DEC-E2012-120- Full Case Report

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

EQUALITY OFFICER'S DECISION DEC-E2012-120

PARTIES

Vivienne Conlon

AND

HSE

File reference: EE/2010/201
Date of issue: 11 September 2012

HEADNOTE
Employment Equality Acts - Gender - Equal Pay.

1. DISPUTE

1.1 This dispute concerns an equal pay claim by Ms Vivienne Conlon that she performs 'like work' in terms of section 7 of the Employment Equality Acts with a named comparator and she is therefore entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 19 of the Acts. The claim is made on the grounds of gender and the named respondent is the Health Services Executive (HSE).

1.2 The complainant referred her claim to the Director of the Equality Tribunal on 25 March 2010. On 26 June 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 which date my investigation commenced. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing on 4 September 2012.

2. COMPLAINANT'S SUBMISSION

2.1 The complainant has been employed by the respondent, then the South Western Area Health Board, as a Social Care Worker since August 2004. From June 2005 she has worked at Alberg House which is managed by Community Services Dublin South West.

2.2 The complainant submits that under her conditions of employment she is entitled to a number premium payments for working unsocial hours. However, until 1 July 2010 she received no payments to which she was entitled for working 'twilight hours'. She was paid this allowance from 1 July 2010 but received no arrears of payment.

2.3 The complainant submits that other groups of Social Care Workers received this payment from 2004 onwards. The comparator, Mr Duncan Slater, is a male Social Care Worker who has received this payment since 2004.

2.4 The complainant submits that that she is seeking equal pay with Mr Slater from 2004 until 30 June 2010.

3. RESPONDENT'S SUBMISSION

3.1 The respondent confirms that the complainant was employed by the South Western Area Health Board as a Social Care Worker from 3 August 2004 and on 8 June 2005 transferred to Alberg House which is managed by Community Services Dublin South West.

3.2 The comparator was employed from 22 October 2001 by the South Eastern Health Board. He works as a Social Care Worker in Beech Lodge which is managed by Wexford Community Services, HSE South.

3.3 The twilight hours unsocial hours premium of time and 1/6th applies to hours worked between 6pm and 8pm or until the end of the shift. The application of this premium to Social Care Workers was recommended by the Report of the Export Group on Various Health Professionals (2000). The sanction for payment of the premium was set out in Department of Health and Children Circular 28/2004, issued on 25 August 2004.

3.4 Payment of this premium was sanctioned for Alberg House on 1 July 2010. Prior to that date the sanction had not been paid to any of the Social Care Workers in any of the 11 children's residential centres in the former South Western Area Health Board due to funding issues. It was decided that arrears dating back to the sanction in August 2004 would not be paid because of budgetary constraints facing the HSE.

3.5 Social Care Workers in Beech Lodge, where the comparator works, have been in receipt of the unsocial hours premium since 2004, regardless of gender.

3.6 The respondent raised a preliminary issue that the complainant and the comparator were both employed prior to the establishment of the HSE in January 2005 and therefore had different employers when the payment of the twilight hours allowance was sactioned.

3.7 The respondent raised a further preliminary issue that the complainant is unable to establish primary facts from which discrimination on the grounds of gender may be inferred. In 2010 the breakdown of Social Care workers in the HSE, the complainant's work place and the comparator's workplace are as follows:

Thus showing the Social Care Worker grade to be predominantly female in all areas, including that of the male comparator.

3.8 The respondent accepts that the complainant and the comparator perform like work within the meaning of section 7 (1) of the Employment Equality Acts but submits that in accordance with section 19 (5) of the Acts there are grounds other than gender for the difference in payment of the twilight hours premium. The non payment in 2004 in the South Western Health Board area was due to financial constraints. The non payment of arrears, estimated at €2.264 million, when the payment was approved from 1 July 2010 was again due to financial constraints. The non payment was not related to gender as all Social Care Workers in that area, both male and female, were impacted in the same way.

3.9 The difference in treatment of the social care workers in Alberg House and Beech Lodge was due to the fact they were under separate employers at the time the sanction for payment of the premium was issued. The respondent submits that Mr Slater is not an appropriate comparator and an appropriate comparator would be a male social care worker employed in Alberg House or in a residential centre in the former South Western Area Health board..

4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The HSE was established in January 2005 and both the complainant and the comparator were employed by different Health Boards before that date. The respondent therefore contends they had different employers at the time the payment of the twilight hours premium payment was sanctioned in August 2004.

4.2 Section 2 of the Acts states: "''employer'', subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment" and subsection (2) states: "For the purposes of this Act, two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control." Whilst the complainant and the comparator may have worked under contracts with different Health Boards they were clearly bodies over which a third person (Department of Health) had control until January 2005 when they both worked for the one body, the HSE.

4.3 The Labour Court in Determination No DEP993, Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union stated; "In this case, the difference in remuneration between the claimants and the comparators derives from the grading structure operated by the respondent. Therefore a case of direct discrimination does not arise." In this claim whilst the complainant and the comparator are in the same grade the decisions which led to them receiving a difference in pay, i.e. whether they did or did not receive the twilight hours allowance premium, were not taken for them as individuals. The decisions were taken because they belonged to particular groups; Social Care Workers in the particular area they worked. I therefore conclude that this is not a claim of direct discrimination and I am investigating a claim of indirect discrimination.

4.4 Section 19 (4) (a) of the Acts states: "Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer." In this claim the alleged discrimination occurs between different groups and he UK Court of Justice in Enderby v Frenchay Health Authority, C-127/92, [1991] IRLR 43, stated;
"Where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer to show that the difference is based on objective justification unrelated to any discrimination on grounds of sex."
This was interpreted by the Labour Court in the Irish Aviation Authority case, as:
"The Court accepts that the degree of gender imbalance referred to in Enderby must be considered in the context of the material facts of that case as set out in the reference by the Court of Appeal in England and Wales. It does, however, indicate that the Court of Justice considered that the degree of gender imbalance in both the claimant and the comparator grade must be particularly marked before a prima-facie case of discrimination can arise."

4.5 The gender breakdown of the complainant's group is approximately, 75% female and 25% male and is therefore predominantly female. The comparator's group is 95% female and is exclusively female apart from the comparator. This clearly cannot be taken to be predominantly male and I therefore find that the complainant is unable to establish a prima facie case of indirect discrimination.

5. DECISION

I have investigated the above issues and make the following decision in accordance with section 79 of the Acts that as the complainant has failed to establish a prima facie case of discrimination and her equal pay claim on the gender ground fails.

____________________
Hugh Lonsdale
Equality Officer
11 September 2012