Complainant

Respondent

Parties

Jonathan Gallagher

Emirates

Representatives

 Self

Owen Keany, BL instructed by Leman Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034070-001

30/01/2020

The complainant was employed by the respondent since July 2014 as a Grade 4 employee. A number of months after his employment he was given an internal promotion to a Grade 5 position. It was common case that his monthly salary was less than his three named comparators and that they undertake ‘like work’.

The complainant submitted that he was paid less than three named comparators and that this was based on his gender. He submitted the names of three named comparators A, B & C who were employed doing like work. He submitted that although the named comparators were employed two and a half years earlier than him, the annual increases increased the gap between the employees rather than narrowed it.

The complainant also submitted that in recent months two unnamed Grade 4’s were promoted to Grade 5 and were now being paid more than him.

The respondent submitted that the complainant was a good worker and had no problem with his work.   The respondent submitted that the difference in pay was not based on gender but rather there were three elements that accounted for the difference in pay unrelated to gender. The respondent operates a pay scale for all grades ranging from 80% to 120% of the salary applicable to that grade.

The first element relates to the circumstances of the comparators recruitment in that they were recruited directly into the Grade 5 roles at the start of the company’s presence in Ireland and were hired at these rates on the basis of their experience in order to attract experienced staff into these positions.

The second element relates to the circumstances of entry related to the complainant – the complainant was promoted internally into the grade five position after some months in the Grade 4 position (although less than the requisite one year in the grade, as he was the only applicant). The rules governing internal promotion are laid down in the respondent’s policy documents and state that an internal promotee is only entitled to a 10% increase in salary (unless they are earning less than 80 percent of the salary for that grade, when they will be awarded the 80% level). The complainant benefitted from this when he was promoted initially.

The third element relates to the incremental increase related to the annual performance ratings.   The respondent operates a ‘bell curve’ approach to performance ratings over five levels. As staff are awarded a percentage of the annual performance award as an increment, based on their rating, their salary can vary.

The respondent submitted that this accounted for the difference in salary.

The respondent noted that the unnamed Grade four colleagues were receiving a salary close to the complainant and that when they benefitted from the 10% rule, as had the complainant. The respondent also noted that it had received representations from four staff on the inequality of their pay system but noted that as well as the applicant, there were two female signatories on the letter too.

The respondent submitted that Section 19 (5) of the Employment Equality Acts 1998 to 2015 states that “Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees”. The respondent also cited Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union (Dep993) where the Labour Court stated “In this case, the difference in remuneration between the claimants and the comparators derives from the grading structure operated by the Respondent.   Therefore, a case of direct discrimination does not arise”.

The respondent submitted that in the case of Cadman v HSE, 2006 ECR 1-0958, the ECJ held as a general rule that the criterion of experience and length of service is appropriate to the legitimate objective of rewarding experience required and which enables an employee to perform his or her duties of employment better.

In closing argument, the complainant submitted that he didn’t accept the respondent’s explanation of the reasons for the difference in pay. He argued that after six years with the respondent he should be getting paid the same as his co-workers, notwithstanding that they were with the company for eight and a half years.

I note that the comparators were in position for some two and a half years longer than the complainant and that none of the pay scales have an upper limit. I note the arguments put forward by the respondent in the two precedent cases relating to grading structure (Labour Court) and experience and length of service (ECJ) and accept that they apply in relation to this complaint.

Having considered all the written and oral evidence presented to me, I am not satisfied that the complainant has established facts from which unequal treatment as regards pay may be inferred and I find that he has not established a prima facie case of unequal treatment.

In accordance with my findings, as the complainant has not established a prima facie case of unequal treatment in relation to pay, my decision is that he was not discriminated against.

Employment Equality, Equal Pay,