Complainant

Respondent

Anonymised Parties

A Presenter

A Broadcasting Company

Representatives

Cathal McGreal BL Instructed by Wendy Doyle Solicitors

Conor Power SC Instructed by Internal Legal Department

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-00013386-001

30/08/2017

2.1       The complainant’s solicitor referred a complaint under the Employment Equality Acts 1998-2015 on the complainant’s behalf to the Workplace Relations Commission on 30 August 2017. The complainant asserts the she performs “like work” in terms of section 7 of those Acts with a named male comparator (hereafter called Mr. X) and consequently she is entitled to equal remuneration with that comparator in accordance with section 19 of those Acts. In accordance with her powers under the Acts the Director General delegated the complaint to me, a duly appointed Adjudication Officer, for investigation, decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. My investigation of the complaint commenced on 16 October 2018 - the date the complaint was delegated to me.

2.2          A Preliminary Inquiry Hearing was scheduled for 20 November 2018 to enable the Adjudication Officer to clarify the full extent of the equal pay complaint and deal with associated matters. At this Hearing Counsel for the respondent confirmed that the correct title for the respondent was as stated above and not as stated on the original complaint form. These details were amended on consent of both parties.

2.3       Counsel for the complainant states that she alleges she performed “like work” with Mr. X in terms of section 7(a) of the Employment Equality Acts 1998-2015 and was therefore entitled to the same rate of remuneration paid to that comparator. Counsel for the respondent submitted that Mr. X was not an employee of the respondent. He added that Mr. X was engaged on foot of a commercial contract negotiated between the respondent and a registered company with which the named comparator has a relationship. Counsel argued that the named comparator was not therefore a valid comparator in terms of section 7 and section 19 of the Acts and the complainant could not therefore maintain her claim. Counsel for the complainant rejected this argument and the Adjudication Officer decided that both parties should furnish submissions on this issue initially and that the outcome of this matter would determine how the matter would progress. Section 79(3A) of the Employment Equality Acts 1998-2015 provides that issues of this nature can be dealt with as a preliminary matter and I propose to proceed on this basis.

2.4       The parties were given until 10 December 2018 to furnish these submissions and whilst the respondent complied with this deadline the complainant did not. The complainant’s submission was not received until 21 October 2019. The complainant’s solicitor set out the reasons for this delay in a letter dated 23 November 2019. Whilst the delay is a long one, I accept that there were circumstances outside of the complainant’s solicitor’s control, which explain the delay. The respondent submits that it was reasonable for it to believe that the matter was not being pursued. I do not accept that. At no stage was it ever mentioned, by either the Workplace Relations Commission or the complainant that this was the case. However, I do accept that I could have maintained some pressure on the complainant’s solicitor to file the necessary submission and I that did not do so. This arose due to pressures of other work and I apologise unreservedly for this delay.

2.5        The further delay in issuing the Decision is entirely a matter which is attributed to the Adjudication Officer. I can only offer my unreserved apology to both parties. Unfortunately, my role within the Workplace Relations Commission goes beyond that of an Adjudication Officer and my focus since March of this year has been on those other duties and the impact of Covid on same.

3.1       The respondent states that the complainant was an employee from mid-2006, when she signed her contract of employment, until she resigned in the latter months of 2017. It adds, in contrast, that Mr. X was never an employee of the respondent and that at all times he has been engaged as an independent contractor on a contract for services basis. It submits therefore that Mr. X is not an appropriate comparator for the purposes of the complainant’s claim of equal remuneration. Without prejudice to this argument the respondent (i) rejects the assertion that the complainant and Mr. X perform “like work” in terms of section 7(a) of the Acts and (ii) submits that there are grounds unconnected with the gender of the complainant and comparator which renders the rates of remuneration each receive lawful in terms of section 19(5) of the Acts.

3.2         The respondent states that section 19 of the Employment Equality Acts 1998-2015, which provides that an entitlement to equal remuneration, requires that the complainant and the named comparator must (i) perform “like work” in terms of section 7 of the Acts and (ii) be employed by “the same or an associated employer”. Counsel notes that whilst the term “employed” in not defined in the statutes, that section 2 defines both the terms “employee” and “employer” as follows.

                               “employee” subject to subsection (3) means a person who has entered into or works under ….a contract of employment ….”

                              “employer” subject to subsection (3) means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under…..a contract of employment”.

             Counsel for the respondent further argues it is apparent that the key to determining if a person is employed within the meaning of the Employment Equality Acts 1998-2015 is whether that person works under a “contract of employment”. Counsel notes that the Acts define “contract of employment” as follows

             “contract of employment” means, subject to subsection (3)-

(a)    A contract of service or apprenticeship, or

(b)    Any other contract whereby –

(i)                  An individual agrees with another person personally to execute any work or service for that person, or

(ii)                …….

whether the contract is express or implied and, if express, whether oral or written”

3.3       Counsel for the respondent accepts that the definition of “contract of employment” is broader than the definition contained in other employment legislation and notes that the definition was extended by the Equality Act 2004 to ensure that certain self-employed persons came within the scope of the statute in order to comply with requirements under certain EU Directives. However, it submits that not every contract for services is a “contract of employment” in terms of section 2 of the Employment Equality Acts 1998-2015 and contends that this in the case as regards Mr. X. Counsel submits, given the European context of the instant case, that the Adjudication Officer should have regard to the judgement of the ECJ (as it then was) in Allonby v Accrington & Rossendale College [2004] 1 CMLR 35 which held that while certain self-employed persons came under the scope of the relevant Directives and Article 141 of the Treaty, truly independent contractors did not - primarily because these individuals are not in a position of subordination with the person who receives the services.

3.4       Counsel for therespondent submits that an analysis of the relationship between it and Mr. X demonstrates that it is not a relationship which falls under the scope of the employment equality legislation and he cannot therefore be used as a valid comparator by the complainant. It states that he was at all times an arms-length independent contractor who was not in a relationship of subordination as regards the respondent. In support of this position the respondent states that;

(i)        the contract between them was negotiated at arms-length through an agent with commercially focussed elements sought and negotiated;

(ii)      the arrangement was contracted through a registered business name and not Mr. X personally, with invoices raised monthly detailing fees;

(iii)     Mr. X was required to provide services for forty-six weeks per year and he was not paid annual leave, public holidays, sick pay or for any other period when he was not providing the services contracted for – the contractual payments were predicated entirely on the services Mr. X in fact provided – which is in contrast to the terms of the contract of employment the complainant was engaged on;

(iv)     Mr. X was contracted only for services on a particular programme. The respondent had no power to alter his responsibilities or duties to a different role within the organisation, which is a complete contrast to the complainant;

(v)       Mr. X was free to engage in work with other media organisations without seeking the approval of the respondent, and he exercised this entitlement extensively over the years

(vi)     No mutuality of obligation existed between the respondent and Mr. X insofar there was no legal obligation on the respondent to provide him with work. Should the respondent decide to no longer avail of Mr. A’s services he could not reassign him to other duties but instead was obligated to pay him contractual damages. This contrasts with the situation involving an employee where the person could be reassigned or made redundant.

(vii)   Mr. X was contractually required to indemnify the respondent against any costs, damages or expenses incurred by the respondent because of any misconduct in the performance of his services. The complainant was indemnified by the respondent in the performance of her duties under her contract of employment.

(viii) There was no inequality between the bargaining powers of the parties (respondent and Mr. X) recognised as normally being present in an employment relationship. The particular relationship between media personalities and broadcasting organisations should be noted. Given Mr. X’s public presence (“Star Power”) and history with the respondent, it is submitted that nobody else could have performed his role with the same effect for the respondent. The respondent contends therefore that Mr. X was in a position of considerable commercial advantage in his negotiations with the respondent.

(ix)     Conversely, as an independent contractor, Mr. X was not eligible for any form of contribution to a pension scheme or private healthcare, both of which were available to the complainant. Moreover, he was not eligible for the respondent’s death in service insurance, income continuance plan or staff bonus scheme- all of which the complainant had access to.

                 The respondent furnished copies of the complainant’s contract of employment and the commercial agreement with Mr. X in support of the above. Counsel for the respondent reiterates the argument that in light of the foregoing, Mr. X was not an employee of the respondent in terms of the Employment Equality Acts 1998-2015 and he is not an appropriate comparator for the purposes of her claim for equal remuneration.

3.5          The respondent submits that given the parties to these proceedings, the nature of the industry involved and the fact that commercially sensitive information may emerge in the course of the investigation, that the Adjudication Officer should exercise his discretion and anonymise the names of the parties to the instant case.

4.1               The complainant concurs with the respondent that she was an employee engaged under a contract of service since mid-2006. She also agrees that the particular sector in which both parties are involved – the media/broadcast industry – is of particular relevance to the issues in dispute. Counsel draws a distinction between “star power” and “staying power” with the latter referring to a person’s ability to stay where they are in the future. The industry is a fickle business and if a media figure ceases to be appealing to the general public s/he cannot expect to remain in a particular position. Counsel contends that a person’s history is of far less relevance than their current popularity – whilst track-record is relevant an is a predictor of the future, public tolerance and patience are at a premium. Counsel adds, in any event, that the complainant’s own record and that of Mr. X were substantial enough to reduce any great differential between them in this regard. Moreover, the complainant contends that the “star quality” of her and Mr. X were the same in practical terms as both continued to be involved with the same popular programme.

4.2         The complainant states that soon after she commenced employment with the respondent, she began to be approached by commercial organisations requesting that she become involved in a campaign or star in an advertisement. When she asked her Line Manager for permission to participate in these ventures she was refused. She adds that over time she stopped seeking permission and just accepted jobs that her agent secured for her and that these actions were never questioned by the respondent. The complainant states that over time her role changed to the extent that she decided what she would and would not do and her decision in this regard was not challenged by the respondent.

4.3         Counsel for the complainant submits the Mr. X was subject to the direction and control of the Respondent. In this regard the complainant submits an email during 2011 that details the content of an interview with a senior politician. The complainant also asserts that Mr. X was required, on occasion, to apologise on air for errors or where someone took legal issue with a comment made. Counsel also submits that the day to day activity gave rise to impromptu requests by the respondent, to both the complainant and Mr. X, to make themselves available for to record material for a “sales pitch” and that Mr. X routinely complied with these requests. Counsel submits that one might expect an entirely different response to such requests from a truly independent contractor. Counsel states that both the complainant and Mr. X were subject to direction and control from the “Head of Unit Z”. Counsel adds that Mr X’s contract states that provision of his services was to be rendered “under the Head of Unit Z” whereas the complainant’s contract provides her services in terms of delivering her core function was “in conjunction with and with the direction and assistance of the Head of Unit Z”. Counsel submits that this is crucial and suggests that Mr. X’s role was subject to more control and subordination of the respondent. Finally, the complainant states that over the years she has worked for numerous charities and attended a significant number of social engagements for personal reward (lists of these charities and events were furnished to the Adjudication Officer). Counsel submits that these activities demonstrate the extent of her own “star power”.

4.4         Counsel states that the complainant is prepared to accept the respondent’s submission of the relevance of Allonby v Accrington & Rossendale College [2004] 1 CMLR 35 to the instant case. Counsel adds that in the judgement the ECJ held that Member States could not operate the definition of employee in national law so as to restrict the application of Article 141 (now Article 157 TFEU). Counsel contends that Mr. X provides personal service and is subject to subordination and direction by the respondent – as the complainant is. Counsel submits that this arrangement is consistent with EU jurisprudence and the circumstances covered by section 2 of the Employment Equality Acts 1998-2015.

4.5         Counsel for the complainant notes the characteristics argued by the respondent in support of the assertion that Mr. X is an independent contractor and, in addition to the arguments set out in the preceding paragraphs, responds further as follows:

(i)        Commercial negotiation – this is irrelevant for the test. No attempt is made to explain how negotiation fits into the analysis and no authority is cited.

(ii)      The existence of a business name is also irrelevant. An employee can provide services to a client and can be directed as to the nature, extent and content of those services, whether engaged as an independent contractor or not.

(iii)     The inclusion of a forty-six week’ working year is no more than saying that someone avails of 30 days annual leave per year, payment for which is incorporated into the negotiated fee. Annual leave, much like sick pay, pension or death in service benefits, is not decisive of the existence of an employee/employer relationship.

(iv)     The arguments advanced on the non-existence of mutuality of obligation is misstated. No evidence was adduced that Mr. X had a right to refuse work within the terms of the arrangement between him and the respondent.

(v)       The existence of provisions on indemnities are typical features of client service relationships and a basis upon which a client can impose its will upon a service provider in a manner equivalent to subordination.

4.6         Counsel for the complainant submits that the definition of “contract of employment” contained in the Employment Equality Acts 1998-2015 was extended by the Equality Act 2004 and that this amendment is clearly designed to ensure that self-employed persons who provide personal service come within the scope of the equality legislation as required by the relevant EU Directives. Counsel further submits that the dearth of case-law, and the incorrectly decided case-law on the issue, has resulted in a perception amongst employers that contractors are not covered by the employment equality legislation. Counsel states that both the WRC (and the former Equality Tribunal) and the Labour Court have confirmed the broad application of the concept that the definition of “employee” in section 2 of the Employment Equality Acts 1998-2015 encompasses self -employed contractors – and relies on the following Decisions and Determinations in this regard ( Killally v ESB Networks DEC-E1012-183 and Wall V Nowacki EDA 198). Counsel draws the Adjudication Officer’s attention to the definition of “employee” in the UK Employment Rights Act 1996 and the Irish Payment of Wages Act 1991 and provides arguments on the approach adopted by Lady Hale in Bates von Winklelhof v Clyde & Co. LLP and another {2014} IRLR 641 which draws a distinction between three types of people   - those employed under a contract of service, those self-employed people who are in business on their own account and undertake work for clients or customers and lastly an intermediate class of person who are self-employed but do not fall within the second class. Counsel argues that Mr. X is more akin to a professional person with a degree of autonomy as to how work is to be performed, but who is still so closely integrated to the respondent’s operations as to fall within the definition of employee, regardless of the label attached to the arrangement.

4.7       The complainant makes no formal submission in response to the respondent’s specific application to have the parties anonymised in the published Decision. Counsel does however, draw a distinction between the statutory requirement to hold a Hearing under the Employment Equality Acts in private and the right, if such exists, to have the Decision published without the parties being identified.

5.1     It is well established that a person who claims an entitlement to equal remuneration under section 19 of the Employment Equality Acts 1998-2015 must demonstrate, in the first instance, that s/he performs “like work” in terms of section 7 of those Acts, with a comparator of the opposite sex, who is an employee of the same, or an associated employer. Section 2 of the Acts defines an employee as a person who is engaged by an employer (also defined in that section) under a contract of employment in terms of the definition provided in the aforementioned section 2. In the instant case the complainant selected Mr. X as her comparator for the purposes of her claim of equal remuneration. The respondent submits that she cannot maintain this claim as Mr. X is not an employee of the respondent. Rather he is an independent contractor and consequently he is not an appropriate comparator. As this issue goes to the core of the complainant’s locus standi to maintain her claim I have decided to investigate this matter as a preliminary matter in accordance with section 79(3A) of the Employment Equality Acts 1998-2015. In reaching ne decision I have taken into account all of the submissions made by both parties.

5.2         Section 2 of the Employment Equality Acts 1998-2015 contains the following definitions –

                               “employee” subject to subsection (3) means a person who has entered into or works under ….a contract of employment ….”

                               “employer” subject to subsection (3) means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under…..a contract of employment”.

             “contract of employment” means, subject to subsection (3)-

                             (a) A contract of service or apprenticeship, or

                               (b) Any other contract whereby –

                                                   (i) An individual agrees with another person personally to execute                                 any work or service for that person, or

                                                  (ii)   ………….

                                   whether the contract is express or implied and, if express, whether oral or written”

               Both parties note the expanded definition of “contact in employment” contained in the statutes - which is arguably the most expansive definition contained in Irish employment rights/equality legislation – in that it expressly provides that a person engaged under a contract for services may be an employee for the purposes of the Acts. Indeed, there are several decisions of the former Equality Tribunal and the Labour Court in this regard – some of which were cited by Counsel for the complainant – with which I concur. Usually, courts and tribunals are faced with the task of deciding whether an individual is engaged on a contract of service or a contract for services. Consequently, there is a significant volume of jurisprudence from the Superior Courts on this issue which provides considerable guidance to me in assessing the matter in issue in instant case.

5.3         The parties provided me with copies of the contacts between (i) the respondent and the complainant and (ii) the respondent and Mr. X. It is common case that the complainant is an employee of the respondent engaged on a contact of service. An examination of the Agreement between the respondent and Mr. X contains several clauses and many characteristics that one might expect to find in a contract for services as detailed in the Code of Practice for Determining Employment or Self Employment Status of Individuals which was prepared by the Employment Status Group (ESG) set up under the Programme for Prosperity and Fairness. I am therefore satisfied that Mr. X was engaged by the respondent on a contract for services and was, on the face of it, an independent contractor. However, as Counsel for the complainant quite correctly points out, the issue in the instant case is not whether Mr. X is an independent contractor engaged under a contract for services, rather the question is whether that Agreement is such that it is encompassed by the definition of “contract of employment” provided at section 2(1)(b)(i) of the Employment Equality Acts 1998-2015.

5.4         No authorities from the Irish have been cited on this question and despite research I have been unable to locate one which is on point. However, the corpus of Superior Court caselaw on the issue of employee versus self-employed (Henry Denny –v- Minister for Social Welfare, (1998) 1 IR 34; in Castleisland Cattle Breeding Society Ltd –v- Minister for Social and Family Affairs (2004) 4 IR 50; Brightwater Selection (Ireland) Ltd –v- Minister for Social & Family Affairs (2011) IEHC 510 et al , along with the UK jurisprudence submitted by Counsel for the complainant, is significantly instructive in assessing the question in issue. The test in the Irish Superior Courts has evolved over time since the seminal case of Henry Denny v Minister for Social Welfare. In that judgement the Supreme Court held the level of control someone exercises over another in terms of delivery of the services is a significant factor to be considered, although not decisive. In Re Sunday Tribune Ltd [1984] IR 505 the High Court identified the extent to which a person was integrated into the business as another factor to be considered. In my view these factors are also relevant to my deliberations in terms of Mr. X’s engagement with the respondent. My assessment must focus on how the arrangement operates in practice. Such an approach was reiterated as the correct approach by the Supreme Court in Castleisland Cattle Breeding Society Ltd –v- Minister for Social and Family Affairs (2004) 4 IR 50 when Geoghan J cited, with approval, the judgement of that Court in Denny.

5.5         The definition of “contract of employment” at section 2(1)(b)(i) of the Employment Equality Acts 1998-2015 encompasses a contract where “an individual agrees with another person personally to execute any work or service for that person”. In “Bates von Winklelhof v Clyde & Co. LLP and another {2014} IRLR 641 the English Supreme Court identified two subsets of self-employed people -(i) those who are in business on their own account and undertake work for clients or customers and (ii) those persons who provide their services as part of a profession or business undertaking carried on by someone else. This new classification was recognised in this jurisdiction by Gilligan J in Brightwater Selection (Ireland) Ltd –v- Minister for Social & Family Affairs (2011) IEHC 510 when he held that “a contract engaging a particular person does not have to be a contract of service or a contract for service as may be widely assumed. It is possible that an alternative option applies, a contract sui generis.”.Following an examination of the Agreement between the respondent and Mr. X (Schedule 1), I am satisfied that the respondent exercised a considerable level of control over him. It required him to be present for specific hours on specific days in order to present the particular programme. In addition, he had to present the programme himself – he could not assign that responsibility to a substitute. I note the respondent’s comment that Mr. X has been the lead anchor on the programme since its inception. The programme was the respondent’s flagship programme and it required a personality with an already established national profile. Mr. X fitted this profile – which the respondent describes as a genuine need for the programme, stating that no one else could have performed this role. Against this backdrop it is reasonable to conclude that Mr. X was integrated into the business of the respondent to a considerable extent. I am satisfied that these characteristics are indicative of an arrangement which requires Mr. X to provide the contracted services personally. Mr. X does not appear to have had any editorial control over the programme content, although undoubtedly his depth of knowledge in broadcasting would have contributed to editorial decisions. Moreover, his experience and personality would have informed how he delivered his services on air and provided him with professional autonomy in that regard. However, I am not satisfied that this latter autonomy is sufficient to outweigh the other factors mentioned above.

5.6         Both parties make reference to the judgement of the ECJ (as it then was) in Allonby v Accrington & Rossendale College [2004] 1 CMLR 35 as relevant to the instant case. The entitlement to equal pay for equal has its genesis in Article 119 of the Treaty of Rome and the concept have evolved at a European level over the years with the jurisprudence of the CJEU. The principle of equal remuneration is noted in the Gender Recast Directive (Directive 2006/54/EC) in particular Recital 8 which states, inter alia, that it is an “important aspect of the principle of equal treatment between men and women and an essential and indispensable part of the acquis communautaire, including the case-law of the Court concerning sex discrimination. “.In Allonby the ECJ (as it then was) stated at paragraph 71 “The formal classification of a self-employed person under national law does not exclude the possibility that a person must be classified as a worker within the meaning of Article 141(1) EC if his independence is merely notional, thereby disguising an employment relationship within the meaning of that article,”. This clearly indicates that regardless of how a contractual relationship is labelled, it is necessary when evaluating that relationship, to assess it to ensure that person is actually independent in the discharge of his/her functions and that the independence is not merely notional. Such an approach is entirely consistent with the approach set out at paragraph 5.4 above.

5.7         Paragraph 66 of the judgement requires that a Member State, may not interpret the term “worker” for the purpose of Article 141 (now Article 157 TFEU) in a restrictive manner. Whilst this would generally apply to ensure that a person is not restricted from seeking equal remuneration because that person is not an employee in terms of national legislation, I am satisfied that the requirement not to apply a restrictive interpretation equally applies in the circumstances of the instant case – where an employee is being prevented from pursuing a claim of equal remuneration because the named comparator is contended not to be an employee. To find otherwise would have the effect of hindering the complainant. Paragraph 67 of the Allonby judgement also states that a person who performs services for another person and receives payment for performing those services must be considered a worker for the purposes of Article 141 (now Article 157). Clearly, Mr. X is covered by this edict. The Employment Equality Acts 1998-2015 transposes the EU entitlements to equal remuneration into national law and consequently, my deliberations must take account of the above comment delivered by the ECJ in Allonby.

5.8         In light of my comments in the previous paragraphs I find that-

(a)    Mr. X is engaged by the respondent on a contract for services.

(b)    The respondent exercises a significant degree of control over Mr. X in the delivery of these services. In particular the time and location where the services are delivered.

(c)     Crucially, Mr. X must provide the services he is engaged to deliver himself. He cannot decide to reassign the services to any person of his choosing.

(d)    The respondent engaged him because of his national public profile and considered it a genuine necessity that he be engaged as the “star” anchor on the particular programme. Consequently, I am satisif3ed that the services provided by Mr. X are an integral element of the respondent’s business.

(e)    Paragraph 71 of Allonby expressly states that the definition of worker for the purposes of Article 141 EC (now article 157 TFEU) may include a person who is engaged under a contract for services. Mr. X is a person engaged under a contract for services. Having fully considered the arguments advanced by both parties, I am satisfied, on balance, that he operates in a position of subordination in terms of the respondent. I am further satisfied that he is required to provides his services personally and indeed that he does so forty-six weeks each year unless the respondent permits him to do otherwise.

(f)      Paragraph 66 of Allonby requires that I do not interpret the term “worker” in a restrictive manner. I am satisfied that this requirement applies whether it is being applied to a complainant or a comparator for the purposes of a claim for equal remuneration under the Employment Equality Acts 1998-2015. The definition of “contract of employment” at section 2(1)(b)(i) of the Employment Equality Acts 1998-2015 is an expansive one, and expressly covers a person engaged on a contract for services. The principle of equal remuneration has been a fundamental concept of community law from the outset and has been a cornerstone in the overall progress of the right of men and women at work and in employment. I therefore find, on balance, that Mr. X is an employee of the respondent in accordance with the relevant sections of the Employment Equality Acts 1998-2015, in particular that he is engaged on a contract as defined at section 2(1)(b)(i) of those Acts.

(g)    Mr. X is therefore a valid comparator for the purposes of the complainant’s claim for equal remuneration

5.9         Finally, I shall deal with the issue of anonymising the parties in this Decision. I have taken full note of the arguments advanced by both parties on this matter. I concur with the arguments made by Counsel for the complainant that the requirement to hold a Hearing in private under section 79(2) of the Employment Equality Acts 1998-2015 does not equate to a requirement to have the parties anonymised in the published Decision. Indeed, the standard approach adopted by the former Equality Tribunal was that the parties to a complaint were named in the Decision unless there were compelling reasons for not doing so. Such compelling reasons included sexual harassment and issues connected with non-evident disabilities. Counsel for the respondent correctly notes that claims under the employment equality legislation are not covered by section 41 of the Workplace Relations Act 2015, and in particular the requirement under subsection 14 of that section to “publish a decision in such form and in such manner as it considers appropriate …(other than information that would identify the parties…”. I am therefore satisfied that the correct approach in this matter is the one previously adopted by the former Equality Tribunal. The comparator named by the complainant has no control over his involvement in this matter. Consequently, if the parties are named, given the sector of industry involved, his identity will also become public knowledge. This cannot be permitted. I am satisfied that the circumstances in this instance amount to compelling reasons to anonymise the identities of the parties and I exercise my discretion to do so.

I have completed my investigation of this complaint and make the following Decision in accordance with section 79(3A) of the Employment Equality Acts, 1998-2015. I find that:

(i)      The contractual arrangement between the respondent and Mr. X is a contract of employment as defined at section 2(1)(b)(i) of the Employment Equality Acts 1998-2015;

(ii)    Consequently, Mr. X is an employee of the respondent in terms of the Employment Equality Acts 1998-2015; and

(iii)   Mr. X is therefore a valid comparator for the purposes of the complainant’s claim of equal remuneration in accordance with section 7 and section 19 of the Employment Equality Acts 1998-2015.

Contract for services, employee, section 2(1)(b) of the Employment Equality Acts 1998-2015