PTD172

This is an appeal by Ms MN (the Claimant) against the decision of an Adjudication Officer in her complaint against her employer, A Trade Union (the Respondent), under the Protection of Employees (Part-Time Work) Act 2001.

The Claimant is an Administrative Assistant employed by the Respondent since November or December 1981. She has been working part-time since February or April 1999. She has been in receipt of a bonus at Christmas each year during the course of her employment. She contends that the bonus concerned was paid equally to part time and full time staff until 2009 when the methodology of payment of the bonus changed and a lesser bonus was paid to part time staff including her.

The Respondent asserted to the Court that the calculation methodology applied to the bonus in the Respondent has been unaltered since the inception of the bonus many decades ago. The Respondent accepts that the calculation methodology employed produces lesser outcomes for staff who have at some point in their career worked less than full time hours.

The Law

This claim falls to be dealt with by application of s.9 of the Act which provides: -

• 
  (1) Subject to subsection (2) and (4) andsection 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

  (2) Without prejudice tosection 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

  (3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue ofsection 8, to a part-time employee.

  (4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

  (5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her

The Case

The within complaint was made to the Workplace Relations Commission on 30^thMay 2016. The cognisable period for the complaint in accordance with the Act at Section 16(3) therefore is 1^stDecember 2015 to 30^thMay 2016. No application was made to the Court to extend that period in accordance with the Act at Section 16(4).

The Claimant supplied the name and brief details of Ms CM who is also employed as an Administrative Assistant by the Respondent for many years and who works full time. Ms CM was nominated by the Claimant as her comparator for the purposes of the within complaint and she was contended to have received a greater bonus than the Claimant in 2016. The Claimant contended that the difference in bonus payment amount demonstrated an unlawful discrimination as between full-time and part-time workers.

The Court has considered the information supplied in respect of the nominated comparator. The cognisable period for the within complaint as set out above encompasses only one period when the impugned bonus was paid and that period is Christmas 2015. The Court notes the figure supplied as regards the bonus payment made to the nominated comparator twelve months after the bonus payment in 2015. The Court was supplied with no information as regards the bonus paid to the nominated comparator during the cognisable period of the within compliant.

Notwithstanding the challenge posed for the Court arising from the incomplete nature of information supplied the Court notes that the Respondent does not dispute the contention that the bonus payment calculation produces different outcomes as between full-time and part-time employees.

The Respondent asserts that the bonus payment calculation methodology employed by the Respondent has been consistent and unchanged over the period during which the bonus has been paid. Specifically the Respondent disputes that any change in calculation methodology occurred between 2008 and 2009 as contended for by the Claimant. The Respondent supplied wage payment details to the Court which demonstrated that the Claimant received a bonus of €1,333.50 at Christmas 2008 and a bonus of €1,363.50 in 2009. The Claimant did not dispute the accuracy of these bonus payment amounts across the two years during which she had submitted that the Respondent had changed the calculation methodology to the disadvantage of part-time employees.

The Claimant contends that the bonus in 2015 was calculated by reference to service and that, since 2008, some mechanism was employed to pay a lesser bonus to part-time workers resulting in a lesser bonus payment to her in 2015 than that which was paid to a comparable full-time employee that year. The Respondent agrees with the Claimant that a lesser bonus was paid in 2015 to staff who had at any point in their career worked less than full-time hours in a given year but disputed that this was in any way the result of a change in calculation methodology between 2008 and 2009.

The Respondent set out the calculation methodology for the bonus as follows. Each year the Respondent surveys the career history of each member of staff. Their service is taken into account in the calculation and that aspect of the calculation makes no distinction as between full-time and part-time service, i.e. one years’ full-time service is equal to one years’ part-time service for this aspect of the calculation. Each year of service is then considered for attribution of a value for bonus payment purposes, i.e. each year of service attracts an annual bonus payment every year thereafter as a value in respect of service delivered to members in that historical year. A year where service was part time is attributed a lesser, pro rata temporis, value than a years’ full-time service. The outcome of this quite complex mechanism is that a person whose career history includes a period of none or less than full-time service in a given year will always achieve a lesser bonus value than a person whose entire service has been full-time.

The Respondent contended that the purpose of the bonus is to value the contribution of staff in providing services to members throughout each year of their career service. The Respondent contended that it is objectively justified in taking account of hours worked as a means of calculating the bonus amount due to each employee. The Respondent contended that a person working full-time in a given year, by reason of the amount of time they are at work, delivers a greater quantum of service to members in that year than a person who does not work full-time. The Respondent clarified that no aspect of the bonus calculation is based on performance of the staff member concerned or the quality of service provided to members by the individual.

The Claimant asserted to the Court that she believed that this bonus has always been calculated on the basis of service alone and that the calculation methodology outlined by the Trade Union to the Court was unknown to her.

Conclusions

The Court has considered in detail the written and oral submissions of the parties and the data and information supplied at its hearing.

The Court notes that, notwithstanding the Claimant’s contention that the calculation methodology employed in relation to the bonus changed to the disadvantage of part-time employees between Christmas 2008 and Christmas 2009 she received practically the same bonus in both years.

The Court is persuaded by the submission of the Respondent that the calculation methodology employed in relation to the Bonus, while complex and difficult to comprehend at many levels, has been consistent over many years. In any event the matter before the Court relates solely to the bonus paid in December 2015. In that year the Claimant received a bonus of €1,342.89 and this appears to include an underpayment of €9.54 albeit this amount is described as an overpayment in the submission of the Respondent to the Court.

The Respondent asserted that the bonus paid in 2015 was calculated on the basis of the service of the Claimant over the course of her career including seventeen years of less than full time service. The Respondent contended that the valuation of part time service at a lesser value than full-time service is objectively justified within the meaning of the Act at Section 9(2). The basis for that difference in treatment is based, according to the Respondent, on the fact that the bonus is intended to value service provided to the members and as such it is appropriate to encompass quantum of service as a function of time at work as part of the calculation.

The Act permits, at Section 9(2), an employer to treat a part-time employee in a less favourable manner than a full-time employee provided that difference in treatment can be justified on objective grounds. The Court finds that the practice of taking account of the quantum of hours worked by staff can be justified on objective grounds when calculating a bonus which is intended to value services delivered to members of the Respondent across the years of service of the employee. For that reason the Court finds that the Respondent is entitled to a full defence to the within complaint by reason of the operation of the Act at Section 9(2).

Determination

For the reasons set out above the within appeal cannot succeed. The decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
31st March 2017______________________
JKChairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.