FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : G4S SECURE SOLUTIONS (IRE) LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - NOEL CANTWELL DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal of an Adjudication Officer's Decision.
BACKGROUND:
2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011 on the 22nd April, 2016. A Labour Court hearing took place on 9th November, 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Noel Cantwell against the decision of an Adjudication Officer/Equality Officer under the Employment Equality Acts 1998 – 2011. The Complainant claimed that he was discriminated against on the ground of age in that he performs “like work” in terms of Section 7 of the Acts with a named comparator and is entitled to equal remuneration in accordance with Section 29 of the Acts. The Adjudication/Equality Officer held that the Complainant had not identified an appropriate comparator to ground a claim of unequal pay on the grounds of age and therefore held that his complaint must fail.
The Complainant referred the claim to the Equality Tribunal on 9thOctober 2013. The Decision was published on 31stMarch 2016.
Background
The Complainant has been employed as a casual part-time worker as Stewarding Supervisor since 2008 at events held at Thomond Park Stadium, Limerick for approximately 12 days per annum. He is 62 years of age and is paid €9.34 per hour for the hours worked. The Complainant nominated a comparator, Mr D, who is 41 years of age and is paid €10.75 per hour.
Summary of the Complainant’s Case
The Complainant contended that his nominated Comparator, also a Stewarding Supervisor at events in Thomond Park Stadium is paid more than him for doing like work or work of equal value at the same events at Thomond Park on various dates during 2012 and 2013 and that the disparity amounts to pay discrimination on the grounds of age. Furthermore, he claimed that Mr D, as a Static Security Supervisor in his full time capacity for the Respondent, based at a high profile client located at Shannon, was engaged in work of equal value to the work the Complainant undertakes in Thomond Park. He maintained that the only discernible difference is that of age. The Complainant maintained that the security element of the Respondent’s business and the events management business are closely associated. Both businesses operate under the same management structure and out of the same business premises.
Summary of the Respondent’s Position
Ms Mairéad Crosby, Ibec, on behalf of the Respondent disputed that the nominated Comparator was engaged in like work with the Complainant. She said that Mr D was in a completely different position to the Complainant. He works on a full time basis as a Static Security Supervisor based at Shannon and carries out supervisory duties at events in Thomond Park on a voluntary basis, in return for free entry and/or tickets. Ms Crosby said that the Respondent does not employ “ Event Supervisors” in Thomond Park, no such category exists there and supervisory duties are carried out on a voluntary basis only, all stewards/supervisor’s in the Complainant’s position regardless of age are paid the same rate per hour.
The Respondent stated that within Thomond Park there are different categories of personnel who are present during events:-
- i.Voluntary Stewards
ii.Paid Stewards who are paid €9.34 per hour
iii.Security Officers
- i.Unpaid Stewards engaged on a voluntary basis under the auspices of Thomond Park Stadium
ii.The second category comprise of Stewards paid €9.34 per hour and are employed by the Respondent. Some take on supervisory duties. The Complainant falls into this category.
iii.The third category are Security Officers employed by the Respondent at other G4S sites who volunteer for events at Thomond Park and are not paid whilst in that voluntary cacapity. The Comparator falls into this third category.
Mr Crosby stated that the Comparator is not an employee of the Respondent when he volunteers for events at Thomond Park . She said that the Complainant is not a Licensed Security Officer and for the reasons cited above he cannot rely on the Comparator nominated by him to advance his claim.
Witness Testimony
The Court heard witness testimony from the Complainant; the nominated Comparator; Mr Séan O Carroll, Senior Operations Manager and from Ms Dorothy Yelverton, Events Co-ordinator.
In his evidence the Complainant disputed Mr D’s evidence that he worked on a voluntary basis at events in Thomond Park and contended that Mr D was paid for such work. The Complainant produced no evidence to substantiate this assertion. He gave an account of his duties and responsibilities as Stewarding Supervisor. Since 2013 he has been appointed to cover the disability/press area of Thomond Park. This role requires him to allow authorised individuals access to the press area and restriction of any unauthorised individuals while also catering for the needs and comforts of disabled members of the public.
The Comparator Mr D. in his sworn evidence told the Court that he holds a PSA Security License. He is employed in a full time role as a Static Security Supervisor based in the firm at Shannon, where he works 48 hours per week over five days. The firm employs 540 staff directly and operates on a 24 hour basis. He supervises 10 Security Officers on his team; he is responsible for the supervision of all access control into the site of both personnel and goods. This requires checking identity badges, search of persons and vehicle, use of a scanner to conduct searches and checking of the “pulse” system for vehicles. He supervises medical emergencies. He is responsible for the rostering arrangements of staff on his team. He is responsible for detecting problems with all equipment on the plant; he manages the BMS system (Building Management system), intruder alarms and fire alarms. He is responsible for completing all daily reports, activity reports and for auditing. On a regular basis he has meetings with the client company where he liaises with the Facilities Manager and the Security Manager. He is responsible for the performance management of staff on his team and must produce annual KPI’s. His duties include monitoring timekeeping and absenteeism of staff and he is the first port of call when it comes to administering discipline to staff.
In his evidence to the Court, Mr D said that when he attends events at Thomond Park he does so purely on a voluntary basis and is not paid for his time. He said that he volunteers for“the love of Munster rugby”.His responsibilities included supervising the West Terrace and he typically works between 5 ½ to 6 hours at each event. His duties include making sure the public gain access to the Stadium, access for medical emergencies, crowd control and overseeing Stewards. He said that there was very little difference between the role of Stewards and Supervisors at the events at Thomond Park and no PSA License is required.
Mr Séan O Carroll and Ms Dorothy Yelverton gave evidence of the arrangements at Thomond Park and produced for the Court a leaflet outlining“The Role of an Event Steward”at Thomond Park. This clearly indicates that there are two distinct roles available to those who wish to apply for such a position (i) Voluntary Steward Reward Scheme and (ii) Paid Steward Reward Scheme. The leaflet outlines the“Terms and Conditions Apply to Rewards”:-
- (i)Voluntary Steward Reward Scheme
- “Volunteering offers no monetary reward, so in return, up to Two Complimentary Tickets are offered to those who volunteer to steward a RDPRO12 or Heineken Cup match”
“Complimentary family tickets to the Thomond Park Museum and Stadium Tour”
“10% discount at the Munster Rugby Store”
“Discounted Venue Hire Rate for events at Thomond Park Stadium”
- “Volunteering offers no monetary reward, so in return, up to Two Complimentary Tickets are offered to those who volunteer to steward a RDPRO12 or Heineken Cup match”
This indicates that there are a number of benefits to the role including:-
- “Opportunity to steward at events held at the Stadium, including Heineken Cup and Rabio Direct Pro-12 games, and get paid a competitive rate per hour.”
- “10% discount at the Munster Rugby Store”
“Discounted Venue Hire Rate for events at Thomond Park Stadium”etc.
- “10% discount at the Munster Rugby Store”
The latter scheme comes within the ambit of the Respondent, as an employer, whereas, the former comes within the ambit of Thomond Park and is administered by the Respondent as a service provider to Thomond Park.
The Law
The claim falls to be decided by reference to the provision of Section 29 of the Act.
Section 29(1) of the Act provides a general entitlement to equal pay as between persons who are differentiated on any of discriminatory grounds and who are engaged in like work. However, subsection (5) of Section 29 provides a general saver which allows for the payment of different remuneration to employees on grounds other than the discriminatory grounds. It provides as follows: -
- “nothing in this part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employee”.
The Court must consider if the probative burden has shifted to the Respondent in accordance with Section 85A (1) of the Act, which provides: -
- Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
Conclusions of the Court
It is settled law that an equal pay claim must be grounded on the difference in remuneration of the Complainant relative to that of a real as opposed to a hypothetical comparator with whom he or she is engaged on like work. This was made clear by Budd J. inBrides v Minister for Agriculture[1998] 4 IR 250. The Complainant’s equal pay claim in based on his contention that a named comparator of a different age was paid a higher rate of pay while working on at the same events in Thomond Park and while working as a Static Security Supervisor for an associated company. In order to succeed in his claim of discrimination the Complainant must establish, as a matter of probability, that the difference in pay for doing like work is attributable to his age.
The Complainant’s employer is G4S Secure Solutions (Ireland) Limited. It has an event management department and works in partnership with Thomond Park to provide security and stewarding for all events at the stadium. The Complainant’s nominated Comparator works as a Static Security Supervisor at its clients firm based in Shannon.
It is disputed by the Respondent that the nominated Comparator was employed under a contract of employment while working at events in Thomond Park. It is further disputed that he was engaged in like work with that of the Complainant.
On the facts of this case, it is clear to the Court that the Comparator was operating in a voluntary capacity when he was engaged to assist at events in Thomond Park and accordingly is not on a contract of employment on such occasions. InAllonby v Accrington & Rosendale College, C-256/01 [2002] E.C.R. I-7325 the CJEU consider the definition of “worker” Article 141 is a person“who for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration”.This application gives a wider application to equal pay law than a narrow common law based definition of contract of service.
Furthermore, based on the range of duties and responsibilities of the Complainantviz a vizthe Comparator, it is clear to the Court that the Complainant and the Comparator were not engaged in “like work” as defined by Section 7 of the Acts when the Comparator was engaged in carrying out the duties of a Static Guard Supervisor. Thus, the Court is satisfied that there were grounds other than age for the impugned differences in pay. Accordingly, it cannot be held that the Complainant suffered discrimination on the ground of age in terms of Section 29(1) of the Act.
Determination
Having regard to the findings above, the Court concludes that the Complainant has failed to establish that he and his Comparator were engaged in like work within the meaning of Section 7of the Acts. Accordingly his claim cannot succeed.
The decision of the Adjudication Officer is affirmed and the appeal is disallowed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th December 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.