FULL RECOMMENDATION
SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : WATERFORD INSTITUTE OF TECHNOLOGY (REPRESENTED BY TOM MALLON B.L., INSTRUCTED BY PEMBROKE SOLICITORS) - AND - SINEAD DAY (REPRESENTED BY LARS ASMUSSEN B.L.,INSTRUCTED BY ORMONDE & CO SOLICITORS DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No: ADJ-00007390 CA-00010061. Introduction The Adjudication Officer found that the Complainant had not established aprima faciecase in respect of either of her claims. Background The Complainant is employed with the Respondent since 1stOctober 2002 in a non-academic role in the International Office which falls under the Central Services Functions. It is the Complainant’s complaint that she was discriminated against by the Respondent and subjected to less favourable treatment going back as far as 2012 when she returned from maternity leave. The Complainant lodged her claim with the WRC on the 27thFebruary 2017. It is for the Complainant in the first instance as set out by this Court inMitchell v Southern Health Board[2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which he relies. With the consent of the parties the Court proceeded to hear the parties on the preliminary issue of whether or not there wasprima faciean infringement of the Act within the cognisable period. The Respondent raised a further issue in respect of whether the original referral was just in respect of pay equality or whether it also incorporated a claim of discrimination in respect of conditions of employment. With the consent of the parties the Court proceeded to hear this issue as a preliminary issue also. Complainant’s case It is the Complainant’s case that she was discriminated against by the Respondent on the ground of gender in respect of her terms and conditions of employment. The Complainant lodged her claim with the WRC on the 27thFebruary 2017 and therefore the cognisable period under the Act is 28thAugust 2016 to the 27thFebruary 2017. The Complainant identified her comparator as Mr O Neill who worked in the International Office up to 31stDecember 2016. The Complainant submitted that the acts of discrimination within the cognisable period were in respect of the provision of training and the allocation of international markets. It is the Complainant’s submission that in late August 2016 her comparator looked for time off from January 2017 to June 2017 to complete his PHD. It was her submission that the Complainant was facilitated with this leave which was linked to academic terms and conditions despite the fact that he was working in the International Office which was a non-academic unit . It was the Complainant’s submission that she had been refused time off to pursue studies in October 2012. The second issue related to a meeting that the Complainant attended on the 29th of August 2016 , in respect of the allocation of internal markets with Mr O’Toole who at that time was VP for International Relations. It is her submission that the markets allocated to her were all high-risk countries as opposed to those allocated to her comparator who she submitted was allowed cherry pick the countries he was allocated. The Complainant’s equal pay claim is that the comparator Mr O’Neill had a higher annual leave entitlement during the period March 2015 to the 31stDecember 2016. The Complainant did not dispute that at all material times she was in receipt of a higher salary than the Complainant, nor did she dispute, that the post held by her comparator from the 7thMarch 2015 to the 31stDecember 2016 was a post that she had successfully competed for but had turned down and that the comparator as the person placed second on the panel was then offered the post. Respondent’s case It is the Respondent’s position that no evidence has been put forward that any difference in pay and conditions that existed at the time were linked to gender. Within the Respondent’s employment there are two streams academic and administrative and each has their own terms and conditions. These terms and conditions are governed by national rules that are gender free. A woman holding the same grade as Mr O Neill (lecturer) would have the same terms and conditions as Mr O’ Neill. Had the Complainant taken up the role she successfully competed for she would have had the same terms that Mr O’ Neill had when he took up the post. In relation to his application for leave to complete his PHD, Mr O’ Neill was advised that it would not be possible to facilitate that within the International Office. Mr O’ Neill exercised his right to move out of the International Office and revert to his substantive grade of lecturer. The fact that he could exercise that option was linked to the grade he held and was not in any way related to gender. The International Office always had an academic role within its structure and the person who was in that role whether they were male, or female had academic terms and conditions. In respect of the allocation of markets it is not clear what is being alleged or how it constitutes less favourable treatment on the grounds of gender. It is the Respondents case that the Complainant has not established that the alleged incidents within the cognisable period are sufficient to establish aprima faciecase of discrimination in respect of pay and or conditions of employment on the grounds of gender. The law Discrimination in accordance with the Acts is set out in section 6 and states:_ 6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where — ( a ) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which — (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, ( b ) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— ( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”), ( b) that they are of different civil status (in this Act referred to as “ the civil status ground ”), ( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”), ( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”), ( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”), ( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”), ( g) ……. (2A) Without prejudice to the generality of subsections (1) and (2) , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated. (3) ( a ) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school. ( b ) Notwithstanding subsection (1) and section 37(2) , an employer may set a minimum age, not exceeding 18 years, for recruitment to a post. Remuneration defined by section 2 of the Act as any consideration whether in cash or in kind which the employee receives directly or indirectly from the employer in respect of the employment19 . Entitlement to equal remuneration (1)It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer. [(2) In this section “relevant time” in relation to a particular time is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.] (5) 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. DiscussionIt is for the Complainant in the first instance as set out by this Court inMitchell v Southern Health Board[2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which he relies. InMelbury Developments v Arturs ValpetersEDA0917the Courtstated“ Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. The Complainant submits that her comparator made an application for study leave while working in the International Office and was granted same. However, the Respondent clarified for the Court that the comparator was only granted the leave when he agreed to revert to his substantive post and leave the International office. The Complainant did not make an application for study leave during the cognisable period therefore it is not clear to the Court what the complaint is alleging was the less favourable treatment in respect of this element of her complaint. The second element of the complaint refers to the allocation of markets by Mr O’Toole. The Complainant while obviously unhappy with the markets she was allocated has failed to establish that the allocation of the markets was linked to her gender or how it constituted unfavourable treatment. In respect of the Complainant’s equal pay claim, the Complainant does not dispute that at all material time she had higher earnings than her comparator. The complainant submitted that as her comparator had a higher annual leave allocation then his hourly rate was de facto higher than hers. The Complainant did not dispute that his higher annual leave entitlement was linked to the fact that he held an academic post. Nor did she dispute the fact that if she had accepted that post when offered it, she would have received the higher annual leave allocation. In those circumstances the Court finds that the complainant has not established that any difference in remuneration was linked to her gender. The Court, having carefully considered the two complaints submitted by the Complainant and the Respondent’s response to same as set out above, finds that in the circumstances of this case the Complainant has not made out a ‘prima facie’case in either of the complaints and therefore her claims cannot succeed. The Court having determined that the Complainant has not established a prima facie case did not need to proceed to consider whether both complainants were covered by the original referral. Determination
The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
