ADJ-00024040

Complainant

Respondent

Parties

Aoife Commons

Dublin City Council

Representatives

Cathal McGreal B.L. instructed by McKenna and Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030534-001

28/08/2019

The respondent is a regional council in the public sector. This complaint revolves around the starting salary paid to three successful candidates from a competitive interview process. There was agreement between the parties as to the amounts being paid to the complainant and the two nominated two comparators. All three individuals are employed in a Grade VII position in a Professional post, the complainant on the first increment and the two comparators on the fourth increment. It was agreed that the three individuals are performing the same role. A restructuring process took place whereby Grade VII Administrative posts were phased out to be replaced by Grade VII Professional posts. It was noted that following long and protracted negotiations with both Trade Unions and the individuals involved, a decision was reached to professionalise the positions and to restructure the division. The restructure was carried out under Public Service Agreements provisions. The resulting Grade VII Professional posts were filled by a competitive interview process. Three candidates were initially appointed from the resulting panel and the complainant and her tow male comparators were appointed on 24 October 2016 at the initial increment of the pay scale. In February 2017 following representations from the two male comparators they were moved up to the fourth point of the scale, with effect from the original date of appointment.

The complainant submitted that Article 4 of Directive 2006/54/EC (which is not a horizontal provision) provides as follows: “For the same work or for work to which equal value is attributed, direct or indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated. In particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex” The complainant submitted that there was no legitimate ‘drawing up’ of the criteria on which the Respondent seeks to rely. Rather there is an attempt to retrofit a ‘system’, or make an attempt at a system, to defend this case. The complainant submitted that it sought information from the respondent by way of a Section 76 Questionnaire, but that it received nothing material in response save a response shortly before the hearing took place. The complainant submitted that in response to its queries, the respondent has simply claimed that the complainant did not have experience in the Grade VII post. The complainant noted that the lack of transparency on the part of the respondent is one of the bases on which the law has deemed fit to place the burden of justification squarely on the employer and cited Wilson v HSE [2010] IRLR 59 in support of this contention. The complainant submitted that among the many adverse inferences that the Adjudication Officer is entitled to draw, simply by the Respondents silence in the face of repeated requests for information, are the obvious implications arising from the following facts: Of the pool from which the complainant and her comparators were promoted, 100% of the top grade (VII) were men, six of the pool were men, 50% were Grade VII, seven were women and 100% of these were Grade VI or less. Of those eligible to receive the level of pay ultimately received by the comparators, 66% of eligible recipients were men, 100% of actual recipients were men and 100% of non-recipients were women. It was also submitted that the respondent has offered a single reason for the differential in pay; ‘previous experience in the Grade VII post’. The complainant commented on the caselaw cited by the respondent noting that in relation to Wilton, which predates Cadman, it is about no more that the interpretation of what the Equality Officer said and whether the Labour Court was entitled to act on that interpretation and is of no assistance to the present case. The complainant suggested that the IMPACT case was improperly cited to say that grading structure is a simple, prima facie defence, it is argued that firstly evidence would be required and secondly it is on defence to indirect discrimination without running the full gauntlet of objective justification. In relation to Cadman, it was argued that Wilson is more closely relevant and applicable to this case. In Wilson, it was decided in a crystal -clear analysis that an employer demonstrate the following in an equal pay case concerned with difference in pay on grounds satisfying certain criteria (in that case length of service, in this case grading structure) Ina given case: (a) it cannot simply point to the criteria and provide nothing more on the issue (transparency is required); and (b) it must justify the adoption of the criteria as well as the use of the criteria.

The respondent submitted that the complainant was not discriminated against either directly or indirectly. The complainant was appointed in accordance with the appropriate legislation and that the circular covering this covers the vast majority of cases regarding starting pay on recruitment and promotion. The respondent, in its written submission, asked the Adjudication Officer to rule on what it refers to as an ‘inordinate delay’ on the part of the complainant to seek a revision of her salary point. The respondent submitted that the three successful candidates appointed to the position had their starting pay reviewed in January 2017. While there were objective grounds for adjustments in 2 of the cases, no such grounds existed or were evidenced in subsequent meetings for the complainant. The respondent submitted that the objective grounds related to, inter alia, previous experience in the Grade VII Administrative post which was essentially re-graded to the Grade VII Professional post. The respondent submitted that having regard to these objective grounds, the complainants claim that she was discriminated against on gender is without foundation. The respondent also submitted that neither the complainant nor her trade union before this have put forward any evidence whatsoever that gender played any part in determining where she was placed on the pay scale. The respondent submitted three precedent cases for consideration. In Cadman v HSE (c-17/05) [2006] ECR 1-09583, it noted that the CJEU rejected an equal pay claim on the basis that length of service is an appropriate criterion, and which has the legitimate objective of “rewarding experience acquired which entitles an employee to do their job better”. In the High Court case Wilton v Steel Company of Ireland, the respondent noted that it was held that there was no discrimination as the comparator was actually receiving a higher salary as a result of longer service and not because of gender. In the case of Irish Aviation v IMPACT DEP993 it was established that the difference in pay related to a grading structure not gender. The respondent submitted that in seeking to establish a case for discrimination, the complainant has chosen a small cadre of comparators with distinct and unique circumstances. Furthermore, examination of appointments to this level within the organisation show that a wide range of both male and female employees are dispersed throughout the pay scales.

I note that it is settled law that the complainant is entitled to choose her own comparators, and in that regard, she chose the two male comparators who were appointed at the same time from the same competitive interview as the complainant was.   It is common case that the complainant was paid at a different rate to the comparators. The complainant and her comparators were appointed at the same time and some months later (in February 2017) the two comparators were awarded pay increases to the fourth point of the pay scale. A year later the complainant sought to revise her pay in line with her comparators. Section 19(1) and (2) of the Employment Equality Acts deal with timeframes for taking a complaint regarding equal pay:

(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. The comparators were appointed to the fourth point of the scale in February 2017 and the complainant took her compliant to the Workplace Relations Commission in August 2019. Accordingly, I find that this complainant is within the ‘relevant time’ outlined in the Act. The respondent submitted three precedent cases for consideration. In Cadman v HSE (c-17/05) [2006] ECR 1-09583, it noted that the CJEU rejected an equal pay claim on the basis that length of service is an appropriate criterion, and which has the legitimate objective of “rewarding experience acquired which entitles an employee to do their job better”. In the High Court case Wilton v Steel Company of Ireland, the respondent noted that it was held that there was no discrimination as the comparator was actually receiving a higher salary as a result of longer service and not because of gender. In the case of Irish Aviation v IMPACT DEP993 it was established that the difference in pay related to a grading structure not gender. Having considered the submissions and evidence from both parties, I find that this is not a case about the re-grading of a post for two reasons: the restructuring proposal makes no reference to re-grading nor does the Information Booklet governing the Grade VII Professional Post. Rather both documents make it abundantly clear that the process for assigning staff to the Grade VII Professional Posts is a competitive one and no mention is made of a pay differential based on experience in a Grade VII Administrative post. In fact, the only reference to experience is contained in the Information Booklet governing the recruitment competition wherein it outlines that one of the qualifications that a candidate must possess it to “have at least 3 years satisfactory experience, including adequate experience in the areas specified”.   It then lists a number of areas of expertise but makes no reference to service at Grade VII Administrative level. In the case of Cadman, the Court noted at paragraphs 30 – 32 inter alia that “The scope of Article 141(1) EC covers not only direct but also indirect discrimination (see, to that effect Jenkins, paragraphs 14 and 15, and Case C-285/02 Elsner-Lakeberg [2004] ECR I-5861, paragraph 12). It is apparent from settled case-law that Article 141 EC, like its predecessor Article 119 of the EEC Treaty (which became Article 119 of theEC Treaty – Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), must be interpreted as meaning that whenever there is evidence of discrimination of discrimination, it is for the employer to prove that the practice at issue is justified by objective factors unrelated to any discrimination based on sex (see, to that effect, inter alia, Danfoss, paragraphs 22 and 23, Case C-33/89 Kowalska [1990] ECR I-2591, paragraph 16; Hill and Stapleton, paragraph 43; and Joined Cases C-4/02 and C-5/02 Schonheit and Becker [2003] ECR I-12575, paragraph 71) This justification given must be based on a legitimate objective. The means chosen to achieve that objective must be appropriate and necessary for that purpose (see, to that effect, Case 170/84 Bilka [1986] ECR 1607, paragraph 37)” In paragraph 33 the Court noted that “In paragraphs 24 and 25 of the judgement in Danfoss, the Court, after stating that it is not to be excluded that recourse to the criterion of length of service may involve less advantageous treatment of women than of men, held that the employer does not have to provide special justification for recourse to that criterion.” In paragraph 37, the Court further referred to Danfoss when it noted “In the same judgement, the Court did not, however, exclude the possibility that there may be situations in which recourse to the criterion of length of service must be justified by the employer in detail”. In concluding its deliberations in Cadman, the Court notes at paragraph 40 that: “It follows from all of the foregoing considerations, that the answer to the first and second questions referred must be that Article 141 EC is to be interpreted as meaning that, where recourse to the criterion of length of service as a determinant of pay leads to disparities in pay, in respect of equal work or work of equal value, between the men and women to be included in the comparison:

-          Since, as a general rule, recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables to worker to perform his duties better, the employer does not have to establish specifically that recourse to that criterion is appropriate to attain that objective as regards a particular job, unless the worker provides evidence capable of raising serious doubts in that regard.” To my mind a number of points arise from the Cadman decision: There may be a justification for a pay differential on gender grounds but that justification must be based on a legitimate objective; length of service may be a legitimate objective; an employer does not have to provide special justification for recourse to length of service; but Cadman does not exclude the possibility that justification in detail may be required in certain situations. One of those situations is where a worker provides evidence capable of raising serious doubts. Therefore, there is no absolute right to rely on length of service as a legitimate objective for gender-based pay differentials in the absence of justification. I note from the submissions that the complainant sought information on a number of occasions (under the Section 76 procedure) which was not forthcoming from the respondent to assist her contemplation of her situation. The respondent noted in its submissions that there exist Public Sector rules on pay and starting points and that where it is necessary to deviate from this there need to be rules. This was noted in the hearing by Mr A who was the Head of HR for the respondent. However, although this may be a correct statement of the procedures in place when Mr A was asked to provide the reasons for the pay differentials he outlined that the two comparators saw the move to the Professional Grade VII role as more of a lateral move. They were on the 7th step of the pay scale and sought appointment in the Professional grade at an equivalent step. Mr A stated that he made the decision regarding the appropriate remuneration and that although he couldn’t accede to men’s appointment to the 7th point of the scale that and moved them to the 4th spoint. He stated that they were treated in accordance with the circular and were essentially re-graded. He also stated that gender played no part in his decision. He also noted that the two comparators would have had a reasonable expectation that they would have been regularised in 2011 when these issues were first mooted. In all the circumstances he granted the two men an uplift to point 4 on the scale.   He stated that he took this decision in the context of public service pay scales and previous service. He further stated that he considered the complainants request for regrading and considered it on its merits but didn’t agree with it at all as he could not see the same criteria applying to the complainant. He further stated he never considered to issue of gender in relation to these matters.   I note that Mr A took the decision regarding the appropriate remuneration himself and that both the recruitment process and interview board were silent on this point. I find that the Professional Grade VII post was not a lateral move arising from the sole method of appointment (i.e. a competitive interview process) and that any experience in the Administrative Grade VII role was not considered as a reason for a pay differential during the recruitment process in any way. Section 22 (1) of the Employment Equality Acts states that: “(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 any matter other than remuneration compared with other employees of their employer.

(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” The complainant referred to the statistics pertaining to this situation (as noted above under the outline of the submissions of the complainant). I note that in its consideration of the case of Irish Aviation Authority v Impact (DEP993) the Labour Court noted as follows: “Given the small numbers of the two grades at the date of claim, the Court does not consider that the statistics submitted could be of sufficient evidential value to ground a prima-facie case of discrimination”.   Although I am guided by the same principal, I consider that the uncontested facts that the three individuals were recruited to undertake the same job, at the same time and are doing the same work, but that the two male employees are paid at a higher rate of pay is sufficient to ground a prima-facie case of discrimination. Having considered the submissions of both parties including the reasons put forward by the respondent to account for the pay differential, I find that the respondent has not provided justification for the denial of equal pay. In the absence of information under the Section 76 procedure, and in the absence of an adequate explanation for the pay differential between the complainant and the two named comparators, and having regard to all the foregoing information including the oral and written submissions of the parties, I find that the complainant is entitled to succeed with her complaint.

Arising from my findings that the complainant has been denied equal pay and that she is entitled to succeed with her complaint, my decision is that she be awarded equal pay dating to the date of her appointment to the Professional Grade VII position.