Complainant

Respondent

Anonymised Parties

A Manager

An Institute of Technology

Act

Complaint Reference No.

Date of Receipt

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

CA-00010061-001

27/02/2017

The Complainant alleges that she was discriminated against by her employer, on the basis of gender with regard to pay and that she was subjected to less favourable treatment by the Respondent on the point of her return from maternity leave in February 2012 to the present day.

The Respondent denies all claims of discrimination against it. It claims that the Complainant was paid more than her chosen Comparator and that she was not treated less favourably with regard to her conditions of employment.

There was a substantial amount of documentation submitted on behalf of the Complainant, including multiple and comprehensive submissions post the first hearing. The following is a summary of the Complainant’s case.

Preliminary issue – Conditions of Employment case not allowable

The Complainant, in response to the Respondent’s submission that this case is limited to the matters of discrimination on gender on Equal Pay, said that this case is an equality case which contains a number of specific instances in relation to the conditions of her employment where she claims that she has been discriminated by the Respondent. She said that this includes an Equal Pay case but also in relation to her having availed of maternity leave; in the conditions of her employment (annual leave, workload and managerial hierarchy); in the provision of training and in the advertisement and provision of promotion opportunities. She said her case has been set out in the EE2 questionnaire sent to the Respondent in January 2017 and it is well aware of the full case against it.

Preliminary issue – Statute Barred

In response to the Respondent’s submission that the complaint is out of time the Complainant said that where it is established that the Complainant can demonstrate there is a sufficient continuum between relevant acts of discrimination this may be taken into consideration; citing Hurley v County Cork VEC EDA1124. She also referred to Louth VEC v. The Equality Tribunal [2016] IESC 40 regarding the establishment of a two-stage test in determination matters that come within the time limits. In particular where the Complainant satisfies that there is a sufficient link between the incidents of alleged discrimination outside the time limits and those inside the limitation period, which would make it just and reasonable to be treated as part of a continuous act.

The Complainant said that within the period of 6 months prior to the issuing of the claim to the WRC, 28 August 2016 to 27 February 2017, she had been subjected to discrimination at the hands of the Respondent. In particular, with regard to the provision of training which did not accrue until 21 November 2016 and a greater workload which was significantly and exacerbated by the loss of a staff member in September 2016, and her comparator Mr. X’s greater pay and entitlements on his return to the International Office upon his completion of his PhD in the future. She claims that there is a sufficient link going back to her taking her maternity leave in 2012 to establish a continuum between the acts of discrimination.

The Complainant said that without prejudice to the foregoing she would seek to apply for an extension of time beyond the 6-month period to a 12-month period. She said the she had demonstrated reasonable cause for justifying the extension particularly in that she engaged in a bona fide manner with the Respondent via its grievance policy, in seeking to resolve this matter; that she was in poor health at the time and the Respondent is seeking to defeat this matter completely on a technicality.

Substantive case

The Complainant is an International Affairs Manager working in the International Office with the Respondent since 1 August 2002. She is paid a gross annual salary of €84,684. Her main roles and responsibilities include, the marketing and promotion of the Respondent’s courses abroad, student recruitment, contracts with agents, student induction, support and integration both academic and social; EU Programmes - institutional contracts, staff and student exchanges promoting opportunities, encouraging mobility, incoming student induction, supervising administration reports to funding agencies etc; Development of additional formal links with a network of international universities; Making arrangements for visiting groups from overseas; Sourcing funding for International activities; Internal liaison with the various services within the IT Liaison with national and regional development agencies; Representing the Respondent at various fora, and Annual planning and reporting. Her role is a non-academic role in a non-academic office of the Respondent.

She claims that in July 2009 she commenced a period of maternity leave and the Respondent appointed Mr. X, a lecturer, as acting International Affairs Manager in the International Office. She said when she returned to work in August 2010, Mr. X left and returned to his original position. In 2011 she commenced another period of maternity and the same arrangement was put in place. While on maternity the Respondent was in contact about the filling of a post in the International Office as she was the Manager there. On her return to work in February 2012 her line manager Mr. A said that the Respondent’s Executive had decided that Mr. X would stay in the International Office in an “undefined role” and he was to remain in her office; she had to move to a new office, and she felt undermined by this arrangement. No clarity was offered in respect to Mr. X’s role; however, he was continuing work on projects that should have returned to her as International Affairs Manager. She also claims that she was being referred to as the Office Manager, while Mr. X continued to be viewed as Manager of the International Office. She claims that this view had been established from both internal and external communications. The Complainant claims that this demonstrates that she returned to a less favourable position in a diminished role to which she held prior to her maternity leave.

The Complainant claims that the Respondent permitted Mr. X to continue to retain his more favourable “academic terms and conditions” [namely holidays, access to training and pay] in the non-academic International Office as compared to her terms and conditions. Also, due to the lack of job description Mr. X was able to pick and choose what he wanted to do, leaving the Complainant with the less favourable tasks. The Complainant claims that in May 2012 she had a conversation with the then President of the Respondent on her future interest in pursuing a PhD where he said that “somebody within your unit is being groomed for your job or a job above yours”. The Complainant claims that this corroborates her suspicions that Mr. X was getting more favourable treatment.

In October 2012 the Complainant commenced a part-time study but said the Respondent refused to allocate any time to pursue these studies. She was informed that she could avail of two days per year to assist in her PhD; whereas the Respondent afforded Mr. X extensive flexibility to pursue his PhD under his terms and conditions. She said having held discussions with the Institution she was studying with and on medical advice, due to stress, she was unable to continue on with the course. The Complainant said that in January 2013 Mr. X was successful in an interview for a managerial position outside of the International Office but due to an objection raised as to the unfairness of the interview process, he was returned to the International Office and she claims that the Respondent sought to carve out a managerial post for him at her expense. The Complainant said that on several occasions in 2013 she articulated her grievances about Mr. X’s more favourable treatment to Mr. A but nothing was done about it.

On 17 October 2013 the Complainant sought to meet the President to discuss his previous comment about the internal grooming, and to register her unhappiness. She said that she met him in December and sought a transfer out but nothing appropriate was offered to her as an alternative. In March 2014 Mr. X circulated a presentation where he was titled as Director of International Relations, again at the expense of the Complainant. She claims that Mr. X was invited into meetings with senior management on the future management structure of the International Office despite the fact that he was not a member of the Management team. He was also included in email exchanges on future management structures, which again was undermining her position and authority.

In June 2014, a colleague at Structured Lecturer 2 grade, who was seconded part time to the International Office, announced that he would retire. The Complainant said that the Respondent asked her to perform his task on his retirement. She was diagnosed with a stress related stomach condition.

The Complainant claims that the foregoing demonstrates that she was treated less favourably than her comparator Mr. X in all aspects of her relationship with her employer since returning to employment after maternity leave and she claims that this was on the gender ground.

In August 2014 Mr. A informed the Complainant that a decision was taken to reallocate a Structured Lecturer 2 Academic Post to the International Office but failed to regularise Mr. X’s position within the International Office. Mr. A retired and was replaced by Mr. B. The Structured Lecturer 2 Academic post was advertised in October 2014 but titled “SL2 Senior International Officer” which is a head of Department grade. This was a higher pay grade than the Complainant and thus out ranks her and she said she was shocked to see that the job description was drafted in a biased and discriminatory way favouring academics pursuing a PhD – Mr. X – although the International Office was a non- academic office. She claims that she raised this with Mr. X and he gave the air that he was entitled to the post and at the expense of the Complainant. Feeling that her position was threatened she engaged a solicitor who wrote to the Respondent about the post. Ms. C, HR Manager, wrote to confirm that there was an error in the advertisement, it would be withdrawn, corrected and re-advertised.

The Post was re-advertised in November 2014 and the Complainant applied for it as it appeared to have more favourable terms and conditions to her current post as Internal Affairs Manager, although the Respondent had signalled that the Post was to be considered as No. 2 in the International Office. The Complainant interviewed for the post on 26 February 2015 and by email of 4 March 2015 she was offered the Post, but no details of the contract or job description were disclosed. A three-day time limit was set for her decision. She sought details of the Post prior to committing and it was not until 7 April 2015 that she was furnished with a copy of the contract. She claims that she was shocked as there was significant differences in the terms and responsibilities to that as was advertised. The post was in effect second in command in the International Office. The Complainant claims that this was a demotion from her role and she felt “entirely let down and the she could no longer trust the Respondent.”

The Complainant said that she refused to accept the Post, which was offered to Mr. X, as second on the panel, and he accepted the Post. The Complainant said that she was asked to meet Mr. X to discuss the role, but he refused to meet her and to take any direction from or report into her, which caused significant stress on her.

On 3 November 2015 the Complainant met with the Respondent’s President to discuss the ongoing dissatisfaction and discriminatory treatment including unequal pay with Mr. X. On 15 December 2015 spoke with HR and expressed her disappointment on the job advertisement for an elevated position and the ultimate position offered to Mr. X, which she got little reassurance.

On March 2015 the Complainant requested a copy of Mr. X’s contract to address a grievance raised by a member of staff who claimed that Mr. x was “attempting to take over aspects of his post”. She received a copy of the contract and was shocked to discover that the post was effectively one in same as her post, that she held since 2002 along with more favourable terms and conditions of employment. She noted that the contract did not set out Mr. X’s salary. She claims she spoke with Mr. X and he outlined that he was equally frustrated by the Respondent as he was promised a Managerial role which was not forthcoming. The Complainant claims that this reinforces her suspicions. The Complainant claims that the terms and salary associated to Mr. X’s on a Structured Lecturer 2 grade granted him more preferential salary and terms and conditions to a “duty/assistant Manager” that the post ought to have been.

The Complainant claims that in June 2016 she raised an issue with her employers where a State body had written to it and referred to Mr. X as the “International Manager” and she had to have her name as the “International Manager” reaffirmed to that body, which it did and then apologised.

The Complainant claims that all the above mentioned demonstrates that the Respondent treated her is a less favourable manner due to her gender in the advertisement and provision of promotion opportunities.

The Complainant claims that in August 2016 Mr. X stated that he wanted the following January to June semester off to complete his PhD. The Complainant said it would be discussed at both HR and Executive level. The Complainant said that in and around the same time the Complainant met with Mr. B to learn his plans for the allocation of work and to her dismay found that Mr. X was able to “cherry pick” the best options and it left the more difficult assignments to her. The Complainant said that she raised the issue of Mr. X’s request for January to June semester off to complete his PhD.

The Complainant said that there were a number of meetings and an exchange of communications between her, HR and Mr. B in relation to Mr. X and his request for time off. She claims that she was asked if she could cover his work at the time. She said she went out sick on stress leave on 24 October 2016 and blamed this on the ongoing discrimination that she suffered at the hands of the Respondent. She filed a grievance with her employer in November 2016.

She said that the Respondent undertook to assist Mr. X with a two-year paid leave of absence where others would have to cover his work to allow him to complete his PhD, whereas the Respondent was willing to only permit the Complainant 2 days’ leave for her to complete her PhD, while reserving the right to return to the International Office.

The Complainant said that she received an email dated 7 December 2016 to state that Mr. X had left the International Office and returned to his academic role for the purpose of completing his PhD. The Complainant said that she returned to work on 3 January 2017. The Complainant said that she sent a EE2 Questionnaire form to the Respondent setting out 21 distinct questions in relation to her claim of discrimination by the Respondent. She said that the Respondent acknowledged receipt of it but failed to address the questions raised.

The Complainant pursued a grievance with the Respondent and undertook to meet with the Respondent to discuss a resolution. The resolution meetings were ultimately unsuccessful. The Complainant also went into detail about her health deterioration and having to take time off due to workplace stress. The Complainant was sent to the Workplace Relations Commission on 27 February 2017.

The Complainant refers to discussions she had with Mr. B in and around October 2016 dealing with her stress and how she could alleviate that and her physical appearance. She said that there were two statements in those meetings that she felt hinted at gender-based discrimination. One was Mr. B suggesting that the Complainant should consider taking ‘B vitamins’, she claims relates to hormone production, and secondly, when discussing how the Office would support Mr. X’s possible leave of absence, Mr. B suggested maybe finding a ‘middle-aged woman’ to help carry out the work in the Office.

The Legal Submissions

Comparator

The Complainant claims that she was discriminated against by the Respondent on the basis of gender, that the appropriate Comparator is Mr. X. She claims that the work performed was of equal or greater value as per Section 7(c) of the Act, in particular that Mr. X covered in the role of acting International Affairs Manager when the Complainant was on maternity leave on two occasions.

She said that he was treated more favourably in his conditions of employment and in relation to pay.

Discrimination

The Complainant said discrimination occurs where there is less favourable treatment when it is linked to a characteristic indissociable from the discriminatory ground [Case C – 79/99 Schorbus]. She cites Ntoko v. Citibank [2004] ELR 116 regarding the burden of proof and the establishment of a prima facie case. The need to establish objective facts that infer discrimination [A Technology Company v. A Worker EDA0714].

In referenced the Dekker v. Stichting Vormingscentrum voor Jong Volwassen (VJV-Centrum) C 177/88 [1990] EUECJ R177/88 regarding that pregnancy comes within the remit of gender discrimination and was direct discrimination. She claimed that the decision in Campbell v. Bank of Ireland Private Banking [Dec 2013-046] is a seminal case here.

The following is a summary of the Respondent’s case.

Preliminary issue – Conditions of Employment case not allowable

The Respondent said that the only claim before the Workplace Relations Commission is one of Equal Pay. The tick box on the Complaint form specifically states Equal Pay and that is the only case that the Adjudication Officer can hear. The other matters now raised in relation to other events, in particular conditions of employment are not correctly before the Adjudication Officer. The Respondent went on to say that it is prepared to meet the case in relation to the Equal Pay and provide evidence that the Complainant and the named comparator were paid on par, and the Complainant because of circumstances actually paid more than Mr. X.

Preliminary issue – Statute Barred

The Respondent said that the Complainant submitted the complaint to the Workplace Relations Commission on 27 February 2017, where she alleges that she was discriminated against by comparison to Mr. X from the point of her return from maternity leave in February 2012 onward. The Respondent said that she asserts that she was subjected to many acts of discrimination and less favourable retreatment and in particular she makes reference to a period of time when Mr. X sought leave of absence in January to September 2017. The Respondent said that the Complainant said that she was subjected to a greater workload than Mr. X by reason of the departure of two members of staff one in retirement in 2014 and another in 2016. The Respondent said that the Complainant was informed that as early as 7 December 2016 the comparator Mr. X had left the International Office and he was no longer working with her.

The Respondent said that the complaint is time barred as the case made relates to events which occurred from as early as 2012 and accordingly those facts are substantially out of time. The Respondent’s claim that the complaints are out of time is supported by the actions of the Complainant herself. It said that as early as October 2014 she engaged solicitors to complain to the Respondent in relation to an advertisement then seeking a senior academic for a role which was alleged was a management function and not an academic function. It claims that the filling of the role was central to this complaint. She was offered the post, refused it and it was subsequently offered to Mr. X.

Substantive issue

The Respondent said that all staff with the Respondent’s are paid by reference to the national negotiated pay deals. None of the salaries, academic or non-academic are dictated by reference to gender. The Respondent said that it is not allowed to deviate from the set pay scales. All of which are set and subject to national agreement.

The Respondent said that the comparison on a full working year where both parties – the Complainant and Mr. X -were working in the International Office was in 2015. Here the Complainant was paid equivalent to point 9 on the nationally agreed scale and this was €84,463. Thereafter, in 2016 her pay was reduced pro rata as a result of a shorter working year application and parental leave. In 2015 the Comparator, Mr. X was paid a salary of €81,235 consisting of a base salary of €79,106 and a supervisory allowance of €2,219. Accordingly, he was paid a lesser salary to the Complainant.

In relation to the advertisement of the Structured Lecturer 2 post, the Respondent said that the wrong post was first advertised, and the Complainant brought that to its attention. The advertisement was pulled and corrected and re-advertised. Both the Complainant and Mr. X applied for the post. The Complainant was successful, she got no. 1 on the panel and was offered the post but she turned the post down. It was then offered to Mr. X who was second on the list. The post was always designed to be second in command in the International Office.

In relation to the Complainant’s claims that Mr. X had better employment conditions as compared to her, the Respondent cites the opportunity that the Complainant had to take the Structured Lecturer 2, which she was offered in April 2015. She refused the post and therefore she refused the offer for the terms and conditions associated with the post. It said that she cannot now suggest that the term and conditions of Mr. X, who accepted the post once she turned it down, to have better terms and conditions than she has. The terms and conditions associated with the academic post are different as is the pay however, she had that opportunity to take the post and she turned it down. The Respondent said that the differences are nothing to do with gender.

The Respondent said that Mr. X left the International Office at the end of 2016 and contrary to the Complainant’s claim he is not returning to the post in the International Office in the future and there is no arrangement in place. The Respondent said that Mr. X relinquished his post. The Respondent said that the Complainant said in evidence that Mr. X was given a leave of absence to complete his PhD. The Respondent said that this is not the case. The Respondent said that Mr. X was not granted two years paid leave of absence. Mr. B said that there was much discussion here, but he not granted permission.

Mr. B also gave evidence and did not recall the Complainant being unwell in January/ February 2017 or the comment on the “middle aged woman” as was suggested by the Complainant. However, he said that he can agree that when travelling long flights people can be unwell and may have mentioned taking vitamins in general but nothing more.

Preliminary issues

Preliminary issue – Conditions of Employment case not allowable

On the morning of the hearing, the Respondent said that the claim before the Workplace Relations Commission is one under Section 7(c) of Equal Pay on the ground of gender only, and nothing more could be considered. The tick box on the complaint form specifically states Equal Pay and that is the only case that the Adjudication Officer can hear. The other matters now raised in relation to other events in particular, conditions of employment are not correctly before the Adjudication Officer. The Respondent went on to say that it is prepared to meet the case in relation to the Equal Pay and provide evidence that the Complainant and Mr. X, the named comparator, were paid on par and in fact the Complainant actually was paid more than Mr. X.

The Complainant, in response, said that this case is an employment equality case which contains a number of specific instances where she claims that she has been discriminated by the Respondent. She said that this includes an Equal Pay case but also in relation to her having availed of maternity leave; in the conditions of her employment (annual leave, workload and managerial hierarchy); in the provision of training; and in the advertisement and provision of promotion opportunities. This she claims has been set out in the EE2 questionnaire in January 2017 and the Respondent is well aware of the full case against it.

After considering the initial arguments and the contents on the WRC form and when it became apparent that there were a plethora of preliminary issues for consideration including the scope of the complaint, the hearing was adjourned to allow the Complainant fully scope out the complaint and to allow both parties make the necessary submissions to cover the issues that were involved. I am satisfied that the parties were given adequate time and opportunity to do so.

Having considered the case, I note that the tick box indicating “I have not received Equal Pay” was ticked on the WRC form and “gender” was picked as the ground and a male comparator was named. I then note that the Complainant has presented the specific of what she deems to be her complaint in a narrative. Upon reading the lengthy narrative I am satisfied that the Complainant has determined that the alleged discrimination runs far greater than the Equal Pay claim as per the tick on the WRC form. Accordingly, I must first decide whether the complaint before me for consideration is restricted to the “Equal Pay” claim under Section 7(c) or does it include all the other matters, which I will describe for convenience as matters pertaining to Section 8(1) conditions of employment matters.

In making that decision I am guided by the Superior Courts which have held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation.

I also note in County Louth VEC –V- Equality Tribunal [2009] IEHC 370, the High Court found that:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

I note that it is the Respondent who has sought to prevent the change to the form to include Section 8(1) conditions of employment. In this regard it was not made clear why the Respondent determined that it is prejudiced by correcting the WRC form, as the narrative contained within the WRC form is very detailed and was with the Respondent for consideration from the outset. I further note that the WRC forms are not statutory forms and from the case law noted above there is scope to allow for a less stringent procedural approach than that adopted in ordinary litigation. I am satisfied that had the Complainant failed to indicate the nature of the complaint in the matter that she did in the informative narrative and had failed to tick the appropriate box on the WRC form that could have been detrimental to her complaints. However, I am satisfied that the completed WRC form contained the general nature of the complaint and it remains the same through. I am satisfied that the adjournment afforded the opportunity to scope out the complaints fully and allow both parties prepare and present their respective cases thereafter. I find, therefore, that neither party to the claim could be prejudiced by allowing the amendment to include the matters under Section 8(1) conditions of employment.

Preliminary issue – Statute Barred

The Law Section 77(5) of the Acts states:

"(a) Subject to paragraph (b),a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of6months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence. (b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this part shall have effect accordingly.

There can be no doubt that the acts of discrimination which the Complainant alleged that occurred in 2012 and 2014 are outside the time limit - the cognisable period - provided under Section 77(5)(a) and (b) of the Acts and is statute-barred unless it can be saved as being part of a continuum of discrimination.

In considering whether it is within my remit to entertain complaints dating back to February 2012, some five years before the Complainant submitted her complaint to the WRC, and complaints of alleged discrimination which occurred in September 2016 (excessive workload and provision of training), I must consider inter alia the precedent set in Cork County VEC v Hurley EDA 1124, and Musgrave Ltd t/a Musgrave Wholesale Partners v Zakaria EDA 1627.  In this regard the Labour Court has determined that there needs to be a sufficient link between the alleged events, that are within time and those beyond the six month period, to allow for them to be considered; and that before such consideration can be made in deciding whether such a continuance exists what must be first addressed is whether the act complained of within the six-month period in itself establishes a prima facia case of discrimination. If not, then the Respondent has contended that the Adjudication Officer is not required to consider any complaints in respect of events made outside the six months preceding the date of the complaint to the WRC. 

The Labour Court in Cork County VEC v Hurley has determined that “in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a Complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.”

The Complainant submitted the complaint to the Workplace Relations Commission on 27 February 2017, where she alleges that she was discriminated against by comparison to Mr. X from the point of her return from maternity leave in February 2012 and that it was ongoing. She said in particular there were two incidents that had occurred within the preceding 6 months for the entire complaint to fall within the time limits set out in the Acts. Namely, (i) that on 23 November 2016 Mr. X was sanctioned to take a career break or leave of absence from the International Office to pursue his PhD studies and (ii) she was asked in October 2016 to absorb Mr. X’s role and work duties whilst he was to go on study leave to facilitate him in his pursuit of his PhD.

The Respondent said that the Complainant asserts that she was subjected to many acts of discrimination and less favourable treatment and in particular she makes reference to a period of time when Mr. X sought leave of absence from January to September 2017. The Respondent said that includes that she was subjected to a greater workload than Mr. X by reason of the departure of two members of staff, one on retirement in 2014 and another in 2016. The Respondent said that the Complainant was informed that as early as 7 December 2016 the comparator Mr. X had left the International Office and he was no longer working with her. The Respondent said that Mr. X transferred out of the International Office and shall not be returning, contrary to the Complainant claiming the position would be held for his return.

I must decide whether the alleged incidents mentioned above raises an inference of discrimination on the gender ground for it to establish a continuum of discrimination for the purpose of the time limits.  

Having considered the facts as presented in the instance case, I cannot accept that the incidents raised and relied upon by the Complainant, that fall within the 6-month time period, are within themselves sufficient to establish a prima facie case of discrimination on the gender ground. The reasons are set out below.

Firstly, the Complainant has said that the Respondent’s decision to only provide her 2 days leave to complete her PhD studies, namely, the less favourable treatment is a historical event from October 2012 and not from 2016 as she claims. It would appear that Mr. X sought the time off in 2016 while working in the International Office and he was refused likewise, while he remained working there. Therefore, it is clear the common factor in that refusal is linked with working in the International Office. I note the evidence that Mr. X could not remain in the International Office and avail of an extended time period. Notwithstanding, the Complainant had not received a decision in 2016 refusing her time to pursue her PhD studies at that time. Therefore, I cannot accept that this incident establishes a prima facie case of discrimination on the gender ground. In particular, I am mindful of what has been described as a “sufficient link” requirement as set out in Musgrave Ltd t/a Musgrave Wholesale Partners v Zakaria above and the tests set out in Cork County VEC v Hurley. I am satisfied that has not been established here.

Secondly, the alleged discrimination case on gender ground in the excessive workload had not been established. I am mindful of all the evidence adduced here and as the Manager of the International Office the Complainant had lost important members of staff in 2014 and 2016. The Complainant suggested that Mr. X subsequently “cherry picks” what he wishes to do and what not to do. This coincides with a meeting with Mr. B about the possibility of Mr. X taking leave to complete his PhD. However, I learn that Mr. X is refused permission for such an arrangement while working in the International Office and he relinquishes his post and leaves the International Office. I note that the loss of a number of people from the International Office has created a large void. Again, I cannot accept that this establishes a prima facie case of discrimination against the Complainant on the gender ground. On the very examination of the facts and on the balance of probability I am satisfied there is not a sufficient link as is the requirement as set out in Musgrave Ltd t/a Musgrave Wholesale Partners v Zakaria and in Cork County VEC v Hurley. I note from the evidence adduced that the Complainant claims that she was raising questions about discrimination in the years 2012, 2013, 2014 and 2015. However, she waited until 2017 to take her case. Accordingly, I find that the matters raised and relied upon by the Complainant, that fall within the 6-month time period, are within themselves not sufficient to establish a prima facie case of discrimination on the gender ground. Consequently, I find that the Complainant has failed to establish a continuum of discrimination for the purpose of the time limits.

Preliminary issue - Extension of time

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by the Court in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: - “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarge for what it considered was ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. stated as follows: “The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

It is clear that the test places a heavy onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and the failure to present the complaint in time. Thirdly, the deciding Officer must be satisfied, as a matter of probability, that the Complainant would have presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified.

I note that the Complainant’s case in relation to the request for an extension of time is the claim that she was engaging in the internal grievance procedures at the time and she was in poor health.

I accept the Complainant’s evidence in relation to her poor health at that time. However, I note that she was very active in her case with the internal grievance that ran in parallel with this matter. I have not been presented with medical evidence that would sustain her claim that she was not in a position to function ably within that time period where I could say that I was satisfied that there is good reason to look to extend the time limits. I simply do not have that evidence and case has not been made out. By contract she was actively involved with the Respondent via a grievance procedure, which I will deal with below, which I am satisfied weakens the argument that because of poor health the Complainant was unable to function capably to lodge her case with the WRC. The very fact that she was able to deal with the grievance demonstrates that she was capable.

In support of that opinion I note the decision of Business Mobile Security Ltd t/a Senaca Limited v John McEvoy EDA 1621 where the Court dealing with a similar situation as the within case here, held that the claim was statute barred. It held, “The Court has examined the facts of the case as outlined in the submissions of both parties. The Court finds that the last act of discrimination occurred no later than August 2013. Thereafter the Complainant had a choice to make as to whether he would pursue the matter through the statutory remedies available to him or would avail of an internal grievance procedure in an effort to secure a resolution. He chose the latter”. [my emphasis]

I also note that in the Labour Court decision in Brothers of Charity Services Galway v Kieran O’Toole [EDA 177] where it held choosing the internal procedure does not in itself extent statutory time limits,- “The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.”

Therefore, I find that the Complainant has failed to establish primary facts from which it could be inferred that discrimination has occurred during the 6-month period for filing the complaint. As a consequence of this conclusion I cannot address the contention that events occurring within the cognisable period were part of a continuum of discrimination on the gender ground. Notwithstanding the aforegoing, I am not clear what incident(s) that are outside of the 6 months but are within the 12 month period, that the Complainant wishes to rely upon. Accordingly, I find that the complaint under Section 8(1) of the Acts is statute-barred, and I cannot proceed to hear the substantive matter.

Substantive matter in relation to Equal Pay

Equal Pay

The issue for decision by me is whether or not the Respondent discriminated against the complainant 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 of the Acts in relation to her conditions of employment in respect of equal pay.

Relevant law

Section 6(1) of the Employment Equality Acts 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) 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 and the other is a man (in this Act, referred to as ‘‘the gender ground’’).

 The Complainant alleges that she was discriminated against on the grounds of gender in relation to her pay in that she performs “like work” 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-

(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

Section 19 of the Act provides:

(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.

Section 85A of the Employment Equality Acts 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.”

It was conceded by both parties that the Complainant and her male comparator, Mr. X were doing ‘like work’.

It is the Complainant’s case that she did not know what Mr. X was being paid and when she sought to find that information out, she was met with resistance from the Respondent on a number of occasions.

The Respondent said that both parties are employees of an Educational body where all pay scales are invariably linked to nationally agreed pay scales. It said that the case here is no different. In cross examination the Complainant accepted the Respondent’s comment that the pay scales are in existence and generally that gender did not dictate where one would be placed on the pay scale.

The Respondent said that the comparison on a full working year where both parties – the Complainant and Mr. X -were working in the International Office was in 2015. Here the Complainant was paid equivalent to point 9 on the nationally agreed scale and this was €84,463. Thereafter, in 2016 her pay was reduced pro rata as a result of a shorter working year application and parental leave.

In 2015 the Comparator, Mr. X was paid a salary of €81,235 consisting of a base salary of €79,106 and a supervisory allowance of €2,219.

There was some reluctance by the Respondent to present Mr. X’s payslips due to GDPR obligations and having explored the issue I have been presented with the necessary evidence that I am satisfied that the Complainant was paid more than Mr. X. I note that the Complainant herself was unsure if there was a disparity over equal pay, she said it was a suspicion formed over the Respondent’s lack of clarity when she had requested information regarding Mr. X in an internal staff related professional capacity. Had that been shared at the time the case may not have advanced to a hearing before the WRC. I am satisfied that the nationally negotiated pay scales in the public sector are well established and there is less scope for different pay arrangements in this sector that may exist outside this sector.

I am satisfied based on the evidence adduced that the Complainant has failed to establish a prima facie case of direct discrimination on grounds of gender in relation to equal pay.

The Complainant has failed to establish a prima facie case of discrimination on grounds of gender in relation to her conditions of employment.

The Complainant has failed to establish a prima facie case in respect of an entitlement to Equal Pay with a named comparator, on the ground of gender.

Employment Equality Acts – Equal Pay – gender - conditions of employment – statute barred – no discrimination