DEC-E2013-126

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision - DEC-E2013-126

PARTIES

A Complainant

and

A Company

File Reference: EE/2009/096
Date of Issue: 11th October, 2013

1. Claim

1.1 This case concerns a claim by the complainant against her employer that she is entitled to the same rate of pay as that paid to a number of named comparators in accordance with section 29(1) of the Employment Equality Acts, 1998 to 2008 and that the respondent discriminated against her on the family status and disability grounds. The respondent accepts that the complainant performs 'like work' with five of the named comparators (Comparators A to E) and rejects the complainant's assertion that she performs 'like work' with the sixth comparator (Comparator F). The respondent submits that there are grounds unconnected with the grounds of family status and disability which render the rates of remuneration paid to the complainant and all of the named comparators lawful in terms of section 29(5) of the Acts. The complainant also claims that she was subjected to discriminatory treatment by the respondent in relation to access to employment, conditions of employment and discriminatory dismissal.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of the Equality Tribunal on 9th February, 2009. On 13th October, 2010, in accordance with his powers under section 75 of that Act, 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. An initial hearing on the complaint took place on 29th June, 2011. Following the initial hearing the respondent confirmed in writing on 19th July, 2011 that it accepted the complainant performed 'like work' in terms of the Acts with five of the named comparators (Comparators A to E) and rejected the complainant's assertion that she performed 'like work' with the sixth comparator (Comparator F). However, notwithstanding the foregoing, the respondent submits that there are grounds unconnected with the grounds of family status and disability which render the rates of remuneration paid to the complainant and all of the named comparators lawful in terms of section 29(5) of the Acts. Both parties were subsequently afforded the opportunity to forward written submissions on the issue of grounds other than gender (a submission was received from the respondent on 4th August, 2011 and from the complainant on 30th August, 2011. The Equality Officer decided to investigate this matter as a preliminary issue in accordance with section 79(3) of the Acts.

2.3 The investigating Equality Officer informed the parties on 4th January, 2012 that the present case was being returned to the Director for re-assignment to another Equality Officer due to his impending departure from the Tribunal. On 12th July, 2012, in accordance with his powers under section 75 of that Act, the Director delegated the case to Enda Murphy, (following my re-appointment as 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. A joint hearing of the claim was held on 4th December, 2012 (the oral hearing had been scheduled to take place on 9th August, 2012 and 19th September, 2012 but adjournments were granted on both dates at the request of the parties). The final correspondence with the parties in relation to the claims concluded on 18th February, 2013.

3. Issue of Jurisdiction regarding claims of discriminatory treatment in relation to access to employment, conditions of employment and discriminatory dismissal.

3.1 The complainant commenced employment with the respondent as a Regulatory Affairs Officer on 1st July, 2002 and her employment terminated on 20th July, 2007. The complainant referred a complaint to the Equality Tribunal on 9th February, 2009 which contained claims of discriminatory treatment in relation to access to employment, conditions of employment and discriminatory treatment (in addition to a claim for equal remuneration with six named comparators). Based on the information contained on the Complaint Referral Form (Form EE.1) and the written submission which the complainant forwarded to the Tribunal in support of claim, the incidents of alleged discriminatory treatment in relation to access to employment, conditions of employment and discriminatory dismissal occurred during the period from 2005 to 2007. The date of the most recent occurrence of the alleged discrimination in relation to these claims was stated on the EE.1 Form as June, 2007. The complainant confirmed at the oral hearing that these dates were accurate.

3.2 Section 77(5) of the Acts provides as follows:

"(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction".

The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal. This period can be extended to twelve months in accordance with the provisions of section 77(5)(b) in circumstances where the complainant can demonstrate that there was "reasonable cause" which prevented him/her from referring the complaint within the prescribed time limits. Based on the evidence adduced in the present case, it is clear that the date of the occurrence of the most recent act of alleged discriminatory treatment in relation to access to employment, conditions of employment and discriminatory dismissal was in June, 2007 which was some 19 months prior to the date of referral of the complaint. Having regard to the foregoing, I find that I do not have jurisdiction under section 77 of the Acts to investigate the claims of discriminatory treatment in relation to access to employment, conditions of employment and discriminatory.

3.3 The claims in relation to equal remuneration are not subject to the time limits as provided for in section 77 of the Acts and accordingly, I do have jurisdiction to investigate this element of the complainant's claim. The complainant confirmed at the oral hearing of the complaint that she wished to withdraw the claims for equal remuneration on the grounds of family status. Therefore, I proceeded to investigate the complainant on the remaining ground claimed i.e. disability.

4. Summary of the Respondent's Case

Equal Pay
4.1 The respondent denies that the complainant has been subjected to discrimination on the grounds of disability in terms of her rate of remuneration. The respondent submitted that the complainant commenced employment as a Regulatory Affairs Officer on 1st July, 2002 and that her employment with the company terminated on 20th July, 2007. The respondent submitted that remuneration of workers within the Regulatory Affairs Department (i.e. the Department where the complainant worked during her period of employment with the respondent) was influenced by four main factors, namely: levels of achievement in education, previous relevant work experience on starting, market forces in recruitment and performance in the role. The respondent submitted that the complainant's salary was determined in accordance with these factors when she commenced employment in 2002 and that she received a number of pay increases during her period of employment.

4.2 The respondent accepts that the complainant performed 'like work' with five of the named comparators (comparators A to E) within the meaning of section 7 of the Acts and it acknowledged that these comparators were being paid a higher rate of remuneration. However, the respondent submits that there are grounds unconnected with the ground of disability which renders the rates of remuneration paid to the complainant and these comparators lawful in terms of section 29(5) of the Acts. The respondent submitted that any variation in the salaries that applied to the complainant and the named comparators (A to E) can be clearly attributed to the abovementioned factors. The respondent further submitted that it is clear from the supporting data which it has presented in evidence that it did not discriminate against her on the grounds of disability in terms of her remuneration.

4.3 The respondent rejects the complainant's assertion that she performs 'like work' with the sixth comparator (comparator F) and it claims that this comparator was employed at a higher level (i.e. Regulatory Affairs Manager) than the complainant (who was employed as a Regulatory Affairs Officer). Notwithstanding this, the respondent submitted that the difference in pay between the complainant and Comparator F was attributable to the different levels of responsibility connected to their respective positions.

5. Summary of the Complainant's case

Equal Pay
5.1 The complainant has a speech impediment and she claims that she has been subjected to discrimination by the respondent on the grounds of her disability in terms of her rate of remuneration. The complainant submitted that she commenced employment with the respondent as a Regulatory Affairs Officer on 1st July, 2002 and her employment terminated on 20th July, 2007. The complainant disputes the respondent's contention that her rate of remuneration was determined based on objective factors such as relevant experience and qualifications and she claims that she had equal, if not better, qualifications and experience than a number of the named comparators.

5.2 The complainant submitted that the only plausible explanation for the difference in her rate of remuneration and that paid to the named comparators was on account of her disability. The complainant submitted that she attempted to raise the issue regarding the difference in her pay and that of the comparators on a number of occasions during her period of employment; however, the respondent failed to address this issue to her satisfaction or bring her remuneration into line with that being paid to the named comparators. The complainant accepts that she received a number of pay increases during her period of employment but she claims that these pay increases did not properly reflect the levels of experience and qualifications she had within the position.

6. Conclusions of the Equality Officer in relation to the substantive issues

Equal Pay Claim
6.1 The complainant has claimed equal pay with six named comparators in accordance with section 29(1) of the Employment Equality Acts 1998 and 2008. She claims that she was discriminated against on the disability ground in relation to her pay. The issue for consideration by me is whether there were grounds other than disability for the difference in the rates of remuneration between the complainant and the six named comparators within the meaning of section 29(5) 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.

6.2 Section 29(5) of the Acts provides that ".....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 a matter 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 gender. 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" ¹. 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.

Claim in relation to Comparators A to E
6.3 I will firstly consider the claims in relation to the named comparators (Comparators A to E) who were employed in the same position as the complainant, namely as Regulatory Affairs Officers. The respondent accepts that these comparators performed 'like work' with the complainant within the meaning of section 7 of the Acts, however, it claims that there are grounds unconnected with the ground of disability which renders the rates of remuneration paid to the complainant and these comparators lawful in terms of section 29(5) of the Acts. The relevant details in relation to these comparators and the complainant for the purpose of my deliberations on this issue are set out in the table below for ease of reference.

6.4 The Labour Court has held on a number of occasions² that since the facts that are necessary to prove an explanation that a process was free from discrimination can only be in the possession of the respondent, that Court (and therefore this Tribunal) should expect cogent evidence to discharge the burden of proof placed on an employer. In considering this issue, I note that the respondent has submitted that remuneration within the Regulatory Affairs Department (i.e. the Department where the complainant worked during her entire period of employment with the respondent) was influenced by four main factors, namely: levels of achievement in education, previous relevant work experience on starting, market forces in recruitment and performance in the role.

6.5 I have found the respondent's evidence in relation to this issue to be very credible and I accept that the remuneration of workers employed by the respondent in its Regulatory Affairs Department was determined in accordance with the abovementioned factors. I am satisfied that I am supported in reaching this conclusion by the fact that the above named comparators, all of whom were employed at the same level, were paid different levels of remuneration among themselves. The respondent submitted comprehensive evidence (both written and oral) in relation to the previous experience and qualifications of the complainant and the named comparators which demonstrates that the rates of remuneration paid to them were determined in accordance with the aforementioned objective factors. I have not been presented with any evidence from which I could reasonably conclude that the complainant's disability was a factor which was taken into consideration by the respondent in determining her rate of remuneration. Having regard to the foregoing, I am satisfied that the difference in pay between the complainant and Comparators A to E was grounded on considerations which were wholly unconnected to the complainant's disability. Accordingly, I find that the respondent is entitled to rely on the defence under section 29(5) in relation to these claims.

Claim in relation to Comparator F

6.6 The complainant has also claimed that she was entitled to equal remuneration with Comparator F. The respondent rejects the complainant's assertion that she performed 'like work' with Comparator F. However, notwithstanding the foregoing, the respondent submits that there are grounds unconnected with disability which renders the rates of remuneration paid to the complainant and Comparator F lawful in terms of section 29(5) of the Acts. In the circumstances, I propose to consider, as a preliminary issue in accordance with the provisions of section 79(3) of the Acts, the arguments put forward by the respondent on 'grounds other than disability' in respect of the period of time within which equal remuneration is claimed with the Comparator F.

6.7 In considering this issue, I am satisfied from the evidence adduced that the complainant was working as a Regulatory Affairs Officer during the comparison period whereas Comparator F was working as a Regulatory Affairs Manager. I accept the respondent's evidence which clearly confirms that Comparator F was operating at a higher level and in a more senior position within the organisation than the complainant during the comparison period. It is clear from the evidence adduced that the remuneration of both the complainant and Comparator F was determined in accordance with the seniority of their respective positions within the respondent's organisation. Having regard to the evidence adduced, I am satisfied that the reason why Comparator F's remuneration was higher than that of the complainant's during the comparison period was directly attributable to the fact that she 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 disability. 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 Comparator F is genuinely attributable to grounds other than disability. Accordingly, the respondent is entitled to avail of the defence set out in section 29(5) of the Acts.

7. Decision

7.1 On the basis of the foregoing, I find that there are grounds other than disability for the difference in pay between the complainant and all of the named comparators (Comparators A to F) in accordance with section 29(5) of the Acts. Accordingly, I find that the respondent did not discriminate against the complainant on the disability ground contrary to section 29(1) of the Employment Equality Acts in relation to her pay.

__________________
Enda Murphy
Equality Officer
11th October, 2013

Footnotes:

¹ [1996] ELR 106

² Barton -v- Investec Henderson Crosthwaite Securities [2003] IRLR and A Government Department -v- An Employee EDA062