ADJ-00002993

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00002993

Complaints for Resolution:  

Date of Adjudication Hearings: 3/8/2016 and 25/11/2016

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure: 

In accordance with Section 79 of the Employment Equality Acts following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. 

This case concerns a claim by a male complainant that he is entitled to the same rate of pay as that paid to a named female comparator in accordance with section 19 of the Employment Equality Acts and that the respondent discriminated against him on the grounds of gender. An initial inquiry hearing in relation to the complaint took place on 3^rd August, 2016 during the course of which the respondent accepted that the complainant was engaged in 'like work' with the named comparator within the meaning of section 7 of the Acts but submitted that there were grounds other than gender for the difference in pay. A submission on the issue of grounds other than gender was received from the respondent on 29^th August, 2016 and from the complainant on 3^rd October, 2016. A joint hearing of the complaints was held on 25^th November, 2016. 

Attendance at Hearing: 

Summary of the Respondent’s Submission:

The respondent is a County Council and it employs the complainant and the named comparator. The complainant has been employed by the respondent in the position of Litter/Traffic Warden since June, 1998. The respondent submitted that the named female comparator is also currently assigned to the duties of a Litter/Traffic Warden. There are currently a total of five Litter/Traffic Wardens employed by the respondent, four of whom are male and one female. The respondent accepts that the named comparator is in receipt of a higher rate of remuneration than the complainant and the other male Traffic/Litter Wardens. However, the respondent submitted that the differential in pay is not founded on the grounds of gender but rather is based on objective grounds unrelated to gender.

The respondent submitted that the named comparator became an employee of the County Council by act of statute in 2014, namely in accordance with the provisions of Section 24 of the Local Government Act 2014. The comparator had been an employee of a Town Council (within the respondent’s County Council area) but transferred to the respondent with effect from June, 2014 following the abolition of all Town Councils in accordance with the aforementioned legislation. The respondent submitted that this legislation provided for the transfer of all existing Town Council staff to the relevant local authority and as a result, the female comparator as an employee of such a Town Council, transferred to the respondent on her existing substantive rate of pay. 

The respondent submitted that whilst it is accepted that the comparator is currently assigned to duties as a Litter/Traffic Warden (i.e. the same role as the complainant) she is remunerated at the higher rate of pay for a Temporary Community Warden which was the substantive rate she was paid prior to her transfer to the respondent. The respondent submitted that the reasons for the differential in pay between the comparator and the complainant were as follows: the comparator commenced employment as a Litter Warden with the relevant Town Council in 2002 and was subsequently appointed to the role of Temporary Community Warden in 2007 and paid the relevant rate of pay for that position. She was subsequently appointed as a Temporary Revenue Collector in November, 2008 the post which she held upon the abolition of the relevant Town Council in 2014. The respondent submitted that during the period from 2008 to 2014 the comparator’s substantive salary was aligned to the pay-scale for a Temporary Community Warden. Whilst engaged as a Temporary Revenue Collector the comparator was paid her substantive salary and an acting allowance. 

The respondent submitted that following the dissolution of the Town Council (which employed the comparator) there was no requirement for a Temporary Revenue Collector or Temporary Community Warden within the respondent’s County Council and on that basis the comparator was assigned to Litter/Traffic Warden duties on her existing rate of pay which is that of Temporary Community Warden. When the comparator transferred across to the respondent on the dissolution of the relevant Town Council it was on the basic rate of pay for a Temporary Community Warden and the acting allowance (which she was paid in relation to her position as a Temporary Revenue Collector) was ceased as there was no longer a requirement for it. The respondent submitted that the comparator is effectively being paid at a “red circled” rate of pay albeit on a temporary basis whilst her situation is reviewed. The respondent referred to the cases of Snoxell and Davies –v- Vauxhall Motors Limited[1], Campbell –v- The Minister for Transport[2] and 58 Complainants –v- Goode Concrete[3] in support of its position in relation to this matter. 

The respondent also submitted that it had previously employed another female Litter/Traffic Warden who was paid the same rate of remuneration and was on the same pay-scale as the complainant and the other male Litter/Traffic Wardens which it currently employs. The respondent contends that this is further evidence that the Council does not operate a discriminatory practice in terms of the pay-scales applied to Litter/Traffic Wardens on the grounds of gender. 

In summary, the respondent submitted that it was obliged to pay the comparator her existing substantive rate of pay following the dissolution of the relevant Town Council and that this was the reason for the differential in pay rather than being in any way related to her gender. Accordingly, the respondent submitted that there are grounds other than gender for the differential in pay between the named comparator and the complainant and therefore, it is entitled to rely upon the defence in section 19(5) of the Acts. 

Summary of the Complainant’s Submission:

The complainant has been employed by the respondent County Council as Litter/Traffic Warden since June, 1998 (the complainant has retired since the present complaint was referred to the WRC). The complainant submitted that there are a total of five Litter/Traffic Wardens employed by the County Council, four of whom are male and one female. The complainant submitted that the work carried out by all five Litter/Traffic Wardens is identical in every respect. However, he claims that the female Litter/Traffic Warden, who was assigned to these duties since June 2014, is being paid a higher rate of remuneration than her male colleagues. The complainant contends that the reason for the differential in pay between them and the female comparator is related exclusively to gender. 

The complainant disputes the respondent’s argument that the named comparator’s rate of pay has been “red circled” at the substantive rate of pay she was being paid by the Town Council prior to her transfer to the respondent County Council. The complainant’s submissions on this issue can be summarised as follows:

• The comparator held the position of Temporary Revenue Collector immediately prior to her transfer to the respondent County Council. If the respondent’s intention had been to protect the comparator’s existing rate of pay following her transfer she should have been paid the appropriate rate for a Temporary Revenue Collector (i.e. the position which she held for six years immediately prior to the transfer) and not the rate appropriate to a Temporary Community Warden.

• When the comparator was employed as a Temporary Community Warden (from 2007-2008) and as a Temporary Revenue Collector (from 2008-2014) it was on a temporary capacity and she did not have permanent status in either position. The comparator’s substantive position with the relevant Town Council at all material times was that of a Litter Warden and this was the only permanent position that she held prior to 2014. The complainant submits that “red-circling” can only be a legitimate argument for paying a lesser rate of pay to one gender than another where it is implemented to protect the earnings of a permanent employee being moved from a higher paid job to a lesser paid job. Therefore, had the comparator been employed on a permanent established basis in either the Temporary Community Warden or Temporary Revenue Collector positions the red-circling of her pay might have been valid. However, the complainant contends that the comparator’s substantive position up to the period of her transfer was that of Litter Warden only and therefore, it is that pay grade which should have been applied when she transferred to the respondent.

• There was no reference to salary red-circling in the comparator’s contract of employment when she was transferred to the position of Traffic/Litter Warden with the respondent County Council.

• The pay discrepancy to which this claim relates did not come about by accident. The complainant submitted that the respondent had over two years to plan for the comparator’s transfer to the County Council prior to the abolition of the Town Council. Therefore, given that the comparator’s appointment as a Litter/Traffic Warden was to change the gender structure within the grade, the respondent should have ensured that her salary complied with the principle of equal pay for equal work.

• The complainant disputes the respondent’s argument that the other female Litter/Traffic Warden which it previously employed can be regarded as a valid comparator for the purposes of the present case. The complainant submitted that this person resigned from her position as a Litter/Traffic Warden more than a decade ago and therefore, her employment finished long before the “relevant time” as defined in section 19(2) of the Employment Equality Acts. 

In summary, the complainant submitted that the burden of proof in the circumstances of this case rests with the respondent to demonstrate that there were grounds unrelated to gender for the differential in pay between him and the named female comparator. The complainant submitted that the respondent has not established that such grounds exist and therefore, the respondent cannot rely upon the defence provided for in section 19(5) of the Acts. 

Issues for Decision:

The issue for decision in relation to this claim is whether or not the respondent has discriminated against the complainant in relation to pay on the grounds of his gender and is therefore entitled to equal pay with the named comparator. It is the complainant’s contention that he performs ‘like work’ within the meaning of Section 7 of the Acts with the named female comparator but is paid less than her. The respondent does not dispute ‘like work’ but argues that there are ‘grounds other than gender’ for the difference in pay between the complainant and the named female comparator in terms of Section 19(5) of the Employment Equality Acts. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.

Conclusions and Findings of the Adjudication Officer:

As the respondent does not dispute ‘like work’ (within the meaning of section 7(1) of the Acts) and submits that there are grounds other than gender for the difference in pay, I will proceed to consider this issue.

Section 19(5) of the Acts provides that “..…nothing in this Part shall prevent an employer from paying, on grounds other than gender, different rates of remuneration to different employees.” As this provides an absolute defence to the respondent, I am satisfied that it is a matter for the respondent to establish that the difference in the rates of remuneration paid to the complainant and the comparators is genuinely attributable to grounds other than gender. In examining this matter, I note the comments of Keane J. in the case of The Minister for Transport, Energy and Communications –v- Campbell & Others where he stated that “the Labour Court is entitled and indeed bound to approach such an issue on the basis that the employer must prove that the differentiation is genuinely attributable to grounds other than sex. In other words, the subsection cannot be used to uphold a practice which seeks to conceal discrimination on sexual grounds”^[4]. Whilst Keane J. was dealing with matters connected with a claim for equal pay on grounds of gender under the Anti- Discrimination (Pay) Act, 1974, the principle enunciated clearly applies to the instant case.

The Labour Court has held on a number of occasions^[5] that since the facts that are necessary to prove an explanation that a process was free from discrimination can only be in the possession of the respondent, that Court (and therefore the Workplace Relations Commission) should expect cogent evidence to discharge the burden of proof placed on an employer.

In the present case, it was not in dispute between the parties that the named comparator was transferred to the respondent in June, 2014 following the abolition of the Town Council where she had been previously employed. It was accepted that prior to her transfer the comparator had held the positions of Temporary Revenue Collector (from 2008 to 2014) and Temporary Community Warden (from 2007 to 2008) with the relevant Town Council. The respondent submitted that the comparator, whilst engaged as a Temporary Revenue Collector, was paid her substantive salary (i.e. that of a Temporary Community Warden) and an acting allowance. The respondent submitted that when the comparator was transferred to the County Council there was no requirement for either a Temporary Revenue Collector or a Temporary Community Warden and therefore she was assigned to duties as a Litter/Traffic Warden. The respondent submitted that during the period from 2008 to 2014 the comparator’s substantive salary was aligned to the pay-scale for a Temporary Community Warden and whilst engaged as a Temporary Revenue Collector she was paid her substantive salary and an acting allowance. The respondent has claimed that the substantive rate of pay which the comparator was paid prior to the abolition of the Town Council was effectively “red-circled” following her transfer to the respondent.

The issue of “red-circling” has been dealt with in the abovementioned case of the Minister for Transport Energy and Communications v Campbell and Others in which Keane J. approved the following passage in the judgement of Lord Denning in Clay Cross (Quarry Services) Limited -v- Fletcher[6]:

                "The issue depends on whether there is a material difference (other than sex) between her          case and his. Take heed of the words between her and his. They show that the tribunal is to              have regard to her and him - to the personal equation of the woman as compared to the     man, in respect of any extrinsic forces, which led to the variation in pay. As I said in Shields v              E. Coomes Holdings Limited (1978) IRLR 163, Section 1 (3) (of the corresponding English                 legislation) applies "when the personal equation of the man is such that he deserves to be           paid at higher rate than the woman". Thus the personal equation of the man may warrant a            wage differential if he has much longer service or has superior skill or qualifications or gives        bigger output or productivity or has been placed, owing to downgrading, in a protected pay             category, vividly described as red circled, or to others circumstances personal to him."    

In quoting Lord Denning above, Keane J. stated "I would accept that passage mutatis mutandis, as a correct statement of the law applicable to Section 2(3) of the 1974 Act". I am satisfied that the principle enunciated here applies equally to the manner in which the provisions of Section 19(5) should be interpreted.

In this case, Keane J. also held that the Labour Court had erred in holding that it was not sufficient for the employers to prove the comparator had been placed in a protected pay category but that in addition the employer must prove that the assignment had been “recognised” and “acknowledged”. Keane J. held that this interpretation of the relevant statutory provision introduces a pre-condition to its operation which had not been enacted by the Oireachtas and which might subvert the object of the subsection which is to exclude the prohibition on pay discrimination if based on grounds other than sex. 

In the case of Snoxell and Davies -v- Vauxhall Motors Limited[7] the UK EAT explained that re-circling occurs where:

                “it is necessary to protect the wages of an employee, or a group of employees, moved from        a better paid type of work to a worse paid type of work, perhaps because the first type is no                 longer undertaken”

Having regard to the evidence adduced in the present case, I accept the respondent’s evidence that it was statutorily obliged to assimilate the comparator into its workforce following the dissolution of the relevant Town Council in 2014. The respondent adduced cogent evidence that there was no requirement within its operations at that juncture for either a Temporary Revenue Collector of Temporary Community Warden (i.e. the two positions which the comparator had held prior to the dissolution of the Town Council) and as a result she was assigned to duties as a Litter/Traffic Warden based on the business requirements of the organisation. I note the respondent’s evidence that workers which transferred from the Town Council were entitled to retain their existing terms and conditions of employment, including their existing rate of pay, upon being reassigned to the relevant County Council. In this regard, I accept the respondent’s evidence that the comparator’s existing substantive rate of pay at the relevant time of the transfer was aligned to pay-scale of a Temporary Community Warden and that she retained this rate of pay following transfer to the respondent and resultant assignment to the position of Traffic/Litter Warden.

In the circumstances, I am satisfied that the comparator’s existing rate of pay was in effect “red-circled” following her transfer from the Town Council to the respondent and that this was the reason why she has been paid a higher rate of pay than her male counterparts who were also employed as Litter/Traffic Wardens. Accordingly, I find that the respondent has established that the reason for the differential in pay between the comparator and the complainant was genuinely attributable to grounds other than gender.

Decision:

Section 79(6) of the Employment Equality Acts requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. 

Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the the respondent has established that the difference in the rates of remuneration paid to the complainant and the named comparator is genuinely attributable to grounds other than gender. Therefore, the respondent is entitled to avail of the defence set out at section 19(5) of the Employment Equality Acts. Accordingly, I find in favour of the respondent in relation to this complaint. 

Dated:   12 April 2017

[1] [1977] I.C.R. 700

[2] [1996] E.L.R. 106

[3] DEC-E2008-020

[4] [1996] ELR 106

[5] Barton –v- Investec Henderson Crosthwaite Securities [2003] IRLR and A Government Department –v- An Employee EDA062

[6] (1978) IRLR 361

[7] [1977] I.C.R. 700