EQUALITY OFFICER'S DECISION NO: DEC-E/2015/081
PARTIES
Ms. Aine Murphy
(Represented by Mandate Trade Union)
-v-
Lowe's Public House t/a William Lowe, Dolphins Barn Ltd.
(Represented by Whitney Moore Solicitors)
FILE NO: EE/2012/137 and EE/2013/376
Date of issue: 4th of September, 2015
1. Dispute
1.1 This dispute involves a claim by Ms. Aine Murphy against Lowe's Public House t/a William Lowe, Dolphins Barn Ltd. that the respondent has discriminated against her on grounds of gender in respect of a failure to provide her with equal remuneration to that of four named male comparators in accordance with section 19(1) of the Acts.
2. Background
2.1 The complainant referred complaints under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 1st of March 2012 and on the 30th of July, 2013 alleging that she performs “like work”, in terms of section 7 of the Employment Equality Acts, 1998 to 2012, with four named male comparators and that she is therefore entitled to the same rate of remuneration to those comparators in accordance with section 19(1) of the Acts.
2.3 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on the 15th of September, 2014 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 8th of June, 2015.
3. Summary of complainant’s case
3.1 The complainant submits that she has been employed by the respondent since November 2002. The complainant was employed as a full-time bar person.
3.2 It is submitted that the complainant was paid €692.68 per week.
3.3 It is submitted that the first named comparator Mr. D was being paid at a higher rate than the complainant and that this is due to her gender.
3.4 The complainant submits that she performed ‘like work’ with Mr. D and that she is entitled to the same rate of remuneration as Mr. D
3.5 The complainant submits that Mr. X and Mr. Y are also paid more than she is for the same work.
3.6 The complainant submits that Mr. Z is also paid at a higher rate than she is for the same work. The complainant submits that she performed ‘like work’ with Mr. Z and that she is entitled to the same rate of remuneration as Mr. Z
4. Summary of Respondent’s case
4.1 The respondent submits that Mr. D took voluntary redundancy prior to the submission of the claim and thus is not a relevant comparator.
4.2 The respondent concedes that Mr. D was paid a higher salary than the complainant. The respondent does not dispute ‘like work’ between the complainant and Mr. D, but submits that Mr. D is more experienced than the complainant and has worked for the respondent for 40 years.
4.3 The respondent submits that Mr. D is also paid at a higher rate as a result of a Right Commissioners decision which directed the respondent to increase Mr. D’s pay in order to take into account cash in hand payments he had been receiving in addition to his salary (i.e. he was ‘red circled’)
4.2 The respondent submits that Mr. X and Mr. Y are both paid less than the complainant.
4.3 The respondent submits that Mr. Z is the owner of the respondent company and has many additional responsibilities to that of the complainant and so does not perform ‘like work’ with the complainant.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the complainant performs “like work”, in terms of section 7 of the Employment Equality Acts, 1998 to 2012, with 4 named male comparators is therefore entitled to the same rate of remuneration as those comparators in accordance with section 19(1) of the Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Preliminary Jurisdictional Issues-
5.2.1 The respondent submits that Mr. D is not a valid comparator as he had taken voluntary redundancy from the respondent organisation in November 2011 before the complainant submitted her complaint. The complainant at the hearing acknowledged that Mr D had retired with a voluntary redundancy in 2011 prior to her complaint and stated that it was only when the respondent made offers of voluntary redundancy packages to staff, that she became aware of the fact that Mr. D was being paid more than her for the same work.
5.2.2 It is submitted by the complainant that Mr. D is still a valid comparator and the complainant refers to the case of Macarthys Ltd v Smith [1980] ECJ (Europa, C-129/79) as precedence for comparing a previous employee for the purpose of an Equal Pay claim. In that case the complainant had taken on a job substantially similar to that of a previous male employee, but had been paid less. The respondent in that case argued she had no claim because the UK's Equal Pay Act 1970 did not allow comparisons with former colleagues. Ms. Smith argued that, if this was true under UK law, then European Community law did allow such a comparison, and it would override the UK statute. The matter was referred to the ECJ which held that Ms. Smith had a claim because she could compare her pay with a former colleague.
The ECJ explained the equal work as follows
“
11. In such a situation the decisive test lies in establishing whether there is a difference in treatment between a man and a woman performing "equal work" within the meaning of article 119. The scope of that concept, which is entirely qualitative in character in that it is exclusively concerned with the nature of the services in question, may not be restricted by the introduction of a requirement of contemporaneity’.
[...]
5.2.3 I am satisfied from the totality of the evidence adduced that the fact that Mr. D had left the organisation before the complaint was submitted does not preclude him from being advanced as a comparator by the complainant.
5.3 Equal Pay
5.3.1 Section 19 (1) provides that where A and B represent two people of the opposite sex that:
It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do
like work by the same or an associated employer.
(2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the
particular time.
5.3.2 The existence of ‘like work’ between a complainant and comparator is a necessary condition to any entitlement to equal pay under the Act. Therefore I will first examine whether like work exists between the complainant and each of the four named comparators.
5.3.3 ‘Like work’ is defined in Section 7 of the Act:
…in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if-
(a) both 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 is of 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 to the work as a whole, or
(c) the work performed by one is equal in value to the work performed by the other having regards to such matters as skill, physical or mental requirements responsibility and working conditions
5.4 Comparator 1 –Mr. D
5.4.1 The complainant advised the hearing that she was employed by the respondent as a full time bar person. The complainant advised the hearing that Mr. D was employed in the same role as her but that he was paid at a higher rate and stated that this was due to gender.
5.4.2 The respondent advised the hearing that it did not dispute ‘like work’ between the complainant and Mr. D. I am thus satisfied from the evidence adduced that the complainant did perform ‘like work’ with the named comparator Mr. D in terms of Section 7 (1) of the Acts.
5.4.3 The respondent submitted that it was relying on Section 19(5) of the Act which provides that
Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.
5.4.4 The respondent at the hearing did not deny that the complainant and Mr. D were employed to do the same job but the respondent advised the hearing that there were ‘grounds other than’ gender for the difference in the rate of pay. The respondent advised the hearing that Mr. D had worked for the respondent for 40 years and so had more experience than the complainant and as a result of incremental pay rises down through his 40 years in their employment had at the time of his redundancy been on a higher salary than the complainant. Mr. D attended the hearing and stated that he had been employed by the respondent for 40 years. Mr. D advised the hearing that his starting rate of pay had been considerably less than his rate of pay at the time of his retirement and stated that his salary had increased incrementally throughout his 40 years in the respondent’s employment.
5.4.5 The respondent advised the hearing that Mr. D had been in receipt of a lower salary until a Rights Commissioners decision in February 2002 directed that the respondent regularise Mr. D’s salary by amalgamating his salary with a cash in hand payment which he also received on a weekly basis and that his pay be grossed up to leave him in the same net position.
5.4.6 The respondent advised the hearing that Mr. D had more experience than the complainant and had worked as a bar person for the respondent for 40 years. The respondent in its defence cited Wilton Vs Irish Steel [1999] ELR 1, in which a female complainant was permitted to choose a comparator who was doing the same work as her but was being paid more money. The High Court in that case concluded that there was no discrimination in that particular case because the comparator was being paid more money due to his greater length of service and this was a ground other than gender under the 1974 Act.
5.4.7 The respondent in its defence also relies on Section 34(7) of the Act which provides that it shall not constitute discrimination on grounds of age to use length of service or seniority as a criterion for awarding different rates of remuneration.
5.4.9 I am satisfied from the totality of the evidence adduced that the complainant was on a lower rate of pay than Mr. D and that she and Mr. D performed ‘like work’. However I am also satisfied that Mr. D had worked for the respondent for 40 years and that his pay would have had to increase incrementally over that 40 year period. I am also satisfied that Mr. D had 40 years’ experience and that this length of service constitutes grounds other than gender for the difference in the rate of pay between Mr. D and the complainant. I am satisfied that the fact that Mr. D had more experience than the complainant and 40 year’s service with the respondent both justifies and explains the difference in their rates of pay. I also accept that his salary was ‘red circled’ following a Rights Commissioners recommendation.
5.4.10 On the basis of the foregoing, I find that there are grounds other than gender for the difference in pay between the complainant and Mr. D in accordance with section 19(5) of the Acts. Accordingly, I find that the respondent did not discriminate against the complainant on the gender ground contrary to section 19(1) of the Employment Equality Acts in relation to her pay.
5.5 Comparators 2 & 3- Mr. X and Mr. Y
5.5.1 The complainant submitted that she was being paid less than Mr. X and Mr. Y and that this was due to gender. The respondent at the hearing adduced evidence that Mr. X and Mr. Y were being paid less than the complainant. The respondent advised the hearing that Mr. X and Mr. Y were paid at a flat rate of €500 per week which is less than what the complainant was being paid. The complainant at the hearing stated that Mr. X and Mr. Y did not work as many hours as she did for this lesser salary. The respondent advised the hearing that Mr. X and Mr. Y were related to the owner and were paid at this flat rate for a 35 hour week in addition to which they had to work extra hours for functions such as Christenings, Communions and Confirmations, for which they received no extra pay. The complainant had stated that Mr. X and Mr. Y worked less hours than she did but she could not however say for definite how many hours Mr. X and Mr. Y worked and whether they worked more or less than 35 hours a week.
5.5.2 The complainant stated that she had made the claim based on the knowledge that Mr. X and Mr. Y were being paid €430 weekly but that they had been working a maximum of 30 hours for this. The respondent advised the hearing that based on this information Mr. X and Mr. Y were still on a lower hourly rate than the complainant. The complainant stated that she had sometimes worked up to 48 hours a week. The respondent disputed this and stated that the complainant was never required to work a 48 hour week but stated that even if this were the case based on the figures provided her hourly rate was still greater than that paid to Mr. X or Mr. Y.
5.5.3 I am satisfied that from the totality of the evidence adduced here that the complainant was did not receive less pay for ‘like work’ in comparison with Mr. X and/or Mr. Y and was not discriminated against on grounds of gender contrary to section 19(1) of the Employment Equality Acts in relation to her pay in comparison with Mr. X and or Mr. Y.
5.6 Comparator 4 - Mr. Z
5.6.1 The complainant has submitted that she was being paid less than Mr. Z and that this was due to gender. The complainant advised the hearing that she and Mr. Z performed ‘like work’ but that she was paid less than Mr. Z and that this difference in pay was due to her gender.
5.6.2 The respondent advised the hearing that Mr. Z was the owner and proprietor of the respondent organisation. The respondent disputes the claim that the complainant performs ‘like work’ with Mr. Z.
5.6.3 The complainant at the hearing produced a list of her duties as Bar person. The respondent disputed that this list was an accurate reflection of the complainant’s duties. The complainant when questioned advised the hearing that her duties involved the following:
· Spot check till on Saturdays and Sundays
· Stock shelves
· Throw out empties
· Check toilets
· Serving customers
· Prepare tea coffee and sandwiches to order
· Nightime-Stocking up, Changing kegs, cleaning up, tilling up at end of business.
5.6.4 The respondent advised the hearing that Mr. Z’s role as proprietor of the business means that he is in charge of the financial side of the business and stated that he does all of the banking for the business as well as the ordering of stock and dealing with reps. The respondent stated that Mr. Z has all of the management responsibilities for the respondent’s employees.
5.6.5 The respondent stated that Mr. Z has responsibility for opening and closing the business and for cashing up and banking the cash. The respondent advised the hearing that Mr. Z has responsibility for meeting with the various reps and for ordering and re ordering stock. He also has responsibility for the maintenance of the premises.
5.6.7 The complainant advised the hearing that she had on occasions, when Mr. Z went on holiday taken on his responsibilities and that she had on a number of occasions gone to the bank with the cash. She stated that she also received calls from reps. about stock orders.
5.6.8 Mr. Z advised the hearing that he was not away often but that when he was he always ensured that all of the orders were done before he went away anywhere. Mr. Z advised the hearing that he always did the banking for the bar as he was the only one with access to the safe. He stated that the banking was done before he went away and again after he came back. He stated that the complainant did not even have access to the safe and so could not do the banking. The complainant conceded that she did not have access to the safe but cited an occasion where one of Mr. Z’s sons had accessed the safe in his absence in order to enable her to do the banking. The complainant also stated that she had cashed up 6 nights a week.
5.6.9 I have examined the evidence from the complainant and Mr. Z in relation to the work they carry out. While I am satisfied that the complainant has an extensive list of duties and may on occasion have had to take on some or many of Mr. Z’s responsibilities, in his absence, it is clear that the complainant does not have overall responsibility for managing and running the business, which Mr. Z as the proprietor does have. While the duties of the complainant and Mr. Z were similar to the extent that they both carried out duties in respect of the bar, the complainant did not carry out all of the management duties associated with being the proprietor of and running the business and therefore the work is not interchangeable.
5.6.10 I am thus satisfied that the complainant was not engaged in “like work” with Mr. Z in terms of Section 7(1) of the Acts and therefore she is not entitled to the same rate of remuneration as Mr. Z in accordance with Section 19 of the Acts.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that –
(i) The complainant is not entitled to equal remuneration with Mr. D as there are grounds other than gender for the difference in pay between the complainant and Mr. D in accordance with section 19(5) of the Acts.
(ii) The complainant did not receive less pay for ‘like work’ in comparison with Mr. X and/or Mr. Y and was not discriminated against on grounds of gender contrary to section 19(1) of the Employment Equality Acts in relation to her pay in comparison with Mr. X and or Mr. Y.
(iii) The complainant was not engaged in “like work” with Mr. Z in terms of Section 7(1) of the Acts and therefore she is not entitled to the same rate of remuneration as Mr. Z in accordance with Section 19 of the Acts.
(iv) Accordingly, I find that the respondent did not discriminate against the complainant on the gender ground contrary to section 19(1) of the Employment Equality Acts in relation to her pay.
____________________
Orla Jones
Equality Officer
4th of September, 2015