EDA1510

In keeping with its normal practice the parties are referred to in this Determination as they were at first instance. Hence Ms Brierton is referred to as the Complainant and Calor Teoranta is referred to as the Respondent

The Equality Officer found for the Complainant and awarded her arrears of pay by reference to the remuneration of her comparator for the three years preceding the referral of her claim. The Respondent appealed to the Court

Background
At the time this claim was initiated (21^stOctober 2006) the Complainant was age 28. Her nominated comparator was then age 45. They both worked in the Credit Control Department of the Respondent. The Complainant was recruited by the Respondent on a temporary contract in or about February 2001. In July 2002 she was offered and accepted a permanent appointment. Her salary was then fixed at €20,300 per annum.

The Complainant resigned from her employment with the Respondent in or about 21^stJune 2006.

The comparator was employed by the Respondent in or about December 2003. His salary was fixed at €30,000 per annum. The salaries of both the Complainant and the comparator were adjusted from time to time and by 2006, when the Complainant resigned, her salary was 27,048 and that of her comparator was €34,607. On these facts the Complainant contends that she was paid less than the comparator on grounds of her age.

History of the proceedings
When this matter came before the Court in October 2013 all aspects of the Equality Tribunal findings were in issue, including the question of whether the Complainant and her comparator were engaged in like work within the statutory meaning of that term. The Respondent also contended that there were grounds other than age for the impugned differences in pay.

Neither the Complainant nor her nominated comparator was employed by the Respondent at that time. In order to address the question of like work the Court suggested, and the parties accepted, that an agreed expert should be commissioned to evaluate the work performed by the Complainant and her comparator, who would then give expert evidence at the hearing of the appeal.

Difficulties were encountered in agreeing on an assessor and the Court intimately resolved that matter by making a nomination. Further difficulties were encountered by the assessor in undertaking the assigned task.

The assessor, Mr Tom Wall of Inconcert Consultancy, presented his report to the Court on 15^thFebruary 2015. Mr Wall concluded that the Complainant and her comparator were engaged in like work within the meaning of the Act.

The Appeal
The Court heard the appeal on 25^thJune 2015, the earliest date on which the parties were available. At the commencement of the hearing the Court was informed that the question of like work was no longer in issue as both parties had accepted Mr Wall’s findings. Thus the case was reduced to a question of whether there were grounds other than age for the difference in pay as between the Complainant and her comparator.

On that point, the only evidence proffered was that of Mr Liam Silke. Mr Silke was the Financial Controller of the Respondent at the time material to this claim.

The Evidence
Mr Silke told the Court in evidence that historically pay was determined within the Respondent on a grading system and each employee was paid the rate that corresponded to his or her grade. In or about the mid-1990s the Respondent sought to move to a pay determination system based on individual assessment. The Court was told that the trade union representing the Respondent’s staff accepted this arrangement on the basis that those then employed would have their pay red-circled. Accordingly, this new arrangement only applied to those recruited after that date.

According to Mr Silke, there were no criteria in place against which the pay of individuals was assessed. Rather, the principal determinant of pay was the expectation of the prospective employee. In effect, if the Respondent wished to recruit a particular individual they tended to agree the salary level that the individual requested.

This witness told the Court that the Complainant was paid the salary that she sought and when the comparator was employed he was also paid the salary that he sought. The comparator was recruited using the services of an employment agency. He could not recall if the agency was given a brief on what the type of candidate that the Respondent was seeking. He was, however, clear that no salary range has been indicated to the agency.

The comparator was interviewed for a vacancy and he was considered the most suitable candidate to fill the vacancy then existing. The comparator had 25 years’ experience in credit control and it was felt that he might ‘bring something new’ to the Respondent’s credit control function. Mr Silke told the Court that the Complainant had worked for a named enterprise and he was impressed by that. He accepted that the comparator was unemployed at the time of his application to the Respondent. The comparator asked for a salary of €30,000 per annum and the witness did not consider that unreasonable.

Discussion
In every case under the Acts the Court must first consider the allocation of the burden of proof as between the parties. Section 85A of the Acts provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. InA Worker v A Hotel[2010] 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: -

• • • The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board[2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
    The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court inKieran McCarthy v Cork City CouncilLabour Court Determination EDA082 (December 16, 2008)
  
  
  

Authorities considered
InC & D Foods v Cunnion[1997] 1 IR 147 Barron J (in a case involving gender discrimination) said, at 151,

• In the instant case, the comparator receives more remuneration than the [claimant] respondents because the appellant [employer] has evaluated his work more highly than that of the respondents. It is submitted that this is a ground other than sex. In my view, this submission is based upon a false premise

• It should next be pointed out that in a situation where a system of individual pay supplements which is completely lacking in transparency is at issue, female employees can establish differences only so far as average pay is concerned. They would be deprived of any effective means of enforcing the principle of equal pay before the national courts if the effect of adducing such evidence was not to impose upon the employer the burden of proving that his practice in the matter of wages is not in fact discriminatory.

In the instant case the comparator received higher pay than the Complainant because he considered himself worth more than the Complainant and the Respondent accepted this, apparently without question. The Respondent submits, in effect, that this is a ground other than age. By parity of reasoning with the decision inC & D Foods v Cunnionthis submission is also based on a false premise. The possibility that it was his age or the length of time that he spent in the workforce, or a combination of both influenced his expectations cannot be discounted. What is clear is that the Respondent readily agreed to pay that rate without undertaking any objective evaluation of the comparators attributes such as to justify a difference in pay as between him and the Complainant.

Burden of proof
In this case the pay determination system in issue is also wholly lacking in transparency and if there were any discernible criteria against which pay levels were determined they were purely subjective. That system resulted in the Complainant being paid significantly less than her comparator for work of equal value. As pointed out inDanfos,if these facts alone where to be regarded as insufficient to shift the burden of proving the absence of discrimination the Act would be deprived of all effectiveness.

It follows the combined effect of the impugned difference in pay for like work, the difference in age as between the Complainant and her comparator and the characteristics of the Respondent pay determination system described herein, constitute facts from which discrimination on grounds of age can be inferred. The burden of proving compliance with the principal of equal treatment is thus on the Respondent.

Conclusion
Where aprima faciecase is made out the onus shifts to the Respondent to prove the absence of discrimination. This requires the Respondent to show a complete dissonance between the protected ground relied upon (in this case age) and the impugned act or omission alleged to constitute discrimination. Thus, inWong v Igen Ltd and others[2005] EWCA Civ 142, (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

Of relevance also in this context is the decision of this Court in inNevins, Murphy, Flood v Portroe Stevedores Limited[2005] 16 E.L.R. 282. Here, in a case involving age discrimination, the Court held: -

• Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.

Applying those standards, the evidence tendered on behalf of the Respondent does not go far enough to rebut the inference of discrimination in terms of pay that arises in this case by operation of s.85A of the Act. Accordingly the Respondent’s appeal cannot succeed.

Disposal
The appeal is disallowed and the decision of the Equality Tribunal is affirmed.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
26th June, 2015.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.