EDA1438

The Equality Officer found that the complaint of victimisation was out of time and that the Complainant had failed to establish a prima facie case of equal pay on the gender ground. The Complainant appealed against those decisions to this Court.

The Case came on for hearing before this Court on 14 October 2014. At the commencement of the hearing the Complainant withdrew the appeal regarding the complaint of victimisation. The complaint regarding equal pay on the gender ground was proceeded with.

The NEWB is an independent statutory agency established under the Education (Welfare) Act 2000. Originally an agency of the Department of Education and Science, the functions of the Board were transferred in June 2011 to the Department of Children and Youth Affairs. On 1 January 2014 the NEWB was dissolved and all functions and staff were transferred to the Child and Family Agency.

The Complainant commenced employment with the Agency on 27 August 2007 and was placed on the first point of the relevant pay scale. On 6 May 2011 the Complainant filed a complaint alleging a breach of the Act in respect of equal pay. She identified six named comparators in the complaint.

She argued that each of the six named male comparators who were allowed incremental credit for public service employment prior to taking up employment with the Agency. She argues that she was not given credit for three years public service as a teacher in Northern Ireland. She argues that as the named male comparators were given incremental credit on the salary scale based on their prior public service employment discrimination on the gender ground cannot be ruled out as a factor in the decision to deny her similar treatment.

The Respondent argues that, as a matter of law, (s38) Education (Welfare) Act 2000, the Agency must “comply with any directives with regard to such remuneration, allowances, terms or conditions which the Minister may give to the Board with the consent of the Minister for Finance”This requirement has been reinforced under the Child and Family Agency Act 2013 which states s(53) “The Agency, with the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform shall determine (a) the terms and conditions of employment (including terms and conditions relating to remuneration and allowances) of employees appointed under this section, or (b) the grades of the employees of the Agency and the numbers of employees in each grade.”

In July 2003 the Department of Finance issued a letter to all government departments, including the Department of Education and Science, which states

“This department considers that there should now be no need to appoint recruits at points above the minimum of the scale”[ …] all future recruitment to non-commercial state sponsored bodies under the aegis of your Department should be at the minimum point of the relevant scale. Where it is considered by the non-commercial State sponsored body that there is a requirement for recruitment above the minimum of the scale, they should prepare a case setting out the reasons why they consider the adjustment is warranted. If your Department considers that there is merit in the case, specific sanction should be sought from this Department. No recruitment above the minimum point of the scale should be allowed without the definitive sanction of this Department”.

The Agency was obliged to adhere to this directive on pay.

However as it was a new body it was allowed a certain amount of discretion when seeking to attract staff to work in the Agency. Between the start-up in 2003 and April 2009 the Department allowed it to apply Circular 34/77 in determining the remuneration to be paid to new members of staff coming from elsewhere in the public sector. It allowed prior public service to be taken into consideration when determining their assimilation to a point on a salary scale. It provided that public servants on appointment would be assimilated to the minimum point of the new scale or be granted pay equivalent to their existing pay, including their accrued increment on the current scale plus an immediate increment on the new scale.

When existing public servants were appointed to the staff of the new Agency between 2003 and 2009 they were given incremental credit on the salary scale.

Where they were recruited from the private sector but had prior public service the Agency applied to the Department of Finance for permission to give them incremental credit when assimilating them to the salary scale.

The Agency states that it was unclear as to what constitutes “public service” for the purposes of such assimilation. At one point in its history it considered any publicly funded body as part of the “public service” for incremental pay purposes. However in 2005 this was clarified by the Department of Finance as being in error. From that point onwards that practice stopped.

Any person transferring from an existing post in the public service was given incremental credit for service to date.

At the hearing the Complainant conceded that those comparators that transferred directly from other public service posts were properly assimilated to the new pay scale and accordingly the agency had advanced objective grounds for the difference in pay that applied to them.

Dealing with each of the comparators in turn the Agency argued

Mr B. M

Mr M was employed n the 17^thNovember 2003. He was previously employed in the Blanchardstown Local Employment service. He was awarded incremental credit by the Agency as at that time it mistakenly considered all publically funded bodies came within the definition of a “public body”. It argues that this error was repeated for a number of people appointed from similar backgrounds until the matter was clarified by the Department of Finance in 2005.

Mr G P

Mr P commenced employment on 17 November 2003. His previous employer was a public body and he was given incremental credit in line with circular 34/77.

Mr M McC

Mr McC was an employee of City of Dublin Vocational Educational Committee on secondment to a publically funded community project. As an employee of a public body he was treated in accordance with circular 34/77.

Mr P McC

Mr McC at the time of his appointment on 28 August 2005, was a full-time Primary School Teacher in Northern Ireland. As a public servant in Northern Ireland he came within the scope of Article 7 of Regulation (EEC) No 1612/68 which provides for mutual recognition of periods of employment in the public service of another Member State. On that basis he was awarded credit for service to date on assimilation to the scale.

Mr P D

Mr D was appointed on the 19^thFebruary 2007. He was a full-time substitute teacher and as such in public service employment. He was allowed incremental credit for his service on appointment to a post in the Agency.

On the basis of this information the Complainant accepted at the hearing that there were objective grounds for each of her chosen comparators other than Mr W.

Mr W

Mr W was appointed as an EWO on the minimum point of the pay scale 21 February 2005. As he was not an active public servant immediately prior to his appointment the Agency took the view that it could not apply Circular 34/77 to him.

The Agency made an application to the Department of Education and Science and through them to the Department of Finance to award him incremental credit for his service as a former public servant. At the time of his appointment he was in receipt of a public service pension. This request was granted and he was awarded incremental credit for his previous public sector experience. He was appointed to Point 4 of the scale on the approval of the Department of Finance. The sanctioning letter from the Department of Education and Science to the Agency states

• “In reply I am to say that the Department of Finance is prepared to sanction the assimilation of Mr W to Point 4 of the EWO scale. This assimilation is effective, from his date of appointment to the board as an Educational Welfare Officer, in recognition of his previous relevant service in the Public Sector.”

• “Having considered the case put forward by your Department, it is this Department’s view that Ms. Rafferty should not be given incremental credit for the reasons set out below:-
  • 
    •There is no accepted scheme of incremental credit in the National Education Welfare Board for the Education Welfare Officer grade

    •Ms Rafferty applied for and was successful in an open recruitment competition

    •Ms Rafferty accepted the salary offered(which had been clearly displayed on the advertisement for the job) at the minimum of the scale.

    •The incremental credit scheme for teachers is not relevant to the grade of Educational Welfare Officer in the NEWB. It is noted in this regard that, even if the incremental credit scheme for Teachers had been considered relevant both Ms Rafferty’s work as (i) a Home Tuition Tutor from 2004 to 2007 and (11) her teaching experience from May 1999 to February 2001 as a substitute teacher in Northern Ireland would not have been reckonable as service under the Teacher scheme for incremental credit. It is also noted that the only period that would have been reckonable for incremental credit purposes under the Teachers scheme was the period between April 2002 and June 2004 where she worked as a substitute teacher in Northern Ireland and this would have amounted to 353 days in total.

    •The concession agreed by the Department in October 2005 which allowed the NEWB to use Department of Finance Circular 34/77 for new employees coming to the NEWB from elsewhere in the public sector is not relevant to Ms Rafferty. As you know, this concession was subsequently revoked in April 2009.

    •Notwithstanding Ms Rafferty’s past teaching experience, it is part of government pay policy that higher starting pay upon appointment may not, in general, be negotiated subsequent to taking up a post. Furthermore, there is an onus on the employer to negotiate a starting salary at the most economical rate.

    •You mention in your submission that there is precedent where incremental credit has been granted for previous teaching experience to Educational Welfare Officers. However, you did not provide details of the circumstances of these particular cases. Accordingly, the case of Ms Rafferty has been considered on its own merits.”

It is clear from this letter that the Department of Finance, which had sanctioned Mr W’s incremental credit based on his prior public service, took a different view of Ms Rafferty’s position. It did not explain why it did so and the details of the letter does not assist in this regard.

Mr W had applied for and accepted the post offered to him He had been started on the minimum point of the scale and has subsequently applied for incremental credit for previous public service experience. This was granted to him. Ms Rafferty was refused even though the Department of Finance in its letter recognises that she had 353 days reckonable service as a consequence of her work as a substitute teacher in Northern Ireland.

The Department of Finance states that it had not been provided with details of the precedents on which the Agency was relying. This is not credible as the Department of Finance had itself approved incremental credit for Mr W.

The Agency however did not respond to that letter with details of the precedents on which it was relying. It told the Court that it had some conversations with officials in the Department of Education and Science. However it has neither a record of those conversations nor of any follow up correspondence on the matter. It appears it simply accepted the response and there matters lay.

Section 85A of the Employment Equality Act 1998 as amended states

“85A.—(1)Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2)Thissectionis without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3)Where, in any proceedings arising from a reference of a matter by the Authority to the Director undersection 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in aparagraphof that provision has occurred, it is for the respondent to prove the contrary.

(4)In thissection‘discrimination’ includes—

• (a)indirect discrimination,
  (b)victimisation,
  (c)harassment or sexual harassment,
  (d)the inclusion in a collective agreement to whichsection 9applies of a provision which, by virtue of thatsection,is null and void.

The Respondent put in evidence the letter from the Department of Finance quoted above and relied on that as the reason for not affording the Complainant comparable treatment to that afforded to Mr Walsh.

The Court finds that the letter from the Department of Finance is not a definitive answer to the question raised. It implicitly invites the Agency to set out the precedents upon which it relies in support of its case. Had this been done it may have persuaded the Department to alter its view. However the Agency took no further steps to advance the matter on her behalf.

If the Agency seeks to rely on the its statutory requirement to have Departmental sanction to apply additional increments in any individual case than it must do all that is necessary to bring all relevant facts to the attention of the decision makers when making an application for permission. Its failure to do so renders it liable for the consequences of its decision not to provide the relevant information to the relevant Departments. In this case it was aware that Mr W had been given incremental credit for prior public service experience but did not explicitly so advise the Department when requested to do so. Accordingly it cannot now rely on its own incomplete response to the Department of Education and Science or to the Department of Finance as objective justification for the decision it took.

In the circumstances the Court finds that the Complainant has established facts from which it may be presumed that there has been discrimination and the Respondent has failed to prove the contrary. Accordingly the Court must find for the Complainant.

Determination

The Court finds that the complaint is well founded and orders the Respondent to place the Complainant on the 4^thpoint of the EWO scale with effect from the date of her appointment and to thereafter progress her through the relevant scale.

The Court sets aside the decision of the Equality Officer.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CO'R______________________
05 December, 2014Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.