Complainant

Respondent

Parties

Paula  Reid

Teagasc

Representatives

Ray Ryan BL instructed by Ronan Killeen, Killeen Solicitors

Mary Paula Guinness BL instructed by Niamh Cassidy,  Hayes 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-00035890-001

28/04/2020

The Complainant is employed by the Respondent as a Statistician. Employment commenced on 5th January 1977.

This complaint, submitted under section 77 of the Employment Equality Act of 1998 was received by the Workplace Relations Commission on 28th April 2020.

The hearing of the complaint took place on 26th November 2021.

The Respondent has discriminated against the Complainant on the ground of gender by failing to provide equal pay in respect of a named comparator, contrary to section 29 (1) of the Employment Equality Act 1998 (as amended) (“the 1998 Act”).

The Comparator is Mr Jim Grant who is of a different gender to the Complainant in that he is male, and the Complainant is female.

Both worked as Statisticians in Teagasc – as the organisation’s only two statisticians.

Both performed like work within the meaning of Section 7 of the 1998 Act.  Mr Grant retired in 2020.

The legal context to this claim:

The preamble to the 1998 Act makes it clear that it is derived from Directives on equal pay for men and women.  The Directive currently applying is Directive 2006/54/EC often referred to as the Gender Equality Recast Directive (“the Directive”).    The right to equal pay is directly effective, enforceable against private entities, individuals and Member States: Defrenne v Sabena [1976] ECJ Case C43/75.  In that and later cases, the principle that equal work or work of equal value must be remunerated in the same way, whether it is performed by a man or a woman was recognised as forming part of the foundations of the European Union.

Ms Reid’s claim must therefore be seen as a claim not only under the 1998 Act, but also under the Directive.  See e.g. by analogy, the judgment of the CJEU in Case C 268/06 Impact v Minister for Agriculture in the context of Directive 1999/70/EC on Fixed Term Work.

Article 157 of the TFEU prohibits both direct and indirect discrimination in matters of remuneration.

Whether or not this is “like work” is a matter for the Adjudication Officer.  Barron J. stated in C & D Foods Ltd v Cunnion [1997] 1 I.R. 147 at 151

“It is essential to an employer’s case that differentiation in pay scales and recruitment of men and women to the same job at the same wage should be genuine.  Nevertheless, even where the employer genuinely believes that the value of the work being carried out by employees in one occupation is higher than the value of work being carried out by employees in another occupation, he cannot avail of that belief because ultimately what is like work is a matter not for the employer but for an equality officer or the Labour Court on appeal”.

Ms Reid at all material times was paid substantially less than Mr Grant earning approximately €20,000.00 per annum less than him.  She was, in substance and in essence, doing the same work as him.

The stated response on behalf of the Respondent

By letter dated 25th March 2020 the Respondent’s solicitors asserted on its behalf that the Complainant’s role is “….. entirely different to that of her chosen male comparator Dr Jim Grant”.

That letter goes on to assert inter alia that:

“Ms Reid provides statistical analysis support to research staff primarily in the Food Directorate on the design, analysis and interpretation of controlled experiments, collaborates on research projects and has not produced any peer-reviewed publications.

Dr Grant is currently a Senior Research Officer in Teagasc with significant experience working at this level for over fifteen years, having completed a PhD 18 years ago.  Dr Grant is a leader within Teagasc in terms of statistical support to all areas of the organisation, he carries out large scale projects, contributes to the business planning process and has prepared numerous peer reviewed publications.

The difference in remuneration relates to Dr Grant’s grade, skills, experience and qualifications and not gender”.

It is wholly denied by the Complainant that the difference in remuneration can be explained or justified by any of: grade, skills, experiences and qualifications.

Need for close scrutiny

It is respectfully submitted that this stated position of Teagasc must be subjected to very close scrutiny.

Any contention by the Respondent that the disparity in pay between the Complainant and the named comparator arises because of reasons not connected to gender must be closely scrutinised.

The onus of proof is on the employer to prove that the differentiation is genuinely attributable to grounds other than gender: reliance is placed on Irish Crown Cork Co v Desmond [1983] E.L.R. 180; and Minister for Transport, Energy and Communications v Campbell [1996] E.L.R. 106.

Factors from which a prima facie case of discrimination ought to be inferred

In this case, section 85A of the Employment Equality Acts applies so as to require the Complainant to first of all establish facts from which an inference of discrimination may be drawn.  In this case, the “Teresa Mitchell v Southern Health Board (2001)” burden of proof test is met- and comfortably met- by the Complainant.  She has identified a properly comparable man with whom she was doing work of equal value but who was paid significantly more than her.

The Complainant relies upon the entirety of the form lodged on her behalf with the WRC, including inter alia the “specifics of your complaint” set forth therein.  To those specifics, the Complainant adds as follows:

a)       All statisticians – except the Complainant – employed with Teagasc or its predecessor in title [An Foras Taluntais (“AFT”) were or have been paid on the research salary scale.

b)      The Complainant has over 20 years’ experience as a Statistician with Teagasc.  Nevertheless, she has never been reclassified as a research officer.

c)       The Complainant and her comparator applied for the same Statistical post, albeit in different years.

d)      Their job descriptions were the same.  Their duties were hugely similar (until Mr Grant’s retirement) and at all material times both provided identical supporting roles including inter alia:

·       Providing support in the use of statistical software.

·       Providing statistical support to research staff on the design, analysis and interpretation of experiments and survey including the provisions of training.

·       Collaborating with research staff on joint projects.

·       Contributing substantively in respect of the execution of research projects.

·       Delivering training in statistical analysis and authored publications.

e)      The Complainant took up the post in the statistics department around the middle of 2001 and worked with Tony Hegarty.  He was the only other statistician in Teagasc.  They shared the role of Production Research and Food Research i.e. the Complainant and Tony Hegarty did both food research and production research.

f)        In 2004 Tony Hegarty retired.  He did not have a PhD.  He had the same qualifications as the Complainant.

g)       In 2005 the Complainant was the only statistician working in the department so she did both production and food research.

h)      In 2005 Tony Hegarty having retired, his job was advertised, and the successful candidate was Jim Grant who already worked in Teagasc.  However, Mr Grant had to complete a Masters in UCD on statistics, the same Masters in UCD that the Complainant had undertaken previously in 1999.  Mr Grant already had his PhD however he needed to obtain this Masters in statistics prior to taking up the role.

i)        From 2007 to 2011, because headquarters had closed, many of the research staff were sent to work in Kinsealy.  The Complainant requested that she work in Ashtown.  Teagasc agreed to this and in those circumstances, Mr Grant did a lot of the production research and the Complainant did a lot of the food research / statistics for food.

j)        There is no difference of any consequence for the purposes of this case, between food research and production research.  The Complainant would happily and did move between both.  For the last year and a half, the Complainant has been doing both food and production research.  The work involves dealing with numbers the subject is immaterial i.e. whether the subject is food or production.

k)       Mr Grant worked from 2011 to his retirement in 2020 in Kinsealy.  In the statistics department it was just the Complainant and Mr Grant, nobody else.  There were only two statisticians in Teagasc.

l)        The Complainant commenced working for AFT in 1997 and since that time statistics has always been a research post.

m)    The Comparator commenced employment with the Respondent in 1980.

n)      Tony Hegarty did not have a PhD.

o)      The Complainant will give evidence inter alia to the effect that it is not a requirement in Teagasc to have a PhD to be a Senior Research Officer.  There are very many employees in Teagasc at the SRO (Senior Research Officer) and PRO (Principal Research Officer) and some at SPRO (Senior Principal Research Officer) grades who do not hold a PhD.

p)      The Complainant and the Comparator both did the same MSc degree in Statistics in UCD (the Complainant in 1999/2000) and the Comparator in 2005/2006.

q)      The Complainant also delivers training in statistical analyses.

r)        The Statistician post the Complainant holds was advertised in open competition in National newspapers and advertised as a Research post.  The Complainant has held this post for 19 years (since April 2001), Mr Grant has been a statistician since September 2006.

s)       The Respondent has confirmed that the Complainant is a Statistician and also has determined through the years that a Statistician is a research post, every other Statistician ever in Teagasc was on the Research grades and was at minimum a Senior Research Officer.  The Complainant was prohibited from competing in promotion competitions in the research grades because of the actions of the Respondent’s management.

t)        The Complainant has authored peer-reviewed publications and is credited/acknowledged on many more as she was involved in the design, analyses and interpretation of data/results and contributed to the writing of statistical sections for many research projects papers through the years.  More often than not in Teagasc statisticians were credited/acknowledged and not authored on papers and because the Complainant was not granted as a Research Officer she was often not noted as an author.

u)      The Complainant has raised the issue of her grade since the research post was due to expire in 2003.  She did not seek to be re-classified as a Technological Grade 2, that was what was offered in 2009 after a number of years of her trying to have the grade issue resolved and as a last resort accepted the offer which was then reneged on by Teagasc management.

v)       There is no objectively fair or rational basis why Mr Grant was on the Senior Research Scale whereas the Complainant is on the Experimental Technician Scale.

w)     Mr Grant was promoted to Senior Research Officer grade in June 2006 at the beginning of his post as a Statistician as indicated in “Staff Appointments” of June 2006.

x)       Both Paula Reid and Jim Grant have the same statistical qualification i.e. a Masters Degree in Statistics from UCD.  The Role of Statistician in Teagasc has always been deemed a Research Post.

y)       Paula Reid’s role as Statistician is the same as that of Jim Grant as evidenced by the role profile supplied by Teagasc which was on the organisation’s TNET.

z)       The Complainant has been working at the same level as her comparator for 20 years and is also an authority within Teagasc in terms of statistical support and provides input to peer reviewed research papers to researchers and students and has delivered training in statistical analyses and statistical software.

aa)   In April 2008, Margaret Lennon of HR wrote to the Complainant after 7 years of being in the Statistician post proposing to terminate the contract post and suggesting the Complainant revert to her Technician grade but did not suggest reverting to her previous role.  It is obvious that Teagasc wanted Ms Reid to continue in the Statistician post.  The post of Statistician requires an honours degree and preferably a post graduate qualification and statistical consultancy experience, the Technician grade post of Statistical Analyst does not require these qualifications and also the Statistical Analyst position worked under the supervision of a Statistician.

The Complainant reserves her right to adduce further particulars and will give her evidence at the remote hearing on 18th November 2021.

Relevant legal provisions and principles

Section 19(1) of the Employment Equality Acts 1998-2015 provides:

“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”.

Section 18 (1) (a) provides that:

“subject to paragraph (b), for the purposes of this Part “A” and “B” represent 2 persons of opposite sex so that, where A is a woman, B is a man, and vice versa.”

The claimant in an equal pay claim must establish that she does like work to an actual comparator, and that the comparator is paid a greater amount than her.  The onus then shifts to the employer to justify the unequal pay.

It is submitted that the Complainant has clearly discharged the onus of proof upon her.

It is further submitted that the Respondent employer has not justified the unequal pay.

Considering the directly analogous and relevant UK legislation in Glasgow City Council v Marshall [2000] 1 WLR 333 at p.339, Lord Nicholls observed as follows:

“The scheme of the Act is that a rebuttable presumption of sex discrimination arises once the gender-based comparisons shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man …. The burden passes to the employer to show that the explanation for the variation is not tainted with sex.  In order to discharge this burden the employer must satisfy the Tribunal on several matters.  First, that the proffered explanation, or reason, is genuine and not a sham or pretence.  Second, that the less favourable treatment is due to this reason.  The factor relied upon must be the cause of the disparity.  In this regard, and in this sense, the factor must be a “material” factor, that is, a significant and relevant factor.  Third, that the reason is not “the difference of sex”.  This phrase is apt to embrace any form of sex discrimination, whether direct or indirect ….”.

Difference in grade does not answer this claim

In Ms Reid’s case, it is submitted that the grade does not explain or answer the claim of gender discrimination.  Reliance is placed on the principles articulated by the CJEU in Enderby v Frenchay Health Authority [1994] ICR 112, and also the generality of the CJEU jurisprudence on the principle of equal pay.

In Enderby, a predominantly female occupational group of claimants, speech therapists, compared their pay with two majority male occupational groups, pharmacists and clinical psychologists.

One of the holdings of the CJEU was that:

“The fact that the respective rates of pay of the two jobs of equal value, one carried out almost exclusively by women and the other predominantly by men, were arrived at by collective bargaining processes which, although carried out by the same parties, are distinct, and, taken separately, have in themselves no discriminatory effect, is not sufficient objective justification for the difference in pay between those two jobs.”

The Complainant will also refer to and rely upon the judgment of the Court of Appeal in England & Wales in National Vulcan Engineering Insurance Group Ltd Wade [1978] ICR 800.  There is important analysis in that judgement regarding the operation of a grading scheme.

Reliance is also placed on the CJEU judgment in Cadman v HSE [2006] ECT 1-09583.  Just as in that case reliance by an employer of length of service was not an absolute defence in a case where an employee had raised “serious doubts” the same reasoning by analogy applies here as regards the Respondent’s reliance on grading.

In Bury Metropolitan Council v Hamilton/Council of the City of Sutherland v Brennan [2011] IRLR 358, the UK Employment Appeal Tribunal held that – the explanation, or cause, of a state of affairs is not definitively established simply by showing its historical origin.  In the case of direct discrimination, it may be pertinent to consider not only why the differential in question first arose but why it was maintained, particularly if the relevant circumstances may have changed.

The broader, historical context is relevant.  The Court of Appeal in England and Wales has observed that:

“It is right to examine the underlying or historical position where that will throw light on the reason why one person is receiving an advantage and another is excluded from it.  Indeed to exclude the history, in a case where it is relevant, would be artificial”.

Redear & Cleveland Borough Council v Bainbridge [2009] ICR 133 at paragraph 104

Teagasc must prove lesser pay wholly unrelated to gender

In Minister for Transport, Energy and Communication v Campbell and others [1996] E.L.R 106, Keane J. held that the Labour Court (and therefor the WRC) – in examining the question of whether there are grounds unconnected with the impugned ground which would render the difference in the rates of remuneration paid to the parties lawful – “is entitled and indeed bound to approach such an issue on the basis that an employer must prove that the differentiation is genuinely attributable to grounds other than sex” .  Whilst Keane J. was considering section 2(3) of the Anti-discrimination (Pay) Act, 1974, that provision is identical to section 29(5) of the Employment Equality Acts, 1998-2008 and his analysis applies to the present case.

Reliance is also placed on the judgement of Barron J. in Flynn v Primark [1997] 8 E.L.R. 218.

In Roches Stores v Mandate (Labour Court Determination DEP 013) the Labour Court addressed the employer’s grounds other than gender defence in the following terms:

“An employer, seeking to rely on this defence, must prove that the difference in pay is genuinely attributable to “grounds other than sex”… This requires that the respondent must establish to the Court’s satisfaction that the reasons for paying the comparator the particular rate of pay are genuine, and that they do not apply in the case of the claimants.  The Court must also be satisfied that there is objective justification for the difference in pay, and that the justification is not just historical but is also relevant at the date of determination …”.

It is not for an employer to unilaterally assert that its subjective view of comparator’s role and contribution answers an allegation of gender discrimination.

In C & D Foods v Cunnion [1997] 1 IR 147 Barron J (in a case involving gender discrimination) said, at 15:1

“In the instant case, the comparator receives more remuneration that the [claimant] respondents because the appellant [employer]has evaluated his work more highly that that of the respondents. It is submitted that this is a ground other than sex. In my view, this submission is based upon a false premise.”

Regard must be had to the practicalities of the work situation. See e.g. Department of Posts and Telegraphs v Kennefick PE/9/1079, where the Labour Court found that in practical terms the two jobs were substantially the same.

It is manifestly the case this is a “like work” situation. That Mr Grant holds a PhD or is on a different grade is not in this case a valid defence to the claim.

Without prejudice to any other submission herein, the Respondent cannot in this successfully rely upon a defence relating to the different grade held by the Comparator, when the fact that the Complainant is not employed at that grade is itself discriminatory and gender based.

The Complainant respectfully asks that the Adjudication Officer find in her favour. Pursuant to section 82(1) of the 1998 Act as amended, the Adjudication Officer has very wide powers to award effective redress. The Complainant relies upon and invokes those powers. The reliefs she seeks include inter alia an order for compensation in respect of arrears of remuneration; an order for compensation in respect of the effects of discrimination, and such Orders as are fair and warranted as regards steps to be taken by the Adjudication Officer including in relation to the Complainant’s reckonable salary for pension purposes.

Conclusion

It is submitted that the Complainant has clearly established facts from which it may be presumed that there has been discrimination.

The purported justification is the comparator’s  “…. Grade, skills, experience and qualifications”. It is respectfully submitted that on the facts arising in this case, that stated justification is unsustainable and incapable of rebutting the presumption of discrimination.

It is submitted that a rebuttable presumption of gender discrimination arises in this case.

It is respectfully submitted that the presumption has not been rebutted by Teagasc.

The burden of proof for showing no gender discrimination rests with the employer.  That is, the Complainant does not have to prove that the fact that is paid less because of her gender.

In this case, the work done by the comparator was obviously comparable to the Complainant’s work.  This was plainly “like work” within the meaning of section 7.

She is paid significantly less.  At all material times, they were the only two statisticians employed by the Respondent.

The Complainant reserves her right to expand upon this submission (including by referring to other relevant case law) and will adduce her evidence at the hearing.

Preliminary Issue

1.     It is submitted that the Complainant has not chosen an appropriate comparator. The Comparator is at Senior Research Officer level which is a promotional post which he commenced in 2006. He has now retired. It is submitted that this is not an appropriate comparator, and the correct comparator is at Research Officer level.

Without prejudice to that

2.     By complaint form dated 28th April 2020 the Complainant lodged a claim alleging she has been discriminated against as she is not receiving equal pay as her male Comparator. She alleges that she is one of only two statisticians within the Respondent and that she performs “like work” with her Comparator within the meaning of section 7 of the 1998 Act. The Complainant incorrectly is of the view that the Respondent will not dispute this and alleges that she was in “substance and in essence” doing the same work as her male Comparator.

3.     The entire basis of equal pay is that a person is doing like work with an identified comparator. “Like work” is defined in Section 7 of the Employment Equalities Act as follows: subject to sub-section 2, for the purposes of this Act, in relation to 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 or are of small importance in relation to the work as a  whole or occur with such irregularity as not to be significant to the work as a whole, or

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

Burden of Proof.

4.     In order to shift the burden of proof to the employer to justify a difference in pay, the Complainant must establish, in the first instance, that she is engaged in like work with the Comparator. See Enderby v Frenchay Health Authority (C-127/92). It is disputed by the Respondent that the Complainant and the Comparator were engaged in like work and simply asserting that she was engaged in like work does not shift the burden of proof. The Complainant has not set out any detail to support her assertion that she is carrying out like work. The Respondent reserves the right to provide further detailed written and/or oral  submissions when the claim of like work by the Complainant is set out in detail.

5.     As set out above “like work” is defined as work that is –

i.     Identical or interchangeable;

ii.     Similar in nature where the differences are infrequent or of small importance  in relation to the work as a whole;

iii.     Equal in value in terms of the demands made in relation to matters such as skill, physical or mental requirements, responsibility and working conditions.

The Complainant.

6.     The Complainant is a Technician Statistician. The Comparator is a Senior Research Scientist Statistician and had a completely different level of responsibility in his role. The Comparator has now retired. The Complainant has over 20 years in her current role as a Technician Statistician.

7.     In 2001, the Complainant competed for a Statistician temporary contract position in the research programme and was successful. The position was for a period of two years and three months after which the arrangement would come to an end. During her time in this position, the Comparator retained her grade of Promotion Grade Technician, but moved from to changed programme i.e. moved from Data Systems Department to the research programme. It was later in 2006 as a result of a pay-scale restructuring within the Technical structure that the Claimant became an Experimental Officer (Amalgamated Technician).    In 2008 it came to the attention of HR that the Complainant had continued in the role beyond the duration of the temporary arrangement and HR wrote to her at the time advising her of the error and to return to her substantive grade.

8.     In 2009, IR discussions between management, SIPTU and the complainant took place with regard to assimilating the Complainant to the Technologist grade (new technical grade and not a research grade), where she would progress to Technologist Grade 2 on successful completion of 12 months in the grade following her assimilation. On being confirmed in her role the Claimant would progress up the Technologist Grade 2 pay-scale incrementally in the normal way. Both the Complainant and the employer agreed to this in principle, but this was not progressed as a result of a moratorium on recruitment pay and promotion being implemented by the Government across the public sector preventing the agreement being progressed. In October 2015 Government Policy changed, the moratorium ended and the first promotions in the technologist structure took place in 2019. The Respondent met with the Complainant and her SIPTU Union Official in 2019 but she would not agree to the implementation of the agreement being applied from the current date and it was agreed a review would take place with management. The matter has not been resolved. It is submitted that this has at all times been an IR issue and no mention of gender was made until the within claim was taken.

9.     The scope of the Complainant’s role as a Technician Statistician is as follows:

·    Provides statistical Analysis support to research staff primarily in the Food Directorate on the design, analysis and interpretation of controlled experiments and surveys.

·    Proficient in the use of statistical software such as Genstat SAS and PARA

·    Provides courses to staff and students

·    Collaborates with research staff on projects

·    Contributes to the underlying statistical theory where it is necessary for the execution of research projects

·    The Complainant has no peer reviewed publications in the period from 2015 to 2019

10.  It is denied that the jobs are the same. The Complainant was assigned initially to a temporary position from the data systems department to the research programme at her technician grade not and as research scientist to carry out work at her grade.   A fundamental difference exists as to the competency level of knowledge skills and attributes between these grades (competency framework). While she continued to work in the role beyond the expressed timeframe, her role did not develop to the level of her Comparator. It is important to note that the Complainant could not compete for the Senior Research Officer Promotional Post in 2005, as she was not eligible to do so as she was not a Research Scientist. The Comparator was Research Scientist and successfully applied for that promotion.

The Comparator.

11.  The Comparator is a research scientist. He originally was employed as a technician and then applied successfully for a Research Officer post in 1999. From that post he was promoted to Senior Research Officer in late 2005, which was confirmed in correspondence from the Respondent on 6 April 2006. Copies of the competency frameworks for each of these roles  are available. The Comparator has retired, and his post has been advertised.  The post is at Research Officer level which is the entry level to the grade structure and a PHD is required. The consultancy and significant research assistance provided to students and staff which was an essential element of the Comparator’s role is currently supported by relevant contacts in the universities who work and collaborate with the Respondent on an informal basis, as it cannot be carried out within the Respondent.

12.  The Comparator’s qualifications are:

i.         October 1977 to June 1980 – Technician’s Diploma in Applied Physics.

ii.         1984 to 1986 – Degree in Applied Physics.

iii.         2002 - PHD in Mathematical Science.

iv.         2006 – MSC in Statistics

13.  The Comparator, in his promotional role, carried out the following work which the Complainant did not:

·       Provide Statistical support across all four programme areas in Teagasc, to include design, assistance with the methodology analysis, interpretation of research output and advice relating to the output. Whereas the Complainant would simply have set up an experiment within the food programme only and when the results are produced hand them over to the relevant student, without further analysis.

·       Provide training and holds clinic days (group and one-to-ones for students and staff) on research methodology, analysis and interpretation of data to assist with research projects. Provides 1 x 3 day seminar and workshop on basic stats and Rsoftware (students/Staff). As a Senior Research Officer, the Comparator is the only Statistician in the Respondent who would have carried out this work.

·       Lead on, or contributed to, large scale projects, such as:

o   Key statistical support on the Meat Technology Ireland programme on the design/interpreting and advising on statistical information. A programme worth €12million euro.

o   3 large scale research projects–

§  Oak Park - Strategies for controlling cadmium;

§  Moorepark - Cong defect;

§  Moorepark - Schemallenberg virus – lead on designing and modelling for each of these programmes.

The Complainant would not be requested or required to assist on large scale projects such as this but rather only routine statistical experiments in the food programme only.

·       Participates in the Teagasc animal ethics committee (HOD/Enterprise level)/ Statistical support for the animal ethics. This is a national committee. involving colleagues at the most senior level of the organisation. The Complainant does not have the requisite level of expertise to be invited to join a national committee.

·       Peer-reviewed publications is a fundamental requirement of a research scientists’ role within Teagasc. The Comparator is listed as an author published in the years 2015 to 2019 – 57 and is recognised as the research statistician across the organisation. The complainant is not listed as an author on published papers within this period or to date.

14.  The work outlined above is not an exhaustive list and Witness evidence will be given as to the further work carried out by the comparator when the Complainant has given evidence of “like work”. As outlined above the burden of proof is on the Complainant in the first instance.

15.  The idea of work being interchangeable suggests that the Complainant would be able to take over from the Comparator without any notice. It is denied that the Complainant is interchangeable with the Comparator. Even where a Complainant might be capable of doing most of the duties performed by the Comparator on a day to day basis (which is denied in the instant case) but does not hold the qualifications for the Comparator’s job, the higher qualifications have been held to justify a higher level of pay see O’Leary v The Minister for Transport and Communications 1998 ELR113 and Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse (C-309/97) 1999 ECR1-02865.

The Comparator also holds a PHD in Mathematics in keeping with the requirements for a Research Officer role.

Response to paragraph 18.

(a)   The Complainant is put on proof of this.

(b)   The Complainant has over 20 years in her current role as a Technician Statistician. In 2009, IR discussions where the Complainant was represented by SIPTU took place to assimilate to the Technologist grade (new technical grade and not a research grade), where she would progress to Technologist Grade 2 on successful completion of 12 months in the grade following her assimilation. Both the Complainant and the employer agreed to this in principle, but this was not progressed as a result of a moratorium.

(c)   The Comparator was promoted to a Research Officer in 1999, albeit a different programme area. On 02/11/2005 he was promoted to SRO and took up a position as Research Scientist Statistician for the research programme in Teagasc. He moved office location from Kinsealy to Ashtown on 14/02/2011.

(d)   It is denied that the jobs are the same. The Complainant was assigned initially to a temporary role as a technician in the research programme and not as a research scientist. The competency fit and role requirement at technician and research officer level is fundamentally different in value. While she continued to work in the role beyond the expressed timeframe, her role did not develop to the level of her Comparator. The Comparator carried out the duties set out above as part of his role.

(e)   The Respondent cannot comment on the distribution of workload as Mr Hegarty has since  passed.

(f)    Tony Hegarty retired on 30 September 2004.

(g)   The Comparator successfully competed for the role of Research Officer role in 1999. The Complainant did not compete for this role. The Comparator was promoted to his role as Senior Research Officer and Lead Statistician for the organisation on 02/11/2005.

(h)   Comparator’s qualifications and dates:

i.         October 1977 to June 1980 – Technician’s Diploma in Applied Physics.

ii.         1984 to 1986 – Degree in Applied Physics.

iii.         2002 - PHD in Mathematical Science.

iv.         2006 – MSC in Statistics

(i)    The organisation decentralised its Head Office in Sandymount during the period of 2003 to 2007. The Complainant along with other staff were relocated to in Ashtown in Dublin. The Comparator was based at Kinsealy, and later moved to Ashtown as a result of an office closure in Kinsealy in February 2011. While the Complainant may have worked on food and production research the work was at technician level which has a significantly different competency requirement and value.

(j)    Mr Grant worked as part of the National Research Programme (Statistician) working across all programme areas, recognised as the Statistician for the organisation and his base location was Ashtown.

(k)   The Complainant moved to a temporary position in the research programme, she was not  a research scientist in a research post.

(l)    The Complainant commenced employment with An Foras Taluntais (AFT) on 05/01/1977 as an Entry Grade Technician. The Comparator commenced employment with AFT on 30/06/1980 as a Career Grade (a grade above the Complainant, in the technician structure).

(m) Mr Hegarty commenced as a Statistics Technician on 15/09/1969. It was in November 1980 that he was appointed as a Research Officer and he was promoted to Senior Research Officer on 01/06/1981. He did not have a PhD as it was not a requirement at the time.

(n)   See attached requirements for the role of SRO

(o)   The Comparator also holds a PhD in Mathematics in keeping with the requirements for a Research Officer role.

(p)   Training is not delivered by the Complainant at the level or value add that the Comparator delivers at. In particular, the Comparator holds clinics, interprets information and provides guidance and results-based analysis.

(q)   The Complainant has been a Statistician Technician but not a Research Scientist Statistician.

(r)    Will be dealt with on oral evidence.

(s)    The Comparator has 83 publications in which he is listed as author/co-author. The Respondent could only identify four articles with the Complainant from 1989, 2001, 2007 and 2011. The Comparator has 57 Peer Review papers between 2015 to 2019. There are no Peer review publications where the Complainant is listed as an author/co-author published in the years 2015 to 2019.

(t)    The Complainant supported by her union agreed to a reclassification to Technologist in 2009 but a change in Government Policy giving rise to the the2009 moratorium on recruitment pay and promotion ensued and the agreement with the Complainant was put on hold.

(u)   The Comparator carries out a different role to that of the Complainant.

(v)   The Comparator was promoted on 2 November 2005 to SRO.

(w)  Both the Comparator and the Complainant have an MSc in Statistics but the Comparator also has a PhD, which is a requirement to compete as a scientist and a researcher.

(x)     It is not the same role as the Complainant is a Statistics Technician. The Complainant has not been working at the same level as the Comparator. The Complainant has always delivered as a Technician and not a Research Scientist.

(y)     Training is not delivered by the Complainant at the level or value add that the Comparator delivers at. In particular, the Comparator holds clinics, interprets information and provides guidance and results-based analysis. Work is at a significantly different value or level.

(z)     The Complainant always worked as a technician, with a temporary role as a statistician, with the Respondent, not as a research scientist.

16.  It is submitted that the Complainant has not discharged the burden of proof as she has simply alleged that she carries out like work. Without prejudice to that the Complainant did not compete for the role of Research Officer in 2005 as she was not a research scientist and was not eligible to compete when the Comparator successfully competed for that role. He was a research officer who competed through the Respondent’s internal promotion process where he was successful at interview and was then promoted to the role of Senior Research officer and any difference in pay is objectively justified from his senior role within the organisation.

17.  The Respondent reserves the right to provide further written submissions.

Council for the Complainant has stated that I should not confine my thinking to the text contained within the Employment Equality Act, 1998. In the early part of the submission he states:

“The preamble to the 1998 Act makes it clear that it is derived from Directives on equal pay for men and women.  The Directive currently applying is Directive 2006/54/EC often referred to as the Gender Equality Recast Directive (“the Directive”).    The right to equal pay is directly effective, enforceable against private entities, individuals and Member States: Defrenne v Sabena [1976] ECJ Case C43/75.  In that and later cases, the principle that equal work or work of equal value must be remunerated in the same way, whether it is performed by a man or a woman was recognised as forming part of the foundations of the European Union”.

The Employment Equality Act, 1998 is “an Act to make further provision for the promotion of equality between employed persons ; to make further provision with respect to discrimination in, and in connection with, employment , vocational training and membership of certain bodies; to make further provision in connection with Council Directive No. 75/117/EEC on the approximation of the laws of the member states relating to the principle of equal pay for men and women and Council Directive No.76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions………..”.

The Burden of Proof.

It is up to the person making the claim to prove their case i.e. the burden pf proof rests on the Complainant. However, in practice it can be very difficult for a victim of discrimination to prove their case and generally complainants have little, if any, direct evidence of discrimination. European law recognises those difficulties in how it deals with the burden of proof and in particular in recognising that certain matters such as why an employee is being treated in a particular way may be peculiarly within the employer’s own knowledge.

The Equality Directives all expressly recognise a particular burden proof to be discharged by a person who claims not to have been afforded equal treatment. For example, the Recast Directive provides at art.19(1):

“Member states shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it mat be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”

The instant case.

An essential requirement in grounding a claim for equal pay is to establish the existence of what is referred to as “like work” as between the complainant and the comparator. This is defined as arising in three types of situation where, as between two people: -

·       both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to work,

·       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 to the work as a whole, or

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

The Complainant’s submission to the Workplace Relations Commission contained the following from an employee directory contained within the Respondent’s internal intranet:

Paula Reid – Statistician (the Complainant) Statistical Support Staff.

·       To provide comprehensive statistical support to research staff on the design, analysis and interpretation of experiments and surveys. Including the provision of training.

·       To provide support in the use of statistical software.

·       To collaborate with research staff on joint projects.

·       To contribute to the underlying statistical theory where necessary for the execution of research projects.

Jim Grant – Statistician (the Comparator) Statistical Support Staff.

·       To provide comprehensive statistical support to research staff on the design, analysis and interpretation of experiments and surveys. Including the provision of training.

·       To provide support in the use of statistical software.

·       To collaborate with research staff on joint projects.

·       To contribute to the underlying statistical theory where necessary for the execution of research projects.

The points mentioned above are taken from the Job Description of Statistician and are exactly the same as the Main Duties contained within that job description.

These descriptions, written by the Respondent (without input from either Ms Reid or Mr Grant) are not similar, they are identical.

As per submission the Respondent Representative states:

The Comparator was promoted to a Research Officer in 1999, albeit a different programme area. On 02/11/2005 he was promoted to SRO and took up a position as Research Scientist Statistician for the research programme in Teagasc.

I note that the job specification for this position in 2005 to which the Comparator was appointed states the following:

Main Duties and Responsibilities:

·       Provision of comprehensive statistical support to research staff on the design, alanysis and interpretation of experiments and surveys, including the provision of courses in statistics

·       Collaboration with research staff on joint projects

·       Contribution to the underlying statistical theory where necessary for the execution of research projects

·       Proficiency in the use of statistical software and provision of support in this area to research staff.

Qualifications required for the post:

Candidates must have an honours university degree or equivalent in statistics. A post graduate qualification and statistical consultancy experience is desirable.

Skills / Knowledge required for the post:

·       Honours degree or equivalent in statistics

·       A post graduate qualification and statistical consultancy experience is desirable

·       A high level of computer literacy together with proficiency in using statistical packages, preferably SAS

·       Good written and oral communication skills

·       Ability to collaborate with research staff to achieve objectives

·       Ability to work on own initiative.

When the Complainant had applied for her position in 2001 she had replied to an advertisement containing the following:

Main Duties and Responsibilities:

·       Provide comprehensive statistical support to research staff on the design, analysis and interpretation of experiments and surveys, including the provision of courses in statistics

·       Collaborate with research staff on joint projects

·       Contribute to the underlying statistical theory where necessary for the execution of research project

·       Be proficient in the use of statistical software and to provide support to research staff on same.

Qualifications required for the post.

Applicants should have an honours degree or equivalent, in statistics, together with at least two years experience of statistical consultancy and / or relevant post-graduate qualification. A high level of computer literacy together with proficiency in using statistical packages, preferably Genstat and /or SAS is also essential.

The knowledge, skills and experience required are as follows:

·       Honours degree or equivalent in statistics

·       At least two years experience of statistical consultancy and / or a relevant post- graduate qualification.

·       A high level of computer literacy together with proficiency in using statistical packages, preferably Genstat and/or SAS

·       Good written and oral communication skills

·       Ability to collaborate with research staff to achieve objectives

·       Ability to work on own initiative.

When one compares the two job advertisements and the descriptions contained in both there can be no doubt whatsoever that the two jobs are the same.

The job advert to which the Complainant successfully applied for also contains some information on salary:

The salary scale for research officer from 1st April 2001 will be from………. This clearly shows that the Complainant applied for a research position and was appointed to one.

Much was made regarding the Comparator having a PhD and the Complainant not having a PhD.

There was no requirement for a PhD in either the 2001 or 2005 competitions. The requirement for a PhD appeared for the first time in 2020 when the Respondent organisation were seeking to replace the Comparator who was retiring in June 2020.

By complaint form the Complainant contends:

“The role of a Statistician in the Respondent’s organisation or previously An Foras Taluntais was always a research position, and furthermore, all Statisticians employed with the Respondent and its predecessor in title were or have been paid on the research salary scale. The Complainant applied for the research post of Statistician and was offered the role of Statistician in 2001 and has 19 years relevant experience as a Statistician in the Respondent’s organisation. Notwithstanding this, she has never been re-classified as a Research Officer”.

This contention was not challenged by the Respondent.

The definition of like work is almost identical to that under the Anti – Discrimination (Pay) Act 1974. Any person who wishes to succeed in a claim for equal pay, must identify a comparator who is similarly situated but is treated differently on the basis of a discriminatory ground. So, for example, a woman must show that she is paid less than a man engaged in like work. There are, therefore, two hurdles for a complainant to cross: he or she must establish like work and he or she must identify a comparator engaged in like work who is paid a greater amount.

In the instant case I conclude that the Complainant has crossed both hurdles.

The complaint as submitted under section 77 of the Employment Equality Act, 1998 is well founded.

Section 82(1) of the Act reads as follows:

(1)    Subject to this section, the types of redress for which a decision of the Director under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a)    An order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than three years before the date of the referral under section 77 (1) which led to the decision.

(b)    An order for equal remuneration from the date referred to in paragraph (a)

(c)     An order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77

(d)    An order for equal treatment in whatever respect is relevant to the case

(e)    An order that a person or persons specified in the order take a course of action which is so specified.

I now order the Respondent to place the Complainant on the appropriate pay scale (that which the Comparator was on) from 1st May 2017 and that any arrears of remuneration be paid to her within the period of two months from the date of this decision.

Note: Remuneration under the Employment Equality Act, 1998 states:

“remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment.

To address the effects that this discrimination had on the Complainant I order the Respondent to pay compensation in the sum of €40,000.00 to the Complainant. Compensation should be paid within 42 days from the date of this decision.

An order that a person or persons specified in the order take a course of action which is so specified.

In an email dated 19th August 2019 and addressed to the Employee Relations Manager the Complainant has written:

“The job description was to be completed in 2009 and then again in an email from Margaret Lennon it was to be done in January 2019.

This issue has been ongoing for 18 years and nothing has progressed and there appears no willingness on the part of HR to resolve it. I have had meetings / correspondence on this issue in 2004 / 2007 / 2008 / 2009 with HR /Declan Troy / Tom Kirley / Seamus Crosse and nothing has advanced.

I have been in the post of Statistician since 2001 and now you want to determine if I am suitable to do the job. It appears to me that HR are making every excuse not to progress this matter”.

I find this absolutely shocking and would now order the Head of Human Resources to apologise to the Complainant for that department’s (past and present) very inept performance in their handling of this matter.

I now order the Respondent to place the Complainant on the appropriate pay scale (that which the Comparator was on) from 1st May 2017 and that any arrears of remuneration be paid to her within the period of two months from the date of this decision.

Note: Remuneration under the Employment Equality Act, 1998 states:

“remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment.

To address the effects that this discrimination had on the Complainant I order the Respondent to pay compensation in the sum of €40,000.00 to the Complainant. Compensation should be paid within 42 days from the date of this decision.

An order that a person or persons specified in the order take a course of action which is so specified.

In an email dated 19th August 2019 and addressed to the Employee Relations Manager the Complainant has written:

“The job description was to be completed in 2009 and then again in an email from Margaret Lennon it was to be done in January 2019.

This issue has been ongoing for 18 years and nothing has progressed and there appears no willingness on the part of HR to resolve it. I have had meetings / correspondence on this issue in 2004 / 2007 / 2008 / 2009 with HR /Declan Troy / Tom Kirley / Seamus Crosse and nothing has advanced.

I have been in the post of Statistician since 2001 and now you want to determine if I am suitable to do the job. It appears to me that HR are making every excuse not to progress this matter”.

I find this absolutely shocking and would now order the Head of Human Resources to apologise to the Complainant for that department’s (past and present) very inept performance in their handling of this matter.

Employment Equality Act, 1998; Equal Pay.