Complainant

Respondent

Anonymised Parties

An Office Administrator/Accounts Assistant

A Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00017525-001

19/02/2018

This dispute involves a claim by the complainant that she was discriminated against by the respondent on the ground of age when she was paid less than a named comparator Ms. O who is 21 years younger than her.

The complainant referred a complaint under the Employment Equality Acts 1998 to 2015 on the 19th of February 2018 alleging that the respondent had discriminated against her on grounds of age by paying her comparator Ms. O an hourly rate which was €1.50 higher than that paid to the complainant. In addition, it is alleged that Ms. O was also paid for lunch breaks while the complainant was not.

The complainant submits that

She was employed by the respondent for nearly 16 years,

Ms. O was hired before Christmas 2017 and the complainant helped to train her in on the tasks that the complainant herself carried out,

Ms. O is 20 years younger than the complainant,

The complainant when processing the wages in November 2017 discovered that Ms. O was being paid   an hourly rate which was €1.50 higher than that paid to the complainant and was also paid for lunch breaks while the complainant was not,

The complainant raised this with her manager who said that the complainant was admin and Ms. O was accounts,

The complainant submits that she carried out the same work as Ms. O,

The complainant went out sick following this conversation and did not return to work,

The complainant submit that she was discriminated against on grounds of age in relation to her rate of pay.

The respondent submits that

There was no discrimination on grounds of age,

the complainant was paid at a different rate to her comparator Ms. O but the complainant was an office Administrator and Ms. O is an experienced book keeper and the rate of pay associated with this role is deemed to be within the band set by the company as per their advisors

following financial difficulties with the bank and with revenue the respondent engaged the services of a professional accountancy firm, Firm A to assist with the day to day financial function of the company,

In mid-2017, firm A advised the respondent that it would be more economical to hire a part time resource to internally run the book keeping function,

This position was advertised and following an interview process Ms. O was the successful candidate,

It was open to the complainant to apply for this post but she chose not to,

Ms. O carries out a range of duties and responsibilities relevant to her role as book keeper and which are very different to those carried out by the complainant,

On December 3rd 2017, the complainant addressed the owner of the business demanding more pay as she had noted that the new book keeper was receiving €1.50 per hour more than she currently received,

The complainant then walked out of work and the following morning phoned in sick complaining of stress and did not return to work.

Preliminary Issue

The complainant submitted a claim of discrimination on grounds of age in respect of her conditions of employment.     The complainant in her complaint form went on to state that her claim relates to her discovering that she was being paid at a lower rate than a comparator Ms. O who was younger than the complainant. The complainant submits that the reason for this differential in pay is due to her age.    

I consider, therefore, that the complaint as referred by the complainant constitutes an Equal Pay complaint in which a comparator has been named and it is not a complaint in respect of equal treatment within the meaning of the Employment Equality Acts.  

I am satisfied that the complainant who was not legally represented had intended to submit a claim for Equal Pay having named her comparator in her complaint form and that it does not constitute a claim in respect of Equal Treatment.   I clarified this issue at the hearing and the matter proceeded as an Equal Pay claim.   The respondent did not object to the matter being dealt with as an Equal Pay claim.   I am satisfied that the respondent from the information provided in the complaint form and from the content of emails sent to them on behalf of the complainant, was on notice that the claim referred to a claim of Equal pay with a named comparator and that the submission provided by the respondent at the hearing addressed a claim of Equal Pay with a named comparator.

The issue for decision is whether or not the Complainant was paid at a lower rate of pay than her named comparator due to her age.  

Section 85A of the Acts sets out the burden of proof which applies to all claims of discrimination and requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

Section 29 sets out the requirements for establishing an entitlement to equal pay and specifically Section 29(1) which provides that: “It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.”

Section 28 (1) (e) states that: “in relation to the age ground, C and D are of different ages”. This means that there must be a difference in age between the complainant and the comparator.   It is submitted that the complainant is 58 years of age and that the comparator Ms. O is 21 years younger than her.

Section 7 of the Acts defines ‘like work ‘as follows:

…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 regards to such matters as skill, physical or mental requirements responsibility and working conditions

It is therefore an essential requirement of an Equal pay claim under any of the discriminatory grounds for the Complainant to identify a comparator who is employed to do ‘like work’ by the same or an associated employer.   The existence of ‘like work’ between a complainant and comparator is a necessary condition to any entitlement to equal pay under the Act.     Therefore I will first examine whether like work exists between the complainant and the named comparator.

The respondent at the hearing did not concede ‘like work’ and submitted that the comparator was employed as a bookkeeper while the complainant was employed as an office administrator/accounts assistant.   The complainant told the hearing that she was employed by the respondent for nearly 16 years. She agreed that she had been employed as an Office Administrator/Accounts assistant.   The respondent provided a job description/ list of duties as per the complainant’s contract and the complainant agreed that these were her duties. The respondent also provided a list of Ms. O ‘s duties. These job descriptions/list of duties for both positions are as follows:

The respondent advised the hearing that the company had in previous years experienced a troubled financial background and provided details of the company’s financial difficulties. The respondent went on to state that the company had in the past been in trouble with the Revenue Commissioners as well as with Financial Institutions and that they had as a result of this engaged the services of a professional accountancy firm, firm A to assist with the day to day financial function of the company. The respondent stated that the outsourced resource was great, but stated that sales invoicing had fallen behind, causing cashflow issues.   The respondent went on to state that in mid-2017, firm A advised the respondent that it would be more efficient and effective for them to hire a part time resource to internally run the book keeping function rather than firm A having to send someone on site a few days a week to carry out the book keeping function for them.   Firm A advised that this would save time and money and ultimately lead to be more structured approach to their accounting. Following this advice, the respondent advertised for the position of Book Keeper and with the assistance of the complainant, an advertisement was put in several local newspapers and interviews were arranged. Ms. O was the successful candidate.

The respondent stated that the requirement was someone who could on a day to day basis ensure that control was implemented on the bank account, paying creditors on time and collecting from customers on time. They would be required to reconcile all bank accounts, creditors accounts, debtors accounts, VAT control account and PAYE control account.  There was a requirement to work closely with the external accountant in terms of projections and budget.

The respondent advised the hearing that Ms. O was hired before Christmas 2017 and stated that the complainant helped to train her in on the tasks that the complainant herself carried out. The respondent told the hearing that there was some overlap in the duties performed by the complainant and those carried out by Ms. O and added that the complainant had probably carried out about 20% of the list of duties associated with the book keeper’s role.   The respondent stated that both roles were required by the organisation and were not interchangeable. The respondent presented to the hearing job descriptions for the role of Book keeper and for the complainant’s role. The complainant at the hearing referred to the list of duties carried out by the book keeper and stated that she had carried out many of these duties.       The complainant advised the hearing that she had carried out some of the duties on the list but stated that she had not carried out some of the other duties for example she did not draft a set of management accounts and liaise with the accountancy firm and also stated that she did not create VAT and PAYE returns for Revenue.   The complainant also stated that she didn’t know or wasn’t sure if she had carried out the other duties on the list.      

In addition, it emerged at the hearing that Mr. N of firm A had provided on site book keeping services to the respondent during the period prior to the establishment of the Book keeper role and while the complainant carried out her role as Office administrator/accounts assistant.     The complainant agreed that this was the case.   Mr. N who attended the hearing stated that once it became clear that he or a member of his firm would have to attend the respondent premises more regularly to provide the required book keeping service that he advised the respondent that it would be more economical for the respondent to take on an in-house book keeper.

The respondent went on to state that the complainant did raise the issue of her wages with the owners informally on 3rd of December 2017 when she stated that she had noticed that the new book keeper was receiving €1.50 per hour more than she currently received.    The complainant then walked out of work and the following morning phoned in sick complaining of stress and did not return to work.   The respondent stated that her absence left the business in a serious deficit as the role that the complainant filled was a very important and busy position and that the lead up to the Christmas period can be vital to the administrative side of the operation, he stated that the company struggled to meet the needs required without the complainant.   The respondent stated that the complainant remained on sick leave for the following months.

The respondent advised the hearing that the complainant was the office administrator that she performed on and off hire bookings, reception duties, answering customer queries, having consulted with the Directors. At a certain stage she also entered the purchase invoices on the software, and transferred payments for suppliers and wages, albeit that wages were prepared by Firm A off-site.

The respondent advised the hearing that it was open to the complainant to apply for the position of Book keeper but stated that she did not at any time apply for the position of book keeper when it was advertised.

The complainant at the hearing agreed that she had not applied for the Book keeper position. When questioned at the hearing as to why she did not apply for the Book keeping position the complainant replied “I had enough to do in the role I was doing “.   The complainant then added that she had told the respondent that once she turned 50 she would be working Monday to Friday but that she would be taking a more relaxed approach and chilling out.

It would seem from this statement that the complainant is conceding that the role of Book keeper was a more onerous and busy role than the role which she carried out and this supports the respondents position that she was not carrying out “like work” with the named comparator.

I have given careful consideration to all of the evidence adduced here and I am satisfied based on the totality of the evidence adduced that the complainant was not engaged in “like work” with Ms. O in terms of Section 7(1) of the Acts and therefore she is not entitled to the same rate of remuneration as Ms. O in accordance with Section 29 of the Acts.  

Accordingly, I find that the respondent did not discriminate against the complainant on the age ground contrary to section 29 of the Employment Equality Acts in relation to her pay.

I am satisfied based on the totality of the evidence adduced that the complainant was not engaged in “like work” with Ms. O in terms of Section 7(1) of the Acts and therefore she is not entitled to the same rate of remuneration as Ms. O in accordance with Section 29 of the Acts.

Accordingly, I find that the respondent did not discriminate against the complainant on the age ground contrary to section 29 of the Employment Equality Acts in relation to her pay.