EMPLOYMENT EQUALITY ACTS
DECISION NO: DEC-E2016-060
PARTIES
An employee
(Represented by Behan Barry Solicitors)
AND
A Golf Club
(Represented by Peninsula Business Services)
File reference: EE/2013/458
Date of issue: 7th April 2016
HEADNOTES: Employment Equality Acts Sections 6, 8 - Race - Equal Pay
1: Background
This dispute concerns a claim by Ms RJ that she was discriminated against by employer KGC on the grounds that she was not paid Employer supplemental Maternity Pay while a Comparator (an Irish Lady) was so paid.
The Complainant referred a claim to the Director of the Equality Tribunal on the 4th September 2013 under the Employment Equality Acts.
On the 13th January 2016 in accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the case to me, Michael McEntee, 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 Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 19th January 2016.
2: Summary of the Complainant’s Submission
2:1 The Complainant, a Lithuanian national, began employment with the Respondent in October 2005 as a waitress and left the employment on voluntary redundancy in February 2014.
The Complainant took Maternity leave commencing in December 2006. She was not paid any supplementary maternity pay by the employer.
An Irish employee (Ms AH) who took Maternity leave in 2007 and September 2011 was paid an employer’s supplement, on both occasions, to bring her to her normal pay when Social Welfare was taken into account. In evidence the Complainant maintained that the work carried out by Ms AH was different but of equal value to her own duties. It was accepted that the Irish lady carried out primarily Office /Administration duties but the Complainant felt that her duties, including Supervisory elements, in the Catering /Bar area were of equal value such as to justify her claim for equal pay in the Maternity area.
2:2 In July 2011 the Respondent issued the Complainant with new terms and conditions of employment. The Complainant did not accept that these terms were a true reflection of her original contract entered into in 2005. The Complainant pointed to oral terms and custom and practice with Irish employees which she felt she was also entitled to.
2:3 The Complainant took Maternity leave again in July 2013 and requested that she receive an employer’s top up which was refused by the Respondent.
3: Summary of the Respondent’s Submission.
3:1 The Respondent contested strongly that the Complainant had identified a suitable comparator as required by the Employment Equality Acts. The Complainant was employed in the kitchen service while the proposed comparator was employed in the administration service of the business. Both positions are completely different to each other. I considered evidence which was given both in submissions and orally on this point.
3:2 It was accepted that the Complainant took Maternity Leave in 2006/2007 for which she was not paid a supplement. It was accepted that the suggested comparator took Maternity Leave in 2007 and 2011 and received an employer supplement.
This action, to pay was not taken on any discriminatory or racial grounds rather that she, the suggested comparator, had significant family connections to the management of the organisation and in addition she also attended work on a part time basis during her Maternity leave to process the payroll.
3:3 In 2012 a reorganisation of the Management took place. This involved a general update and restatement of employment policies.
A staff information memorandum note was circulated on the 8th October 2012 to all staff informing them that from this date no Employer sick pay or supplementary maternity pay would be paid to any member of staff.
3:4 On the 2nd May 2013 the Complainant wrote to the Respondent indicating that she did not agree to the terms of the memo of 8th October 2012. On the same day she indicted that she was pregnant and would be availing of Maternity leave commencing in July of that year.
The Respondent replied by letter of the 27th May and reiterated the non-payment policy set out in the memo. A local undocumented meeting took place around this time between the Complainant and the Secretary/Manger of the Organisation which also confirmed the position.
The complaint made a formal Grievance submission to the Board of the Organisation in May 2013 The Board replied in writing confirming the positon as set out in the memo of October 2012 and pointed out that in October 2012 (7 months previously) she had raised no objections.
3:5 In summary the Respondent strongly contested the suitability of the alleged comparator. It was acknowledged that she did receive payment in 2007 and 2011 but this was due to circumstances not in any way connected to her race or nationality.
The maternity situation had been clarified to all staff in October 2012 and the second Maternity Leave of the Complaint had been dealt with under the terms of this policy.
4: FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4:1 I have to decide if the Complainant was discriminated against on Equal Pay grounds on the grounds of race and ethnic origin/ nationality.
4:2 I have reviewed the evidence presented both by the Complainant and the Respondent in relation to job comparisons between both positions. The evidence demonstrates that the nature of the duties of the cited comparator was heavily office and administration based – the administration of the very complex joint owner ship member share scheme structure of the organisation with multiple shareholders (in the high hundreds) paying annual amounts was a specialist task that required a high level of office and IT skills. Evidence was presented by the Manager of the multiple difficulties that had arisen for the comparator with the management of the share owner ship scheme during the economic down turn.
The evidence pointed to the fact that the duties of the cited comparator, the Irish lady, who also did the club payroll, were of a challenging administrative level and of much higher value to the survival of the business.
The Complainant was employed in the kitchen / bar service. She oversaw the running of this area and was recognised to have carried out first class work there.
4.3 Section 7 (1) of the Employment Equality Acts states:
Subject to subsection (2), for the purposes of this 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 regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
It is clear the complainant and the comparator do not carry out the ‘same work’ or ‘similar work’. The complainant contends she carries out work that is ‘equal in value’ to that of the comparator. Having assessed the duties undertaken by both I conclude that there are substantial differences between them; particularly in relation to the mental requirements and responsibility. My conclusion is that the comparator worked to a significantly higher level in relation to these elements. I am, therefore, satisfied that the complainant did not perform work of equal value to the named male comparator in terms of Section 7(1)(c) of the Employment Equality Acts.
5: DECISION
This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
Having investigated the above complaints and I make the following decisions in accordance with section 79 of the Acts that:
Ø The Complainant did not perform ‘like work’ with the named comparator in terms of Section 7 (1) © of the Employment Equality Act and the claim does not succeed.
.
Michael McEntee
Adjudication Officer/Equality Officer
7th April 2016