The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-024
PARTIES
Paul Farrell
AND
Department of Transport
(Represented by Cathy Maguire B.L., instructed by the Chief State Solicitor’s Office)
File reference: EE/2010/865
Date of issue: 9 April 2014
HEADNOTES: Employment Equality Acts - Sections 6, 8 & 74 – Age - Equal Pay - Vicitimisation.
1. DISPUTE
1.1 This dispute concerns a claim by Mr Paul Farrell that he was discriminated against by the Department of Transport on the grounds of age contrary to section 6 of the Employment Equality Acts in that he performs “like work”, in terms of section 7 of the Employment Equality Acts with a named comparator and is entitled to equal remuneration in accordance with section 29 of the Acts, and that he was victimized in accordance with section 74 (2) of the Employment Equality Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 16 November 2010 under the Employment Equality Acts. On 19 June 2013, 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. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to an initial hearing on 24 September 2013 at which it was agreed that the complainant and the named comparator carried out like work. I therefore requested both sides to make written submissions as to whether there were reasons other than age for the difference in pay. Both parties made submissions which were copied to the other party and the hearing resumed on 12 December 2013. Final information was received on 28 January 2014.
2. COMPLAINANTS' SUBMISSION
2.1 The complainant submits that in 2008 he applied for two recruitment competitions with the respondent for Aeronautical Officer Grade I and Aeronautical Officer Grade II, Inspector of Air Accidents (Engineer) in the Air Accident Investigation Unit. The job specifications gave the same duties for both positions but they had different experience requirements; in that an essential requirement for the Grade I position was 15 years experience working in aviation, preferably in the maintenance/operations area, whereas the essential requirement for the Grade II post was 10 years experience in the same area. He had one interview for both positions and was successful in the Grade II position. The respondent submits that he suffered indirect discrimination on the age ground as the experience requirements favoured older candidates for the better paid post.
2.2 The complainant submits that he had 23 years 9 months relevant experience, which was more and better experience than the named comparator who was appointed to the Grade I position.
2.3 The complainant relies on Equality Tribunal Decision DEC-E2003-036 (McGarr v Department of Finance; in that he contends the difference in pay cannot be objectively justified as the same duties are undertaken by the Grade I (the named comparator) and the Grade II (the complainant) post.
2.4 The complainant was appointed to the Grade II position on 25 February 2009. He carries out the same duties as the Grade I Aeronautical Officer appointed at the same time but there is a substantial pay differential. The complainant submits his date of birth is 1 May 1963 and the named comparator was born on 9 August 1953. They carry out the same work and the same duties, appointed under the same Ministerial warrant and have the same legal powers and statutory responsibilities.
2.5 The complainant submits that the previous Grade II Aeronautical Officer was in receipt of a higher duties allowance; recognising that he carried out the same duties as the Grade I.
2.6 On 5 October 2010 the complainant submitted an EE2 form to the Department of Public Expenditure and Reform and on 8 October 2010 he was told it was a matter for the Department of Transport and the form and papers had been forwarded. The complainant did not receive a response to his request for information. He therefore submitted the EE1 claim form to the Equality Tribunal on 15 November 2010. On March 2011 the complainant wrote to the Department of Transport stating that their failure to take any action was continuing discrimination and amounted to victimisation.
3. RESPONDENT'S SUBMISSION
3.1 In November 2007 the Department of Transport were granted sanction from the Department of Finance for 3 posts: 2 Aeronautical Officers (Engineer Grade I), 1 in Engineering and 1 in Operations, and 1 Aeronautical Officer (Engineer Grade II). The competitions for the posts were held by the Public Appointments Service. The respondent signed off on terms and conditions for each post. The respondent confirms that it is virtually impossible to differentiate between the duties of the two grades but there is a difference in the entry requirements; 15 years previous relevant experience for the Grade I post and 10 years for the Grade II post. It was considered an opportunity for less experienced candidates to apply for the Grade II post. There was no minimum age limit.
3.2 The complainant was eligible for both posts and he applied for both. He was successful in the Grade II competition. Before signing his contract for the Grade II position he was told that he would be doing work similar to the Grade I position. The complainant was awarded additional increments to recognise his previous experience and technical/academic qualifications and he started on the 4th point of the Grade II scale. He took up the position on 25 February 2009.
3.3 The respondent denies that any victimisation took place.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant is entitled to equal remuneration to the named comparator on the grounds of age and if he was victimised.
4.2 Firstly, I have to state that the complainant has not made any claim in relation to the recruitment competition itself. His equal pay claim is that, after he started working for the respondent as a Grade II Aeronautical Officer, he was carrying out like work with the named comparator, who was a Grade I Aeronautical Officer, but he was being paid on a different scale. His contention is that the reason for the difference in pay is related to age, arising from the different experience requirements for the two posts. The respondent accepts that the complainant and the named comparator carry out like work. It is also agreed that they receive different pay; the complainant was appointed on €73,609 and the named comparator on €100,191 (a difference of over €27,000).
4.3 Section 29 (1) of the Employment Equality Acts states:
“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.”
The respondent relies on the defence in section 29 (5) of the Employment Equality Acts for the difference in pay, which states:
“nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.”
The reason they give for the difference in pay is that the named comparator was recruited from a competition for a Grade I post and the complainant from a competition for a Grade II post and there is a greater experience requirement for the Grade I position than the Grade II position. The rationale was to give an opportunity to someone with less experience
4.4 In investigating the equal pay claim I am looking at the work that is being done by the complainant and the named comparator. The parties agree that the experience requirement makes no difference to the work undertaken by the Grade II and the Grade I and they undertake like work.
4.5 Section 28 (1) (e) states that: “in relation to the age ground, C and D are of different ages”. This means that there must be a difference in age between the complainant and the comparator. The complainant was born in May 1963 and the named comparator in August 1953, which makes him nearly 10 years older than the complainant. The complainant had 23 years relevant experience, whilst the named comparator had 32 years relevant experience; nine years more. This experience would appear, on face value, to reflect the differences in age. However, the experience requirements for the Grade I posts was fifteen years and both exceeded this significantly. The complainant was eligible for and applied for the Grade I but he was not successful and the named comparator was appointed. The complainant also applied for and was successful in the Grade II competition. This meant that their respective salaries arose because they were appointed to positions on two different grades which carry out the same work. Clearly, the complainant finds it unfair but I have to decide whether it is discriminatory within the meaning of the Employment Equality Acts.
4.6 In this claim the reason for the difference in pay is that they were appointed from different competitions which had different experience requirements. It might be possible, in certain circumstances, that this could lead to an inference that age was a factor in the difference in pay. Those circumstances could be where the person appointed to the Grade II post did not have sufficient experience to apply for the Grade I post.
4.7 In looking at the ages of the complainant and the named comparator I have to note evidence provided by the respondent on staff, other than the complainant and the named comparator, appointed to the Air Accident Investigation Unit between 1995 and the time this claim was made in 2010. Four appointments were made to Grade I and their ages were 37, 45 47 and 59. Whilst two appointments were made at Grade II and their ages were 50 and 64. This shows no pattern of appointments being made to older candidates at Grade I level than at Grade II level.
4.8 It does not seem to make sense that the complainant and the named comparator carry out the same work but have been appointed on two different scales and paid quite different salaries However, the complainant did have sufficient experience to apply for both posts, and he did apply for both posts. He had the opportunity to receive the Grade I salary but was unsuccessful. I therefore have to find that the difference in age between the complainant and the named comparator was not a factor in the difference in pay.
4.8 The complainant did not initially claim victimisation but did so in a written submission dated 20 May 2011. He contends that he was victimised when he raised the issue of what he considered to be discriminatory treatment with the respondent, both in direct correspondence and when he sent an EE2 form, looking for information in relation to this claim under the Employment Equality Acts. He considers that the way the respondent led him to believe that they accepted the validity of his case and were prepared to agree to the remedies he had requested. Then victimisation occurred when they did not implement these remedies.
4.9 Section 74 (2) of the Employment Equality Acts states:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to a complaint of discrimination made by the employee to the employer.”
As stated in by the Labour Court in EDA 1312, Frances Donnelly v National Gallery of Ireland:
“This section of the Acts is based on Article 11 of Directive 2000/78/EC on Equal Treatment in Employment and Education (The Framework Directive). Both the Acts and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision.”
4.10 The respondent contends that the complainant did not suffer any detriment. The evidence given by the complaint refers to the respondent not agreeing with his contention of discrimination by not implementing the remedies he was seeking. He also gave evidence that a request for an acting-up allowance was not processed after he had made his claim of discrimination. In direct evidence at the hearing the respondent gave three reasons for processing the complainant’s request for an acting-up allowance:
- the request had not been made through his manager,
- a Government Decision in March 2009 had been made that such allowances could no longer be granted, and
- they were unsure whether they could deal with the higher duties allowance when the complainant had made an equality claim.
They then submitted an internal memo which stated that the understanding of HR was that ‘the payment of such allowances is covered by the current embargo on recruitment’.
4.11 At the time the complainant submitted his acting-up allowance the respondent was operating under the constraints of the Employment Control Framework (ECF). They were required to reduce staff numbers and to reduce staff salary costs. Two promotions were sanctioned and one acting-up allowance was awarded to substantive positions. The respondent contends that within the constraints of the ECF they could not consider the complainant’s request to be paid an allowance to be put on a higher grade where no vacancy existed. I accept the evidence of the respondent that the restraints of the ECF was the reason the complainant’s request was not processed and was not related to his claim of discrimination. I conclude that he did not suffer detriment or adverse treatment as a result of making a claim of discrimination.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
- the respondent did not victimise the complainant in relation to conditions of employment, and
- the complainant does perform ‘like work’ with the named comparator in terms of Section 7 (1) (b) of the Acts but there are objective grounds other than age for the difference in pay in accordance with section 29(5) of the Act and that the complainant has not been discriminated against by the respondent.
___________________
Hugh Lonsdale
Equality Officer
9 April 2014