PTD141

This is an appeal by Elizabeth Noonan against the Decision of a Rights Commissioner in her claim against her employer, University College Cork, under the Protection of Employees (Part-Time Work) Act 2001. In this Determination Ms Noonan is referred to as the Claimant and the University is referred to as the Respondent.

Background

The Claimant is employed by the Respondent as a part-time Library Assistant. She claims that she is engaged in work of equal value with two full time Senior Library Assistants. The Claimant’s rate of pay is less than that of her comparators. She is claiming equal pay with these comparators.

The evidence

The Claimant described to the Court the functions that she performs in the course of her employment. She also described the functions performed by her comparator. It was the Claimant’s evidence that her work and that of her comparators is identical in all material respects.

The representative of the Respondent did not dispute the veracity of the Claimant’s evidence nor did the Respondent offer any evidence on the question of like work.

The law

This case must be considered by application of the relevant provisions of the Act. Section 9 sets out the entitlement of part-time workers to equality of employment conditions with comparable full-time employees. It provides: -

• 
  9.—(1) Subject to subsection (2) and (4) andsection 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

  (2) Without prejudice tosection 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

  (3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue ofsection 8, to a part-time employee.

  (4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

• 
  (2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—
  • (a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

    (b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

    (c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

  and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

The following are the conditions mentioned in subsection (2)—

• • (a) both of the employees concerned 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 of the employees concerned is of the same or 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, and

    (c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

In this case the Respondent’s representative told the Court that in the absence of a job evaluation exercise, which it is precluded from conducting, it is unable to say whether or not the Claimant is carrying out like work with her comparators. The Court has considerable difficulty with that submission. The only evidence on this point is that given by the Claimant. She testified that the work she performs is identical in all material respects to that performed by her nominated comparators. That is a question of objective fact the ascertainment of which does not require any technical analysis.

However the Respondent offered no evidence on this point. In the result the only evidence before the Court is that proffered by the Claimant. That evidence is uncontested and it must be accepted by the Court.

It follows that the Court must accept that the nominated comparators are comparable full-time employees in relation to the Claimant within the meaning ascribed to that term by s.7 of the Act and in particular by reference to subsection (3)(a) of that section. Section 9(1) of the Act provides, in effect, that, subject to a defence of objective justification, a part-time employee shall not be treated less favourably in respect to his or her conditions of employment (which includes pay) than a comparable full-time employee. Consequently, unless the Respondent can show that the difference in pay between the Claimant and her comparator is justified on an objective ground unrelated to her status as a part-time employee, as provided for by s.9(2) of the Act, she is entitled to succeed in her claim.

Objective Grounds

In contending that the difference in pay is objectively justified the Respondent relies on its grading system, the terms of the Public Service Stability (Haddington Road) Agreement 2013-2016 and the terms of the Financial Emergency Measures in the Public Interest (No 2) Act 2009. The Respondent submitted that each of these instruments preclude it from re-grading the Claimant or increasing her pay in line with that of her comparator.

What can constitute an objective ground justifying a departure from the terms of s.9(1) of the Act is governed by s.12 of the Act. It provides: -

• 12.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

• 57. [T]hat concept must be understood as not permitting a difference in treatment between fixed-term workers and permanent workers to be justified on the basis that the difference is provided for by a general, abstract national norm, such as a law or collective agreement.

  58. On the contrary, that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.

• Objective justification

  I want to make some very brief observations on this issue. The school in this case has argued that the different contractual and/or employment status of the chosen comparators as compared to the claimants constitutes objective justification for a less favourable treatment which has occurred as between the claimants and their chosen comparators. The Labour Court in the course of its determination stated that “the objective justification relied upon by the school appears to be that the School cannot afford to pay the cost associated with affording the claimants equal treatment.” There is an abundance of authority to which reference has already been made to the effect that the issue of cost cannot justify unequal treatment. I have already referred to the decision in Hill & Stapleton v. Revenue Commissioners & Department of Finance and to the decision of the ECJ in Jorgensen above. It seems to me to be very clear and obvious that the purpose of the Directive and the legislation transposing the Directive into Irish law would be defeated if cost alone was accepted as a defence because as pointed out by the Labour Court “in every case in which it is necessary to implement principles of equality there is a cost to the employer”.

Determination

For all of the reasons set out in this Determination the Court is satisfied that the Claimant is entitled to succeed. The Court directs the Respondent to adjust the Claimant’s pay and other conditions of employment so as to bring them into line with those of her comparators. Having regard to the provision of s.16(3) of the Act the Court directs that this adjustment should be given effect from a date six months prior to the date on which her complaint was presented to the Rights Commissioner.

The appeal is allowed and the decision of the Rights Commissioner is set aside.



Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
26th May, 2014.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.