Complainant

Respondent

Anonymised Parties

A Book keeper

An Employer

Representatives

Monahan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026265-001

13/02/2019

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

CA-00026265-002

13/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00026265-003

13/02/2019

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

CA-00026265-004

13/02/2019

The complainant submitted claims on the 13th of February 2019 thus the cognisable six-month period dates from the 14th of August 2018. He has submitted claims under the Employment Equality Acts on the grounds of disability, the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and the Unfair Dismissals Act.   I proceeded to a hearing of these matters of the 3rd of October 2019.   Further correspondence was received post hearing in respect of a request for an extension of the time limits for the complaint under the Employment Equality Acts.

I have decided to exercise my power to anonymise the names of the parties given the sensitivities involved in this case.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026265-001

13/02/2019

The complainant submits that he

had to leave his job on the 19th of December 2018 due to the conduct of his employer or others at work (Constructive Dismissal).

The respondent submits that

The complainant who was employed as a Book keeper and who ran the respondents payroll, resigned his employment on 19th of December 2018 after the respondent had raised an issue with him in respect of the complainant having effected an increase his own salary without the respondents agreement,

The complainant was asked by the respondent to reconsider his resignation and return to work on his previously agreed rate of pay but he refused to do so.

This claim was received on the 13th of February 2019 thus the cognisable six-month period dates from the 14th of August 2018.

The definition of constructive dismissal as contained in Section 1 of the Act is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, he is justified in leaving. The complainant in the present case relies on the reasonableness test submitting that he considered himself to be constructively dismissed and was left with no option but to resign his employment due to the unreasonableness of the respondent.

The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: in considering the ‘reasonableness test’ stated

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The complainant advised the hearing that he had to leave his job on the 19th of December 2018 due to the conduct of his employer.   He advised the hearing that he had initially been paid at a rate of €15 per hour when he commenced his employment in 2011 and stated that this was increased to €20 per hour in 2015. The complainant stated that he had requested a further raise in 2017 and had emailed the respondent on 20th of February 2017 suggesting an increase of his hourly rate to €30 per hour he added that a week or so later Mr. M of the respondent had said that this was ok.

The complainant told the hearing that issues arose in October 2017 and later in March 2018 when the complainant was asked to train in another employee Ms. L in his work before he went on holidays. The complainant stated that he had refused to train Ms. L in his work and stated that Mr. M became very aggressive and shouted at him when the complainant refused to agree to train Ms. L in his work before going on holidays.  

The complainant told the hearing that he had emailed Mr. M on 21st of March 2018 seeking a further increase in his rate of pay to €35 per hour.   The complainant advised the hearing that this was refused and that he and Mr. M had discussed this email on the 11th of April 2018 and during this discussion Mr. M had got very angry and had shouted at the complainant.       The complainant stated that Mr. M had been aware at least from this date that he complainant was on an hourly rate of pay of €30 per hour, and Mr. M at this time requested that the complainant keep a copy of his time Sheet on the respondents server and save it to a path which Mr. M knew of which the complainant did.

The complainant advised the hearing that the hourly rate of €30.00 continued to be paid to him until the 19th of December 2018 when the complainant received “Terms of Employment” from Mr. M stating that his hourly rate was €20.00. The complainant told the hearing that following this he left the office on that date and has not worked there since. He told the hearing that he and his wife had attended a meeting with the respondent Mr. M on the 23rd of January 2019 at the respondents request where Mr. M re-iterated that the complainants rate of pay was €20 per hour. The complainant submits that his wife was shocked at how aggressive and argumentative Mr. M was during this meeting. This is denied by Mr. M of the respondent and also by Ms. L another employee and a former colleague of the complainant who was also present at the meeting as a notetaker.  

Witness for the respondent Mr. M advised the hearing that the complainant who was responsible for running the respondents payroll had resigned his employment on 19th of December 2018 after the respondent had refused to continue to pay him at an hourly rate of pay of €30 which the complainant had himself unilaterally increased from €20 in February 2017 without the respondent’s agreement.   It is submitted that the complainant had effected an increase his own salary without the respondent’s agreement.   The respondent told the hearing that he had advised the complainant that he would continue to employ him but at an hourly rate of €20 which he had previously agreed to in May 2015 but that the respondent would not pay him at the rate of €30 per hour which the complainant had paid to himself from February 2017 without the respondent’s agreement.

Witness for the respondent Mr. M advised the hearing that he had received a request from the complainant in March 2018 wherein the complainant had requested to increase his salary to €35 per hour.     The respondent Mr. M stated that he had at the time understood the complainants rate of pay to be €20 per hour (as he had agreed with the complainant in 2015), Mr. M stated that he had refused this request for an increase to €35 per hour. Mr. M stated that upon further investigation he discovered that the complainant had in fact been paying himself at a rate of €30 per hour since February 2017 following an email on 20th of February 2017 where the complainant had stated that he was seeking an increase in his rate of pay to €30 per hour and stating that if he did not hear back from Mr. M he would consider his silence to mean that he had agreed to this pay increase.

Mr. M told the hearing that he had not at the time seen the email requesting the pay increase and had not read it and stated that the complainant was well aware that Mr. M, a solicitor was extremely busy with clients and was out of the office at hearings and meeting clients so much that he often did not get around to looking at non case related emails.   Mr. M advised the hearing that the complainant if he genuinely wanted Mr. M s agreement to the increased rate of pay he could easily have spoken to him in person when he was in the office, but he stated that the complainant never mentioned this to him.   Mr. M stated that the complainant was responsible for running the staff payroll and so had gone ahead and implemented the increased hourly rate for himself. The complainant relied on his email to Mr. M in asserting that the pay rise was agreed to as it had stated that non-response to the email would be taken as agreement.    

The complainant advised the hearing that Mr. M on the 11th of April 2018 had raised the issue of the complainants request for a pay rise to €35 per hour submits that Mr. M had been aware at least from that date that the complainants rate of pay was €30 per hour and had continued to pay the complainant at that rate until 19 December 2018.   Mr. M agreed that he had become aware on the 11th of April 2018 that the complainant had been paying himself €30 per hour and stated that due to the fact that he was extremely busy he had allowed this to continue until he could get to the bottom of how it had happened and until he could establish when it had started as he stated he would never have agreed to pay the complainant at such a high rate.  

Mr. M told the hearing that he had then gone back through his emails and eventually discovered that the complainant had sent him an email in February 2017 asking for an increase in his rate of pay from €20 to €30 and stating that he would assume that it was granted if he did not get a response.     Mr. M told the hearing told the hearing that it had taken him a while to get to the bottom of what had happened and to establish that the complainant had given himself a pay rise from €20 to €30 per hour following from the email of 20th of February 2017. He stated that once he did get to the bottom of it, he advised the complainant in December 2018 that he would not be paying him at that rate and that he hadn’t agreed to it and that his rate of pay was in fact €20 per hour as there was no agreement to increase it to €30 per hour. Following this the complainant resigned. The respondent Mr. M stated that he had considered the complainants actions to be dishonest, but he had been willing to put it behind them and to continue to employ him at the rate of €20 per hour and had offered him this in the meeting of January 2019.   The respondent Mr. M advised the hearing that the complainant stated that he would return to work if he was paid at €30 per hour but he would not return if he was to be paid at €20 per hour and stated that he would consider it as a constructive dismissal.   Mr. M stated that the complainant’s resignation related purely to the pay issue.   Mr. L advised the hearing that he he had not been aggressive in the meeting or raised his voice and Ms. L witness for the respondent stated that Mr. M had not been aggressive and had not raised his voice.  

In constructive dismissal cases, it is necessary to examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.  

Based on the totality of the evidence adduced here and given the circumstances of this case I cannot see how it could realistically be said that the Respondent in this case was guilty of conduct in relation to the Complainant which was such as to entitle him to terminate his employment. I also note that the Complainant was given an opportunity to withdraw his resignation and return to work under his previous rate of pay but he declined to do so.   It is the Respondent’s submission that the Complainant resigned and that he has not met the burden of proof required to establish constructive dismissal.

Having considered all of the circumstances and the evidence adduced in this case I cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal. Accordingly, I find that the Complainant’s employment did not come to an end by constructive dismissal and I declare this claim to be not well founded.

I find that the Complainant’s employment did not come to an end by constructive dismissal and I declare this claim to be not well founded.

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

CA-00026265-002

13/02/2019

The complainant submits that he

Was discriminated against by the respondent on grounds of disability after disclosing to the respondent that he suffered from mental health issues schizophrenia and anxiety,

The most recent date of discrimination is the 11th of April 2018.

The respondent submits that

The complainant was not discriminated against on grounds of his disability or at all and in any event the allegations of discriminatory treatment were submitted outside of the relevant time limits provided under the acts.

The complainant alleges that the last alleged act of discrimination took place on 11th of April 2018 but he did not submit his complaint until 13th of February 2019.   The respondent submits that the complaint is out of time as it was submitted on the 13th of February 2019 thus the cognisable six-month period dates from the 14th of August 2018.   Thus, it is clear that this claim which alleges the last date of discrimination to have taken place on 11th of April 2018 was submitted outside of the six months’ time limits prescribed in the acts.

The Law Applicable

Section 77(5) of the Acts in relevant part provides as follows:

77(5)(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 of 6 months 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.

Section 77(5) (b) of the Act essentially provides that where reasonable cause is shown for a delay in presenting a claim under the Act within the six-month time limit provided for at section 77(5)(a), that time period may be extended to a period not exceeding 12 months.

Discussion and Conclusions

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated in Labour Court Determination WTC0338 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.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.

The complainant was granted two weeks to provide a post hearing submission on his request for an extension of time.   The complainant in his post hearing submission stated that his brother had passed away on the 28th of January 2018, he also submits that he has mental health issues for which he has been attending mental health services since 2006, he submits that these were the reasons for his failing to meet the time limits.   The complainant submitted a doctors letter in support of his request for an extension of time stating that the reasons advanced ‘may have contributed to a delay in his submitting his complaint’.  

The complainant asserts that the last alleged act of discrimination took place on 11th of April 2018 but he did not submit his complaint until 13th of February 2019.   The complainants in advancing reasons for the delay in submitting his complaint referred to his brother having passed away on 28th of January 2018.     The complainant advised the hearing that he had returned to work two weeks after this.   In considering the reason advanced for the delay in submitting the complaint I must be satisfied that the reasons relied upon must both justify and explain the delay. Given that the last alleged act of discrimination took place on 11th of April 2018 the complainant would have had until 10th of October 2018 to submit his complaint within the time limits. In addition, the complainant submits s another reason for the delay in submitting his claim that he has suffered from mental health issues for a period of over 20 years. The complainant advised the hearing that these issues were notified to the respondent at the commencement of his employment and that medical reports relating to these issues were made available to the respondent in 2014 in the context of a Personal Injuries claim being pursued by the complainant in respect of a road traffic accident in which the respondent represented the complainant. The complainant in advancing this reason does not outline how his mental health issues specifically prevented him from submitting his claim within the relevant six months’ time period.   Having considered the reasons advanced by the complainant and taking the entirety of the complainants submission on this matter into account, I am satisfied that that the complainant has failed to demonstrate reasonable cause which both justifies and explains the delay in making his complaint to the WRC.   In such circumstances, I cannot extend the time limits set out in the Act at Section 77 (5)(a) for the making of the within complaint and accordingly, I find that the Complainant has failed to submit his complaint within the required time limit and that I do not have the jurisdiction to hear this case.

I find that the Complainant has failed to submit his complaint within the required time limit and that I do not have the jurisdiction to hear this case.

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00026265-003

13/02/2019

The complainant submits that the respondent

Engaged in a transfer of undertakings and failed to notify him as an employee before transferring his employment to the transferee,

He received no notice of the transfer either in writing or verbally and received nothing in writing to confirm that his service was not broken.

The respondent submit s that

A change of name took place on 1st of October 2018 but there was no change to the complainants terms and conditions of employment and no detriment to the complainant.

Section 8 of the European Communities (Protection of Employees on Transfer of Undertaking) Regulations, 2003 (S.I. No 131/2003) sets out the requirements on both the transferor and the transferee in relation to information and consultation regarding the transfer, as follows:

8 “(1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of -

(a)     the date or proposed date of the transfer;

(b)     the reasons for the transfer;

(c)     the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

and

(d)     any measures envisaged in relation to the employees.

(2)     The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.

(3)     The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.

(4)     Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

(5)     Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

(6)     Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a)     the date or proposed date of the transfer;

(b)     the reasons for the transfer;

(c)     the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

and

(d)     any measures envisaged in relation to the employees.

(7)         The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.”

The complainant advised the hearing that he and other employees were transferred from the payroll of ‘A’ & Co. to ‘A’ Services & Logistics on the 1st of October 2018.   The complainant states that he had received no advance notice of this in writing nor any confirmation that his service would not be broken.  He stated that he received nothing in writing in relation to this transfer until he noticed that there was a different company name on his payslip.   The respondent advised the hearing that the change involved was merely a change of name in the complainants employer and stated that the complainants terms and conditions remained the same following the transfer.   The complainant initially agreed that this was the case but sought to assert that the TUPE which took place on 1st of October 2018 resulted in a change to his rate of pay in December 2018 the rate of pay issue was also raised in respect of his Unfair Dismissal claim at CA-00026265-001 above.     The complainant had submitted that he was on a rate of €20 per hour up until February 2017 when he requested an increase in his rate of pay to €30 per hour. He requested this via an email to the respondent on 20th of February 2017 and stated that if he did not get a reply to this email he would assume that the increase was agreed. The respondent advised the hearing that he did not reply to the email as he did not see it or read it due to the fact that he was so busy at the time and the complainant who was in charge of payroll had then increased his own rate of pay to €30 per hour without the respondents agreement.     The respondent Mr. M stated that he discovered this in April 2018 when the complainant asked for another increase this time to €35 per hour. The respondent later raised this issue with the complainant and clarified in December 2018 with the complainant that he had not agreed to an increase in his rate of pay to €30 per hour and clarified that his rate of pay was €20 per hour.   I am satisfied from the totality of the evidence adduced on this matter that the respondent did not alter the complainants rate of pay following the transfer which took place on 1st of October 2018 and that here was no change in the complainants rate of pay or conditions following the TUPE.

The respondent submitted that the complainants terms and conditions did not change under the transfer and stated that it was merely a change of name in employer with no consequences to the complainant other than a different name at the top of his payslip.

Regulation 8 of the European Communities (Transfer of Undertakings) Regulations 2003 provides that the employer must inform their employee representatives affected by a transfer not later than 30 days before the transfer is carried out or in any good time before the employees are directly affected by the transfer.   The respondent submitted that even if there was a TUPE there was no effect on the complainant as his terms and conditions remained the same.   The respondent accepts that it did not inform and or consult the complainant in respect of a TUPE but states that given the circumstances any alleged breach of TUPE regulations was merely a technical breach and one which had no detriment to the complainant or no consequences for him other than a change of employer name on his payslip.   The respondent relies on the case of ‘A Technician Vs an Environmental Services Company’ in this regard wherein it was found that there was a technical breach of the regulations but “where there was no material detriment to the employees or to the complainant” in that case it was found that an award of compensation was not warranted.

While I note that the transfer in this case did not affect the complainants terms or conditions of employment and notwithstanding the respondents assertions that the transfer represents but a technical breach as opposed to blatant in nature I find that the complaint in this regard is well founded.   I note the respondents arguments in respect of the case of ‘A Technician Vs an Environmental Services Company’,   and I note that similar to that case there was no material detriment to the complainant in this case however I also note that the reasons given for failing to comply with Regulation 8 in that case was due to ‘the highly sensitive nature of the discussions and the fear of commercial contracts being lost to competitors during a protracted consultation period’, no such reason was provided by the respondent in the present case for failing to consult with or advise the complainant in advance of or on the occasion the transfer. I also note that the complainant in that case was informed of the transfer and details of the transfer were made known to him on the morning of the transfer.

Consequently, I award the Complainant compensation of €200, which I consider to be a just and equitable amount in all of the circumstances of this case.

I find that the complaint in this regard is well founded.

Consequently, I award the Complainant compensation of €200, which I consider to be a just and equitable amount in all of the circumstances of this case.

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

CA-00026265-004

13/02/2019

The complainant submits that

he is entitled to Equal Pay with Ms. C whom he asserts is being paid more than Eur 20.00 per hour,

Ms. C is paid €400 net per week which he believes €485 gross per week for 5 mornings per week in 2018,

The reason for the difference in pay is due to the complainants disability.

The respondent submits that

There are grounds other than disability for the difference in pay between the complainant and his named comparator.

The respondent submitted that the claims under the Employment Equality Acts were out of time in accordance with Section 77 (5 )(a) of the Acts.     However I am satisfied that insofar as a claim of discrimination must normally be referred within 6 months of the date of the last alleged incident (and 12 months where an extension of time is granted) a claim for equal pay is not covered by these statutory time limits.

Section 29 (1) of the Employment Equality Acts states:

(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 rate of remuneration for the work that 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 3 years which precede, or the 3 years which follow, the particular time.

(3)   For the purposes of this Part, where D’s employer is an associate employer of C’s employer, C and D 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)   Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it to persons of a particular gender (being As and Bs) is a reference to persons (being Cs and Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.

(5)   Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

Section 28(1) states:

For the purposes of this Part, “C” and “D” represent 2 persons who differ as follows:

(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;

“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 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.”

Section 7 of the Act states:

(1)   Subject to subsection (2), for the purposes of this 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 as a whole, or

(c)     the work performed by one is equal to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

The complainant in advancing this claim submits that that secretary Ms. C is being paid €24.25 per hour based on Gross of 485 per week working 5 mornings per week and her net pay is €400 per week.

The respondent does not dispute that Ms. C is paid at a higher rate and advised the hearing that Ms. C is paid at a different rate to the complainant as the complainant is a book keeper and Ms. C is a ‘legal Executive’.   The respondent at the hearing went on to outline the work carried out by Ms. C and Ms. C advised the hearing that she deals with family law and conveyancing and with bank title deeds, the respondent advised the hearing that Ms. C in fact deals with some legal files from start to finish under supervision. The respondent stated that the complainant is a book keeper and has no legal training or no involvement in legal cases. The respondent advised the hearing that the complainants tasks include producing VAT returns payroll returns dealing with ROS and providing end of year documents for sign off by the accountant.     The complainant does not dispute these differences.

Having considered the totality of the evidence adduced in relation to this matter I am satisfied that there were reasons other than the discriminatory ground for the difference in the rates of pay of the complainant and the named comparator.  

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 disability.

Complainant

Respondent

Anonymised Parties

A Book keeper

An Employer

Representatives

Monahan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026265-001

13/02/2019

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

CA-00026265-002

13/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00026265-003

13/02/2019

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

CA-00026265-004

13/02/2019

The complainant submitted claims on the 13th of February 2019 thus the cognisable six-month period dates from the 14th of August 2018. He has submitted claims under the Employment Equality Acts on the grounds of disability, the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and the Unfair Dismissals Act. I proceeded to a hearing of these matters of the 3rd of October 2019. Further correspondence was received post hearing in respect of a request for an extension of the time limits for the complaint under the Employment Equality Acts.

I have decided to exercise my power to anonymise the names of the parties given the sensitivities involved in this case.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026265-001

13/02/2019

The complainant submits that he

had to leave his job on the 19th of December 2018 due to the conduct of his employer or others at work (Constructive Dismissal).

The respondent submits that

The complainant who was employed as a Book keeper and who ran the respondents payroll, resigned his employment on 19th of December 2018 after the respondent had raised an issue with him in respect of the complainant having effected an increase his own salary without the respondents agreement,

The complainant was asked by the respondent to reconsider his resignation and return to work on his previously agreed rate of pay but he refused to do so.

This claim was received on the 13th of February 2019 thus the cognisable six-month period dates from the 14th of August 2018.

The definition of constructive dismissal as contained in Section 1 of the Act is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, he is justified in leaving. The complainant in the present case relies on the reasonableness test submitting that he considered himself to be constructively dismissed and was left with no option but to resign his employment due to the unreasonableness of the respondent.

The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: in considering the ‘reasonableness test’ stated

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The complainant advised the hearing that he had to leave his job on the 19th of December 2018 due to the conduct of his employer.   He advised the hearing that he had initially been paid at a rate of €15 per hour when he commenced his employment in 2011 and stated that this was increased to €20 per hour in 2015. The complainant stated that he had requested a further raise in 2017 and had emailed the respondent on 20th of February 2017 suggesting an increase of his hourly rate to €30 per hour he added that a week or so later Mr. M of the respondent had said that this was ok.

The complainant told the hearing that issues arose in October 2017 and later in March 2018 when the complainant was asked to train in another employee Ms. L in his work before he went on holidays. The complainant stated that he had refused to train Ms. L in his work and stated that Mr. M became very aggressive and shouted at him when the complainant refused to agree to train Ms. L in his work before going on holidays.    

The complainant told the hearing that he had emailed Mr. M on 21st of March 2018 seeking a further increase in his rate of pay to €35 per hour.   The complainant advised the hearing that this was refused and that he and Mr. M had discussed this email on the 11th of April 2018 and during this discussion Mr. M had got very angry and had shouted at the complainant.     The complainant stated that Mr. M had been aware at least from this date that he complainant was on an hourly rate of pay of €30 per hour, and Mr. M at this time requested that the complainant keep a copy of his time Sheet on the respondents server and save it to a path which Mr. M knew of which the complainant did.

The complainant advised the hearing that the hourly rate of €30.00 continued to be paid to him until the 19th of December 2018 when the complainant received “Terms of Employment” from Mr. M stating that his hourly rate was €20.00. The complainant told the hearing that following this he left the office on that date and has not worked there since. He told the hearing that he and his wife had attended a meeting with the respondent Mr. M on the 23rd of January 2019 at the respondents request where Mr. M re-iterated that the complainants rate of pay was €20 per hour. The complainant submits that his wife was shocked at how aggressive and argumentative Mr. M was during this meeting. This is denied by Mr. M of the respondent and also by Ms. L another employee and a former colleague of the complainant who was also present at the meeting as a notetaker.  

Witness for the respondent Mr. M advised the hearing that the complainant who was responsible for running the respondents payroll had resigned his employment on 19th of December 2018 after the respondent had refused to continue to pay him at an hourly rate of pay of €30 which the complainant had himself unilaterally increased from €20 in February 2017 without the respondent’s agreement.   It is submitted that the complainant had effected an increase his own salary without the respondent’s agreement. The respondent told the hearing that he had advised the complainant that he would continue to employ him but at an hourly rate of €20 which he had previously agreed to in May 2015 but that the respondent would not pay him at the rate of €30 per hour which the complainant had paid to himself from February 2017 without the respondent’s agreement.

Witness for the respondent Mr. M advised the hearing that he had received a request from the complainant in March 2018 wherein the complainant had requested to increase his salary to €35 per hour.   The respondent Mr. M stated that he had at the time understood the complainants rate of pay to be €20 per hour (as he had agreed with the complainant in 2015), Mr. M stated that he had refused this request for an increase to €35 per hour.   Mr. M stated that upon further investigation he discovered that the complainant had in fact been paying himself at a rate of €30 per hour since February 2017 following an email on 20th of February 2017 where the complainant had stated that he was seeking an increase in his rate of pay to €30 per hour and stating that if he did not hear back from Mr. M he would consider his silence to mean that he had agreed to this pay increase.

Mr. M told the hearing that he had not at the time seen the email requesting the pay increase and had not read it and stated that the complainant was well aware that Mr. M, a solicitor was extremely busy with clients and was out of the office at hearings and meeting clients so much that he often did not get around to looking at non case related emails.   Mr. M advised the hearing that the complainant if he genuinely wanted Mr. M s agreement to the increased rate of pay he could easily have spoken to him in person when he was in the office, but he stated that the complainant never mentioned this to him.   Mr. M stated that the complainant was responsible for running the staff payroll and so had gone ahead and implemented the increased hourly rate for himself. The complainant relied on his email to Mr. M in asserting that the pay rise was agreed to as it had stated that non-response to the email would be taken as agreement.    

The complainant advised the hearing that Mr. M on the 11th of April 2018 had raised the issue of the complainants request for a pay rise to €35 per hour submits that Mr. M had been aware at least from that date that the complainants rate of pay was €30 per hour and had continued to pay the complainant at that rate until 19 December 2018.  Mr. M agreed that he had become aware on the 11th of April 2018 that the complainant had been paying himself €30 per hour and stated that due to the fact that he was extremely busy he had allowed this to continue until he could get to the bottom of how it had happened and until he could establish when it had started as he stated he would never have agreed to pay the complainant at such a high rate.  

Mr. M told the hearing that he had then gone back through his emails and eventually discovered that the complainant had sent him an email in February 2017 asking for an increase in his rate of pay from €20 to €30 and stating that he would assume that it was granted if he did not get a response.    Mr. M told the hearing told the hearing that it had taken him a while to get to the bottom of what had happened and to establish that the complainant had given himself a pay rise from €20 to €30 per hour following from the email of 20th of February 2017. He stated that once he did get to the bottom of it, he advised the complainant in December 2018 that he would not be paying him at that rate and that he hadn’t agreed to it and that his rate of pay was in fact €20 per hour as there was no agreement to increase it to €30 per hour. Following this the complainant resigned. The respondent Mr. M stated that he had considered the complainants actions to be dishonest, but he had been willing to put it behind them and to continue to employ him at the rate of €20 per hour and had offered him this in the meeting of January 2019.   The respondent Mr. M advised the hearing that the complainant stated that he would return to work if he was paid at €30 per hour but he would not return if he was to be paid at €20 per hour and stated that he would consider it as a constructive dismissal.   Mr. M stated that the complainant’s resignation related purely to the pay issue.     Mr. L advised the hearing that he he had not been aggressive in the meeting or raised his voice and Ms. L witness for the respondent stated that Mr. M had not been aggressive and had not raised his voice.    

In constructive dismissal cases, it is necessary to examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.    

Based on the totality of the evidence adduced here and given the circumstances of this case I cannot see how it could realistically be said that the Respondent in this case was guilty of conduct in relation to the Complainant which was such as to entitle him to terminate his employment. I also note that the Complainant was given an opportunity to withdraw his resignation and return to work under his previous rate of pay but he declined to do so.  It is the Respondent’s submission that the Complainant resigned and that he has not met the burden of proof required to establish constructive dismissal.

Having considered all of the circumstances and the evidence adduced in this case I cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal. Accordingly, I find that the Complainant’s employment did not come to an end by constructive dismissal and I declare this claim to be not well founded.

I find that the Complainant’s employment did not come to an end by constructive dismissal and I declare this claim to be not well founded.

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

CA-00026265-002

13/02/2019

The complainant submits that he

Was discriminated against by the respondent on grounds of disability after disclosing to the respondent that he suffered from mental health issues schizophrenia and anxiety,

The most recent date of discrimination is the 11th of April 2018.

The respondent submits that

The complainant was not discriminated against on grounds of his disability or at all and in any event the allegations of discriminatory treatment were submitted outside of the relevant time limits provided under the acts.

The complainant alleges that the last alleged act of discrimination took place on 11th of April 2018 but he did not submit his complaint until 13th of February 2019.   The respondent submits that the complaint is out of time as it was submitted on the 13th of February 2019 thus the cognisable six-month period dates from the 14th of August 2018.   Thus, it is clear that this claim which alleges the last date of discrimination to have taken place on 11th of April 2018 was submitted outside of the six months’ time limits prescribed in the acts.

The Law Applicable

Section 77(5) of the Acts in relevant part provides as follows:

77(5)(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 of 6 months 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.

Section 77(5) (b) of the Act essentially provides that where reasonable cause is shown for a delay in presenting a claim under the Act within the six-month time limit provided for at section 77(5)(a), that time period may be extended to a period not exceeding 12 months.

Discussion and Conclusions

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated in Labour Court Determination WTC0338 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.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.

The complainant was granted two weeks to provide a post hearing submission on his request for an extension of time.   The complainant in his post hearing submission stated that his brother had passed away on the 28th of January 2018, he also submits that he has mental health issues for which he has been attending mental health services since 2006, he submits that these were the reasons for his failing to meet the time limits.  The complainant submitted a doctors letter in support of his request for an extension of time stating that the reasons advanced ‘may have contributed to a delay in his submitting his complaint’.    

The complainant asserts that the last alleged act of discrimination took place on 11th of April 2018 but he did not submit his complaint until 13th of February 2019.   The complainants in advancing reasons for the delay in submitting his complaint referred to his brother having passed away on 28th of January 2018.  The complainant advised the hearing that he had returned to work two weeks after this.     In considering the reason advanced for the delay in submitting the complaint I must be satisfied that the reasons relied upon must both justify and explain the delay. Given that the last alleged act of discrimination took place on 11th of April 2018 the complainant would have had until 10th of October 2018 to submit his complaint within the time limits. In addition, the complainant submits s another reason for the delay in submitting his claim that he has suffered from mental health issues for a period of over 20 years. The complainant advised the hearing that these issues were notified to the respondent at the commencement of his employment and that medical reports relating to these issues were made available to the respondent in 2014 in the context of a Personal Injuries claim being pursued by the complainant in respect of a road traffic accident in which the respondent represented the complainant. The complainant in advancing this reason does not outline how his mental health issues specifically prevented him from submitting his claim within the relevant six months’ time period.   Having considered the reasons advanced by the complainant and taking the entirety of the complainants submission on this matter into account, I am satisfied that that the complainant has failed to demonstrate reasonable cause which both justifies and explains the delay in making his complaint to the WRC.   In such circumstances, I cannot extend the time limits set out in the Act at Section 77 (5)(a) for the making of the within complaint and accordingly, I find that the Complainant has failed to submit his complaint within the required time limit and that I do not have the jurisdiction to hear this case.

I find that the Complainant has failed to submit his complaint within the required time limit and that I do not have the jurisdiction to hear this case.

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00026265-003

13/02/2019

The complainant submits that the respondent

Engaged in a transfer of undertakings and failed to notify him as an employee before transferring his employment to the transferee,

He received no notice of the transfer either in writing or verbally and received nothing in writing to confirm that his service was not broken.

The respondent submit s that

A change of name took place on 1st of October 2018 but there was no change to the complainants terms and conditions of employment and no detriment to the complainant.

Section 8 of the European Communities (Protection of Employees on Transfer of Undertaking) Regulations, 2003 (S.I. No 131/2003) sets out the requirements on both the transferor and the transferee in relation to information and consultation regarding the transfer, as follows:

8 “(1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of -

(a)     the date or proposed date of the transfer;

(b)     the reasons for the transfer;

(c)     the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

and

(d)     any measures envisaged in relation to the employees.

(2)     The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.

(3)     The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.

(4)     Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

(5)     Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

(6)     Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a)     the date or proposed date of the transfer;

(b)    the reasons for the transfer;

(c)     the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

and

(d)     any measures envisaged in relation to the employees.

(7)         The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.”

The complainant advised the hearing that he and other employees were transferred from the payroll of ‘A’ & Co. to ‘A’ Services & Logistics on the 1st of October 2018.   The complainant states that he had received no advance notice of this in writing nor any confirmation that his service would not be broken.  He stated that he received nothing in writing in relation to this transfer until he noticed that there was a different company name on his payslip.  The respondent advised the hearing that the change involved was merely a change of name in the complainants employer and stated that the complainants terms and conditions remained the same following the transfer.   The complainant initially agreed that this was the case but sought to assert that the TUPE which took place on 1st of October 2018 resulted in a change to his rate of pay in December 2018 the rate of pay issue was also raised in respect of his Unfair Dismissal claim at CA-00026265-001 above.   The complainant had submitted that he was on a rate of €20 per hour up until February 2017 when he requested an increase in his rate of pay to €30 per hour.   He requested this via an email to the respondent on 20th of February 2017 and stated that if he did not get a reply to this email he would assume that the increase was agreed.   The respondent advised the hearing that he did not reply to the email as he did not see it or read it due to the fact that he was so busy at the time and the complainant who was in charge of payroll had then increased his own rate of pay to €30 per hour without the respondents agreement.  The respondent Mr. M stated that he discovered this in April 2018 when the complainant asked for another increase this time to €35 per hour. The respondent later raised this issue with the complainant and clarified in December 2018 with the complainant that he had not agreed to an increase in his rate of pay to €30 per hour and clarified that his rate of pay was €20 per hour. I am satisfied from the totality of the evidence adduced on this matter that the respondent did not alter the complainants rate of pay following the transfer which took place on 1st of October 2018 and that here was no change in the complainants rate of pay or conditions following the TUPE.

The respondent submitted that the complainants terms and conditions did not change under the transfer and stated that it was merely a change of name in employer with no consequences to the complainant other than a different name at the top of his payslip.

Regulation 8 of the European Communities (Transfer of Undertakings) Regulations 2003 provides that the employer must inform their employee representatives affected by a transfer not later than 30 days before the transfer is carried out or in any good time before the employees are directly affected by the transfer.   The respondent submitted that even if there was a TUPE there was no effect on the complainant as his terms and conditions remained the same.   The respondent accepts that it did not inform and or consult the complainant in respect of a TUPE but states that given the circumstances any alleged breach of TUPE regulations was merely a technical breach and one which had no detriment to the complainant or no consequences for him other than a change of employer name on his payslip.   The respondent relies on the case of ‘A Technician Vs an Environmental Services Company’ in this regard wherein it was found that there was a technical breach of the regulations but “where there was no material detriment to the employees or to the complainant” in that case it was found that an award of compensation was not warranted.

While I note that the transfer in this case did not affect the complainants terms or conditions of employment and notwithstanding the respondents assertions that the transfer represents but a technical breach as opposed to blatant in nature I find that the complaint in this regard is well founded.  I note the respondents arguments in respect of the case of ‘A Technician Vs an Environmental Services Company’, and I note that similar to that case there was no material detriment to the complainant in this case however I also note that the reasons given for failing to comply with Regulation 8 in that case was due to ‘the highly sensitive nature of the discussions and the fear of commercial contracts being lost to competitors during a protracted consultation period’, no such reason was provided by the respondent in the present case for failing to consult with or advise the complainant in advance of or on the occasion the transfer. I also note that the complainant in that case was informed of the transfer and details of the transfer were made known to him on the morning of the transfer.  

Consequently, I award the Complainant compensation of €200, which I consider to be a just and equitable amount in all of the circumstances of this case.

I find that the complaint in this regard is well founded.

Consequently, I award the Complainant compensation of €200, which I consider to be a just and equitable amount in all of the circumstances of this case.

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

CA-00026265-004

13/02/2019

The complainant submits that

he is entitled to Equal Pay with Ms. C whom he asserts is being paid more than Eur 20.00 per hour,

Ms. C is paid €400 net per week which he believes €485 gross per week for 5 mornings per week in 2018,

The reason for the difference in pay is due to the complainants disability.

The respondent submits that

There are grounds other than disability for the difference in pay between the complainant and his named comparator.

The respondent submitted that the claims under the Employment Equality Acts were out of time in accordance with Section 77 (5 )(a) of the Acts.   However I am satisfied that insofar as a claim of discrimination must normally be referred within 6 months of the date of the last alleged incident (and 12 months where an extension of time is granted) a claim for equal pay is not covered by these statutory time limits.

Section 29 (1) of the Employment Equality Acts states:

(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 rate of remuneration for the work that 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 3 years which precede, or the 3 years which follow, the particular time.

(3)   For the purposes of this Part, where D’s employer is an associate employer of C’s employer, C and D 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)   Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it to persons of a particular gender (being As and Bs) is a reference to persons (being Cs and Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.

(5)   Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

Section 28(1) states:

For the purposes of this Part, “C” and “D” represent 2 persons who differ as follows:

(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;

“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 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.”

Section 7 of the Act states:

(1)   Subject to subsection (2), for the purposes of this 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 as a whole, or

(c)     the work performed by one is equal to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

The complainant in advancing this claim submits that that secretary Ms. C is being paid €24.25 per hour based on Gross of 485 per week working 5 mornings per week and her net pay is €400 per week.

The respondent does not dispute that Ms. C is paid at a higher rate and advised the hearing that Ms. C is paid at a different rate to the complainant as the complainant is a book keeper and Ms. C is a ‘legal Executive’.   The respondent at the hearing went on to outline the work carried out by Ms. C and Ms. C advised the hearing that she deals with family law and conveyancing and with bank title deeds, the respondent advised the hearing that Ms. C in fact deals with some legal files from start to finish under supervision. The respondent stated that the complainant is a book keeper and has no legal training or no involvement in legal cases. The respondent advised the hearing that the complainants tasks include producing VAT returns payroll returns dealing with ROS and providing end of year documents for sign off by the accountant.   The complainant does not dispute these differences.

Having considered the totality of the evidence adduced in relation to this matter I am satisfied that there were reasons other than the discriminatory ground for the difference in the rates of pay of the complainant and the named comparator.  

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 race.