EDA191

This is an appeal by Ms Helene McManus (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00009162, dated 26 June 2018) under the Employment Equality Act 1998 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 3 August 2018. The Court heard the appeal in Dublin on 15 January 2019. The Court heard evidence from the Complainant and her chosen comparator, Mr Raymond Fenton. It also heard evidence from Ms Miriam O’Callaghan on behalf of the Health Service Executive (‘the Respondent’).

This is an equal pay claim. It is not disputed that the Complainant and Mr Fenton were employed at the material time to do like work and that Mr Fenton was remunerated in accordance with the Respondent’s Grade VIII scale while the Complainant’s terms and conditions were aligned with those of a Grade VI employee. The Complainant alleges she was thereby discriminated on grounds of gender with regards to her remuneration.

Mr Fenton was appointed as Home Help Co-ordinator in the Kildare West Wicklow Area of the Dublin/Mid-Leinster region in 2012. He took up the post on 10 July 2013. At the time of his appointment, Mr Fenton held a Grade VIII post with the Respondent. The post of Home Help Co-ordinator is aligned with Grade VI. However, Mr Fenton retained his Grade VIII terms and conditions when he assumed the Home Help Co-ordinator role. This was made possible by the terms of an agreement that had been reached between the Respondent and IMPACT under the auspices of the then Labour Relations Commission in June 2012. That agreement related exclusively to the terms of the Expression of Interest process that would be used to create a panel form which the post to which Mr Fenton was subsequently appointed was filled. The agreed process permitted the Respondent to received applications to fill the post of Home Help Co-ordinator in the Dublin/Mid-Leinster region from “current Grade Vis or equivalent”. It then defined “equivalent” for the purposes of that process as “those grades on a salary scale whose minimum point is greater than or equal to €44,849”. The Expression of Interest further provided: “The successful candidate will retain their current terms and conditions of employment, including pay, hours, tenure, leave etc.” Mr Fenton was redeployed to a different role by the Respondent in November 2017. The Complainant referred her complaint to the Workplace Relations Commission on 21 June 2017.

The Complainant unsuccessfully applied for the post in question in 2012. However, on 27 February 2015 she was subsequently appointed to backfill the post of another Home Help Co-Ordinator in the same region for the duration of that person’s secondment. Her evidence to the Court was that she inadvertently became aware of the disparity between her salary and that of Mr Fenton when she stumbled on a document that Mr Fenton had left on a photocopier. She also told the Court that Mr Fenton subsequently confirmed that information to her and allowed her to retain a copy of the document in question.

Complainant’s Submission

Mr Kinsley BL for the Complainant submits that at all material times she carried out identical work to that of her comparator; that the work of both was interchangeable; and that both were equally experienced and qualified for the role of Home Help Co-Ordinator. He further submits that there was no justification for the difference in their respective remuneration. The Complainant seeks an order for equal pay and an order for payment of arrears.

Mr Kinsley BL directed the Court’s attention to the decision of the Equality Office inPalasti v Rapiton T/A alpine Electrical EngineeringDEC-2011-078, the decision of the Northern Ireland Court of Appeal inFearnon & Ors v Smurfit Corrugated Cases (Lurgan) Ltd[2008] NICA 45 and to the decision of the Court of Appeal for England and Wales inBenveniste v University of Southampton[1989] IRLR 123.

Respondent’s Submission

The Respondent accepts that Mr Fenton retained his pre-existing Grade VIII terms and conditions for the duration of the period that he was in post as Home Help Co-Ordinator for Kildare West Wicklow i.e. from 10 July 2013 until November 2017. The Respondent further accepts that the terms and conditions of the Complainant and two other female Home Help Co-ordinators in the same region during that period were aligned with the Grade VI scale. However, it submits that Mr Fenton retained his Grade VIII status in accordance with the terms of the June 2012 Expression of Interest which provided specifically that successful applicants would retain their terms and conditions of employment following appointment to the position. The Respondent further submits that the difference in the terms and conditions applied to Mr Fenton and those applied to the Complainant (who retained her Grade VI terms and conditions) was due solely to the fact that, on his appointment, Mr Fenton held a higher grade than the Complainant. It is therefore, the Respondent’s submission that the difference in the rate of remuneration received by the Complainant vis-�-vis that received by her chosen male comparator was due to the difference in their respective grades at the time of their appointment and is unrelated to their different genders.

In his legal submission on behalf of the Respondent, Mr Rochford referred the Court to section 19(5) of the Act, to the decision of an Equality Officer inPalasti v Rapiton T/A alpine Electrical EngineeringDEC-2011-078 and to the judgement of the Supreme Court inNational University of Ireland Cork v Ahern & Ors[2005] ELR 297.

The Law

Section 19 of the Act provides:

• 19.(1) 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.
  (2) 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.
  (3) For the purposes of this Part, where B's employer is an associated employer of A's employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.
  (4)
  • (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer.
    (b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.
    (c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.
  (5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.

The Court has given careful consideration to both the judgment inFearnon & Ors v Smurfit Corrugated Cases (Lurgan) Ltd[2008] NICA 45 and that inBenveniste v University of Southampton[1989] IRLR 123 relied on by Mr Kinsley BL, notwithstanding that at their height those decisions could at best be treated as merely persuasive but not binding on this Court. The Court finds, however, that the approach taken by the Court of Appeal in those cases to the determination of equal pay claims differs from that established in this jurisdiction as exemplified very clearly for example in the judgment of the Supreme Court inNational University of Ireland Cork v Ahern & Ors[2005] ELR 297, relied on by the Respondent.

The Supreme Court inAhernwas required to consider, inter alia, the application of section 2(3) of the Anti-Discrimination (Pay) Act 1974. That section (since repealed) is very similar to the wording of section 19(5) of the Act. In his judgment, McCracken J states:

• “Section 2(3) of the 1974 Act provides:

  “Nothing in this Act shall prevent an employer from paying to his employees who are employed in ‘like work’ in the same place different rates of remuneration on grounds other than sex.”

  Assuming the comparators were engaged in like work with the respondents, it is clear in the present case that they were not in receipt of the same rates of remuneration. The question raised by s.2(3) involves totally different considerations from those which are relevant to a comparison of “like work”. The question at issue here is whether the differing rates of remuneration are based on the grounds of sex or whether there are other reasons for the differential.” (pp 302-3)

Accordingly, the appeal fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
25 January 2019______________________
CHDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.