DEC-E2013-185

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS

Decision DEC-E2013-185

PARTIES

Caroline Dempsey

v

Revenue Commissioners

(Represented by Anthony Kerr B.L. instructed by Revenue Solicitors)

File reference: EE/2010/689

Date of issue: 18th December 2013

Keywords: Employment Equality Acts: Sections 6(1) – less favourable treatment, 6(1)(c) – family status, Section 7 & 29 – equal pay, Section 8 - conditions of employment, Section 86- collective agreement Section 77 –time limits, Correct respondent in relation to collective agreement - Section 86(2)(c), no jurisdiction.

1. Dispute

1.1 This dispute concerns complaint by Ms. Caroline Dempsey (hereinafter the complainant) that she was subjected to discriminatory treatment by The Revenue Commissioners (hereinafter the respondent) on the family status ground in terms of Section 6 of the Act of the Employment Equality Acts and contrary to Section 8 in relation to conditions of employment and in relation to a collective agreement. She is also claiming equal pay in terms of Section 7 and contrary to Section 29 of that Act.

2. Background

2.1 The complainant referred complaints under the Employment Equality Acts to the Equality Tribunal on the 15th September 2010, alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on the 7th January 2013 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 21st March 2011 and from the respondent on the 9th June 2011. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 23rd May 2013.

3. Summary of the Complainant’s case

3.1 The complainant is a civil servant and was employed by the respondent as a departmental clerical assistant in the Revenue Commissioners. She was subsequently promoted to tax officer and then to higher tax officer. Shortly after this promotion she applied for a career break to care of her two young children. Her application was successful and she commenced her career break on the 20th March 2002. She was granted yearly extensions of her career break until 2007 when she was informed that she would be granted no further extensions as she had exhausted her entitlements under the career break scheme. She returned to work on the 26th of March 2007 and she was now classified as an EO. She discovered that her colleagues were on a higher pay scale to her as a result of an agreement reached with the unions and the Revenue Commissioners on the integration of the grading structure of department’s tax grades with the general civil service grading structure. As a result of the agreement all staff, with the exception of employees on career breaks, received an annual personal to holder payment (APTHP) with effect from the 1st of January 2003 (Integration Day). She said that she is not a member of the union and therefore not party to the Agreement.

3.2 The complainant was on a career break on the operative date and therefore ineligible. She submits that the difference in pay is substantial and at the top of the scale it amounts to up to €5,000 per annum. She said that she is on point 10 of the Executive Officer scale and an Executive Officer on the same point with the APTHP would get an extra €1,325 per annum. The complainant submits that she was discriminated against on the family status ground in that she took a career break to mind her young children. She believes that the respondent should have informed her of the Agreement and that they failed in their duty to update her. She said that the respondent holds itself up as a family friendly employer and they failed to tell her that she had to be in service on Integration Day, otherwise she would not get the APTHP. She said the agreement was discriminatory on the family status ground in that it excluded staff on career breaks for family reasons from the payment. She submitted that she was on career break because she had two young children. She further submitted that she is aware of one officer (Ms. A) on career break and she was informed of the payment and she was allowed to return early from career break so that she was present on Integration Day and benefits from the payment. She states that she is entitled to equal pay with 5 name comparators who are all executive officers and the same grade as she is but they are paid the APTHP because they were present on Integration Day.

4. Summary of the Respondent’s Submissions

4.1 The respondent stated that they were in negotiations with the unions for a number of years, starting in 1999, on the grading structure of staff in the Office of the Revenue Commissioners, and the recertification of the Departmental Taxes grades as General Service grades. An agreement was reached with the all of the unions involved (namely AHCPS, IMPACT, PSEU and CPSU) and signed by the by the respondent and the General Secretary of these unions in October 2002 and ratified by the Department of Finance. It is known as the Integration Agreement. The agreement provided for an Integration Day (1st of January 2003) and that the General Service grading structure and the Departmental Taxes grading structure would be integrated into a single integrated grading structure based on the general service grades and conditions of employment on that day. The Agreement covered all areas of the employees’ conditions of employment including pay and regrading, for example it provided that staff at higher tax officer grade (the complainant’s grade) would be recertified as an executive officer on the same pay scale and same terms and conditions as an executive officer on the 1st of January 2003 (Integration Day). Section 10 of the agreement provided for promotions/upgradings and payments to officers serving on Integration Day in recognition of the unique circumstances arising for officers on that day and this provided for the APTHP payments. A person only got an APTHP payment if they were not selected for promotion/regarding to higher scales. The Integration and Restructuring Implementation Team issued Operational Guidelines for these payments. The payment represents an additional payment on top of salary paid each year to staff serving on Integration Day. The Agreement provided that officers on career break on Integration Day did not qualify. If an officer had requested a return from career break before Integration Day and the respondent was unable to accommodate them they would receive the payment on return.

4.2 The complainant was on career break from 12 March 2002 until the 26th of March 2007 and did not qualify for the payment on her return because she was not serving on the 1st of January 2003. She applied for a career break for child care reasons. She did not tick the box on her application form which would allow the respondent to inform her of promotion competitions etc while she was on career break. Therefore she could not be informed of the developments in relation to the Integration Agreement. The respondent submits that the complaints are out of time in terms of section 77(5) of the Acts, as the complainant returned to work on the 26th of March 2007 and the complaint was not received by the Equality Tribunal until the 15th of September 2010. It was submitted that the time limit started to run on the date of her return to work. In addition the respondent submits that the complainant has not made it clear whether it is an equal pay or equal treatment case. It submits that it is an equal treatment case under the Acts and I was referred to the jurisprudence of the CJEU in the case of Defrenne v Sabena No. (3) [1978) 149/77 E.C.R.1365 and Burton v British Railways Board [1982] 19/81, E.C.R.555. In applying this jurisprudence it was submitted that the complaint, is one which relates to conditions of employment. The fact that the complainant was not in service on Integration Day had financial consequences for her, but it is not sufficient to bring her complaint within an equal pay claim. The respondent further submitted that the complaint is time barred in relation to any complaint she has in relation to conditions of employment.

4.3 It was also submitted that the complainant was incorrect when she stated that the respondent allowed a woman (Ms. A) on career break to return early so that she was present on Integration Day and could avail of the APTHP payment. Ms. A was on a promotion panel and returned from her career break to take up the post and this is allowed under the terms of the career break scheme. Therefore Ms. A complied with the terms of the scheme and received the APTHP scheme. It was also submitted that there were 259 staff that did not get the payment because they were on a career break and of these 132 were on career break for family reasons, but it is not possible to determine how many of these had children. The respondent further submits that the complainant has not established a prima facie case of discrimination and that she has not established that a person with a different family status was treated differently to her.

4.4 The respondent stated that the complainant has raised an issue in relation to a collective agreement as to whether paragraph 10(1) of the agreement between the respondent and the three named trade unions is discriminatory on the family status ground. The Equality Officer’s attention was drawn to section 86 of the Employment Equality Acts which provides for a discrete procedure whereby a collective agreement may be referred to the Director. I was referred to the Labour Court decision in the case of the Department of Finance and Collins and others Det. No. EDA068. The respondent submitted that the complainant has failed to properly bring her claim in accordance with Section 86 of the Acts. The respondent submits that the provision of Section 86 of the Acts clearly indicate that the correct respondents to any such claim must include the unions who entered into the agreement on behalf of their members (namely AHCPS, IMPACT, PSEU and CPSU).

5. Conclusions of the Equality Office

5.1 The issues for decision by me are:

(i) whether the complainant was discriminated against by the respondent on family status ground in terms of Section 6 of the Acts and contrary to 7 of those Acts in relation to equal pay and Section 8 as regards conditions of employment

(ii) whether the complainant was discriminated against in relation to a collective agreement under Section 86 in terms of Section 9 (2) of the Acts

In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties. However before making a decision on the substantive issues I must be satisfied that the complaints are properly and validly before me.

5.2 The first matter I have to consider is whether the complaint is an equal pay or equal treatment complaint in relation to conditions of employment.

The equal pay provisions of the Act are contained in the following sections of the Acts:

“7.—(1) Subject to subsection (2), for the purposes of this 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 regard to such matters as

skill, physical or mental requirements, responsibility and

working conditions.”

“29.—(1) It shall be a term of the contract under which C is

employed that, subject to this Act, C shall at any time be entitled to

the same rate of remuneration for the work which C is employed to

do as D who, at that or any other relevant time, is employed to do

like work by the same or an associated employer.”

Section 8 of the Acts deals with conditions of employment and provides as follows:

“8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective

employee and a provider of agency work shall not discriminate

against an agency worker.

(2) For the purposes of this Act, neither an employer nor a provider

of agency work shall be taken to discriminate against an agency

worker unless (on one of the discriminatory grounds) that agency

worker is treated less favourably than another agency worker is, has

been or would be treated.”

……………….

And Section 8(6) provides:

“Without prejudice to the generality of subsection (1), an

employer shall be taken to discriminate against an employee or prospective

employee in relation to conditions of employment if, on any

of the discriminatory grounds, the employer does not offer or afford

to that employee or prospective employee or to a class of persons of

whom he or she is one—

(a) the same terms of employment (other than remuneration

and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short

time, transfers, lay-offs, redundancies, dismissals and disciplinary

measures,

as the employer offers or affords to another person or class of persons,

where the circumstances in which both such persons or classes

are or would be employed are not materially different.

(7) Without prejudice to the generality of subsection (1), an

employer shall be taken to discriminate against an employee in

relation to training or experience for, or in relation to, employment

if, on any of the discriminatory grounds, the employer refuses to

offer or afford to that employee the same opportunities or facilities

for employment counselling, training (whether on or off the job) and

work experience as the employer offers or affords to other

employees, where the circumstances in which that employee and

those other employees are employed are not materially different.

5.3 It is clear from the above cited sections that Section 8 prohibits discrimination in relation to all aspects of an employee’s conditions of employment except remuneration and pensions. This is a wide ranging Agreement integrating the Departmental Taxes grading structure with the General Service grading structure of the Civil Service providing new terms and conditions of employment for the staff and the APTHP payment was only one aspect of this Agreement. I note that Section 8 cited above prohibits discrimination in relation to conditions of employment including regarding

5.4 I note that in the Defrenne case cited above, the CJEU said in answer to a question on the interpretation of the scope of Article 119 (now Article 157) of the EU Treaty:

“Article 119 of the EEC Treaty, which is limited to the question of pay discrimination between men and women workers, constitutes a special rule, whose application is linked to precise factors. It cannot be interpreted as prescribing, in addition to equal pay, equality in respect of the other working conditions applicable to men and women.

The fact that the fixing of certain conditions of employment – such as a special age-limit – may have pecuniary consequences is not sufficient to bring such conditions within the field of application of article 119, which is based on the close connection which exists between the nature of the services provided and the amount of remuneration.”

5.5 In the case of Arthur Burton v British Railways Board cited above the Court in interpreting the application of a redundancy scheme held: “Consequently the question of interpretation which has been referred to the court concerns not the benefit itself, but whether the conditions of access to the voluntary redundancy scheme are discriminatory. That is a matter covered is by the provisions of Directive 76/207 to which reference was made by the national court, and not by those of article 119 of the Treaty or Directive 75/117.”

5.6 In more recent cases the CJEU considered the issue. In the case of Erika Steinicke v Bundesanstalt fur Arbeit C-77/02 it considered whether a scheme of part-time work for older employees falls within the scope of the Directive 76/207 or whether it falls under the scope of Article 141 and the Directive 75/117 stated at paragraph 50 and 51:

“ It must therefore be held that the scheme in question in the main proceedings lays down rules concerning working conditions within the meaning of Article 5(1) of Directive 76/207.

51. The fact that joining that scheme may have pecuniary consequences for the worker concerned is not sufficient to bring such conditions within the scope of Article 141 EC or of Directive 75/117, those provisions being based on the close connection which exists between the nature of the work done and the amount of the worker ' s pay (see, to that effect, the judgments in Case C-236/98 JämO [2000] ECR I-2189, paragraph 59, and Case C-476/99 Lommers [2002] ECR I-2891, paragraph 28).”

In the case of Nicole Wippel v Peek & Cloppenburg GmbH & Co. KG C-313/02 the CJEU, in considering whether the issue referred came under the equal treatment Directive 76/207 or Article 141 EC and the equal pay directive 75/117, stated at paragraph 30 - 33:

“the contract at issue affects the pursuit of occupational activity by the workers concerned by scheduling their working time according to need.

31 Accordingly, it must be held that such a contract lays down rules concerning working conditions within the meaning of, in particular, Article 5(1) of Directive 76/207.

32 Moreover, those rules on working conditions also come within the scope of the concept of employment conditions for the purposes of Clause 4(1) of the Framework Agreement annexed to Directive 97/81.

33 The fact that that type of contract has financial consequences for the worker concerned is not, however, sufficient to bring such conditions within the scope of Article 141 EC or of Directive 75/117, those provisions being based on the close connection which exists between the nature of the work done and the amount of the worker’s pay (see, to that effect, Case C-77/02 Steinicke [2003] ECR I-9027, paragraph 51).”

5.7 I note that in the negotiated Agreement which provided for the integration into a single integrated grading structure, the Department’s taxes grade in the Revenue Commissioners with the General Service grading structure and this agreement set out the new terms and conditions including the pay structure, promotions/upgrading and special payments (APTHPs) applied to all staff. However, in order to receive an APTHP payment the staff member had to be in service and not on a career break on the Integration Day. All the other conditions concerning integration and regrading applied to staff on return from career break. The complainant was on a career break and was deemed ineligible for the payment on her return. In applying the jurisprudence in the above Defrenne and Burton case, I am satisfied that the condition for a staff member be in service on Integration Day and not on career break comes within the scope of section 8 of the Act and relates to equal treatment in relation to conditions of employment including regrading. I note that in the Burton case the question referred related to whether the conditions of access to a voluntary redundancy were discriminatory and the Court held that the provisions of Directive 76/207, which relates to conditions of employment, applied. While the consequences of being on a career break has pecuniary consequences for the complainant, in that an executive officer not on career break on Integration Day and on the same point 10 of the scale as the complainant will get about €1,300 more than her this year, it does not bring the complaint within the ambit of an equal pay claim as held by the CJEU in the Steinicke and Wippel cases cited above. Therefore I will investigate the matter under Section 8 of the Acts.

5.8 The next question I have to decide is whether the complaint in relation to conditions of employment was referred within the statutory time-limit of 6 months. Section 77(5) provides that the time limit runs from the date of occurrence of discrimination or ‘its most recent occurrence’. I note the complainant returned to work following her career break on the 26th of March 2007 and in my opinion the time- limit to refer a complaint started to run on that date and the 6 months expired on the 25th of September 2007. While I have power to extend the time-limit to a period not exceeding 12 months under Section 77(5)(b), the complaint was not received by the Director until the 15th of September 2010, which is over 2 years outside the statutory period and consequently this is outside the time limit set out in section 77(5). The complainant said that she was not aware of the APTHP for some 2 years later and she then referred her complaint. I find that the referral is outside the statutory period for referring a complaint. Therefore I have no jurisdiction in the matter.

5.9 I will now proceed to deal with the complaint in relation to the terms of a collective agreement and whether the term of the agreement in relation to staff on career breaks is validly before me. The respondent submitted that I have no jurisdiction in the matter as the complainant is complaining about the terms of a collective agreement which was ratified by the Department of Finance and signed off by each of the General Secretaries of the unions’ party to the agreement. I was referred to the Directors decision in the case of Collins & others v the Department of Finance DEC-E2005-046 a case involving a challenge to PPF and the Benchmarking process. In that case the Director held that there was no valid referral of a collective agreement under Section 86 of the Acts. This decision was upheld by the Labour Court. Section 86 which provides:

86.—(1) If the Authority or a person who is affected by a collective

agreement claims that a provision of that agreement is null and void

by virtue of section 9, the Authority or that person may refer the

question of that agreement to the Director; and in this section (and

section 87) the Authority or the person making such a reference is

referred to as ‘‘the complainant’’.

(2) For the purposes of this section (and section 87)—

(a) the expression ‘‘collective agreement’’ shall be taken to

include an order or agreement falling within paragraph

(b) or (c) of section 9 (3),

(b) a person is affected by a collective agreement if that person

is an employee whose remuneration or whose conditions

of employment are, in whole or in part, governed by the

agreement (or any part of it), and

(c) ‘‘the respondents’’ means the parties to the agreement,

other than (where relevant) the complainant.

5.10 Therefore it is necessary for me to consider whether this claim is properly before me in accordance with the provisions of the Acts, that is, has the complainant made a valid referral? The definition of a collective agreement in the Act is: ‘‘collective agreement’’ means an agreement between an employer and a body or bodies representative of the employees to which the agreement relates;

I am satisfied the agreement herein which was negotiated and signed by the respondent and the group of unions representing the staff is a collective agreement and comes the definition of a collective agreement in Section 2 of the Act. In order to have a valid referral of a complaint about a collective agreement under the Act that referral must comply with the procedure set out in Section 86 above. I note that the complainant has not named all the parties to the agreement in accordance with Section 86(2)(c) of the Employment Equality Act, which governs the reference of collective agreements to the Director of the Equality Tribunal and defines the definition of the respondent for the purposes of referring a collective agreement. It is clear from the evidence before me that the parties to the agreement also included the relevant trade unions which were involved in drawing up the terms of the agreement. In considering whether the complainant has named the correct respondent, I am guided by the Decision in the case of Byrne & O Hanlon v Diago DEC – E2012-048 which has similar facts to the case herein. The Equality Officer thoroughly examined the meaning of ‘respondent’ in Section 82(2)(c) and she concluded that the respondent includes ‘all parties to the agreement’ for the purposes of a valid referral to the Director She stated the following at para. 7.9 of the Decision:

“I consider that the words in Section 86(2)(c) '"the respondents" means the parties to the agreement” are plain, meaningful and specific. In this case the statutory provision is not “obscure or ambiguous.” Furthermore a literal interpretation of the provision of the Act cannot be said to be absurd. I cannot identify any justification for reaching the conclusion that a literal interpretation of the provision of the statute would fail to reflect the plain intention of the Oireachtas. Accordingly I find that I am required to construe the provision “in the ordinary and natural meaning of the words and sentences” in which it is written. Accordingly I find that in order for a reference under Section 86 to be validly before me all the parties to the agreement should be named as respondents. I find therefore that I have no jurisdiction to investigate this claim.”

5.11 The above rational is applicable to the complaint herein. It is clear therefore that the parties to the agreement include the above named respondent and the unions (AHCPS, IMPACT, PSEU, and CPSU) which the complainant has not named. I have also taken cognisance of the Director’s decision in Collins & others v Department of Finance cited above where she held that that complaint was not validly referred. Therefore the complaint, in relation to the terms of a collective agreement, has not been validly referred and I find I have no jurisdiction in the matter before me.

6. Decision

6.1 (i) I find that the complainant complaint of discrimination against the above-named respondent on the grounds of family status is one which relates to equal treatment in relation to conditions of employment and not equal pay;

(ii) I find that the complaint in terms of conditions of employment is outside the statutory time limit pursuant to Section 77(5). Therefore I have no jurisdiction to investigate the matter.

(iii) I also find that as the collective agreement was not validly referred under Section 86 of the Employment Equality Acts and I have no jurisdiction in that matter.

________________

Marian Duffy

Equality Officer

18th December 2013

DEC-E2013-185