DEC-E2013-041- Full Case Report

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC-E2013-041

Sharon Brierton
(represented by Mary Honan B.L. instructed by Geraldine Hynes, the Equality Authority)

-V-

Calor Teoranta
(represented by Peter Flood, IBEC)

File reference: EE/2006/482
Date of decision: 13th May 2013

Keywords: Employment Equality Acts, Equal pay, Age, Like work, Proportionality

Dispute

1.1 This dispute concerns a claim by Ms Sharon Brierton against her former employer Calor Teoranta that she is entitled to the same rate of remuneration as that paid to a named older comparator (Comparator Z) in accordance with the provisions of Section 29 (1) of the Employment Equality Acts 1998-2011 [hereinafter referred to as 'the Acts']. The respondent refutes her assertions.

1.2 Through her representative, the complainant referred her complaint under the Acts to the Director of the Equality Tribunal on 21st October 2006. In accordance with her powers under Section 75 of the Act, the Director delegated the case on 16th October 2008 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. An initial enquiry took place on 6th January 2009. At this initial enquiry in consultation with both parties and in accordance with Section 79 (3) of the Act, I decided to hold a preliminary investigation into whether there are grounds other than age which render the rates of remuneration paid to the complainant and comparator lawful in terms of Section 29 (5) of the Act. Investigating 'grounds other than' as a preliminary issue has been the practice of the Tribunal since its foundation as equal pay cases are often concluded at this stage. My decision on the preliminary issue issued on 19th March 2010 (DEC-E2010-034) where I found that there were not grounds other than age for the difference in pay. The respondent appealed this to the Labour Court and the Labour Court issued its determination on 27th June 2011 (Determination No. EDA1121). In its determination, the Court stated that it would be inappropriate to consider this preliminary decision until whether or not like work existed was considered at first instance.

1.3 Between the issuing of the Labour Court decision, I had sought job descriptions from both parties and proceeded to work inspections on 9th November 2011 and to the final hearing on 1st December 2011. The complainant withdrew her complaint of discriminatory dismissal and discriminatory conditions of employment before the final hearing.

Summary of the complainant's case on like work

2.1 The complainant and Comparator Z were employed as credit control clerks with the respondent. Regarding like work, the complainant submits 7 (1)(a) has some relevance in that both performed similar work under similar conditions (e.g. dealing with telephone queries, debt collection and bank reconciliations) but that 7 (1)(c) is the most relevant as she maintains that her role required greater skill, mental requirements and responsibility.

2.2 The Credit Control Department of Calor Teo dealt with appropriately 25,000 accounts. Of these accounts, the most valuable accounts were Area 5 accounts which included hospitals and government departments. The complainant submits that she dealt exclusively with these and that the comparator never worked on these accounts.

2.3 She maintains that cash reconciliation was an important area of her work which required absolute accuracy. Ms Brierton said Comparator Z never had the volume of work or level of responsibility that the complainant had regarding reconciliations. Ms Brierton also said that she had responsibility for handling direct debits while Comparator Z did not. Compiling lists of customer accounts to be terminated and following through on the terminations requires initiative and sensitivity. The complainant submits that she had responsibility for this.

2.4 Ms Brierton maintains that the work of Comparator Z was mainly limited to routine work requiring little or no initiative but simply following the instructions from the Credit Control Supervisor and following established procedures. She submits that his work primarily involved dealing with invoices with domestic customers (104lb cylinders), data input, sending out reminders and dealing with phone queries. The complainant also points out that in her contract of employment it states that she reported to the Credit Control Manager while Comparator Z's contract of employment provides that he report to the Credit Control Supervisor (who is more junior to the Credit Control Manager). For these reasons, the complainant submits that she did work of greater value to the comparator.

Summary of respondent's case on like work

3.1 The respondent points out that the complainant's position is described as 'Clerk in the Accounts Department' in her contract of employment while Comparator Z's position is called 'Credit Control Clerk' and therefore, they submit it cannot be defined as like work. Calor Teo submits that her role consisted of the administration of the direct debit system and administration of cash collection. They submit her work varied very little from day to day.

3.2 The respondent submits that Comparator Z had responsibility for budget-plan customers. These are domestic customers who chose to pay the same amount each month i.e. pay the same amount in August as December. The respondent maintains that this required mental agility and initiative e.g. to compile averages and monitor gas usage throughout the year. Comparator Z had to ensure that customers were paying the correct amount for gas consumed. If not, he would have to contact the customer and renegotiate a new amount per month.

3.3 According to Calor Teo, Comparator Z also had responsibility for conflictual situations e.g. when the customer was overcharged or had been disconnected. This would involve liaising with the sales representative to discuss the rate charge etc.

Conclusions of the Equality Officer

4.1 Section 29 (1) of the Act provides that where C and D represent two people of the different ages it shall be a term of the contract under which C is employed that C shall at any time be entitled to the same rate of remuneration for the work C is employed to as D who, at that or any other relevant time, is employed to do like work by the same or associated employer.

4.2 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 Comparator Z 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), I will also consider whether roles constitutes the roles of Ms Brierton and Comparator Z constitute like work as per that subsection.

4.3 To do this, I compiled job descriptions for both Ms Brierton and Comparator Z:

Job description for Ms Brierton

• Responsible for receipt of payments regarding Area 5 accounts which included hospitals and the Defence Forces. Income from these accounts was approximately €200,000 per month.
• Maintaining the direct debit system. Setting up customers' direct debits on Calor Teoranta's information system, sending direct debit mandates to the banks, making amendments to same, implementing cancellations of direct debits, dealing directly with customers and banks. Following up on unpaid direct debits. Ms Brierton dealt with 25/30 direct debits per day.
• Terminating accounts - compiling list of customers in arrears and following through on terminations
• Cash reconciliation - checking remitances from the cash office and comparing with Calor Teoranta's bank statements- approximate €2 million per month
• Dealing with telephone queries from sales representatives, and customers.
• Cover reception on a relief basis

Job description for Comparator Z

• Dealing with budget plan which involved compiling averages, ensuring customers were paying enough, contacting customers if they were not
• Contacting domestic (104lb cylinders) customers who were in arrears
• Debt collection from small businesses
• Cash reconciliation on an occasional basis i.e. comparing payments from the cash office with the credit control department's scrolls
• Dealing with queries from sales representatives and customers

4.4 Skill:

I find the skills required by the complainant as Comparator Z as equal. Skills required were numeracy, organisational skills as well as emotional intelligence i.e. knowing when to apply pressure to customers in arrears and when not to.

Physical or Mental Requirements:
Similar levels of physical effort were required for both positions. Neither the complainant nor comparator had any physical demands in their position over and above what would be normal for a person carrying out office duties. I find that that the mental demands made on the complainant were equal to Comparator Z. Great concentration and attention to detail was required for the reconciliation work done by complainant. Similarly, budget planning was mentally challenging as it involving projecting how much customers were likely to spend in a year.

Responsibility:
The monetary value of Area 5 and sensitive accounts was significantly higher than domestic and small business customers. This was acknowledged by the respondent. There were simply far greater implications if a credit control mistake was made in relation to one of these accounts rather than a similar mistake made on a domestic account or even for a group of 20 domestic/SME accounts for Calor Teo. Therefore, I find that there is greater responsibility associated with the work performed by Ms Brierton than Comparator Z. This is reflected in the fact that she reported directly to the Credit Control Manager while he reported to the Credit Control Supervisor.

Working Conditions:
Comparator Z had an extra day of annual leave to the complainant by the time she resigned from Calor Teo but I regard this difference as negligible.

4.4 The Labour Court point out that 'it is well settled that the law does not require a mathematical exactitude of equality between jobs before they can be regarded as equal in value under Section 7 (1) (c ) of the Act.'¹ I find that the demands made on the complainant as a Credit Control Clerk in terms of skill, physical or mental requirements, responsibility and working conditions are equal to the demands made on Comparator Z in the same role. I, therefore, find that Ms Brierton performs 'like work' with Comparator Z in terms of Section 7(1)(c) of the Act.

4.5 As both roles were interchangeable with each other e.g. Comparator Z did cash reconciliation on an occasional basis and Ms Brierton did budget planning on an occasional basis and both took telephone queries, I find that Ms Brierton also performed like work under 7 (1) (a) with Comparator Z.

4.6 Turning to redress, one of the issues before the CJEU in Enderby was to what extent market forces could justify a pay differential:
27. If as the question referred seems to suggest, the national court has been able to determine precisely what proportion of the increase in pay is attributable to market forces, it must necessarily accept the pay differential is objectively justified to the extent of that proportion. When national authorities have to apply community law, they must apply the principle of proportionality. [my emphasis]
28. If that is not the case, it is for the national court to assess whether the role of market forces is determining the rate of pay was sufficiently significant to provide objective justification for part or all of the difference.²

4.6 Following Enderby, in DEC-E2010-034 I said that the respondent can reward experience as well as using the market forces justification as grounds other than age for the proportion of the salary differential that is based on the going rate for the respective level of experience of the complainant and Comparator Z. However, it cannot use either the experience or the market forces justification as grounds other than age for the remainder of the pay differential. The table below shows the differences in salary between Ms Brierton and Comparator Z:

* Recruitment agency recommended salary of €27,000 to €28,000
** Recruitment agency recommended salary of €30,000 (excluding bonus) to €35,000
*** Both Ms Brierton and Comparator Z received company performance bonuses i.e. it depended on the company's aggregate performance rather than individual performance.

Even though the recruitment consultant, in an email sent on 4th May 2005, recommended that a Credit Control clerk with similar experience to Ms Brierton be paid between €27,000 and €28,000, Calor Teo decided to give Ms Brierton uplift to only €26,000 at this time i.e. less than the minimum recommended. However, the recruitment agency recommended that a credit control clerk with 20 years experience be paid between €30,000 and €35,000 and Comparator Z was given uplift north of the midpoint of the recommended salary. Therefore, there was a difference in the way Calor Teo treated the advice of the recruitment consultant in relation to the complainant and Comparator Z; the comparator was given a more generous salary than the recruitment consultant recommended while the complainant was given a less generous salary than recommended. This differential beyond what is recommended by the recruitment consultant cannot be justified by either market forces or more experience as the recruitment consultant took both of those into account in her recommendation. The respondent found no fault with the complainant's work. Therefore I find this differential over and above what was recommended by the recruitment consultant to be discriminatory on the ground of age. However, the Employment Equality Acts are quite blunt when it comes to awarding redress regarding equal pay. If like work is found, equal pay must be awarded i.e. levelled up. It does not allow for proportionate pay for the proportion that is discriminatory. Section 82 of the Acts provides:

82. -- (1) Subject to this section, the types of redress for which a
Decision of the Director under section 79 may provide are such one
or more of the following as may be appropriate in the circumstances
of the particular case:

(a) an order for compensation in the form of arrears of
remuneration (attributable to a failure to provide equal
remuneration) in respect of so much of the period of
employment as begins not more than 3 years before the
date of the referral under section 77(1) which led to the
decision;
(b) an order for equal remuneration from the date referred to
in paragraph (a)

4.7 The complaint was referred to the Tribunal on 21st December 2006. However she resigned on 21st June 2006 so that is the relevant date as per Section 82. Consequently the redress open for me to award is an order for compensation in the form of arrears of remuneration for a period of up to three years prior to 21st June 2006. This is to include all consideration, whether in cash or in kind, whether immediate or future provided she receives it, albeit indirectly, in respect of her employment with Calor Teoranta whether under a contract of employment, by virtue of legislation or on a voluntary basis³. This is so that the complainant is put in the position as if discrimination had not occurred:
the national courts are required to set aside that discrimination, using all the means at their disposal, and in particular by applying those provisions for the benefit of the class placed at a disadvantage, and are not required to request or await the setting aside of the provisions by the legislature, by collective negotiation or otherwise.⁴

While there is a period of six months (June 2003 to January 2004) where Comparator Z and the complainant did not work together for the respondent, Ms Brierton is entitled to bring a 'like work' complaint with a comparator even if the work is not performed contemporaneously.

Decision

5.1 I have concluded my investigation of Ms Brierton's complaint and hereby make the following decision in accordance with Section 79(6) of the Acts. I find that:

• The complainant and Comparator Z were engaged in like work within the meaning of Section 7 (1) (a) and (c) of the Acts.

In accordance with Section 82 of the Act, I therefore order that

• The complainant is entitled to arrears of remuneration constituting the difference between what she was being paid and Comparator Z was being paid from 22nd June 2003 to 21st June 2006. This is to include any other rights, entitlements or benefits (including average performance bonuses) that she would have been entitled to. As this portion of the redress is in relation to remuneration, it constitutes income for the purposes of the Income Tax Acts.

_______________
Orlaith Mannion
Equality Officer

¹ EDA 0720 Health Service Executive v 27 named complainants

² Dr Pamela Mary Enderby v Frenchay Heath Authority and Secretary of State for Health C-127/92 delivered on 27th October 1993

³ This definition of pay is included in Article 2(1)(e) of the Recast Directive: Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation Official Journal L 204 , 26/7/2006 P. 0023 - 0036

⁴ Helga Kutz-Bauer v Freie und Hansestadt Hamburg Case C-187/00 delivered on 20th March 2003