Complainant

Respondent

Parties

Jadwiga Kidon

Lidl Ireland Gmbh

Representatives

Self

Fieldfisher LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00045008-001

04/07/2021

A complaint was received by the Director General of the Workplace Relations Commission from Jadwiga Kidon alleging that the Respondent discriminated against her on the family status ground contrary to the provisions of the Employment Equality Act 1998 (as amended).  The said complaint was referred to me for investigation. A hearing for that purpose was held on 14 September 2022. 

The Complainant submits as follows:

The Complainant worked for Lidl from October 2005 until 30 April 2022. On 1 June 2011 she was promoted to Store Anchor (supervisor) position. It is a position in between the Sales Assistant and the Deputy Manager position.

The Complainant submits that she has been discriminated on the family status ground in relation to pay.  Her last pay raise was in March 2017. Since this time all of her co-workers in the store, starting from cashier to store manager received four pay increases but the Complainant only got one which was an increase of 10c on 1 March 2022.  The Complainant submits that she only received this pay increase to even out her Store Anchor hourly rate with that Sales Assistant rate, because otherwise she would be getting paid less then them.

The Complainant submits that in March 2018, she got a letter from the Respondent informing her that her hourly rate was extremely competitive in comparison to the market and as such there would be no change that year to her rate of pay.  The Complainant contends that at the same time all of her co-workers got a pay rise.

The Complainant submits that in March 2019, she got another letter from the Respondent informing her that Lidl would not be recruiting any more staff to Anchor role.  Instead, she was offered either a move to the Duty Manager role or she could remain in the Anchor position.  However, if she did remain in her current position, there would be no further pay rises offered for the role.

The Complainant contends that this offer was very unfair for two reasons:

Firstly, if she decided to opt for the Duty Manager role, her basic hourly rate would drop to the Customer Assistant rate, which was €13.60 at that time, resulting in a decrease of €1.20 in her hourly rate.  The Complainant submits that she would get a supplement of €2.35 per every hour whenever she acted as Store Responsible Person (SRP). However, she would only receive the supplement when there is no other Store, Deputy or Duty Manager in the shop at the same time. The Complainant assert that this was an absolutely ridiculous and disgraceful offer as a consequence of which her salary would decrease instead of increasing. In her workplace, there was 1 Store Manager, 4 Deputy Managers and 2 Duty Managers, which resulted in a situation where she would have very few opportunities, if any, to act as the Store Responsible Person.

Secondly, if the Complainant stayed in her Anchor position, which she did, she was not getting any pay rises which she considered to be very unfair and discriminatory considering the fact that she was still doing all the same duties as she used to do before and all other positions received 4 pay increases since 2018.

The Complainant submits that she was offered the position of Deputy Manager by her Store Manager but she was unable to take up the offer because she would have to increase her working hours from 30 hours per week to a minimum of 39 hours per week.  Also, the Respondent could send her to work in other stores.  That was not suitable for her for family reasons.  The Complainant has 2 children and as with most families, as the mother, she takes on most of the caring responsibilities.  Therefore, she is not able to work 39 hours a week or to travel any further to work.

The Complainant asserts that everybody has a right to equal pay for equal work within the same employment.  The Complainant does not understand why she was not getting any pay rises for the last 4 years.

The Complainant submits that her role has many more responsibilities than Sales Assistants and that she shares most of the managers' duties.  The Complainant submits that for family reasons she was not in a position to step up to a higher position and work more hours.  The Complainant asserts that she deserved to be fairly paid for the job she did.

The Complainant is seeking compensation equivalent to the percentage  increases her colleagues received over the last four years.  The Complainant’s calculations are based on the Sales Assistant rate, even though her duties and responsibilities were greater. 

·       From March 2019 the Sales Assistant hourly rate increased by 3% from €13.20 to €13.60

·       From 2020 the Sales Assistant rate increased by a further 3% to €14.00

·       From 2021 the Sales Assistant rate increased by 2% to €14.30€

·       From 2022 the Sales Assistant rate increased by 4% to €14.90

The Complainant contends that when she was working with any of her managers, she was still doing the same duties as before, such as - cashing up; cash lodgements; monitoring staff and organising breaks; dealing with customer issues; supervising refunds and other till issues; working on recalls, daily action points;  changing the layout; working on promotions; and, sharing all other manager duties for which she would not get paid.

Direct evidence of the Complainant

At the hearing, the Complainant accepted that when the Store Manager is on holidays or absent on sick leave, the Deputy Manager is required to step up into the role.  The Complainant conceded that this was never required of her.

The Respondent submits as follows:

The Complainant commenced employment with the Respondent on the 11 October 2005 as a Customer Assistant in the Trim store, County Meath.  The Complainant was initially employed on a 20 hour per week contract.  On 1 June 2011, the Complainant was promoted to Store Anchor, which is in effect the role of Customer Assistant with some additional responsibilities.  On 28 September 2020, the Complainant's contractual hours were increased to 30 hours per week. Her roster pattern varied from week to week and the Complainant was considered to be flexible in respect of the shifts she made herself available for. 

In March 2021, the Respondent introduced a Duty Manager role. The Duty Manager role is paid at the same level as a Customer Assistant with an additional hourly supplement on top (currently €2.35 per hour) when the employee is undertaking additional responsibility such as, for example, opening and closing the store. The Respondent confirmed that it would no longer recruit for the Anchor position but that if staff wished to remain under their Anchor contract, they were free to do so, though no further pay increases would be offered for that role.  Importantly, no Store Anchor was required to move to a Duty Manager position. They were given the option to do so and, in the alternative, they were free to remain on their existing contractual terms. 

The Complainant was offered the opportunity of a Duty Manager contract, which she declined. She remained on her existing contract and was fully paid in accordance with her existing terms and conditions of employment.

On 26 March 2021, the Complainant emailed the HR Department to raise an issue on the basis that the Respondent had given pay increases to other roles in the organisation but not to Store Anchors.  The Complainant asserted that when she had raised this query in the past she was told that she would be offered the opportunity to move to a "Deputy Manager" role. The Respondent submits that this was a misunderstanding on the Complainant's part. There is no role in the Respondent's organisation as "Deputy Manager". There is the Duty Manager role (hourly paid) and a Deputy Store Manager role (salaried). 

The Complainant asserted that this "Deputy Manager" role did not suit her as it involved an increase in her working hours. The Complainant confirmed that the reason the Store Anchor role was suitable for her was so that she could work 30 hours per week, which she said would allow her to look after her two children. Had she taken up a Duty Manager contract, she would not have been required to increase her working hours at all. She could have remained on 30 hours only if that was her wish. The Respondent believes that the Complainant was confused about this point and that it goes to the crux of the claim.

The Respondent asserts that an employee acting as Duty Manager and being paid the hourly supplement is not required to work any more hours than a Customer Assistant or Store Anchor. There is no validity to the Complainant's assertion that by moving to the Duty Manager role she would have been required to increase her hours from 30 hours per week 39 hours per week. She is simply mistaken in that regard and she would not have been required to work any more than 30 hours per week as either Anchor or Duty Manager. 

Complaint to WRC

The Respondent submits that the Complainant asserts that she has suffered discrimination on the basis that she has not received equal pay because of her family status.  She has not asserted any form of discrimination other than discrimination on the grounds of family status. This is not a gender discrimination claim or an equal pay claim. It is a claim that the Complainant suffered less favourable treatment on the grounds of her family status. 

The Respondent denies that it has discriminated against the Complainant or treated her differently on the grounds of her family status.  Furthermore, the Respondent contends that the claim is misconceived.

Protected ground

The Respondent submits that the Complainant has clearly framed her claim as discrimination on the grounds of family status. She has not asserted that she was treated less favourably in respect of any other prohibited ground. 

Discrimination on the grounds of family status occurs where there is less favourable treatment of one person compared to another person because one person has family status and the other does not or has different family status. 

The Respondent submits that the Complainant has not been discriminated against either directly or indirectly. She has not been treated any less favourably than any other employee at her level and she has been paid exactly the same as the other employees at her level. She was offered the opportunity to become a Duty Manager which would not have required any change to her contracted hours and she chose not to accept that offer.  The Complainant had the option of remaining in the Anchor role without issue and that is exactly what she did.

The Respondent submits that the position of Anchor is undertaken by colleagues of variable home circumstances, both with children under 18 under their care and not. The same is true of the Duty Manager role and the Complainant has adduced no evidence of any link between the different pay rates and family status or the family status of other employees.

Burden of Proof 

Under the Employment Equality Acts, the initial onus is on the Complainant to clearly establish the facts from which it can be presumed discrimination has actually occurred. 

The Respondent submits that the Complainant has provided no evidence or facts that the difference in pay between the Store Anchor and the Duty Manager impacts those employees with families more than those employees without families or of a different family status. 

Lack of a comparator

The Respondent submits that in her claim form, the Complainant asserts that she has not received equal pay, yet she has not identified a comparator as she is required to do. She asserts that her comparators are other positions in the store.  It is not sufficient for the complainant to identify a hypothetical or notional comparator. What she is required to do is to identify an actual named comparator and she has not done so. 

Lack of evidence 

The Respondent submits that the Complainant has provided no evidence whatsoever that the creation of the Duty Manager role is based on, or grounded in, factors relating to family status.

The Respondent further submits that the Employment Equality Acts, and in particular Section 30(5), provide that nothing shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

The Respondent asserts that the Complainant was not treated any differently than any other Store Anchor and she has not provided any evidence to the contrary.

The Respondent submits that the Complainant erroneously asserts that if she moved to a Duty Manager position, she would have been required to increase her hours from 30 hours per week to 39 hours per week. She is incorrect in this assertion and was so advised on 30 March 2021, over 3 months before she filed her claim with the WRC. In fact, had she taken up a Duty Manager role she would not have been required to work any more hours that she was working as a Store Anchor. 

The Respondent submits that

·       the Complainant was correctly paid in accordance with her contract of employment and she has not asserted otherwise. 

·       The Complainant was paid exactly the same rate as all other Store Anchors in the store and across other stores.

·       The Complainant has not identified any Anchors in the Trim store or in any other store that are paid on a different basis or level to her. All Anchors are paid at the same rate. 

·       The Complainant has not adduced any evidence that had she assumed a Duty Manager role, her earnings would have been any less than the Store Anchor role that she retained. 

The Respondent submits that at no stage during her employment was the Complainant required to change her role or the terms of conditions of her employment.  She had the option of applying for a Duty Manager role if she wished to do so and had she done so, she would have been successful in that application. She chose not to become a Duty Manager, preferring to remain as a Store Anchor until her resignation and the Respondent took no issue with that position.  

Conclusion 

It is submitted that the Complainant has not satisfied the burden of proof in that she has not established any facts from which it can be presumed that any discrimination has actually occurred. 

The Respondent cites the following precedents in support of its position: Horgan and Keegan v Minister for Education and Skills; Melbury v. Valpeters; Margetts v Graham Anthony & Company Limited; and Dyflin Publications Ltd v Spasic.

The issue for decision by me is whether or not the Respondent discriminated against the Complainant on the family status ground in terms of section 6(1)(a) and 6(2)(c) of the Employment Equality Acts, in contravention of sections 7 and 8 of the Acts in relation to her conditions of employment in respect of equal pay.

Section 6(1) of the Employment Equality Acts provides:

“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’’)”

Section 6(2)(c) provides that “as between any two persons, the discriminatory grounds are, inter alia: (a) that one has family status and the other does not (in this Act referred to as “the family status ground”)”,

Section 8 (1)(b) provides that “in relation to conditions of employment…an employer shall not discriminate against an employee …”.

The complainant alleges that she was discriminated against on the grounds of family status in relation to her pay in that she performs “like work” with Duty Managers. Like work is defined in Section 7 of the Act: “...in relation to the 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 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 regards to such matters as skill, physical or mental requirements responsibility and working conditions”

Section 19 of the Act provides:

“(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. …”

Burden of Proof

Section 85A of the Employment Equality Acts sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the respondent to prove the contrary.”

Section 85A requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

In the case of Melbury Developments and Valpeters (EDA 917)the Labour Court stated as follows:

"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.”

The Labour Court in the case of Southern Health Board v. Dr Teresa Mitchell (DEE 011) considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of gender can be made out. The Labour Court stated that the Complainant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

It is an essential requirement of an equal pay claim under any of the discriminatory grounds for the Complainant to identify a comparator who is employed to do ‘like work’ by the same or an associated employer.   The existence of ‘like work’ between a complainant and comparator is a necessary condition to any entitlement to equal pay under the Act. 

The Complainant has not identified any comparator in relation to her equal pay claim who she believes were employed to do “like work” by the Respondent.

I note the Labour Court decision in PWD2242 Bidvest Noonan Limited v Aija Lapsa where the Court found, albeit under a different Act, that:

The argument made by the Complainant herself, about what she perceives as the unfairness of a situation in which she received no pay increases for some time, is not a matter that can be rectified by an incorrect application of the Act and, as such, is not a matter on which it would be appropriate for the Court to comment.

Based on the totality of the evidence adduced, and in line with the Labour Court’s findings above, I am satisfied that the Complainant has failed to establish a prima facie case of direct discrimination on grounds of family status in relation to equal pay.

Accordingly, I find that the Respondent did not discriminate against the Complainant on the family status ground contrary to section 29 of the Employment Equality Acts in relation to her pay.

Having given careful consideration to all the evidence adduced in this case, I declare that this complaint is not well founded.

Equal pay – family status – no comparator