THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011- 222
PARTIES
Ursula Keaveney
(represented by Letterkenny Citizen Information Centre)
-V-
Donegal Courier Services
(represented by O'Gorman, Cunningham & Co. Solicitors)
File Reference: EE/2008/061
Date of Issue: 30th November 2011
Decision DEC - E2011- 222
Ursula Keaveney
(represented by Letterkenny Citizen Information Centre)
-V-
Donegal Courier Services
(represented by O'Gorman, Cunningham & Co. Solicitors)
Keywords
Employment Equality Acts 1998-2008 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(a)-age, 6(2)(c) - family status, Section 7 - like work, Section 8(1)(b) - conditions of employment, Section 14A - harassment, Section 7 & 19 like work and equal pay, prima facie case.
1. Dispute
This dispute concerns a claim by the complainant that she was discriminated against by the above named respondent on the gender and family status ground, in terms of section 6(1) & 6(2)(f), (g) and (h) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to her conditions of employment. She is also claiming that she is entitled to equal pay in terms of section 19(1) of the Acts in that she performed "like work" with a named male comparator in accordance with section 7(1) of the Acts. She also claims that she was harassed contrary to section 14A of the Acts but this claim was withdrawn at the hearing.
In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 26th of April, 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. A written submission was received from the complainant on the 27th February 2009 and from the respondent on 26th July 2011. An initial hearing on the equal pay issue was held on 24th June 2011 and a final hearing was held on the 2nd September 2011. Final correspondence in the matter was received on the 6th September 2011.
2 Summary of the Complainant's case
2.1 The respondent runs a courier service and the complainant was employed as an office administrator. She commenced work in September 2004. She went out sick from the employment on the 31st December 2007 and she requested her p45 on the 20th January 2010 and resigned from the employment. Her hours of work were 7am to 3pm. The complainant said that these hours suited her because she had to collect her child from school. She worked alongside a male employee (Mr. C) who did the same work as she did, apart from driving the forklift, and they were both paid the same rate of pay. His hours of work were 11am to 7pm. In November 2007 this employee left the employment and at the end of that month a male Mr. O'M was recruited to replace him. The complainant said that she trained him in all aspects of the office work and they both did practically the same administrative work apart from driving the fork lift. The complainant said that she was paid €350 per week and Mr. O'M was paid €450 per week. The title of his job was depot supervisor. She said that she did not know if the job was advertised but she was not given an opportunity to apply for it nor was she consulted about the position. She also said that was not offered training on fork lift driving. The forklift was used in the depot for about an hour in the morning between 12 o'clock and 1pm again in the afternoon between 3 to 4pm. She agreed that the hours of 7am to 3pm suited her for family reasons but she said that she was not asked if she wished to change her shift. She submits that the post of depot supervisor was a promotion post and that she should have been given an opportunity to apply for it and also an opportunity to train in forklift driving and the failure of the respondent to give such opportunities to her was discriminatory treatment in relation to her conditions of employment.
2.2 The complainant submitted the following job description:
Opened up the depot at 7am, turned off the alarm and turned on all the computers.
Daily/Weekly banking and invoicing
Upload files to web for all the freight scanned by couriers in the depot each morning for track and trace purposes
Obtain any additional any additional information required for couriers who had parcels with poor address details or did not have contact numbers
Fax details of misdirected or damaged parcels to other depots
Ensured that all the drivers invoicing was correct because their wages depended on the invoicing being correct
Made up the wages for the drivers
Deal with phone and email and general queries received from customers who had shipped parcels and from customers expecting to receive parcels and deal with customers coming into the depot to deposit or collect parcels
Dusted and cleaned the office
2.3 The complainant submitted that Mr. O'M did all of the above duties except banking and wages. While she opened the depot and cleaned the office, he closed the depot in the evening and cleaned it. He was trained to drive the forklift an opportunity not given to her. The complainant submits that she was discriminated against on the gender ground in that the respondent failed to offer her the same terms and conditions of employment as that offered to a male employee. She claims she is entitled to equal pay in terms of Section 7(1)(a), (b) and (c) in that she performed "like work" with a male comparator.
3. Respondents case
3.1 The respondent denies that the complainant was discriminated against in relation to her conditions of employment and pay. The Director of the company said that he bought a courier franchise in June 2005 having worked in the company for a number of years prior to that. He retained all the employees including the complainant. After another employee left, the complainant was offered the 7am to 3pm shift and she accepted it. A male employee Mr. C did the later shift 11am to 7pm. He worked both in the office and the depot dealing with the couriers and he also drove the forklift. The company was small; it had 7 couriers and was operating in 3 counties. A haulier also brought freight and deliveries to and from a central depot in the midlands. The Director said that he was trying to grow the company. When Mr. C left, he advertised the job in the local papers. He employed Mr. O'M who was the bar manager in a local hotel and had some experience of driving a fork lift. He employed Mr. O'M because of his management skills which were appropriate for the position of a depot supervisor and the ongoing development of the company. It was also necessary to hire someone who was competent in forklift driving. The Master Franchisor had issued new guide lines in relation to the operation of the franchisee and he had to work within these guidelines. It was a requirement of Franchisor that forklift drivers were trained and licensed to drive a forklift and Mr. O'M was sent to Belfast to train after he was recruited. The respondent said that there were more onerous duties imposed on his business by the Master Franchisor including more thorough security checks for all the couriers operating out of the depot and these checks took place in the evening and he employed Mr. O'M to do this work. He said that the market dictated that he would have to pay a higher rate than that paid to Mr. C in order to get the right person for the job. In order to recruit Mr. O'M he had to pay him the rate that he had in his previous job. He said that he had plans to expand the business and the role of the depot supervisor would have much more duties attached to it once the expansion had taken place. He said that he did not consider the complainant for the job because she could not work beyond 3pm. The busy time in the depot started at 11am when the depot supervisor took up his duties and had to operate the forklift and also in the evening when the couriers return from deliveries and the haulier brought deliveries from a central depot in the midlands to the depot. The forklift was also operated during this time to move and stack cages. He had in the past asked the complainant to alternate her shift with Mr. C and she told him that because of her family circumstances she was not available.
3.2 Mr. O' M was employed at the end of November 2008. He said that he did not have the opportunity to discuss the new situation with the complainant because Christmas is the busy time for the business. The complainant did not raise any issues with him before she went out sick and she did not return to work after the Christmas holidays in 2007. She went out sick and remained on sick leave until 20th January 2010 when she resigned from the company. The Director said that the company expanded greatly since the complainant left. They have moved location from their original 3,000 square foot depot and 15 square foot office in Convey to a 5,000 square foot depot 1,500 sq foot office in Letterkenny. They now have 14 couriers and 4 staff in the office/depot. The duties of the comparator have expanded greatly since the move and it is not the same job he did when he was first recruited.
3.3 The respondent does not accept that the complainant was doing "like work" with Mr. O'M. He submitted that the comparators duties were more onerous than the duties performed by the complainant. He said that the role of the office administrator is a crucial role in the business. The main duties of the complainant were taking telephone calls from customers, dealing with couriers arriving in the office and being able to operate the computer. Her role did not require any physical work. Some of the roles of the office administrator and the comparator were the same in that both took telephone calls and dealing with queries in relation to deliveries that would arise during the course of the day.
4. Conclusions of the Equality Officer
4.1 In this case, I must consider the complainant's claim that the respondent directly discriminated against her on the gender and family status grounds in terms of section 6(1)(a) and 6(2)(a) and 6(2)(c) of the Employment Equality Acts 1998 and 2008, in contravention of sections 7 and 8 of the Acts in relation to access to employment, promotion/regrading, training conditions of employment and equal pay. I must also decide if the complainant was engaged in like work under section 7 of the Acts with two named comparators and entitled to equal pay in accordance with section 19 of the Acts.
4.2 The first matter I have to consider is whether the complaint was referred within the statutory time limit and is validly before me. The solicitor for the respondent submitted that the complaint did not submit all her complaint within the statutory time limit for referring the complaint to the Tribunal. Section 77(5)(a) of the Act provides that a complaint has to be referred within six months of the most recent occurrence of the alleged act of discrimination. I note that the complainant referred the complaint to the Tribunal on the 1st February 2008 stating that the last act of alleged discrimination occurred on the 21st December 2007. I am satisfied therefore that the complaint was referred within the statutory time limit and accordingly it is validly before me.
4.3 The first matter I am going to consider is the complaint in relation to the conditions of employment and training. It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
4.4 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that she was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
Section 85A. of the Employment Equality Acts 1998-2008 sets out the burden of proof as follows:
"(1) Where in any proceedings facts are established by or
on behalf of a complainant from which it may be presumed that
there has been discrimination in relation to her or her, it is for the
respondent to prove the contrary."
4.4 In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination."
The Labour Court went on to say in that case:
"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."
4.6 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts provides:
"..... discrimination shall be taken to occur -
a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the 'discriminatory grounds')"
Section 6(2)(a) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that tone is a woman and the other is a man (in this Act referred to as "the gender ground"),
(c) that one is a person has a family status and the other does not (in this Act referred to as "the family status ground"),
4.7 The complainant has put forward two matters which she claims were discriminatory in relation to her conditions of employment (i) the respondent failed to give her an opportunity to apply for the position of depot supervisor, (ii) the respondent failed to give her training on the forklift. In relation to both issues the complainant accepted that she worked mainly in the office as an administrator and that the hours of work suited her because of her family circumstances. It is clear that the complainant was aware that there was a vacancy in the depot for a person who drove a forklift and she did not take the opportunity to ask the employer about it or to express a desire to train in forklift driving and to change her hours of work to the later shift so that she could work in the depot. I note that the respondent stated that he advertised the job locally and that he was looking for a wider range of skills and experience than the previous occupant of the job had with a view to expanding the business and he employed a person with such experience. I also note that the successful applicant also had some experience driving a forklift, although he did not have a license at the time. While it would have been good industrial relations practice by the respondent to have informed the complainant about the post and that he was going to advertise it, there is no obligation on him to do so and it cannot be construed as discriminatory treatment in circumstances where he did not do so. Also there was no obligation on the respondent to offer forklift training to the complainant so that she was qualified for the job. I am satisfied the complainant has failed to establish any facts from which a presumption of discrimination can be inferred. Likewise I am satisfied the complainant has not established that she was treated less favourably than another person would have been treated in similar circumstances in relation to conditions of employment and training. I find that the complainant has failed to establish a prima facie case of discriminatory treatment on the gender ground.
4.8 Family Status.
''family status'' means responsibility --
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years,"
The complainant submitted that she was discriminated against on the family status ground. She submitted that she needed to collect her child from school and this was the reason she had the early shift of 7am to 3pm and she believes that this was the reason she may not have been considered for the depot supervisor role. However she put forward no evidence in relation to this aspect of her complaint. Therefore I am satisfied that the complainant has failed to establish that she was treated less favourably than a person who did not have children was treated or would have been treated in similar circumstances. Therefore her complaint on the family status ground cannot succeed.
5. Equal Pay - Gender
5.1 The next matter I have to consider is the claim of equal pay. Section 19 (1) of the Act provides that where A and B represent two people of the opposite gender 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 do as B who, at that or any other relevant time, is employed to do like work by the same or associated employer.
5.2 The existence of "like work" between a complainant and a named comparator is required to establish any entitlement to equal pay under the Acts. Therefore, I will first examine whether like work exists. It was accepted by both parties at the initial hearing that a jobs inspection was not possible because the respondent had moved to much larger premises and the nature of the comparator's job had changed substantially since he was employed and the complainant, who went on sick leave in less than 4 weeks after he was recruited, terminated her employment about two years later without returning to work. For the purpose of establishing whether there was like work, it was agreed I could make the decision on this aspect of the complaint on the basis of the job description submitted and the evidence presented at the hearing.
5.3 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 comparator 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) (a) and (b), I will also consider whether each of roles constitutes like work as per those subsections.
5.4 Comparison of work performed by the complainant and the comparator
The respondent's job descriptions of the complainant and comparator are set out at Appendix 1. The complainants own job description is set out above at paragraph 2.2. The complainant's job description of the comparator duties and her comments on it and the respondent's comments are set out at Appendix 2
Skill:
I am of the view in this case that the skills required by the complainant not equal to those required by the comparator. The complainant required office administration skills to perform her job. The comparator in addition to the office skills, he required the more demanding technical skill of driving a forklift to move and load large cages which weighed in excess of three quarters of a ton without goods and also the consequent safety skills required to operate that type of equipment in a safe manner in a depot where other people had a right to be present. For these reasons, I am satisfied that in this particular case that the skill required from the complainant was not equal to that required of the comparator.
5.5 Physical or Mental Requirements:
Similar levels of mental effort were required by both the complainant and comparator. I find that that the physical demands made on the complainant were not equal to those made on the comparator. The comparator set up the depot operated a forklift for two hours per day to stack and move cages within the depot and to load and unload the delivery vans and the haulier's lorry. He also had to clean 3,000 square foot of the depot in comparison to the 15 square of office the complainant had to clean.
5.6 Responsibility:
The complainant had no supervisory role whereas the comparator was responsible for the operation of the depot. The respondent stated that there were a number of jobs in relation to the couriers and the haulier which could only be carried out by the comparator on the evening shift when the couriers returned from their deliveries and the haulier returned from the central depot. The comparator was responsible for debriefing couriers on their return to the depot, carrying out security check on the couriers' vans, checking the invoice books to ensure that the delivery invoices and the customers' cheques were collected and ensuring that the couriers handed in all their manifests and any money collected. The complainant submitted that she carried out duties such as debriefing couriers and security checks in the morning. I am satisfied that it was only necessary to carry out those tasks after the couriers returned to the depot after making their deliveries. Therefore I find the comparator had higher levels of responsibility than the complainant.
5.7 Working Conditions:
The working conditions were similar for both the complainant and the comparator were while both were office based. However the comparator worked in the depot for at least two hours per day operating the forklift in addition he worked in the depot doing security checks and dealing with the couriers and the haulier. While both were required to do similar hours of work the comparator was often required to work later than his finishing time of 7pm. I am satisfied that the comparators working conditions were more onerous and challenging than the complainant's working conditions.
5.8 Therefore I consider that the demands made on the named male comparator in terms of the level in terms of skill, physical requirements, responsibility and working conditions were greater than those made on the complainant. Consequently, I find that the complainant did not perform 'like work' with a named male comparator in terms of Section 7(1)(c) of the Acts.
5.9 In relation to Section 7(1)(a) and (b) I also find that all work done by the complainant and comparator was not similar in nature and interchangeable. While the duties of the complainant and comparator were similar to the extent that they both carried out office duties, the complainant could not carry out all the duties associated with the comparators job and therefore the work was not interchangeable e.g. she could not drive the forklift. Therefore, I find that the complainant did not carry out "like work" within the meaning of Section 7 (1) (a) and (b) of the Acts.
6. Decision
6.1 I have concluded my investigation of the complaints and I hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) The respondent did not discriminate against the complainant regarding her conditions of employment on the gender or family status ground contrary to Section 8(1) of the Acts.
(ii) The complainant was not engaged in "like work" with the named male comparator in terms of Section 7(1)(a), (b) and (c) of the Acts and therefore she is not entitled to the same rate of remuneration as the comparator in accordance with Section 19 of the Acts.
__________________________
Marian Duffy
Equality Officer
30th November 2011
Appendix 1
Respondent's Job Descriptions for Complainant
Daily Duties of the Complainant
Hours of Work 7am to 3pm Monday to Friday
Job Title: Office Administrator
Hourly Rate: €8.65
Duties
Open up office at 7am
Daily/weekly banking of customer and courier invoices on computer
Upload files to web for all freight scanned by couriers in the depot each morning for track and trace purposes
Obtain any additional information required fro couriers who had parcels with poor address details or did not have contact numbers
Fax details of misdirected or damaged parcels to other depots
Deal with phone and email general queries received from customers who had shipped parcels and from customers expecting to receive parcels.
Respondent's Job Description for the Comparator
Duties of Comparator
Hours of Work 11am to 7pm
Job Title: Depot Supervisor
Hourly Rate: €11.06 per hour
Set up depot for freight to be exported from Donegal Depot each evening.(Forklift operation required to manoeuvre freight cages into place)
Ensure correct depot destination labels were assigned to each cage
Clean out depot floor
Deal with phone and email queries from customers who had shipped freight and customers who were expecting to receive parcels
Debrief couriers on their return to the depot for any undelivered freight
Security checks done on all vehicles before they leave the depot
Ensure that all caged freight was correctly stacked to minimise damage in transit
Deal with customers collecting freight from depot and delivering freight into depot in the evening
Upload all files from courier scanners to web
Stack and load cages onto trailer to go to central hub in Portarlington (operation of Forklift required)
Manifest freight loaded onto trailer and get haulier to sign receipt of load
Lock up office and lock and alarm the warehouse
Appendix 2
Complainant's Job Description for Comparator and her comments
1. Set up depot for freight to be exported - this simply entailed placing the cages into place. This required the forklift
2. Depot destination labels- this involved peeling off the stickers on the cages and replacing them with new ones.
3. Clean pit depot floor -The comparator cleaned the depot floor and the Complainant cleaned the office floor
4. Deal with phone and email queries with regard to shipped freight - Both employees did this task and all calls were taken in the office
5. Debrief couriers - both employees did this task. The complainant did this at 7am at the start of her shift and the comparator did this in the evening when the couriers returned
6. Security checks - Both employees did this and the complainant would undertake this duty at 8am and the comparator the comparator at the stage when the couriers returned
7. Ensure all couriers hand in all manifests and monies collected - Couriers would attend the office on return to hand in any payments and labels
8. Deal with customers freight from the depot - this involved the use of the forklift
9.Upload all files from courier scanner to web - The complainant performed this duty in the morning and the comparator in the evening
10. Stack and load cages - This was part of the forklift duties
11. Manifest freight loaded onto trailer and get haulier to sign receipt of load - this was an evening duty and the comparator performed it.
The complainant submitted that tasks nos. 3, 4, 5, 6, 7, and 9 were carried were tasks which both she and the comparator performed.
Respondent's Comments
The respondent submitted that tasks nos. 5, 6, and 7 were tasks which could not be carried out by the complainant in the morning as they were tasks which needed the attention of the comparator when the couriers returned from their deliveries. He accepted that tasks nos. 4, and 9, was performed by both complainant and comparator.