Complainant

Respondent

Anonymised Parties

Director of Internal Audit

Property Management Company

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-00023014-001

02/11/2018

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

CA-00023015-001

02/11/2018

The Complainant has submitted two duplicate complainants pursuant to the Employment Equality Acts alleging that she was discriminated against by the Respondent on the ground of gender when she was paid less than three named male comparators over a period of three years.  

The Complainant submits as follows:

The Complainant asserts that she was paid less in the period 3 November 2015 to the termination of her employment with the Respondent on 22 August 2018 in relation to the following comparators:-

·         The Director of Facilities Management who had less service than the Complainant, similar qualifications and a similar workload.

·         The Director of Client Services.

·         The former Director of Finance, who was in the employment of the Respondent in April 2017 but was no longer in employment at the time of the Complainant’s resignation on 22 August 2018.

The Complainant contends that in April 2017, the Complainant was the lowest paid director and the only female director.

The Complainant did like work with the three comparators. The definition of like work in section 7 Employment Equality 1998 is broadly defined to include the same work, work similar in nature and work equal in value.

On 2 November 2018, the Complainant sought details of the remuneration for the three other directors and also for the Head of Property. The Respondent failed to furnish this information. Section 81 of the Employment Equality Acts provides that the WRC may draw such inferences as are appropriate from a failure to supply the information sought under this section.

Section 82.1 of the Employment Equality Acts allows an award for equal remuneration in respect of the period 3 years before lodging the WRC claim. The claim herein was lodged on 2 November 2018 and it is submitted that the Complainant should be awarded a sum in respect of the period of three years prior to that.

Summary of the Complainant’s direct evidence

The Complainant accepted that the comparators all held down different jobs but argued that all the members of the Senior Leadership Team (SLT) do a job of equal value as they are all directors and, therefore, that they should be treated the same.

The Complainant asserted that she did the same job as the named comparators and that she was treated as Head of Operations. She contended that, although her level of remuneration did not reflect her position, she was treated as though she had been promoted to Head of Operations with effect from 11 January 2018.

The Respondent submits as follows:

The Complainant commenced working with the Respondent company in or about August 2009. The Complainant initially held the role of Lettings Agent.   Her annual salary was €27,000.   In August 2011, the Complainant was promoted to the position of Lettings Property Manager on a salary of €32,000.

In or around March/April 2014 the Complainant was promoted to the position of Director of Lettings & Residential Property. At that time the Complainant’s salary was increased to €47,500.

By December 2014 the Complainant’s salary had increased to €60,000. This promotion and the various salary increases that she received reflect the fact that the Complainant was considered by the Respondent company to be a very good and talented employee.

In June 2015, the Respondent company engaged an external consultant to assist with training and developing the Respondent company’s Senior Leadership Team (SLT). The Consultant also carried out a salary benchmarking exercise. A copy of the external consultant’s report was provided to all members of the Respondent company’s SLT who, at that time, included the Complainant (Director of Lettings & Residential Property), the Director of Facilities Management, the Director of IT, the Director of Finance and the then Director of Asset Management who is now Director of Client Services. Each member of the SLT’s role and salary were specifically median tested. The role of the Complainant i.e. Direct of Lettering & Residential Property established a median of €65,300 with a salary range between €52,240 and €78,360.

In July 2015, the Complainant’s salary was set at €65,000 as a basic salary which was in keeping with the median established by the consultant’s report. The Complainant was also in receipt of a 5% pension contribution.   The Complainant was the only employee who was not required to match the Respondent company’s contribution.   The Complainant was also in receipt of just under €2,000 worth of gym membership and suit allowances/subsidies.   In July of 2015, the Complainant also received a performance bonus of €6,000.

In July 2016, the Complainant’s salary was further increased to €70,000 as a basic salary. This was a significant pay increase a short number of months before the Complainant commenced maternity leave. At that stage the Respondent company was well aware that she was pregnant and due to commence maternity leave shortly. That year, the Complainant also was paid a performance bonus of €15,000. If (as the Complainant alleges) the Respondent was engaged in discrimination against her due to her gender and/or maternity leave it is implausible that the Respondent would have increased her salary and awarded her such a substantial bonus a short number of months before her maternity leave was due to commence.

In October 2016, the Complainant commenced her maternity leave. She returned from maternity leave to work in or around early April 2017.   Throughout the Complainant’s maternity leave she was paid 50% of her salary by the Respondent company. It is noteworthy that the Complainant was the first employee on maternity leave to be paid her salary or a portion of her salary while on maternity leave. It is submitted that it is of great significance that the Complainant received a €3,000 return to work bonus on her return from maternity leave.   This bonus was paid by the Respondent company to encourage the Complainant to return to work after her maternity leave. It is not the action of employer who is accused of gender discrimination to make payments which are not required by law; the payment of a return to work bonus is, in fact, highly unusual in workplaces generally. It is respectfully submitted that the payment of 50% salary and the return to work bonus does not suggest that the Respondent company was a discriminatory employer.

The Complainant makes a purported equal pay claim and she names a number of alleged comparators i.e. the Director of Facilities, the Director of Client Services and the former Director of Finance. In relation to the Complainant's equal pay claim, the Respondent company relies upon the salary benchmarking exercise referred to above. The Respondent company disputes the three named comparators carried out like work and/or similar work to the Complainant. The Respondent company further disputes the assertion that the work that they carried out was of equal value to the work carried out by the Complainant.

It is important to note that the Director of Facilities was responsible for two separate departments within the Respondent company and that 13 people reported into him. At the time of the Complainant's resignation he was in receipt of a basic salary of approximately €89,000. The Director of Client Services was responsible for a team of approximately 10 people and was in receipt of a basic salary of €90,000.   The former Director of Finance was responsible for a team of 10 people and his basic salary at the material time was approximately €100,000.

Whilst the Complainant was on the SLT, she was not on the Board of Directors of the Respondent company. The Complainant did not do like work to these three alleged comparators and she did not have any members of staff reporting to her.

The Complainant has failed in her submission to specify how it is alleged that she is doing “like work” to any of these alleged comparators. As the alleged comparators were carrying out fundamentally different roles to the Complainant she cannot be alleging that she was doing the same or similar work to them. If it is the case that she is alleging that she was carrying out work of equal value then consideration must be given to skill, physical and mental requirements, responsibility and working conditions. These are all factors that the equality legislation identifies as being relevant. The Complainant has failed in her submissions to address any of these factors. It is submitted that she has failed to raise a prima facia case in relation to her equal pay claim.

At hearing, the Respondent argued that the appropriate comparators for the Complainant’s equal pay claim are the members of the SLT who, like the Complainant, are not on the Board of Directors.

Direct evidence of CEO

The CEO said that the title “Director” is commonly used in the property industry but does not mean that the title holder is a member of the Board of Directors. As the Director of Internal Audit, the Complainant was on the SLT but not on the Board of Directors.

The CEO said that the Director of Facilities Management came from a big facilities company and was responsible for 70/80 buildings.

The CEO said that the Director of Client Services was responsible for the core business of the Respondent company and expertise in finance was essential for his role. The CEO said that all his direct reports are accountants.

The CEO pointed out that the Head of Property always earned less than the Complainant during the time they were both working in the Respondent organisation. The CEO also said that the Head of Property had 25 years’ experience in the property industry.

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 and 8 of the Acts in relation to her conditions of employment in respect of equal pay.

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’’)”,

Section 8 (1)(b) provides that “in relation to 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.”

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 three named male comparators. 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.”

Burden of Proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

In the case of Melbury Developments and Valpeters (EDA 917)the Labour Court stated as follows:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

The Labour Court in the case of Southern Health Board v. Dr Teresa Mitchell (DEE 011) considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of gender can be made out. The Labour Court stated that the Complainant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

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

I note the Complainant’s contention that she had been promoted to Head of Operations with effect from 11 January 2018. I have considered this matter in a related Adjudication Officer Decision (ADJ-00014424) where I have found that the Complainant was not promoted to Head of Operations during her employment with the Respondent. Therefore, in the herein case, I have investigated the Complainants’ complaint solely as it relates to her role initially as Director of Lettings & Residential Property and subsequently as Director of Internal Audit.

The Complainant has identified three male comparators in relation to her equal pay claim who she believes were employed to do “like work” by the Respondent. I will first look at the Director of Client Services and the former Director of Finance who were both members of the Board of Directors, unlike the Complainant and the third comparator who were not, to see if “like work” existed between them and the Complainant during the last three years of her employment with the Respondent company.

I am of the view that membership of a Board of Directors places additional responsibilities and duties on its members which are more onerous than the responsibilities and duties which are placed on other members of staff.  

I note that from July 2014 the Complainant as Director of Lettings & Residential Property had 3 members of staff reporting to her whereas the Director of Client Services had 8 and the former Director of Finance had 9. In July 2017 the Complainant had been appointed to the position of Director of Internal Audit and had no direct reports whereas the Director of Client Services had 9 and the former Director of Finance had 10.   In July 2018 the Complainant still had no direct reports whereas the Director of Client Services still had 9 and the former Director of Finance was no longer employed by the Respondent.

In light of the named comparators’ Board membership and their higher level of direct reports, I find that the Complainant was not engaged in “like work” with either the Director of Client Services or the former Director of Finance in terms of Section 7(1) of the Acts and therefore she was not entitled to the same rate of remuneration as either of them in accordance with Section 29 of the Acts.  

I will now examine whether or not the Complainant was engaged in “like work” with the Director of Facilities Management who was the third male comparator named by the Complainant and who, similarly to the Complainant, was not on the Board of Directors.

I accept that both the Complainant and the Director of Facilities Management were on the SLT. In July 2018 the Complainant was Director of Internal Audit on an annual salary of €75,000 and did not have any staff reporting to her. At that time, the Director of Facilities Management was on an annual salary of €88,740, he was responsible for two separate departments within the Respondent organisation, he was responsible for over 70 buildings and had 13 staff reporting to him (7 direct and 9 indirect) unlike the Complainant who was only responsible for her own department and had no staff reporting to her.

I have examined and compared the roles of the Complainant and the Director of Facilities Management and I cannot find that they were (i) identical or interchangeable; (ii) similar in nature or (iii) equal in value given the greater level of responsibility exercised by the Director of Facilities Management.

I find, therefore, that the Complainant was not engaged in “like work” with the Director of Facilities Management in terms of Section 7(1) of the Acts and that she was not entitled to the same rate of remuneration in accordance with Section 29 of the Acts.  

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

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

CA-00023014-001

Having given careful consideration to all the evidence adduced in this case, I am satisfied that this complaint is not well founded.

CA-00023015-001

This complaint is a duplicate of CA-00023014-001 above and has been disposed of following my findings in relation to that complaint.

Equal pay claim – gender ground