The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-013
PARTIES
Joanne Rafferty
(Represented by IMPACT)
AND
National Educational Welfare Board
(Represented by IBEC)
File reference: EE/2011/421
Date of issue: 4 March 2014
HEADNOTES: Employment Equality Acts - Sections 6 & 8 – Gender – Conditions of Employment – Victimisation - Equal Pay – Time Limits
1. DISPUTE
1.1. This dispute concerns a claim by Ms Joanne Rafferty that she was discriminated against by the National Educational Welfare Board (NEWB) on the grounds of gender contrary to section 6 of the Employment Equality Acts in terms of conditions of employment, that she was victimised in accordance with section 74 (2) of the Employment Equality Acts and that she 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 19 of the Acts.
1.2. The complainant referred claim to the Director of the Equality Tribunal on 6 May 2011 under the Acts. On 11 September 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 a hearing on 21 November 2013 and final information was received on 20 December 2013.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started work for the respondent on 27 August 2007 as an Educational Welfare Officer (EWO). For three years immediately prior to her appointment she provided home tuition to secondary school children who were absent from school due to behavioural problems. Most of the students were referred to her by the respondent. Her salary for the year before she started working for the respondent was €58,204.40. For approximately 3½ years before this she worked as a Secondary School teacher in Northern Ireland.
2.2. After she started working for the respondent the complainant had discussions with their HR Executive (Ms A) regarding her starting salary and was advised that all EWOs had started on the first point of the EWO salary scale. She met Ms A and was given a contract of employment to review and sign. The complainant asked Ms A why she not had been given extra incremental credit for her previous teaching experience and she mentioned a previous case of another EWO who had been awarded such credit for their prior teaching experience. The complainant submits she was started on point 1 of the EWO scale, which was €36,215; nearly €22,000 less than she was earning previously.
2.3. There were lengthy discussions between her trade union and the respondent regarding the complainant’s previous teaching experience and her teaching qualifications. By email dated 1 May 2008 the HR Manager (Mr B) stated “the NEWB will recognize relevant experience when it is appropriately validated.” However, even when her teaching experience was validated the complainant submits that the respondent refused to forward a submission to the Department of Education and Science seeking sanction to award her incremental credit for her prior civil/public service experience.
2.4. The complainant took a case to the Rights Commissioner Service and on 19 November 2008 a recommendation was issued “that NEWB make a submission to the Department on behalf of Joanne Rafferty with immediate effect”. Five months later on 29 April 2009 a submission was made to the Department of Education and Science. It was not until 13 August 2009 that the submission was forwarded to the Department of Finance. Then on 3 November 2009 the claim was rejected.
2.5. The complainant submits that there is an accepted scheme for incremental credit for relevant public/civil service experience throughout Ireland and the EU, and the NEWB breached their obligations under EU law. The complainant also submits that the respondent incorrectly calculated her teaching experience in Northern Ireland. Also, it is accepted by the respondent that previous teaching experience is relevant to the role.
2.6. The complainant submits that in October 2005 the NEWB had been given derogated authority to set salaries for new employees. This concession was revoked in April 2009 but this does not negate the complainant’s claim, as she had been seeking incremental credit since she started working for the respondent in 2007.
2.7. The complainant lodged a further claim with the Rights Commissioner and there was a hearing on 19 July 2010 and a recommendation was issued on 3 February 2011 which stated that it was “I find that neither the Rights Commissioner nor the Labour Court saw itself as the appropriate body to make a decision”.
2.8. Sometime between 30 March and 7 April 2011 the complainant submits she became aware that one of her comparators (Mr C) had been placed above point 1 of the EWO scale after making representations to the Director of Corporate Services. On 8 April 2011 she wrote to the respondent seeking to be treated no less favourably than Mr C. The respondent replied on 13 April 2011 stating that they could do nothing further.
2.9.The complainant also cites five other male work colleagues who she subsequently found out received incremental credit, including some who had their salary matched with their previous salary. Some had sought incremental credit for previous work experience after they started and when they received it the incremental credit was backdated to their start date.
2.10. The complainant submits that she was victimised in this treatment by the respondent because of her position as union secretary, when she brought a case to the Rights Commissioner Service.
3. RESPONDENT’S SUBMISSION
3.1. The respondent confirmed that the complainant started work for them on 27 August 2007 as an EWO. The scale for the post was a 14 point scale, from €35,215 to €57,767 and the complainant was appointed to point 1. The complainant was working in accordance with her contract of employment but she refused to sign it.
3.2. From 2003 the respondent was given derogation to make appointments above minimum of scale until April 2009, and it was allowed to apply the provisions in Department of Finance Circular 34/77 which stated that appointments would be made at the minimum of the scale or:
“Public/civil servants promoted through internal confined competitions could be appointed to pay equivalent to existing pay plus an additional increment”, and
“Public/civil servants recruited from external competitions could be appointed to pay equivalent to the existing pay”
The five male comparators (other than Mr C) were existing public/civil servants and were appointed above the minimum in accordance with the Circular. The same policy was applied to female recruits and 23 out of 54 female EWOs appointed by the NEWB from 2003 to April 2009 were also appointed above the minimum point of the scale.
3.3. Mr C started work for the respondent on 21 February 2005 and was appointed on the minimum point. The respondent did not use its derogation powers as he was not a serving public servant; he was in receipt of a pension. They sought sanction from the Department of Finance, through the Department of Education and Science, and he was subsequently given credit to point 4 of the scale for his previous public sector experience.
3.4. The respondent submits that the complainant was not an existing public servant when she was appointed in August 2007; she was working as a private Home Tuition Tutor. Therefore they could not apply the derogation directly. In November 2008 the respondent sought sanction to apply incremental credit; this was not submitted by the Department of Education and Science to the Department of Finance until August 2009. The sanction was declined.
3.5. The respondent was also declined sanction to give incremental credit to two male EWOs as they were not existing public servants. Sanction was sought and granted to give incremental credit to 8 female EWOs from 2003 to 2009. In total from 2003 until April 2009, 67 EWOs were appointed; 13 were male (19%) of which 10 (77%) were appointed above the minimum point of the scale and 54 were female (81%) of whom 31 (57%) were appointed above the minimum point of the scale. The reason for this apparent difference between the genders is that fewer females came from the public sector.
3.6. The respondent confirms that the complainant performs like work with comparators and submits that there are reasons other than gender to justify any differences in pay.
3.7. In relation to the claim of victimisation the respondent submits that membership of a trade union is not a valid ground under the Employment Equality Acts. They also submit that the complainant has failed to demonstrate or establish any facts from which a claim of victimisation could be inferred.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was discriminated against in relation to conditions of employment, if she was victimised and if she is entitled to equal remuneration to the named comparators on the grounds of gender.
4.2. Section 77 (5) (a) of the Employment Equality Acts 1998 - 2007 states that there is a six-month time limit for the submission of claims which starts from the “date of occurrence of the discrimination or victimization to which the case relates or, as the case may be, the date of its most recent occurrence”, this can be extended to twelve months where there is “reasonable cause”. In this case the decision not to award the complainant incremental credit was made in November 2009 and despite the efforts of the complainant to have third parties consider her case there is no evidence that the respondent looked into her claim for incremental credit again before April 2011. Case law has confirmed that the time limit can start from the date that a decision regarding an alleged act of discriminatory treatment or victimisation is made by a respondent.
4.3. The approach generally taken in such situations is set out in Cast v Croydon College, UK Court of Appeal [1998] IRLR 318, which states that: “a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision.” My conclusion is that the respondent’s letter of 13 April 2011was, at best, a reiteration of the decision in November 2009 not to grant incremental credit and does not constitute a new decision. The respondent stated they had discharged their obligations arising from the Rights Commissioner recommendation and they could do nothing further. There is no indication that the respondent looked into her claim.
4.4. I therefore conclude that the time line in this case started from 3 November 2009 when the complainant was informed of the decision not to sanction incremental credit. The complainant submitted her claim on 6 May 2011, some eighteen months later and her claims of discrimination in relation to conditions of employment and victimisation are therefore out of time.
4.5. However, section 77 (5) does not apply to equal pay claims and section 82 of the Employment Equality Acts states that : “ 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)”. This means that I can look back three years from the date of the claim, 6 May 2011, and consider equal remuneration going forward.
4.6. The respondent accepts that the complainant performs "like work" with the six cited comparators in terms of section 7(1) of the Acts but they claim there are reasons other gender for any differences in pay in accordance with Section 19 (5) of the Acts which states that nothing: “shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.” The respondent contends that all new EWOs started on the bottom of the scale unless they were appointed above the minimum in one of two ways. The first was where they exercised the derogation they had to appoint existing public/civil servants above the minimum in accordance with the provisions of Circular 34/77. This was the case with five of the comparators. The other way was where an individual was not an existing public/civil servant but had previous experience that was considered suitable for the post of EWO and the respondent then made an application for sanction to appoint above the minimum to the Department of Education and Science who then forwarded it to the Department of Finance for consideration. This was the situation with the complainant and the sixth comparator, Mr C. The respondent contends the two methods were applied consistently in relation to all new EWOs regardless of gender.
4.7. The complainant contends that she was treated differently than the male comparators in that her previous work experience as a home tutor was not recognised as relevant and her teaching experience in Northern Ireland before that was not properly recognised, whilst the comparators all had previous experience recognised; most of them granted directly by the respondent, even in cases where it was not clear that their previous employment fell within the definition of public/civil servants.
4.8. The Labour Court on Determination EDA042, Waterford Institute of Technology v Kathleen Moore-White, stated “On the evidence the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted good practice. Where this is found to be the case, and in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the interview board.” In recruitment competitions an Equality Officer does not investigate whether the right person was appointed but rather whether the process was tainted by discrimination. Similarly, in this claim I am not investigating whether the complainant or any of the comparators were entitled to receive incremental credit or not but whether the process that led to the decisions was tainted by discrimination.
4.9. The complainant has cited six male comparators, all of whom received some level of incremental credit on their starting pay. However, I cannot take this evidence in isolation. The respondent provided evidence which showed that they appointed 67 EWOs from 2003 to April 2009. 13 were male and 10 of these were appointed above the minimum. 54 were female and 31 of these were appointed above the minimum. Therefore 41 were appointed above the minimum, 29 because they were previously working in the public/civil service and 12 as a result of submissions made to the Department of Education and Science. Also, the respondent made submissions for four other people which were not granted. This included the complainant, one other female and two males. I have considered a substantial amount of evidence which was provided in relation to the EWOs, both male and female, who were appointed above the minimum of the scale. It is my view that the respondent may not have applied their own guidelines consistently in all these cases, particularly in their interpretation of public service, and this was repeatedly referred to by the complainant. However, I can find no evidence that this apparent inconsistency or any other evidence that the complainant’s appointment at the minimum of the scale and the comparators appointments above the minimum was influenced by her gender. I conclude that there were reasons other than gender for the differences in pay and the complainant has failed to prove her claim of equal pay in relation to the named comparators.
5. DECISION
I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts that:
- the claims in relation to conditions of employment and victimisation are out of time in accordance with section 77 (5) of the Employment Equality Acts, and
- the complainant has failed to establish a prima facie case of equal pay on the basis of the gender ground and the complaint fails.
____________________
Hugh Lonsdale
Equality Officer
4 March 2014