ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00009163

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 by the Complainant that she was discriminated against by the Respondent 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.

This 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.

The Complainant commenced employment on 2nd September 2002. At the time of her complaint the Complainant was employed as a Home Help Coordinator on a gross fortnightly pay of €2147.70. The Complainant submitted that she was not in receipt of the equal pay when compared to a male comparator.

Summary of Complainant’s Case:

The Complainant submitted that she was employed as a Home Help Coordinator, a Grade VI post within the Respondent’s staffing structure. In June 2017 she was alerted to the fact that another Home Help Coordinator within the team, who was a male colleague, was in receipt of a salary of €74,551 which is commensurate with a Grade VIII post, and where this was €18,519 per annum in excess of the Grade VI post held by the Complainant. She maintained that the male comparator had been continually employed at Grade VIII since July 2013 and at all times carried out the role of a Home Help Coordinator.

The Complainant maintained that accordance with Section 6 of the Employment Equality Act 1998-2015 that she had been discriminated on the grounds of gender in that, in accordance with Section 7 of the Act she was performing like work in that both herself and her male comparator perform the same work under the same or similar conditions, each is interchangeable with the other in relation to the work, and where the remuneration received by the Complainant (the primary work) is less than the remuneration received by another (the comparator). She therefore submitted that the work she was performing should be regarded as equal in value to the work performed by the named comparator. The Complainant further submitted that in accordance with Section 19 of the Act it shall be a term of the contract under which she is employed that she should be entitled to the same rate of remuneration for the work which she was employed to do, and where the named comparator was employed to do like work.

She outlined that the comparator had applied for and been appointed to the role of Home Help Coordinator in 2013, a role she had been performing since 2002. She advised that she routinely covered the comparator when he was on leave, and likewise he covered the Complainant’s duties when she was absent, and that the roles were interchangeable with each other. She further submitted that at the time of the complaint, and within the relevant group of employees, the comparator was the only male amongst a group of female Grade VI Home Help Coordinator’s, and was the only person within that group at Grade VIII salary.

She contended that pay scales within her employer are subject to a collective agreement and where arrangements for pay increases have for the last 10 years been subject to national negotiations. She advised that FEMPI legislation affected her salary, working hours, annual leave and pension, and after 15 years service she discovered that the only male colleague carrying out like work has been paid significantly in excess of her earnings. She submitted that the Respondent has not outlined any objective justification for this and since she questioned the unequal treatment the Respondent has assigned the Complainant to another Grade VIII role within the organisation.

Referring to case law the Complainant maintained in the case of Gislea Rummer v Dato-Druck GmbH(1986) ECR 02101 the CJEU laid down the guiding principal “the criteria governing pay-rate classification must ensure that work which is objectively the same tracks the same rate of pay whether it is performed by a man or a woman”. The Complainant argued that the CJ EU has also held that where women have been paid less than men in jobs of equal value, the employer must show that the different is based on objectively justified factors unrelated to any discrimination on grounds of sex (Dr Pamela Enderby V Frenchay Health Authority and Secretary Of State For Health (1993) ECR I-5535).

The claimant submitted that a proper reading of Sections 6 and 7 of the Employment Equality Act 1998-2015, along with EU and national case law also referred to in her submission, should find that she had been treated less favourably in comparison with a male colleague despite performing like work and being regularly interchangeable with this colleague.

Summary of Respondent’s Case:

The Respondent acknowledged the Complainant commenced her employment as a Home Help Organiser on 2nd September 2002. The Respondent advised that following a review of home health services, a circular letter issued on 25th March 2008 that upgraded her post, along with existent permanent Home Help Organisers, to Grade VI, and where the Complainant continued to work in this role. The Respondent maintained that in 2012 it sought expressions of interest from staff in other areas for the position of Home Health Coordinator in its own area. It advised that the expressions of interest for the position required 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, being 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 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 mail 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 Complainant was placed on the panel. He was subsequently offered the position of Home Help Coordinator which he took up on 10th July 2013. The Respondent advised that the comparator retained his Grade VIII status on this transfer into the service in accordance with the terms and conditions set out in the expression of interest.

The Respondent submitted that at the time of the complaint being submitted to the WRC there were 4 Home Help Coordinator’s in the area where the Complainant works, three 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 mail 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 and where his former role was no longer being filled. It therefore contended that in accordance with national agreements his pay and conditions were in red circled, and he 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 that 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. They clarified that the male comparator had since transferred out of the service and has taken up another position at Grade VIII. It advised the Complainant has transferred out of the home help service in April 2017 at her current grade, and the vacancy created by her departure was filled in April 2017 by a person who was recruited from the existing temporary home help coordinator (Grade VI).

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 comparators, 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 for the evidence presented that they were employed in the same position from 10th July 2013 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 ans was required to move due to organisations. 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, 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 EAT 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 been accepted and the case of Campbell v Minister for Transport. 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 due to his transfer from a higher grade to that of a Home Help Coordinator, and where he held this roles temporarily until an alternative grade VIII role became available for him, albeit he held the lower grade position for a number fo years.

I am satisfied in this case that the male comparator referred to by the Complainant was moved to a lower grade role, which was a role also held by the Complainant. The movement was in light of the employment restrictions that existed at the time, and where the male comparator was move 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:   31.05.2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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