Complainant

Respondent

Parties

Joe  Kelly

Kildare Wicklow Education and Training Board

Representatives

  Self

Niamh Ní Cheallaigh IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00036020-001

06/05/2020

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

CA-00036020-002

06/05/2020

The complainant is employed as Director of Organisation Support and Development with the respondent.  He commenced his employment on 05 June 2017.  He claims that the process used to establish his starting salary has inadvertently resulted in discrimination against him.  His current annual salary is €77,000.00 gross and he works a 39 hour week.  The complaint was received by the Workplace Relations Commission on 06 May 2020.  The respondent refutes the claim and contends that it is misconceived as the complainant has failed to cite a ground of discrimination under the Employment Equality Act 1998 – 2015.

In January 2017 the Public Appointments Service organised an open competition for the purpose of recommending persons for appointment to the positions of Director of Organisation Support and Development in four individual Education and Training Boards.  The complainant applied for the position with the respondent and he was successful in his application.

At the time of his application the information booklet for the position contained the following statement concerning the starting salary:

“Candidates should note that the starting salary will be at the minimum of the appropriate payscale and will not be subject to negotiation.

Different remuneration and conditions may apply, if, immediately prior to the appointment the appointee is already a serving Civil Servant or Public Servant.”

In April 2017 the complainant was informed that he had been successful at interview.  He raised a query with the Department of Education and Skills about his starting salary.  He outlined his experience as Head of Organisation and People Development with a semi-state organisation up to mid-January 2017 when the position was made redundant.  In an exchange of e-mails, 28 April, 12 and 26 May 2017 the Department advised him that his starting salary would be the first point on the scale, as set out in the information booklet.  His previous employment was deemed not to be employment with a Public Service Body and as such he did not meet the criteria to be considered for different remuneration.

The complainant accepted the position as offered.  He felt that he could make a great contribution to the respondent organisation.  He believed that once he was embedded in the organisation he would have a more informed opinion of the responsibilities and challenges of the position and would then be better placed to deal with the salary issue.

The complainant contends that holders of the same post in other Education and Training Boards started on higher salaries them him, because consideration was given to their existing Public Service salary before taking on the new role.  As he was deemed not to have been a Public Servant prior taking up his position with the respondent, consideration was not given to his previous salary when determining his starting salary.

The complainant submits that fundamental to determining a fair and equitable remuneration is to take into consideration an individual’s qualifications, experience and competencies relevant to the role.

The complainant asserts that he has performed successfully in the position for several years and that he now has a much greater insight and understanding of the role and responsibilities and the inequitableness of his salary compared to other in the Education and Training Board sector.  He makes the following points:

·       His salary is misaligned with the responsibilities of his role as the respondent is one of the largest Education and Training Boards.

·       Several Assistant Principal Officers reporting to him are on higher salaries based solely on their tenure within their current grade.  The complainant asserts that he has much greater responsibility, accountability, qualifications and experience than these direct reports.  The disparity in his salary undermines his authority in the organisation.

·       As one of only three senior people reporting directly to the Chief Executive he is on a considerably lower salary than his peers.

The complainant submits that the principles used to determine his starting salary are flawed and have inadvertently resulted in discrimination to his detriment and the principles of fairness, and ‘equal pay for equal work’ have not been afforded to him.  The complainant submits that there has been a contravention of the Employment Equality Act in relation to pay and equal status.

The complainant requests a fair and equitable salary commensurate with his peers and his role and responsibilities in the organisation.

The respondent states that the Complainant is a valued and well-respected senior employee of the organisation and they respect in full his right to take this claim.  Furthermore, the respondent is obliged to defend this claim and to practice good corporate governance by following pay instructions set down by the Department of Public Expenditure and Reform and the Department of Education and Skills.

The complainant has alleged that “an employment agreement contains a provision which is discriminatory”.  The respondent refutes the claim in its entirety and contends that it is in fact misconceived.

The respondent submits that the complainant has failed to cite a ground of discrimination under the Employment Equality Acts to anchor his claim.  Section 6(2) of the Act provides that as between any two persons, the discriminatory grounds are gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community.

The complainant alleges that in determining his starting salary in his current role as Director of Organisation Support and Development, he has been discriminated against because he was not a Public Servant prior to joining the respondent organisation.  As there is no discriminatory ground cited as per the Employment Equality Act, the claim cannot proceed.

The respondent states that as a public body it follows all the rules and regulations governing pay and conditions for the staff employed by the Education and Training Board.  All such pay rules are directed by the Department of Public Expenditure and Reform and the Department of Education and Skills.  The respondent, as a public service employer, has no discretion in relation to pay and pay rules.  The respondent is regularly audited by the Comptroller and Auditor General to ensure full compliance with pay and expenditure directives and national agreements.

The complainant was first employed by the respondent as a substitute teacher on 06 February 2017.  His annual salary was €37,987.  The respondent advertised a new senior management post of Director of Organisation Support and Development through the Public Appointments Service.  The complainant applied and was successful at interview.  He was offered and accepted the position.  A contract of employment was sent to the complainant on 15 May 2017.  The complainant signed and returned the contract in advance of taking up his new position on 05 June 2017. 

The complainant had queried his starting salary with the Department of Education and Skills.  The Department responded to his query by e-mails dated, 28 April and 26 May 2017.  The Department confirmed that his starting salary would be the first point on the relevant scale.  This was the position for all candidates, other than those that, immediately prior to appointment, were already a serving Civil Servant or Public Servant.  The complainant’s previous employment with a semi-state organisation was not a public service body, as defined by pay legislation and various Public Sector Agreements.  The Department also stated that these are standard arrangements and neither the Department or the respondent had discretion to make any changes to them.

The respondent states that Section 9 (1) of the Act sets out:

9.— (1) In a case where—

(a) an agreement or order to which this section applies contains a provision in which differences in rates of remuneration are based on any of the discriminatory grounds, and

(b) in relation to a person to whom the agreement or order relates, that provision conflicts with an equal remuneration term in that person’s contract of employment,

then, subject to subsection (4), that provision shall be null and void.

(2) …

(3) This section applies to the following agreements and orders, whether made before or after the coming into operation of this section:

(a) collective agreements;

(b) employment regulation orders, within the meaning of Part IV of the Industrial Relations Act, 1946; and

(c) registered employment agreements, within the meaning of Part III of that Act.

The respondent submits that the complainant has not pointed to one of the above listed agreements to allege discrimination nor has he cited a ground of discrimination under the Employment Equality Acts.  Therefore, the claim is not properly before the Workplace Relations Commission and it must fail.

The respondent submits that as the complainant has not provided facts from which a prima facie case of discrimination can be established, that there is no case to answer by the respondent and accordingly the matter should be dismissed.

CA-00036020-001

Complainant submitted under Section 86 of the Employment Equality Act, 1998.

The complainant submitted his claim under Section 86 of the Act, which deals with complaints concerning collective agreements.

Reference of collective agreements to Director General of the Workplace Relations Commission

86.—(1) If the Authority or a person who is affected by a collective agreement claims that a provision of that agreement is null and void by virtue of section 9, the Authority or that person may refer the question of that agreement to the Director General of the Workplace Relations Commission; and in this section (and section 87) the Authority or the person making such a reference is referred to as “the complainant”.

(2) For the purposes of this section (and section 87)—

(a) the expression “collective agreement” shall be taken to include an order or agreement falling within paragraph (b) or (c) of section 9 (3),

(b) a person is affected by a collective agreement if that person is an employee whose remuneration or whose conditions of employment are, in whole or in part, governed by the agreement (or any part of it), and

(c) “the respondents” means the parties to the agreement, other than (where relevant) the complainant.

Section 86 of the Act was considered in detail by the Labour Court in Department of Finance v 7 named complainants EDA068.  Considering the issue of equal pay the Court stated:

“The Act of 1998 provides a homogeneous range of measures intended to ensure the effective application of the principle of equal pay. The primary and most powerful measure which it provides is the jurisdiction given to the Director by Section 77 of the Act to investigate complaints from individuals who consider themselves wronged by being denied equal pay. This jurisdiction is coupled with the broad powers to award redress conferred on the Director by Section 82 of the Act. It is clear from a perusal of the relevant Sections of the Act that the jurisdiction of the Director under Section 86 could not be regarded as in any sense analogous to the investigative powers with which she is invested by Section 77.The jurisdiction of the Director under Section 86 of the Act is complementary to that conferred on her by Section 77, but cannot be used as an alternative route to obtain the same result as is available in an application under Section 77. It is clear that the redress available to a successful applicant under Section 86 is purely declaratory and no substantive redress can be ordered by way of compensation or otherwise”.

The above section, Section 86, refers to the Section 9, which provides:

9.— (1) In a case where—

(a) an agreement or order to which this section applies contains a provision in which differences in rates of remuneration are based on any of the discriminatory grounds, and

(b) in relation to a person to whom the agreement or order relates, that provision conflicts with an equal remuneration term in that person’s contract of employment,

then, subject to subsection (4), that provision shall be null and void.

The Labour Court went on to set out the following principles:

“it appears to the Court that in any proceedings under the Act the Court must ensure that the rules of procedural fairness are fully observed. This requires that a person who alleges discrimination must make their complaint with sufficient particularity to allow the person or persons against whom it is directed to know what they are accused of and what they must defend. This approach is entirely consistent with Article 4 of Directive 97/80/EC on the Burden of Proof in Cases of Discrimination Based on Sex, the terms of which are now incorporated at Section 85A of the Act as amended.

From this legal framework the following principles emerge: - 1. Where a provision in a collective agreement comes within the ambit of Section 9 it is void ab initio whether or not it has been the subject of a declaration to that effect under Section 87. 2. A reference under Section 86 must relate to a provision in an agreement as defined by Section 9 and the subject matter of the complaint must be that the impugned term of the agreement provides for unequal pay for like work. 3. The Complainant must be a person whose pay or conditions of employment are governed by the impugned agreement. 4. The term “collective agreement” was not defined by the Act at the material time. While the term must be given a wide meaning in line with Article 4 of Directive 75/117/EC, it can only relate to an agreement fixing pay and / or conditions of employment. It follows that the parties to the agreement must be employers and workers or their Trade Unions. 5. It is for the Complainant to identify the instrument which they wish to have investigated and to establish in a prima facie way the basis upon which they contend that it offends against Section 9 of the Act.”

I have carefully considered the submissions made by the parties.  The complainant was unrepresented.  In his submission he did not refer to a specific collective agreement and he did not seek a declaration.  I am satisfied that the complainant was mistaken in submitting his complaint under Section 86 as a declaration under this section would not provide him with the redress he is seeking.  As the complainant has not identified a specific collective agreement and as the respondent is not party to a collective agreement I find that I do not have jurisdiction to deal with a complaint under Section 86.

I am satisfied that the complainant in the narrative of his complaint form and submission, received by the Workplace Relations Commission on 06 May 2020 did submit a complaint which should be considered under Section 77 of the Employment Equality Act.  Therefore, I have created a second complaint, CA-00036020-002, and I will deal with the complaint under Section 77 of the Act.

CA-00036020-002

Complaint submitted under Section 77 of the Employment Equality Act, 1998.

The complainant in his submission claims that process used by the respondent to establish his starting salary has inadvertently resulted in discrimination against him.  He states that although he has the same job title as Directors of Organisation Support and Development in other Education and Training Boards he is on a significantly lower salary.  The complainant alleges that other Directors started on higher salaries as consideration was given to their existing Public Service salaries.

Discrimination for the purposes of this Actis defined in Section 6.  This section sets out nine grounds

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,

(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 statusground”),

(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) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Travellercommunity and the other is not (in this Act referred to as “the Travellercommunity ground”).

Unlawful discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the nine discriminatory grounds. 

The respondent submits that the complainant has not cited a ground of discrimination under the Employment Equality Acts, and therefore the complaint must fail.

I have carefully considered the submissions and I am satisfied that the complainant has not established that he was unlawfully discriminated against by the respondent based on any of the nine grounds contained in Section 6 (2) of the Act.   In the documents submitted, the information booklet produced by the Public Appointments Service, the e-mail correspondence between the complainant and the Department of Education and Skills all applicants, other than serving Civil or Public Servants, are placed on the first point of the scale when commencing employment.  This complaint is about different treatment as between new employees and serving Civil or Public Servants.  The complainant has failed to base his complainant on any of the prohibited grounds of discrimination contained in Section 6(2).  I am satisfied that the complainant has not established that he was subject to unlawful discrimination by the respondent. 

CA-00036020-001

Complainant submitted under Section 86 of the Employment Equality Act, 1998.

I have carefully considered the submissions made by the parties.  The complainant was unrepresented.  In his submission he did not refer to a specific collective agreement and he did not seek a declaration. 

As the complainant has not identified a specific collective agreement and as the respondent is not party to a collective agreement I find that I do not have jurisdiction to deal with a complaint under Section 86.

CA-00036020-002

Complaint submitted under Section 77 of the Employment Equality Act, 1998.

I have carefully considered the submissions and I am satisfied that the complainant has not established that he was unlawfully discriminated against by the respondent based on any of the nine grounds contained in Section 6 (2) of the Act.    I find that the complainant was not discriminated against.

Discrimination

Collective Agreement

Pay Discrimination