Complainant

Respondent

Anonymised Parties

HR Administrator

Hotel Group

Representatives

Noel Murphy Cork Operative Butchers IWU

Ronan Daly Jermyn Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031684-001

19/10/2019

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

CA-00031716-001

21/10/2019

The claimant asserts that she was discriminated against by the respondent on the basis of race in that she was treated less favourably than another employee who carried out her role on a fixed term contract while the claimant was out of work on maternity leave.

She submits that when she brought the issue of her salary to the attention of management she was informed that the respondent accepted her assertion and was told this was because “she was not Irish, and they didn’t think she would notice the discrepancy”.

The claimant further submits that the respondent breached the Terms of Employment (Information) Act 1994 by issuing a statement of her core terms which deliberately contained false and / or misleading information.

The respondent denies race-based discrimination and asserts that no discrimination whatsoever has occurred against the claimant and that the apparent disparity in pay is explained by objective factors.

The respondent further rejects the assertion by the claimant that they breached the Terms of Employment legislation by including false and misleading information in the complainant’s statement of the main terms and conditions of employment.

The claimant submits that she commenced employment with the respondent company in 2007 on a salary of €26,000 per annum.

Two years later she was promoted to the position of H.R Manager on a salary of €28,000 per annum.

The claimant submits that the going rate for a H.R Manager ranged between €35,000 – €45,000 per annum.

On acquiring a second hotel the claimant’s workload increased and her salary was increased to €30,000 per annum, a sum still out of line with industry norm.

The claimant took Maternity Leave in 2016 and her replacement was paid a salary of €45,000 per annum.

The claimant submits that the difference in pay was on the basis of her nationality.

She further submits that when this issue was raised with the respondent manager it was accepted that she was underpaid and on seeking an explanation for same was told ““she was not Irish, and they didn’t think she would notice the discrepancy”.

The claimant submits that an increase of €10,000 in her salary was an attempt to appease her because of the manner she had been treated.

She further submits that she received a commitment to look at a retrospective payment.

The claimant submits that under the Employment Equality Act 1998 discrimination occurs “When one person is treated less favourably that another on any of the nine grounds, Gender, Marital Status, Family Status, Age, Disability, Sexual Orientation, Race, membership of the Travelling Community and Religion”.

The claimant further asserts that when two workers are doing the same job and one is being paid €30,000 per annum whilst the other is paid €45,000 per annum there is no doubt that an act of discrimination is taking place.

The claimant’s replacement during Maternity Leave, the comparator in the instant case, was paid a salary of €45,000 per annum while the claimant was paid €30,000 per annum. The claimant is of Russian nationally and the comparator is Irish, and the claimant submits that this is a clear case of discrimination on the basis of race.

►Terms of Employment (Information) Act 1994:

The claimant submits that she received a statement of her core terms of employment which deliberately contained false and misleading information as she was given to understand that her starting salary and subsequent salaries were the going rate for the job.

This, she submits, was incorrect and, on taking Maternity Leave in 2016/2017, she discovered that her replacement was paid a salary of €15,000 in excess of her salary.

In addition, the claimant maintains that on investigation she discovered that her salary was substantially out of line with the norm since commencing employment in 2007 until her realignment on her return to work from Maternity Leave when she was paid a salary of €40,000.

It is contended by the claimant that the Terms of Employment (Information) Act 1994, Section 3 (1) (g) obliges an employer to inform an employee in writing regarding the method of calculation of wages as follows: “The rate or method of calculation of the employees remuneration”.

The claimant submits that she was not given information regarding the method of calculation of her salary which is a breach of the terms of said Act.

The respondent submits that the claimant commenced employment in November 2007 as a HR Administrator at a salary of €24,000 supporting one hotel, an appropriate salary they submit, commensurate with the position. They also submit that the claimant had no background or qualification in HR.

In June 2008 the complainant received a promotion to the position of HR Manager on a salary of €28,000 per annum.

In September 2009 all staff in the respondent company had a 10% salary cut due to the recession.

In 2015 the respondent acquired a second hotel and the claimant’s salary was increased to €30,000 per annum.

In 2016 the claimant commenced Maternity Leave and the respondent arranged for temporary cover, by way of a fixed term contract, for the period of the claimants Maternity Leave.

The claimant’s replacement was put on a fixed term contract and was paid a higher salary than the claimant as she was an experienced and qualified HR Professional which attracted a higher salary, in addition to being hired on a temporary contract pending the return to work of the claimant and the nature of this contract also attracted a premium in terms of salary.

Following the claimant’s Maternity Leave the claimant was due to return to work in March 2017. Immediately preceding her planned return to work, the claimant contacted the Group General Manager by email on 2nd February 2017 requesting a pay increase. The Group General Manager responded on 3rd February 2017 acknowledging the claimant’s correspondence and the contents of same and with a commitment to review her salary.  

The respondent submits in advance of the claimants return to work   they requested a meeting to discuss her request for a pay increase, her request for Parental Leave and any support she would require within the HR Department to ensure it would be fully operational. The meeting did not take place as requested.

The claimant, they submit, emailed the Group General Manager advising that illness would prevent her from returning to work on 7th March 2017 and this was supported by a medical certificate.

The fixed term employee who replaced the claimant for the duration of her Maternity Leave secured alternative employment at the end of the claimants Maternity Leave. The respondent submits that they needed a replacement to cover the claimant whilst she remained absent due to illness and they engaged an employee on a fixed term contract on the same salary as the claimant as she had less experience and fewer qualifications than the previous fixed term employee that she was now replacing.

The respondent’s position is that the claimant remained out of work due to sick leave until October 2018. Prior to her return to work they arranged a meeting to discuss changes that had occurred during the claimant’s absence including the appointment of a new HR Director, a position the claimant was invited to apply for.

The issue of pay was raised and the Group General Manager advised that the issue of the claimants salary would be an area for discussion in line with performance management on her return to work from sick leave.

On 12th July 2018 the claimant expressed her disappointment with the response to the salary request. On 23rd July the Group General Manager responded outlining the respondent company’s approach to salary reviews and confirming their willingness to discuss her salary on her return to work.

The claimant then responded on 25th July 2018 expressing dissatisfaction that her salary would not be reviewed until her return to work as, she claimed, she had been underpaid and it needed to be rectified immediately.

The respondents Group General Manager replied by stating that the claimant was “a valued member of staff” and “committing to a full review of her salary in the context of the company’s policy on pay”.

They submit that the Group General Manager outlined the changes taking place in the HR Department and the potential implications for the claimants role, the creation of a new post of “strategic HR Director” and confirmed that the claimant had been invited to apply and, if successful, it would be open to her to negotiate a salary commensurate with the role.

On 16th August 2018, at the request of the respondent, the claimant attended an Occupational Health Service, who recommended a phased return to work.

On receipt of the Occupational Health report the respondent submits that they forwarded a copy of same to the claimant proposing a phased return to work from 1st October 2018, as set out in the report, and proposing a meeting on her return to review updates within the company and the HR department during the claimants absence.

On 24th September 2018 the claimant emailed the Group General Manager informing him that she would not be returning to work on 1st October, proposing no alternative return to work date and requesting a meeting with the Group General Manager on 3rd October 2018 to review her salary.

The Group General Manager emailed the claimant on his return to work from annual leave on 11th October 2018 expressing disappointment that she was not in a position to attend the meeting and return to work as planned on 1st October 2018, particularly as the advice from the respondents doctor was that she was fit to return to work on a phased basis.

The Group General Manager confirmed a commitment to carrying out a review of her salary and confirmed that “any agreed salary would be applied retrospectively from the date of the claimants return” and requested that the claimant “confirm when you expect to return to work” in the context of the respondent’s doctors report.

On 11th October 2018 the claimant emailed the Group General Manager confirming that she would be available to meet.

On 12th October 2018 the respondent submits that the claimant emailed the Group General Manager indicating her intention to return to work by the end of the month, reiterating her request for a salary increase and stating that she felt that “her salary should be discussed before or on the day when I return to work”. Alternatively, she indicated her interest in a “substantial severance package”.

The respondent submits that the Group General Manager acknowledged the claimant’s email of the 12th October 2018. He clarified the request for written proposals with respect to her request for a salary increase, why she believed it was warranted and what she would consider to be a fair and reasonable increase. He also confirmed that any increase would be backdated from the date of her return to work following discussions. The Group General Manager asked for confirmation that “firstly that you do intend to return to work and secondly on what date you intend to do so”.

The claimant responded by email on 18th October 2018 reiterating her request for a salary increase alleging that “she was underpaid relative to her colleagues”, that she feels “hurt and let down” that she was “employed on the cheap” and that “several people within the company were aware that I was underpaid in comparison to my peers” and that “nobody in the company wasprepared to alert me to this injustice”. The respondent submits that the claimant suggested that her salary should be rectified at the next meeting and the claimant also proposed that the average salary of colleagues who held positions of equal value should be the benchmark. She further confirmed that a sick note was to be furnished to the respondent company for the month of October 2018.

The respondent replied to the claimant on 24th October 2018 acknowledging receipt of her sick leave note, rejecting the assertion that she was “employed on the cheap”, reiterating previous commitments to review her salary on her return to work, outlining various bonuses paid to her and offering dates for a meeting in November 2018.

The claimant reverted to Management on 24th October 2018 confirming her availability for a meeting on 8th November 2018 and confirming her return to work.

The respondent wrote to the claimant in late October 2018 welcoming her back to work, acknowledging the forthcoming discussions in the context of a phased return and discussions in relation to a salary review and any issues she may wish to discuss.

The claimant returned to work on 8th November 2018.

The respondent engaged with the claimant in respect of her pay and offered a salary of €40,000 per annum on her return from sick leave which followed her first period of Maternity Leave in November 2018.

The respondent submits that the offer was accepted by the claimant and further submits that it has been very reasonable in its dealing with the claimant.

The respondent makes reference to a meeting between the Strategic Director of HR and the claimant during which they submit that the previous issues of pay were discussed, and the claimant accepted that she was satisfied, and the issue was resolved.

In April 2019 the claimant commenced a period of sick leave immediately prior to her second period of Maternity Leave.

On the 15th May 2019 the Independent Workers Union (IWU) wrote to the Manager on behalf of the claimant who was of the view that consideration would be given to a retrospective payment at the time that she was awarded a salary increase in November 2018. The IWU, on behalf of the claimant, also took issue with the workload within the HR Department in respect of the claimant. The respondent submits, with reference to that letter, that there was no mention of discrimination on the grounds of race or any allegations in respect of the claimant’s terms of employment as furnished to her.

Significantly the respondent suggests that the letter from the IWU     frames the claimant’s complaint as being in relation to “consideration of retrospective payment” relating to the period November 2007 to November 2018 which is when she secured a salary of €40,000 per annum.

The respondent’s position is that they replied directly to the claimant on 5th June 2019 requesting the claimant to engage and bringing to her attention the company Grievance Procedure.

A further letter dated 13th June 2019 was sent by the IWU to the Strategic Director of Human Resources on behalf of the claimant in which it raised the issue of a retrospective payment pertaining to a time frame of November 2007 and November 2018 and there was no allegation of race-based discrimination nor was there any reference to the claimants terms and conditions of employment being misleading or false.

The respondent sent a response to the IWU acknowledging receipt of their letter, pointing out that the respondent company deals directly with its employees and that it was “conscious that the claimant was on a period of Protective Leave” , stating that it “does not accept that the claimant was underpaid for her position”, and reiterated that the company is committed to dealing with any grievance the claimant may wish to make.

The claimant, they submit, was due back to work following her second period of Maternity Leave in December 2019 but has remained out on sick leave since that date on a current salary of €40,000 since November 2018.

The respondent submits that the claim is out of time in that the complainant has framed the period of contravention as being between November 2017 to November 2018.

That the allegation of race-based discrimination is a “mere assertion” entirely without foundation, “entirely insufficient” to establish a prima facia case for discrimination or to shift the burden of proof to the respondent.

The respondent denies race-based discrimination and asserts that no discrimination has occurred against the claimant and the apparent disparity in pay is explained by objective factors such as the nature of the contract (fixed term v permanent), the level of qualification in H.R the comparator possessed which the claimant did not possess.

Additionally, the second person employed to cover the claimants sick leave was engaged on the same salary scale as the claimant.

In relation to the claim in respect of the Terms of Employment (Information) Act 1994 the respondent denies the claim and submits that the claimant received her contract as prescribed by the Act which accurately set out the terms and conditions of employment including salary and she was fully paid in accordance with her contract.

The claims were submitted under Section 77 of the Employment Equality Act 1998 and under Section 7 of the Terms of Employment (Information) Act 1994.

Preliminary Issues:

At the outset of the hearing I informed the parties that I will consider any preliminary matters raised and decide on these matters definitively prior to considering the substantive matters.

I also informed the parties that should I find in favour of the respondent on the preliminary matters then I will issue a decision accordingly and, conversely, should I find against the respondent on the preliminary matters raised that I will consider and decide upon the substantive matters referred for adjudication under Section 77 of the Employment Equality Act 1998 and under Section 7 of the Terms of Employment (Information) Act 1994

Preliminary Issue 1:

The respondent submitted that the hearing should not proceed on the basis that in the claimant’s submission reference was made to the Mediation process. The respondent submitted that the claimant referred to the Mediation process in a manner that was clearly intended to be prejudicial to the respondent, in circumstances where both parties were aware of the confidential nature of the Mediation process as per the letter appended from the Mediator dated 27th January 2020. I have carefully considered the respondents position and the response of the claimant in respect of this issue. I have read and considered the contents of the claimant’s submission and in the instant case I have decided that the hearing could not, and was not, prejudiced by the submission and / or the inclusion of the letter from the Mediator.

It now falls on me to consider the second Preliminary Issue.

Preliminary Issue 2:

CA 00031716-001

The complainant claims that she was discriminated against by her employer, the respondent, in relation to her remuneration contrary to Section 29 of the Employment Equality Act, 1998.

She claims that the person who replaced her whilst on Maternity Leave undertook the same work as her was paid a higher rate of pay whilst performing that work and was of a different race to her. She complains that the reason for the difference amounts to discrimination on the race ground.

The respondent rejects the complaint. It submits that the complaint is statute barred as it was not brought within the six months statutory time limit set out in the Act. It further submits that the employee who replaced the complainant while on Maternity Leave was better qualified and the higher rate of pay reflected those higher qualifications.

The respondent submits, that as the job on offer was for temporary Maternity Leave cover it was necessary to offer a higher salary to attract a suitable person to replace the complainant on such a temporary basis.

Finally, it submits that race was not a factor in it’s decision to pay the comparator a higher rate of pay for the duration of the Maternity Leave during which she was employed.

The Law:

The relevant time limit is set out in Section 29 of the Act.

In relevant part it’s states:

29.-(1)

It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) For the purposes of Subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this Section) which falls during the three years which precede, or the three years which follow, the particular time.

The respondent argues that the complaint is statute barred as it was not brought within the six months’ time limit for bringing a complaint under the Act. It relies on Section 77of the Act in this regard.

Section 77 of the Act in relevant parts states:

On application by the 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 six months there were substituted a reference to such period not exceeding twelve months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c ) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

Section (c) above dis-applies the six month statutory time limit to a “claim not to be receiving remuneration in accordance with an equal remuneration term”. In this case the complainant claims an equal remuneration term is inserted by statute into her contract of employment and accordingly the claim for adjudication is one that must be commenced within three years of the incidence of discrimination and does not fall within the limits set out in section (b)above.

Having reviewed the evidence presented to me in the written submissions and the evidence adduced in the course of my investigation into this complaint, I find that the complaint amounts to a “claim not to bereceiving remuneration in accordance with an equal remuneration term” of her contract of employment and accordingly falls to be dealt with in accordance with Section 29 (2) of the Act.

Accordingly I find that the complaint is not statute barred and is validly before me for investigation and decision.

CA 00031716-001

Having considered the evidence before me I find that it is common case that the complainant and her comparator are of different nationality and come within the scope of Section 28 (8) of the Act.

Section 29 of the Act, in relevant part states:

29.- It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

Having considered the written and oral submissions, and evidence adduced in the course of my investigation, I find that it is common case that the complainant and the comparator were employed to do like work by the same employer.

It is settled law that where people of different race are engaged in like work and there is a difference in pay, there is a prima facia discrimination (see dicta of Barron J to that effect in Flynn v Primark (1997) ELR 218 in relation to discrimination on the basis of gender which by parity or reasoning has equal application in this case).

It is then for the employer to prove that the disparity is wholly unrelated to the difference of race and that it does not amount, whether consciously or subconsciously, to the placing of a different value on the work of one person of one race as compared to that of another race. That normally requires the employer to show that an apparently race neutral reason relied upon for the disparity in pay is genuine and compelling and worth a difference to the employer on an objective standard.

In justification of the difference in remuneration paid to the comparator the respondent seeks to justify the higher payment on three grounds:

•That the comparator was more qualified than the complainant

•Was employed on a short time contract of employment

•And that these two facts taken separately, and or together, justify the difference in remuneration paid to them.

I have considered these arguments and reject them. Section 29 of the Act limits the factors to be taken into account in determining an entitlement to equal remuneration on the following terms:

C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D, who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

Accordingly, where the complainant and the comparator are employed to do “like work” by the same or associated employer an entitlement to the “same rate of remuneration of the work” comes into being by operation of law.

In this case the respondent did not offer any evidence that the complainant and the comparator were not employed to do “like work” within the meaning of the Act. Instead it argued that the difference in remuneration was in relation to the type of contract offered to the comparator, i.e. : a fixed term contract of employment, and to the differences in qualifications between, as distinct from, the difference in work done by the complainant and the comparator. It advanced no other basis for the difference in remuneration paid in this case.

In its submission at adjudication the respondent offered no evidence to show that it had not been possible to secure a replacement employee to undertake the required work of the complainant due to labour market constraints or the type of contract offered. Indeed, the respondent merely asserted that it was necessary to pay an enhanced rate in order to secure a replacement for the complainant and that the person appointed was more experienced and qualified than the complainant. It offered no evidence in support of this contention. I find that mere assertion does not amount to evidence that is sufficient to rebut the statutory presumption of discrimination set out in the Act.

Furthermore, the factors relied on and previously outlined by the respondent are not material to “the work done” as distinct from the person doing the work or the terms under which they are doing it and accordingly they are not material when determining the application of Section 29 (1) to the complaint before me.

Accordingly, I find that the respondent has failed to submit any evidence, or any grounds to rebut the complaint before me.

CA 00031716-001

On the basis of the information before me I find that the complaint is well founded and decide accordingly.

I find that the complainant is entitled to compensation for the discrimination she has suffered on the grounds of race. Such discrimination cannot be ignored. I further find that the respondent continued to discriminate against the complainant after it increased her salary to €40,000 and continued to do so thereafter.

CA 00031684-001

I have considered all the evidence, both written and verbal, in the claim submitted for adjudication under Section 7 of the Terms of Employment (Information) Act 1994.

Under Section 3 of said Act the employer is obliged to provide an employee with a statement in writing no later than 2 months after the commencement of employment containing the following particulars:

(a)               the full names of the employer and the employee,

(b)                the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c)                 the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d)                the title of the job or nature of the work for which the employee is employed,

(e)                the date of commencement of the employee's contract of employment,

(f)                  in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires

(g)                the rate or method of calculation of the employee's remuneration,

(h)                the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i)                  any terms or conditions relating to hours of work (including overtime),

(j)                  any terms or conditions relating to paid leave (other than paid sick leave),

(k)               any terms or conditions relating to—

(i)                 incapacity for work due to sickness or injury and paid sick leave, and

(ii)               pensions and pension schemes,

(l)                  the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be

indicated when the information is given, the method for determining such periods of notice,

(m)              a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The claimant submitted that the respondent was in breach of the Terms of Employment (Information) Act 1994. In support of her claim she relied on Section 3(1) (g) of the Act which obliges the employer to inform the employee in writing regarding the method of calculation of wages as follows: “the rate or method of calculation of the employee's remuneration”.

The claimant submits that she was not given information regarding the method of calculation of her salary.

The respondent submits that the claimant received her contract in accordance with the Act, which accurately set out the Terms and Conditions of Employment including salary and that she was paid fully in accordance with her salary.

In submitting CA00031684 – 001 the claimant states as follows: “My terms of employment were misleading as I was given the impression that my starting salary and subsequent salaries were the going rate for a person in my position”.

She further submits that she was misled.

The respondent rejects the claim and submits that “it does not fall within the Terms of Employment (Information) Act 1994 which prescribes that an employee must receive their statement of employment accurately reflecting their actual Terms of Employment within a prescribed time frame, signed and retained by the employer.

The respondent further submits that they have fully fulfilled its obligations under the Act.

CA 00031716-001

I find that the complainant is entitled to compensation for the discrimination she has suffered on the grounds of race. I further find that the discrimination continued for the duration of the complainants employment and was not fully corrected by the increase in salary to €40,000 that was effected when she returned to work after Maternity Leave and Sick Leave in 2018.

Section 82 of the Act in relevant part states:

1)     Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under Section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

a)      An order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of referral under Section 77 (1) which led to the decision;

b)      an order for equal remuneration from the date referred to in paragraph (a)

c)      an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under Section 77;

I am satisfied that the respondent discriminated against the complainant over the course of her employment and continued to do so after she returned to work in October 2018.

Accordingly, I order the respondent to pay the complainant compensation in the total sum of €9,500, pursuant to Section 82 (1) (a) and (c) of the Act. I further instruct the respondent, pursuant to Section 82 (b) of the Act, to provide the complainant with equal remuneration within the meaning of the Act and to thereby increase the salary of the complainant to €45,000 per annum with effect from the 21st October 2019.

For the sake of clarity this award is in the nature of compensation and not remuneration.

CA 00031684-001

In the instant case I prefer and accept the evidence of the respondent that they complied with the Terms of Employment (Information) Act 1994 in respect of the claimant.

In addition, I am not convinced that the claim submitted was envisaged by the aforementioned Act and, in any event, I am satisfied that no continuous breach of the Act occurred in the instant case and I find that the claim was not well founded.

“Term of Employment”

“Race Discrimination”