EMPLOYMENT EQUALITY ACTS
DECISION NO DEC-E2016-062
PARTIES
An employee
(Represented by MANDATE)
AND
An employer
In Receivership /
(Represented by Duff and Phelps)
File reference: EE/2013/028, EE 2013/ 401 & et-149945 5-ee-14
Date of issue: 13th April 2016
HEADNOTES: Employment Equality Acts Sections 6, 7, 8, - Gender, Civil Status, Family Status, Equal Pay, Holiday Pay, Conditions of Employment.
1: Background
This dispute concerns a claim by Ms AF that she was discriminated against on the grounds of Gender, Civil Status, Family Status, Equal Pay, and Conditions of Employment and that she performed “like work”, in terms of section 7 of the Employment Equality Acts with named comparators and is entitled to equal remuneration in accordance with section 19 and 29of the Acts.
by employer Knockaleena Limited (in receivership), prior to this by Overview Concepts Limited (from 2009 to 2013) and prior to this by Knockaleena – not then in receivership.
The Complainant referred a claim (against Overview Concepts Ltd) to the Director of the Equality Tribunal on the 11th of January 2013 under the Employment Equality Acts. The claim was repeated on the 20th August 2013 against Knockaleena Limited and a further holiday pay aspect was added to the claim on the 20th October 2014 against Farrell Grant Sparks the receivers of Knockaleena Limited. It appears that Knockaleena were the original owners of the Respondent Pub – Overview Concepts were a Pub Management Company engaged by a Financial Institution in 2009 and on their withdrawal in 2013 Knockaleena (now in receivership) reverted to being the Complainant’s employer.
On the 13th November 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated all the above claims to me, Michael McEntee, an Adjudication / 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. As all claims are very closely associated it was decided and agreed to by the parties to associate the claims in a single investigation.
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 an initial hearing on the 18th November 2015. 2016.
2: Summary of the Complainant’s Submission
2:1 The Complainant was initially employed by the Respondent pub in 1990 and progressed to a full time bar person role with duties that evolved over time.
In August 2012 she raised a query in relation to her rate of pay in comparison to other employees – specifically Mr. FN, Mr.GB and Mr.GR. A difference in pay of approximately €4 per hour was alleged to exist.
Detailed comparisons, identification of similarities were given in relation to the work duties carried out by the Complainant and the Comparators.
As no response was forthcoming to the Complainants’ queries form EE2 containing detailed questions was sent to the employer in late 2012.
2:2 In January the then employer Overview Concepts commissioned a Consultant’s Report from Kabir Consulting to address the issue.
The Report rebutted in detail the Complainant’s claim but the Complainant would seriously contest the accuracy and veracity of the Report.
3: Summary of the Respondent’s Submission.
3:1 At the Oral Hearing the Respondent was represented by the Receiver, Duff and Phelps.
The Submission was essentially the Kabir Consulting report referred to above.
The Report detailed that the duties carried out by Ms.AF were of a lower hierarchical order that the named Comparators. The Comparators all carried out higher order / Managerial duties not carried out by Ms.AF.
The Report contended that the proper Comparators for Ms.AF were 10 other Bar Staff and not the three named Comparators. Accordingly there was no basis for a Gender Discrimination or Equal Pay claim against the employer of the three named comparators.
4: FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4:1 I have to decide if the complainant is entitled to equal remuneration on the grounds of Gender, Civil Status, Family Status. An Annual Leave complaint lodged in October 2014 was also to be considered. At the hearing the Claim was established to be one primarily of Equal Pay discrimination on the Gender Grounds. However the holiday pay complaint was maintained.
The evidence available and which I considered carefully was the Kabir Consultants Report on which the Respondent relied, some documentation/ pay records / copies of text messages supplied by the Complainant and the oral evidence at the hearing from the Complainant and two of the named Comparators.
The Representative of the Receiver at the Hearing was not in a position to offer any detailed knowledge of the operation of the Pub or indeed any matters prior to the Receivership in 2014.
The Oral Witnesses were the Complainant and two of the named male Comparators, Mr. GR and Mr. FN.
All gave credible evidence of the day to day operation of the Pub – primarily in the period from 2009 to final closure in 2014. I found their evidence credible.
4:2 It was clear from the oral and written evidence that during the period from late 2009
(Lease by Overview Concepts and Receivership by Knockaleena) to the eventual closure of the premises in 2014 the Complainant and the named male Comparators were in effect carrying out many duties /accepting responsibilities that would not have been their normal portfolio in a standard ownership situation. It was an almost unique “all hands on deck” period for the Senior Staff anxious over their continuing employment and the survival of the Business/Pub.
Ms.AF, having 23 years’ service was in effect largely responsible for large elements of administration, management of the Part Time Lounge Staff, staff uniforms and general Payroll preparation in addition to her normal duties. Documentary evidence was produced to support this position.
The Complainant was, on the evidence of the documentation presented by her and the oral evidence of the other two Comparators, effectively part of the day to day operational Management of the Pub. A General Manager appeared to have been appointed during this period but his duties were not clear and he relied heavily on the Claimant for support.
The Overview Concepts management, as demonstrated by e mail records produced relied heavily on her for day to day information and support. It was not possible to deduce that she was just one of the ordinary 11 members of the Bar staff, her more appropriate Comparators, as suggested by the Kabir report.
The Kabir report was more a reflection, I found from the evidence presented at the hearing, of a time prior to 2009 when all things were equal and the ownership situation stable.
4:3 In relation to evidence in relation to Annual leave few records now exist to substantiate or refute the claim and the balance of probabilities situation has to be considered. Some written/e mail records were produced by the Complainant which I considered in evidence.
Likewise evidence in regard to a detailed computation of wage differentials is no longer easily available as the business no longer exists and records do not seem to be readily available. Some wage records and pay documents were produced by the Complainant which supported her oral evidence. The Respondent, (the Liquidator) did not strongly contest these records but pointed to the general lack of readily accessible records. Pay slips were provided for one of the Comparators who was present at the hearing and gave evidence as to the veracity of the payslip.
The difference in pay, based on the very limited evidence available, with the Comparator, Mr GR, amounted to approximately €5.88per hour. As the Complainant worked a 20 hour week this would amount to a weekly differential of some €5.88 x 20 = €117.69 per week.
4:4. Having carefully considered all the available evidence, both oral and written, I came to the conclusion that the Complainant and the comparators, in the period from 2009 to 2014, carried out work of a similar nature in accordance with Section 7 (1) (b) of the Employment Equality Acts which states: “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,” and I conclude that they performed like work and there were no reasons other than gender for any difference in pay.
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.
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
Ø The complainant did perform ‘like work’ with the named comparators in terms of Section 7 (1) (b) of the Acts and I find that there are no objective grounds other than gender for the difference in pay and that the complainant has been discriminated against by the respondent.
Ø Accordingly under Section 82 of the Act I here order that the Respondent pay to the complainant arrears of pay of €5.88 per hour for the period of three years before the date of claim (January 2010 and January 2013) and from the date of the claim until the closure in September 2014; this equates to a total of €29,046. As this award constitutes remuneration it is subject to PAYE/ PRSI at the appropriate rates.
__________________________
Michael McEntee
Equality / Adjudication Officer
13th April 2016