ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00009162

Parties:

Complaint(s):

Date of Adjudication Hearing: 19/Jan/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 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.

Background:

This case concerns a complaint on the grounds of gender contrary to section 6 of the Employment Equality Acts, 1998 to 2015 in relation to her conditions of employment. The Complainant maintained that she did not receive equal pay to that of a named male comparator.

The Complainant submitted that she performs “like work”, in terms of Section 7 of the Employment Equality Acts, 1998 and 2015, with a named male comparator, and that she is therefore entitled to the same rate of remuneration paid by the Respondent to the comparator in accordance with section 19(1) of the Act.

At the time of her complaint the Complainant was employed as a Home Help Manager on a gross annual salary of €55,000, whereas her named comparator was paid €74,000. The Complainant submitted that she was not in receipt of equal pay when compared to a male comparator.

Summary of Complainant’s Case:

The Complainant commenced employment with the Respondent in 2002. Following an interview process in 2012 the Complainant was placed on a panel for Home Health Manager, and in 2015 she was offered a temporary position as Home Health Manager. On 23 May 2017 Complainant was advised by the Respondent that she held the position of Home Health Manager on a permanent basis, albeit she contends that despite numerous requests she has not been provided with written statement of the terms and conditions of employment.

The Complainant submitted that she became aware inadvertently that a male comparator was receiving a salary of €74,000, and where this comparator was carrying out the same work in the same role as the Complainant. The Complainant further submitted that whilst the male comparator and the Complainant are designated as Home Help Service Managers, the role of Home Help Service Manager does not have a designated pay scale under consolidated pay scales published by the Respondent in April 2017. The Complainant submitted that following her complaint to the Respondent regarding the pay disparity between herself and the named male comparator, the Respondent moved the comparator to another area of the organisation and this role has not been filled at the time of making her complaint to the WRC.

With regard to her entitlement to equal pay, the Complainant referred to section 19 of the Employment Equality Act 1998 as amended, which states

• it should be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do is B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

• in this section “relevant time”, in relation to a particular time, is any time (including time before the commencement of the section) during the three years which proceed, or three years which followed, the particular time.

The Complainant submitted that she and the comparator were carrying identical duties in their respective roles as Home Care Managers where she was carrying out like work as the comparator for the purposes of section 19 of the Employment Equality Act 1998 as amended, and where the like work they were doing is in accordance with that prescribed under section 7 of the Act.

Referring to jurisprudence, the Complainant referenced Palasti V Rapiton t/a Alpine Electrical Engineering (D EC-2011-078), where the Labour Court rejected the employer’s justification that the comparator carried out work of a greater value to the employer. The Complainant therefore submitted that any contention by the Respondent that the disparity in pay between the Complainant and the named comparator arises because of reasons not connected to gender must be closely scrutinised. The Complainant also submitted that in the case of Fearnon & Ors V Smurfit Corrugated Cases (Lurgan) Ltd [2009] IRLR 132, that claims of red circling by the Respondent needs close scrutiny particularly in relation to the application of temporal limits regarding the basis of any red circling. The Complainant also referred to Benveniste V the University of Southampton where the English Court of Appeal has made it clear that where an employer seeks to rely on the defence of red circling, then the employer must demonstrate that the basis of that red circling is in existence at the time of the dispute.

The Complainant submitted that any objective basis for the treatment of the comparator no longer existed. The Complainant submitted that she carried out identical work to the comparator, is interchangeable in her work with the comparator, and is equally experienced and qualified. She submitted there is no justification for the difference in pay, or for the payment of different rates of pay or grading structures between the Complainant and the comparator.

The Complainant was seeking an order for equal pay and an order for the payment of arrears.

Summary of Respondent’s Case:

The Respondent acknowledged the Complainant commenced her employment in 2002.

The Respondent submitted that in 2012 it sought expressions of interest from staff for the position of Home Health Coordinator. It advised that the expressions of interest for the position required that the candidates must, on the latest date of receipt of completed application forms for the office, be a permanent Grade VI or equivalent (definition of equivalent is those grades whose minimum point on salary scale is greater than or equal to €44,849, be an employee of the Respondents organisation, have obtained such a standard of education as to enable him/her to discharge the duties of the post satisfactory, demonstrate relevant management ability/experience within a health or social service the setting, and possess the requisite knowledge, ability and experience to fulfil the duties of the post). It further advised that the expression of interest stated the successful candidate will retain the current terms and conditions of their employment including pay, hours, tenure, the et cetera. The Respondent also submitted that the budget and Whole Time Equivalent would transfer with the successful candidate, and further provided that the successful candidates post would not be backfilled.

The Respondent maintained that the named male comparator was one of a number of existing staff of the Respondent to apply for the position, and following an interview and skill match exercise the male comparator was paced 2nd on the panel where he took up appointment on 10th July 2013. The Respondent advised that the comparator, in accordance with the expression of interest and conditions of the post, retained his Grade VIII status on his transfer into the service. The Complainant was placed 4th on the panel where she was subsequently offered the position of Home Help Coordinator on 27th February 2015.

The Respondent submitted that at the time of the Complainant taking up her position there were three Home Help Coordinator’s in the area, two of whom were female and one was male. The Respondent contended that the three female coordinators were all employed at Grade VI, and the male coordinator was appointed at Grade VIII in accordance with the terms and conditions of the expression of interest which provided that employees transferred into the service would do so under existing terms and conditions. It advised the male coordinator was appointed at Grade VIII because that was the grade which he held at the time that he responded to the expression of interest. It argued therefore that the differential in salary between the Complainant and her male comparator is due solely to the fact that the male’s grade was higher than that of the claimant when he was appointed, and if a female who had a higher grade than Grade VI had applied for the position and had been successful that female would also have received the higher remuneration than the Complainant.

The Respondent further submitted that due to the employment controls that were in place, and the changes that were required, that the male comparator had moved his position to the Home Help Co-Ordinator, and where his former role was no longer being filled. It therefore contended that in accordance with national agreements his pay and conditions were “red circled”. The Respondent advised that the male comparator has subsequently moved to a substantive Grade VIII role.

The Respondent argued that for the complaint to succeed the Complainant must establish prima facia   evidence that she was subject to discrimination by the Respondent. It argued that the Complainant was not being treated less favourably than another person is, has been, or would be treated in a comparable situation on the grounds of gender.

Referring to jurisprudence as set out in the Southern Health Board V Mitchell (2001) E.L.R 201 and Melbury Developments V Arturs Valpetters (EDA 0917), the Respondent submitted that the claimant had not established any facts which could properly draw an inference that she had been discriminated against on the grounds of her gender. It argued the facts disclosed that the sole reason for the pay differential between the Complainant and her comparator is related to the differences in the grade held by the Complainant and her comparator, and that the pay differential which the male comparator held prior to his appointment to the position of Home Help Coordinator had nothing to do with the Complainant’s gender. His appointment to the position of Home Help Coordinator was a consequence of employment control issues. In this regard the Respondent argued that the transfer of employees under existing grades is standard practice in its organisation.

Findings and Conclusions:

In this case, I must consider the Complainant's claim that the Respondent directly discriminated against her on the gender ground in terms of Section 6(1)(a) and 6(2)(a) of the Employment Equality Acts, in contravention of Sections 7 and 8 of the Acts in relation to conditions of employment, regarding and equal pay. I must also decide if the Complainant was engaged in like work under Section 7 of the Acts with a named male comparator, and entitled to equal pay in accordance with section 19 of the Acts.

Section 6(1) of the Employment Equality Acts 1998 and 2011 provides:

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where—

• a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds’’)

Section 6(2)(a) provides that as between any two persons, the discriminatory grounds are, inter alia: (a) that one is a woman ant the other is a man (in this Act, referred to as ‘‘the gender ground’’),

Section 8 (1)(b) provides In relation conditions of employment…an employer shall not discriminate against an employee

Section 8(4) requires that an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.”

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) 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 her or her, it is for the Respondent to prove the contrary.”

The Complainant states she was directly discriminated against on the grounds of gender in relation to her pay in that she performs like work or work of equal value with a named male comparator. Like work is defined in Section 7 of the Act: ...in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if-

• both perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work

• 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

• 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

Section 19 (1) provides that where A and B represent two people of the opposite sex that: It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

Section 19(2)states: In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.

The existence of “like work” between a Complainant and a named comparator is required to establish any entitlement to equal pay under the Acts. The Respondent did not dispute that the Complainant and her male comparator were doing like work. It is clear from the evidence presented that they were employed in the same position from 27th February 2015 when the Complainant was appointed, and until 2017. However, the Respondent has maintained that the differential in pay was in effect due to the red circling of the male comparator. This, it argued, was based on objective criteria, and not on discrimination against the Complainant.

Circumstances may arise in the workplace which merit an employee being moved from doing one job to doing a different job- in the case within the male comparator had held a Grade VIII position and was required to move due to organisational circumstances. Clearly it would be very unfair under such circumstances to pay employees a wage reflecting the work they are actually doing where they were originally employed and are qualified to perform more demanding duties. To get over this difficulty their job may be “red circled” whereby their work is of one level or grade while their wages are of a higher level or grade. In this situation, I find it would be reasonable that an employer could rely on the red-circling process to justify what would otherwise be unequal pay for like work. However, the situation needs to be carefully examined to see if there is a genuine red-circling arrangement in place, or whether this is simply an artificial device of the employer to avoid the allegation of discrimination on grounds of sex.

In Snoxell and Davies v Vauxhall Motors Ltd, the UK ET explained that red-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.”The justification of red-circling has also been accepted and in the case of Campbell v Minister for Transport, where the Labour Court treated the employer’s case as a defence of “red-circling”, which it defined as applying to situations,“where for specific reasons an individual or group may not be required to perform what would normally be considered the full list of the duties of their grade and an arrangement is made whereby those concerned retain their grade while being reassigned to duties, which, in the normal course, would attract a lower rate of pay.”The very essence of red-circling relates to the situation where the employees retain their previous rate of pay but perform less onerous duties as employees. In the comparators case within, the rate of pay that applied to him related to his personal circumstances and not the role, and was solely due to his transfer from a higher grade to that of a Home Help Coordinator, where he held this role temporarily until an alternative Grade VIII role became available for him, albeit he held the lower grade position for a number of years. I therefore find that the employers decision was consistent with the jurisprudence referred to in Snoxell and Davies and the Campbell cases.

With reference to the jurisprudence referred to by the Complainant, I find this situation within differs substantially from the Fearnon & Ors case regarding the application of temporal limits to red circling. In the Fearnon & Ors case the red-circling had continued for quite a significant period of time and this was of concern to the Court of Appeal. In the case within, I am satisfied the conditions of retaining a higher rate of pay was clearly identified before any candidate had applied or had been appointed to the post, and where the Respondent demonstrated a genuine relocation of the male comparator was required. He was subsequently moved to a Grade VIII vacancy.  

I also find the Benveniste case refers to a different set of circumstances, in that the comparators were permanently doing like work in an identical post, and where the complainant in that case had been disadvantaged with regard the application of her contract of employment which was deemed to be interpreted less favourably than her male comparators regarding her placement on that scale.

I am satisfied in the case within that the male comparator referred to by the Complainant was moved to a lower grade role but the conditions set out for that appointment afforded those coming from a higher grade to retain their pay irrespective of gender; and where the move was temporary in light of organisation changes and employment framework restrictions. The male comparator was moved into a lower grade role for a period of time until a suitable role at his grade became available. His pay was red-circled for this period, and where such practices are established, as in this case, I do not find they amount to an act of discrimination by the Respondent.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I find that the Respondent did not discriminate against the Complainant regarding her conditions of employment relating to her pay on the gender ground contrary to Section 8(1) of the Acts. Whilst the Complainant was engaged in “like work” I find that the established practice of red-circling was legitimately applied to the male comparator in this situation, and therefore the Complainant is not entitled to the same rate of remuneration as the comparator in accordance with Section 19 of the Acts.

Accordingly, I have decided there is not a valid comparator for the purposes of establishing less favourable treatment in terms of 19(1) of the Acts, and I do not uphold the complaint.

Dated:   26th June 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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