approach her, yet would still spend a lot of time away from her desk to approach staff and manager who did not heed that message.
Other administrative tasks of the complainant included:
Personnel assignments: The complainant was tasked with preparing weekly forecasts of which staff would be at work, or else out on training, long-term sick leave, parental leave etc. This included checking staffing levels for the entire company, and putting assignments together to ensure cover for specific roles, in cooperation with the relevant line managers.
Sick leave: the complainant would compile sick leave reports with the name, staff number and duration of the sick leave for each staff member concerned.
Other types of leave: The complainant dealt with staff queries for the flexi-time system, annual leave, leave in lieu of overtime, compassionate leave and force majeure leave. In terms of applications for parental leave, she would asks the staff member to complete a form, which would be sent over to An Post, with a copy remaining on the respondent's files. The complainant did not have much involvement in the procedures surrounding maternity leave.
Expense claim forms: The complainant would check rates with An Post, and forward the countersigned claims to An Post after taking a copy for the respondent's files.
Information dissemination: The complainant would put up information on the respondent's intranet as instructed. These included circulars, legislation and HR related information.
Hiring and Induction: The complainant had considerable autonomy in hiring short-term agency staff, who would be filling in for regular staff for a few days at most. Division line managers would approach the complainant for temporary cover based on the staffing reports she prepared, and either surplus staff from another division would be sent in to cover, or temporary agency staff would be hired. Approval for hiring temporary staff was given at Assistant Principal officer level. The complainant would then contact the recruitment agency which the respondent was in regular contact with, and pass on the job description as she had received it from the relevant division manager. The agency would then send either CVs or the candidates directly. The complainant would pass on the CVs to the line manager, with a recommendation as to who she thought was the best candidate. Occasionally, she would select the best candidate herself. The complainant stressed that these temporary staff only covered very short-term staff shortages.
In terms of the induction of all new staff, the complainant would put together their induction pack, containing the contract, guidelines on IT usage, National Lottery regulations for staff, and paypath details. The complainant would ask the new staff member to sign the contract, then bring them on a brief tour of the building and introduce them to their new colleagues. She would explain leave procedures and sick leave procedures, and invite them to get back to her with HR related queries.
For staff both starting and leaving, the complainant would also supervise security-related issues, such as the handing out and collecting of swipe cards. It was also the complainant's responsibility to advise IT of a new staff member starting so that they could be set up with a computer and a user identity.
Complaints: The only complaints which the complainant dealt with were payroll-related. She would forward them to An Post to be investigated and rectified.
Training: The complainant was only involved in organising training for all staff, not specialist training relating to the needs of individual divisions. Training for all staff was basically manual handling training, and eye testing. The complainant's duties involved booking the training providers and creating schedules for staff to attend. She likewise liaised with opticians to provide the eye-testing.
When asked what would have happened in case of a longer sick absence, the complainant estimated that parts of the overtime reporting would get done, possibly by her predecessor, who is also her comparator in this investigation. All other administrative work would have been left for her to complete on her return.
Comparator:
Mr O. reported to the respondent's Administration manager at Assistant Principal Grade. His grade was first Business Support Officer acting up as Executive Officer, and subsequently Executive Officer. He had no staff reporting to him.
Mr O. confirmed that Mondays were the busiest days. His duties included:
Collect sign-on sheet; process time and attendance, update flexi-time from sign-on sheets and calculate each staff member's flexi time.
Forward overtime returns to the GPO head office by Tuesday afternoon. Mr O. confirmed that in order for this task to be completed, he had to start on Monday and it could take up to Tuesday afternoon. His description of those tasks, insofar as he remembered them, matched those of the complainant.
Other administrative tasks the comparator performed were:
Personnel assignments: Mr O. was tasked with preparing weekly forecasts of which staff would be at work, or else out on training, long-term sick leave, parental leave etc. This included staffing levels for the entire company and making suggestions to managers as regards cover for specific roles. Mr O reported having a fair amount of discretion in this task, and that he only needed to escalate matters to his manager when a specific manager did not want to release staff. This would be rare and only happen one or two times a year.
Sick leave: Mr O. would compile sick leave reports with the name, staff number and duration of the sick leave for each staff member concerned.
Mr O. dealt with all HR related queries such as maternity leave, sick leave, benefits, pension rights, parental leave and queries relating to the term time scheme. Mr O also had administrative duties in the coordination of annual leave, in that he would circulate a form to all staff in which they had to indicate a preference. Mr O does not recall that anyone was ever refused leave or participation in the term time scheme.
Mr O liaised with one Higher Executive Officer and one Assistant Principal Officer at GPO headquarters, when it came to clarification of HR regulations or staff queries for which Mr O did not have an answer.
Expense claim forms: The Mr O. would have the forms countersigned by managers and forward to An Post for processing.
Complaints: Mr O. dealt with payroll complaints, similarly to the complainant, in that he would liaise with payroll section in An Post for correction of mistakes. He also processed other complaints, in consultation with, and following approval from, the relevant line managers. These types of complaints would be rare, and occur between two and three times a year. Mr O. also helped staff to resolve minor disputes.
Information dissemination: Mr O. would hold a weekly meeting with all staff to update them on relevant new legislation, sales, annual leave, new TV ads and the like. The information provided was identified by Mr O.s manager, but Mr O. chaired the meeting. Mr O. specified that these meetings have now been replaced by monthly meetings chaired by the HR Manager at Assistant Principal level.
Hiring and induction: When the respondent held a new competition, Mr O. would organise interviews. The national advertising for a competition would be done by his manager. When the respondent held the competition for Business Support Officer in which the complainant was hired, Mr O. was involved in the shortlisting process together with his manager and An Post. He would organise the interviews, booking the hotel rooms, send out letters to shortlisted candidates, meet the candidates and introduce them to the interview board. Mr O. also had sanction to sign employment contracts for Executive Officers and Business Support Officers, but no sanction to make a decision to employ staff. The contract would have been a standard contract from An Post in which only the rate of pay needed to be filled in. However, Mr O. specified that this type of involvement in hiring happened only once, when the BSO competition was held.
In terms of the hiring of agency staff, Mr O's duties were the same as those described by the complainant, as was the system for hiring such staff.
Mr O. mentioned inducting new staff in terms of providing the same materials to them as the comparator did. He recalled duties in connection with staff leaving, but did not give details.
Training: Like the complainant, Mr O. was only involved in organising training for all staff, not specialist training relating to the needs of individual divisions. Training for all staff was basically manual handling training, and eye testing. His duties involved booking the training providers and creating schedules for staff to attend. He likewise liaised with opticians to provide the eye-testing.
When asked what would have happened in case of a longer sick absence, Mr O said that another member of staff would be called in to perform his duties, on receipt of an acting-up allowance, unless that person was also an Executive Officer. Mr O. had colleagues trained up to replace him when he went on his holidays - these colleagues needed to be able to carry out the administrative tasks. They were instructed to escalate specific queries to his manager or the GPO. In Mr O.'s estimate, 90% of his work was of an administrative nature, and queries were "sporadic".