THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2011-200
PARTIES
Brian Chama
(represented by Mr. Brian Conroy B.L.
on the instructions of Able Solicitors & Notary Public)
and
LM Ericsson Limited
(represented by Byrne Wallace Solicitors)
File Reference: EE/2009/007
Date of Issue: 28th October, 2011
1. CLAIM
1.1 This case concerns a claim by Mr. Brian Chama against LM Ericsson Limited that he is entitled to the same rate of pay as that paid to fourteen named comparators in accordance with section 29 of the Employment Equality Acts, 1998 to 2008 on the race ground. Mr. Chama claims that he performs like work with the named comparators in accordance with sections 7(1)(a), 7(1)(b) and 7(1)(c) of the Acts.
2. BACKGROUND
2.1 The complainant alleges that he is paid less than the named comparators even though they perform 'like work' within the meaning of Section 7 of the Employment Equality Acts 1998 to 2008. It is the complainant's contention that the difference in pay is related to his race. The respondent disputes like work and submits that there is no entitlement to equal pay.
2.2 In the initial complaint that was referred to the Tribunal on 8 January, 2009 the complainant named a total of fourteen comparators in respect of which he was claiming equal remuneration. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 8 January, 2009. On 25 May, 2010, in accordance with his powers under section 75 of the Acts, the Director delegated the case to Enda Murphy, 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. This is the date that I commenced my investigation. An Initial Inquiry Hearing of the complaint took place on 5 November, 2010 at which the respondent disputed the existence of 'like work' between the complainant and seven of the named comparators and notwithstanding this, submitted that there were grounds other than race which render the rates of remuneration paid to the complainant and each of the fourteen comparators lawful in accordance with section 29(5) of the Acts. Having considered the arguments advanced by the parties on this point I decided to investigate the entire complaint and not exercise my discretion to investigate, as a preliminary matter in accordance with section 79(3) of the Acts, the question of whether or not the rates of remuneration paid to the complainant and the comparator were lawful in terms of section 29(5) of the Acts. Job descriptions were exchanged between the parties and the Equality Officer conducted work interviews with the complainant and the seven named comparators in respect of which the issue of 'like work' was in dispute at the respondent's premises on 11 March, 2011. A final hearing of the complaint was held on 18 May, 2011. The final submissions and correspondence in relation to the case was received from the parties on 27 June, 2011.
Comparators
2.3 At the outset of the final hearing on 18 May, 2011 the complainant's representative indicated that the complainant only wished to proceed with the claim for equal remuneration in respect of two named comparators (Mr. A and Mr. B). Accordingly, the claim for equal remuneration in respect of the other twelve named comparators was withdrawn by the complainant. The complainant's representative confirmed that the complainant wished to rely upon Mr. B as the appropriate comparator for the period from January, 2006 to July, 2006 and that he wished to rely upon Mr. A as the appropriate comparator from July, 2006 until January, 2009 (i.e. the date upon which the complainant's employment with the respondent was terminated).
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant, who is a Zambian national of black African ethnicity, commenced employment with the respondent as an engineer (at PCP Level 2) in November, 2004. The complainant submitted that he was assured upon joining the respondent company that his salary would be in line with and at the same scale as colleagues with comparable experience, qualifications and duties. The complainant submitted that he performed his duties as assigned and achieved the company competence certificates which resulted in his promotion to senior engineer (PCP level 3) in July, 2006. The complainant contends that during the period from July, 2006 until he left the company in January, 2009 that he performed 'like work' within the meaning of sections 7(1)(a), (b) and (c) of the Employment Equality Acts with Mr. A (Comparator A). He also contends that during the period from January, 2006 until July, 2006 that he performed 'like work' within the meaning of sections 7(1)(a), (b) and (c) of the Employment Equality Acts with Mr. B (Comparator B). The complainant submitted that both Mr. A and Mr. B were also employed by the respondent as Senior Engineers (PCP level 3) during the aforementioned comparison periods and he claims that he is entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of the Acts.
3.2 The complainant rejects the respondent's assertion that there are grounds other than race which render the rates of remuneration paid by the respondent to him and the comparators lawful in terms of section 29(5) of the Acts. The complainant submitted that the respondent must demonstrate that there were objective reasons for the differential in remuneration between him and the named comparators; however, the complainant contends that the only explanation proffered by the respondent for the differential between him and Mr. A was that Mr. A commenced employment with the company prior to the complainant. The complainant submitted that he cannot accept that the system which the respondent had in place to remunerate its workers is an objective system.
Comparison with first named Comparator (Mr. A)
3.3 The complainant submitted that the explanations given by the respondent for stating that the complainant and Mr. A, who is an Irish national, do not perform 'like work' are more in the way of subjective comment than objective analysis. The complainant stated that he was earning a salary of €45,800 upon the termination of his employment in January, 2009 whereas Mr. A was earning a salary of €60,019 at that juncture. It was submitted that both the complainant and Mr. A held the job description of Senior Engineer (PCP level 3) during the period from July, 2006 until he left the company in January, 2009. The complainant submitted that he worked as a project manager on OSS RC R7 Node Design (NFD Integration) as of the date of his departure from the respondent company, whereas Mr. A worked as a project manager on OSS RC R7 Node Feature Design (NFD Integration) but was appointed to the position after the complainant. The complainant submitted that their responsibilities were essentially the same and both men had a sound technical knowledge of OSS. The complainant submitted that while Mr. A's qualifications are not referred to by the respondent, the complainant holds a bachelor's degree and two masters degrees and has more than 13 years of industry experience. The complainant submitted that he consistently performed at an excellent level while working for the respondent and has no reason to doubt his own social competencies (if, indeed the phrase 'social competencies' has any objective meaning). It was submitted that no objective reason for contending that the complainant and Mr. A did not perform like work has been furnished by the respondent. The complainant claims that the nature of his responsibilities and those of Mr. A was almost identical as of the date of his departure from the respondent company.
Comparison with second named Comparator (Mr. B)
3.4 It was submitted that both the complainant and Mr. B, who is a Swedish national, held the job description of Senior Engineer (PCP level 3) during the period from January, 2006 until January, 2009. The complainant stated that he was earning a salary of €45,800 upon the termination of his employment in January, 2009 whereas Mr. B was earning a salary of €53,045 at that juncture. The complainant submitted that both he and Mr. B had strong competency in the OSS product and their technical skills were broadly equivalent. The complainant submitted that he was acting as a project manager as of the date of his departure whereas Mr. B was a Team Lead reporting to a project manager. It was therefore submitted that the area of technical responsibility held by the complainant exceeded that of Mr. B. The complainant disputes the respondent's contention that that Mr. B held technical responsibility that exceeded any responsibility held by the complainant. The complainant also submitted that no references are made by the respondent to Mr. B's qualifications and therefore, he has no way of knowing whether Mr. B's qualifications exceeded or were equal to his.
Grounds other than Race
3.5 The complainant disputes the respondent's contention that the difference in pay between him and the two named comparators (Mr. A and Mr. B) is based on the operation and implementation of the Overall Employee Assessment (OEA), the Professional Career Path Model (PCP) as well as to Performance Based Pay (PBP). The complainant submitted that the respondent has not explained how the Professional Career Path (PCP) model is applied in arriving at a PCP performance level for any given employee. Nor is it explained what impact a PCP performance level has on any given employee's salary. In that regard, the complainant noted that quite a number of workers were paid significantly higher salaries than him without there being any obvious justification for this differential in their PCP performance levels. The complainant submitted that the respondent is attempting to rely on meaningless jargon to justify a differential in salary that has no objective basis in his competence or performance and that none of the models cited provide a ground other than race for the differential in pay cited by him. The complainant relied upon the decision in St. James Hospital -v- Eng where the Labour Court held that discriminatory intent is not required to conclude that there has been a breach of the equal pay provisions of the Employment Equality Acts because it is the discriminatory effect of the measures that is important.
3.6 In summary, the complainant submitted that he began employment with the respondent at the bottom of the pile in terms of his remuneration in spite of his experience and qualifications because of his race. He claims that he improved his professional standing and level of responsibility through excellence and hard work, but the respondent failed to pay him a fair wage based on his ability and responsibilities. The complainant claims that his direct line manager acknowledged both orally and in writing the dislocation between the level of responsibility which he held and his salary but the respondent has now sought to distance itself from this acknowledgement. The complainant submitted that throughout this process the respondent has diminished and demeaned his contribution, as a black African, to the business while exaggerating the competence and responsibility of his white colleagues.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent disputes the existence of 'like work' between the complainant and the two named comparators (Mr. A and Mr. B) and notwithstanding this contention submits that there are grounds unrelated to the complainant's race which renders the rates of remuneration paid to him and the comparators lawful in accordance with section 29(5) of the Employment Equality Acts.
Organisational and pay structures within the respondent
4.2 The respondent submitted that within the company the job descriptions of its employees are generically specified and documented within its Professional Career Path model (PCP). The Professional Career Path is a competence based model and it comprises five levels, namely Trainee Engineer (PCP Level 1), Engineer (PCP Level 2), Senior Engineer (PCP Level 3), Master Engineer (PCP Level 4) and Principal Engineer (PCP Level 5). The complainant and the two named comparators (Mr. A and Mr. B) were employed at Senior Engineer (PCP 3 level) at the time the complainant's employment terminated in January, 2009. The respondent submitted that employee performance is formally assessed by the direct line manager twice per year and performance assessment is conducted in accordance with a performance management process called Individual Performance Management (IPM) and is signed off by the employee being assessed, the direct line manager and the manager's manager. The respondent submitted that the company rewards performance through its salary policy and an annual salary budget is determined and agreed with the Company stakeholders taking account of local market conditions. The overall performance rating of the employee is taken into account in determining an individual salary review. The respondent submitted that its salary policy is Performance Based Pay and that individual employees are assessed and evaluated to determine a profile for salary review. Twenty per cent of employees do not participate in performance based pay salary reviews and these employees are trade union represented and their salary has been governed by national wage agreements. The respondent submitted that the complainant and the two named comparators in the present case participated in the performance based pay salary reviews.
The Complainant's career history with the respondent
4.3 The respondent stated that the complainant was employed by the company as an Engineer (PCP level 2) in November, 2004 until he resigned from his position in January, 2009. The complainant was interviewed in November, 2004 and assessed at Engineer level (PCP level 2) on the PCP model and his salary was determined in accordance with the interview assessment and the company's salary reference points for PCP level 2. The complainant was offered a salary of €37,000 upon the commencement of his employment which was in the 'mean' to 'max' penetration of PCP level 2. The complainant performed his role at PCP level 2 at a good/excellent performance level and was promoted to Senior Engineer (PCP level 3) in July, 2006 where he subsequently performed his role at good/excellent level. The complainant received the standard 4% salary promotion increase at that juncture. The respondent submitted that the complainant was a valued employee who was building and developing his competence level and he received consecutive performance based percentage salary adjustments in excess of the annual salary budget in 2005, 2006, 2007 and 2008. The table below details the complainant's salary progression in relation to the annual salary budget during the period of his employment:
Grade Salary Complainant Budget
30/11/2004 PCP L2 €37,000
01/04/2005 PCP L2 €38,118 3.02% 2.00%
01/01/2006 PCP L2 €39,262 3.00% 3.00%
01/07/2006 PCP L3 €40,833 4.00%
01/01/2007 PCP L3 €43,000 5.31% 3.00%
01/01/2008 PCP L3 €45,800 6.51% 3.50%
23.78% 11.50%
4.4 The respondent submitted that the complainant accepted responsibility for an acting project management role at the end of his third year of employment. The respondent submitted that it is common practice for a Senior Engineer (PCP level 3) to fulfil an acting project manager role as part of their on-going competence development. As recorded in his Individual Performance Management (IPM) discussions, it was planned to increase his experience in this area with a view to being able to move to the project management grade should such an opportunity become available. There were both positive performance indicators and areas for improvement identified in his acting project management role which were recorded in his IPM.
Grounds other than Race - Comparator A (Mr. A)
4.5 The respondent submitted that Mr. A, who is an Irish national, joined the company in 1994 (i.e. eleven years before the complainant) as an Engineer at PCP level 2 and that he was promoted to the grade of Senior Engineer (PCP level 3) in 1997. At the beginning of the comparison period Mr. A was on a salary of €55,194 (€17,076 more than the complainant) and at the end of the comparison period Mr. A was on a salary of €60,019 (€14,719 more than the complainant). The respondent submitted that the percentage increase in salary received by Mr. A during the comparison period was 11.41% less than that of the complainant. The respondent submitted that Mr. A worked in many varied Operational Support System (OSS) product areas and roles which included training (both personnel and customers), design and customer support. Mr. A was a key member of the OSS PLM maintenance organisation working with internal and external customers and he had deep technical knowledge of the OSS product used by customers in the field. The respondent submitted that Mr. A had demonstrated strong social competencies in his training role and in dealing with customers and with his colleagues in his acting project management role within Node Feature Design Section. The respondent also submitted that Mr. A had been working as an acting project manager since 1997.
Grounds other than Race - Comparator B (Mr. B)
4.6 The respondent submitted that Mr. B, who is a Swedish national, joined the company in 2004 (approx. three months before the complainant) as a Senior Engineer (PCP level 3). At the beginning of the comparison period, Mr. B was on a salary of €48,101 (€9,983 more than the complainant) and at the end of the comparison period Mr. B was on a salary of €53,045 (€7,745 more than the complainant). The respondent submitted that the percentage increase in salary received by Mr. B during the comparison period was 9.87% less than that of the complainant. The respondent submitted that Mr. B was recruited at Senior Engineer level (PCP level 3) with key competencies that were difficult to find in the employment market and also highly paid in the market. These competencies were Clearcase administration and Product build. Since joining the company he has used these competencies to design from scratch the current OSS product build system. He is recognised as the main developer of this build system and is still used as a reference for this build system throughout the organisation. The respondent submitted that Mr. B also developed further skills in disk management and by the time the complainant left the company Mr. B was also a key developer and trouble shooter in his area. The respondent submitted that his area of technical responsibility greatly exceeds any responsibility held by the complainant.
4.7 In summary, the respondent submitted that it determines employee pay in accordance with a non-discriminatory system and this system was followed in all respects regarding the complainant. The respondent submitted that there has been no discrimination against the complainant and that he was a valued employee within the company and was progressing at an excellent rate in terms of competence and salary during the period from 2005 to 2008. The respondent further submitted that this contention was supported by his line management, his promotion and his salary progression. The respondent submitted that the company has processes and avenues in place where an employee can pursue an issue or grievance and the complainant did not raise any issue or grievance within these processes or avenues. The respondent submitted that it first became aware that the complainant had an issue with the company when it received communication from the Equality Tribunal after he had resigned from his position.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant is entitled to equal pay with each of the named comparators in terms of Sections 29 of the Employment Equality Acts 1998 and 2008 on the basis that they perform 'like work' within the meaning of section 7 of the Acts. In making the decision in this claim, I have taken into account all of the submissions, both written and oral, made to me by the parties.
5.2 The complainant is seeking equal pay with each of the named comparators (Mr. A, who is an Irish national, and Mr. B, who is a Swedish national) on the grounds of race in terms of Section 29(1) of the Employment Equality Acts 1998 and 2008. The complainant claims that he performs 'like work' with both of the named comparators in terms of Sections 7(1)(a), (b) and (c) of the Acts. The respondent disputes that the complainant and the two named comparators were engaged in 'like work' within the meaning of section 7 of the Acts. Both the complainant and the respondent submitted comprehensive job descriptions for the complainant and the two named comparators and I am satisfied that these job descriptions represent an accurate reflection of the work that they carried out (as senior Engineers at PCP level 3). In deciding the issue of 'like work' I conducted interviews with the complainant and the two named comparators (Mr. A and Mr. B) at their workplace on 11 March, 2011.
5.3 However, at the oral hearing of the complaint on 18 May, 2011 the complainant's representative confirmed that he wished to rely upon Mr. B as the appropriate comparator for the period from January, 2006 to July, 2006 and that he wished to rely upon Mr. A as the appropriate comparator from July, 2006 until January, 2009 (i.e. the date upon which his employment was terminated). It should be noted that this was the first occasion during the course of my investigation that I had been notified by the complainant that he wished to amend the scope of the initial complaint in terms of the comparators that were being relied upon. The complainant was employed as an Engineer (PCP level 2) during the period from January, 2006 to July, 2006 whereas the named comparator Mr. B was operating at the more senior level of Senior Engineer (PCP level 3) during the aforementioned period of time. The job descriptions submitted by the comparator and the complainant for the complainant prior to the final hearing and the nature of the questioning that I put to the complainant at the work interviews focussed primarily on the period of time that he was operating as a Senior Engineer (PCP level 3). I was therefore not in a position to carry out a comprehensive job evaluation of the work that the complainant carried out in the grade of Engineer (PCP level 2) during the period from January, 2006 to July, 2006. In the circumstances, I propose to consider the arguments put forward by the respondent on 'grounds other than race' in respect of the period of time within which equal remuneration is claimed with the named comparator Mr. B.
5.4 Firstly, I will consider whether or not the complainant and Mr. A were engaged in 'like work' within the meaning of section 7(1)(c) of the Acts. I am proceeding in this manner because if I am to find that the complainant and Mr. A were engaged in 'like work' within the meaning of section 7(1)(c) as a consequence it would not then be necessary for me to decide the issue of the complainant's claim of 'like work' within the meaning of sections 7(1)(a) and 7(1)(b).
Section 7(1)(c) - Work of equal value
5.5 Section 7(1)(c) provides that: "The work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, and responsibility and working conditions." In relation to this particular criterion, the Labour Court has stated in the case of Dublin Institute of Technology -v- McEvoy:
"..., in deciding whether or not the work of the comparator is of equal value to that of the complainant it is the actual duties performed which are relevant and not the qualifications held by the respective parties."
I have considered the work of the complainant and the comparator, Mr. A, in terms of skill, physical requirements, mental requirements, responsibility and working conditions in accordance with section 7(1)(c) of the Acts. My findings on this issue are as follows:
Skill
Both the complainant and Mr. A were employed as Senior Engineers (PCP level 3) during the comparison period, albeit that Mr. A had approx. nine years more experience in this grade than the complainant.
The complainant's professional qualifications include a Bachelor of Engineering (Electronics and Telecoms Engineering), a Master of Engineering (Computer and Communications Systems Engineering) and a Master of Business Administration. The main skills and competencies that the complainant was required to have and to demonstrate in order to perform his job were time management, leadership, technical skills, problem solving skills, telecoms domain knowledge (OSS solutions), telecoms network information technology, database skills (SQL), configuration skills (OSS/Disk configuration) and OSS domain/knowledge skills. The complainant also attained the following competence certifications within the respondent company, namely: iProps Project Management, OSS Fundamentals, Telecomm Fundamentals, Korn Scripting and CIF Foundation. The complainant also took on an acting project management role at the end of 2007 when he started building up project management skills and social competencies.
The comparator's (Mr. A's) professional qualifications include a Masters in Information Technology. Mr. A has worked in a wide range of OSS product areas and roles during the period of his employment including training (Ericsson personnel and customers), design and customer support. The main skills that Mr. A was required to demonstrate in order to perform his job were Korn Shell Scripting, OSS-RC Troubleshooting, Operating Systems, Disk Management, Project Management, Build. He has also performed an acting project management role within the Node Function Design (NFD) section.
I am satisfied that the complainant and comparator were operating at a comparable level in terms of the following key skills which were significant towards the performance of their respective jobs, namely: Operating Systems, Korn Shell Scripting, Build, Disk Management, OSSRC Trouble Shooting and Project Management.
I find that the demands made on the complainant and the comparator (Mr. A) in terms of skill is equal.
Physical Requirements
The complainant's job and the comparator's (Mr. A) job were not physically demanding and the majority of their work centred around operating a computer, telephone and attending various meetings. The complainant's job on occasion involved travelling to other Ericsson market units for support and other activities whereas Mr. A's job did not involve any travelling to other Ericsson market units at that juncture. However, I am satisfied that this aspect of the complainant's job was not of such significance to render his job more physically demanding that the comparator's job.
I find that the demands made on the complainant and the comparator (Mr. A) in terms of physical requirements is equal.
Mental Requirements
The complainant and the comparator must exercise high levels of concentration when performing the full range of tasks associated with their respective jobs in areas such as problem solving, evaluation of data, team leading, project management, software engineering and telecommunications. I am satisfied that both the complainant and the comparator are required to exert organisational influence at department/total project level, to provide frequent support for routine customer support activities and in terms of people management they both are required to manage a full project team. The complainant is a technical reference for a single area whereas the comparator is a technical reference for multiple areas; however, I am satisfied that this aspect of the comparators job is not of such significance to render his job more mentally demanding that the complainant's job.
I find that demands made on the complainant and the comparator (Mr. A) in terms of mental requirements is equal.
Responsibility
Both the complainant and Mr. A were employed by the respondent as Senior Engineers (PCP level 3) during the course of the comparison period (albeit that Mr. A had approx. nine years more experience in this grade that the complainant).
I am satisfied that the complainant and Mr. A had comparable levels of responsibility in the following areas of their roles as Senior Engineers, namely systems analysis, mentoring, customer support and review. The complainant and the comparator both had responsibility in the area of project management which involved planning, controlling, monitoring and coordinating activities relevant to the respective projects that they were assigned. The roles that the complainant and comparator assumed as project managers accounted for a significant part of their jobs. Also, as part of their roles in the area of project management, the complainant and the comparator had responsibility for the management of a full project team of approx. 15 designers and testers. The respondent has submitted that the project management role carried out by the comparator (Mr. A) was more complex and of greater value to the company than that of the project management role carried out by the complainant. However, having carefully assessed the job descriptions and the information adduced during the course of the work interviews with the complainant and comparator, I am of the view that the level of responsibility attached to their respective project management roles was equal in terms of my evaluation of their respective jobs within the meaning of section 7(1)(c) of the Acts.
I find that the demands made on the complainant and the comparator (Mr. A) in terms of responsibility is equal.
Working Conditions
Both the complainant and the named comparator spent the vast majority of their time working indoors in an office environment (using equipment such as monitor, laptop, computer keyboard, landline telephone). The complainant and the comparator worked a standard 37.5 hour week (with the availability of flexible working hours) and were required to work overtime whenever the need arose. The comparator was assigned his own office away from the open plan area whereas the complainant's work station was situated in a cubicle in the open plan area. I am satisfied that the reason why the comparator was assigned his own office was due to the fact that he had been performing an acting project management role for a longer period of time than the complainant.
I find that the demands on both the complainant and the comparator (Mr. A) in terms of working conditions are equal.
5.6 In summary, based on the foregoing, I find that the demands made on the complainant in terms of skill, physical or mental requirements, responsibility and working conditions are equal to the demands made on the named comparator, Mr. A. I, therefore, find that the complainant performs 'like work' with the named comparator, Mr. A in terms of Section 7(1)(c) of the Employment Equality Acts 1998 and 2004. Accordingly, it is not necessary for me to consider the issue of the complainant's claim of 'like work' within the meaning of sections 7(1)(a) and 7(1)(b).
Grounds other than Race
5.7 As I have found that the complainant and Mr. A were engaged in 'like work' within the meaning of section 7(1)(c) of the Acts it is necessary for me to examine the issue of 'grounds other than race' for the difference in pay between the complainant and Mr. A in accordance with section 29(5) of the Acts. I am also required to examine the issue of 'grounds other than race' for the difference in pay between the complainant and Mr. B as I have not been in a position to determine whether or not they were engaged in 'like work' within the meaning of section 7 of the Acts (for the reasons outlined in paragraph 5.3 above).
5.8 Section 29(5) of the Acts provides that: "Subject to subsection (4) nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees." As this provides an absolute defence to the respondent, it is for the respondent to satisfy me that the difference in the rates of remuneration paid to the complainant and the comparators is genuinely attributable to grounds other than race i.e. because the complainant was a black African. In examining this matter, I note the comments of Keane J. in the case of The Minister for Transport, Energy and Communications -v- Campbell & Others where he stated that "the Labour Court is entitled and indeed bound to approach such an issue on the basis that the employer must prove that the differentiation is genuinely attributable to grounds other than sex. In other words, the subsection cannot be used to uphold a practice which seeks to conceal discrimination on sexual grounds" . Whilst Keane J. was dealing with matters connected with a claim for equal pay on grounds of gender under the Anti- Discrimination (Pay) Act, 1974, the principle enunciated clearly applies to the instant case.
5.9 In the present case, the complainant has claimed that he was remunerated at a lower level than the two named comparators purely on the basis that he was a black African. The respondent has denied that the manner in which the complainant's remuneration was determined was in any way connected to his race. In considering the alleged discrimination in the present case, it is necessary, firstly, to examine the recruitment and pay structures that are operated by the respondent. The respondent recruits engineers at a number of different levels which is based on a Professional Career Path model (PCP) comprising of five different levels, namely Trainee Engineer (PCP level 1), Engineer (PCP level 2), Senior Engineer (PCP level 3), Master Engineer (PCP level 4) and Principal Engineer (PCP level 3). The respondent gave evidence that following the interview of a potential employee (for the position of Engineer or Senior Engineer) the interview panel assesses the candidate based on their interview and CV and decides whether they should progress to a hiring status. If there is a hiring decision the interview panel decides on the most appropriate PCP level that matches with the candidates' experience and interview performance. A hiring recommendation includes an assessment by the interview panel as to whether the candidate should be pitched at the minimum, mean or maximum salary levels of the appropriate PCP level as input to determine the salary offer. The HR Manager then recommends a salary offer for the candidate to the Hiring Manager based on 1) the interview panel recommendation and 2) benchmarking the candidate's profile against the salary reference points of the appropriate grade. The candidate is then presented with the offer of employment based on a salary that has been determined by virtue of the aforementioned factors.
5.10 The respondent adduced evidence that it operates a salary policy which is determined by way of performance based pay. The respondent benchmarks its salary policy both locally and internationally within Ericsson and individual employees are assessed and evaluated to determine a profile for salary review. The respondent submitted that twenty per cent of employees do not participate in performance based salary reviews. These employees are trade union represented and their salary has been governed by national wage agreements. The respondent confirmed that all employees (including the complainant and the two named comparators) were free to join a trade union. However, for the purposes of my investigation in the present case it was accepted that the complainant and the two named comparators participated in performance based salary reviews. The PCP salary reference points (namely, the minimum, mean and maximum points) are established for all PCP levels periodically by taking the average salary for each level and subtracting two standard deviations to calculate the minimum value and by adding two standard deviations to calculate the maximum value. The table below details the minimum, mean and maximum salary reference points values for Engineer (PCP level 2) and Senior Engineer (PCP level 3) for the years 2006 to 2009.
PCP Level Year Minimum Mean Maximum
PCP Level 2 2006 25,000 35,047 45,000
2007 28,900 37,700 46,500
2008 30,000 38,656 46,600
2009 26,700 36,059 45,500
PCP Level 3 2006 35,500 47,713 60,000
2007 37,000 48,977 61,000
2008 38,800 51,475 62,800
2009 36,800 50,152 63,500
It should be noted that the complainant was employed as an Engineer during the period from January, 2006 to July, 2006 and was promoted to the grade of Senior Engineer in July, 2006. He then worked as a Senior Engineer until his employment terminated in January, 2009. Both of the named comparators (Mr. A and Mr. B) were employed as Senior Engineers (PCP level 3) during the relevant comparison periods for the purposes of my investigation in the present complaint (i.e. January, 2006 to January, 2009).
5.11 The respondent submitted that employee performance is formally assessed by the direct line manager twice per year and that performance assessment is conducted in accordance with a performance management process called Individual Performance Management (IPM). The respondent submitted that it rewards performance through its salary policy and that the overall performance rating of the employee is taken into account in determining an individual salary review. The respondent stated that individual evaluation of employees' performance is based on the following factors, namely: IPM evaluation for the current year; sustained performance over two or more years; business critical skills and knowledge; future potential within the company; remuneration package versus current role; salary penetration of the range for the PCP level.
5.12 It is in the context of the abovementioned pay structure which was operated by the respondent that I will now proceed to consider the respondent's arguments that there were grounds other than race for the differential in the rates of remuneration that were paid to the complainant and the two named comparators (Mr. A and Mr. B).
5.13 The complainant commenced employment with the respondent in November, 2004 and he was recruited as an Engineer (PCP level 2). He was afforded a salary of €37,000 at that juncture which was in the mean to maximum range of the Engineer (PCP level 2) grading structure within the respondent organisation. The complainant was promoted to the grade of Senior Engineer (PCP level 3) on 1 July, 2006 and he remained at this grade until his employment was terminated in January, 2009. The table below details the complainant's salary progression in relation to the annual salary budget during the period of his employment:
Grade Salary Complainant Budget
30/11/2004 PCP L2 €37,000
01/04/2005 PCP L2 €38,118 3.02% 2.00%
01/01/2006 PCP L2 €39,262 3.00% 3.00%
01/07/2006 PCP L3 €40,833 4.00%
01/01/2007 PCP L3 €43,000 5.31% 3.00%
01/01/2008 PCP L3 €45,800 6.51% 3.50%
23.78% 11.50%
Differential in pay between the complainant and Mr. A
5.14 The complainant's representative confirmed at the oral hearing that he was relying upon Mr. A as the appropriate comparator for the period from July, 2006 until January, 2009 (i.e. the date upon which the complainant's employment terminated). Mr. A joined the respondent company in 1994 and he was promoted to the grade of Senior Engineer (PCP level 3) in 1997. At the beginning of the comparison period Mr. A was on a salary of €55,194 (€17,076 more than the complainant) and at the end of the comparison period Mr. A was on a salary of €60,019 (€14,719 more than the complainant). It is clear that both the complainant and Mr. A were operating within the same grade, namely as Senior Engineers (PCP level 3) during the course of the comparison period. The respondent has argued that Mr. A had performed at a very high level in the Senior Engineer Grade for a period of approx. nine years more than that of the complainant and that he was remunerated in accordance with the performance based pay structure based on his performance and value to the company. In considering the alleged discriminatory treatment in relation to rates of remuneration paid to the complainant and Mr. A, I have taken note of the judgement of the European Court of Justice in the case of Cadman -v- Health and Safety Executive where it was held that:
"Since, as a general rule, recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better, the employer does not have to establish specifically that recourse to that criterion is appropriate to attain that objective as regards a particular job, unless the worker provides evidence capable of raising serious doubts in that regard"
5.15 Having regard to the evidence adduced, I accept the respondent's evidence that the reason Mr. A was remunerated at a higher level than the complainant was due to the fact that he had been operating at a very high level within the Senior Engineer Grade (PCP level 3) for a substantially longer period than the complainant. I am satisfied that the remuneration which was afforded to both the complainant and Mr. A was in keeping with the established performance based pay structure that was operated by the respondent. The complainant has not adduced any evidence from which I could reasonably conclude that the application of the performance based pay structure was applied to him in a discriminatory manner on the grounds of his race. It is clear from the evidence adduced that the complainant was progressing up the pay scale for the Senior Engineer grade and that the percentage salary increases that he received during the comparison period were greater than that received by Mr. A. In the circumstances, I find that the differential in remuneration between the complainant and Mr. A was attributable to the aforementioned factors rather than the complainant's race.
5.16 I have also taken into consideration the evidence adduced by the respondent that there were seventy two Senior Engineers (PCP level 3) of Irish nationality, working within the company in December, 2008, who were earning less remuneration than the complainant. It is clear from this evidence that a significant number of these workers were operating within the Senior Engineer grade for longer periods of time than the complainant but nevertheless were earning lower salaries than him at that juncture. I am satisfied that this evidence is corroborative of the respondent's contention that its performance based pay structure is applied in a non-discriminatory manner to all employees regardless of their race or nationality. In light of the foregoing, I find that the respondent has demonstrated to my satisfaction that the difference in the rate of remuneration that was paid to the complainant and Mr. A is genuinely attributable to grounds other than race. Accordingly, the respondent is entitled to avail of the defence set out in section 29(5) of the Acts.
Differential in pay between the complainant and Mr. B
5.17 The complainant's representative confirmed at the oral hearing that he was seeking to rely upon Mr. B as the appropriate comparator for the period from January, 2006 to July, 2006. In considering this issue, I note that Mr. B, who is of Swedish nationality, commenced employment with the respondent in August, 2004 (approx. three months before the complainant). He was recruited by the respondent at the grade of Senior Engineer (PCP level 3) and he was afforded a salary of €46,000 upon the commencement of his employment. The respondent adduced evidence that Mr. B was recruited as a Senior Engineer on the basis that he had key competencies (Clearcase administration and Product build) which were difficult to find in the employment market and were also highly paid in the market. I am satisfied from the documentation submitted by the respondent from the interview which was carried out with Mr. B at the time of his recruitment in 2004 and from his CV that he was in possession of these key competencies. It is clear that the complainant was operating at the Engineer grade (PCP level 2) whereas Mr. B was operating at the more senior level of Senior Engineer Grade during the course of the comparison period.
5.18 Having regard to the evidence adduced, I am satisfied that the reason why Mr. B's remuneration was higher than that of the complainant's during the comparison period was directly attributable to the fact that he was operating at a more senior level to the complainant within the respondent organisation. In the circumstances, I find that the differential in remuneration was attributable to this fact rather than the complainant's race. In light of the foregoing, I find that the respondent has demonstrated to my satisfaction that the difference in the rate of remuneration that was paid to the complainant and Mr. B is genuinely attributable to grounds other than race. Accordingly, the respondent is entitled to avail of the defence set out in section 29(5) of the Acts.
Other Issues
5.19 The complainant claimed that he was informed by Mr. C, his direct Line Manager, during the course of his Individual Performance Management (IPM) meeting in March, 2008 that his salary was the lowest in comparison to colleagues who were doing like work. The complainant claimed that this is further evidence that he was being subjected to discrimination on the grounds of his race in terms of his remuneration. Mr. C gave evidence at the oral hearing and he disputes the complainant's contention that he made the aforementioned remarks to the complainant during the IPM meeting in March, 2008. Mr. C accepted that he had a discussion with the complainant regarding his salary but that this was in the context of improving his competencies so that he could progress to the next level within the company. Having regard to the evidence adduced, I prefer the respondent's evidence in relation to this issue and I am satisfied that it represents a more accurate account of the nature of the discussions that took place between the complainant ad Mr. C regarding his remuneration. In any event, I am satisfied that the complainant has not adduced any evidence to suggest that any discussions which he had with Mr. C regarding his remuneration were in any way tainted by discriminatory intent on the grounds of his race.
6. DECISION
6.1 In view of the foregoing I find that the complainant performs 'like work' with the named comparator (Mr. A) in terms of Section 7(1)(c) of the Employment Equality Acts 1998 and 2004.
6.2 I also find that the respondent has demonstrated to my satisfaction that the difference in the rates of remuneration paid to the two comparators (Mr. A and Mr. B) and the complainant is genuinely attributable to grounds other than race. Accordingly, the respondent is entitled to avail of the defence set out at section 29(5) of the Employment Equality Acts.
__________________
Enda Murphy
Equality Officer
28th October, 2011