Complainant

Respondent

Parties

Anne Marie  Jones

Bord Na Mona Recycling Limited

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Cian Beecher, Arthur Cox

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-00064793-001

16/07/2024

The Complainant was employed by the Respondent from February 2011 until 24/04/2023.  She was promoted to the position of Depot Manager on 16/07/2020.  The Complainant submitted a complaint form to the WRC on 16/07/2024 alleging that she was discriminated against on the ground of her gender and that she did not receive equal pay because of her gender.  The Respondent denies that it discriminated against the Complainant on the basis of her gender or that she did not receive equal pay.

At the outset of the hearing the Adjudication Officer asked the Complainant to confirm that she submitted her complaint form to the WRC on 16/07/2024.  It was explained to the Complainant that as this was a period in excess of one year her complaint on the ground of gender is time-barred and is therefore in excess of the allowable time outlined in the Act.  The Complainant confirmed that she would not pursue the complaint on the ground of gender and the hearing proceeded in relation to her equal pay complaint.

There were issues in relation to the submissions provided by the parties.  The Respondent did not receive the Complainant’s submission until the day prior to the hearing although this was submitted to the WRC 15 days in advance.  In that context the Respondent’s submission was submitted to the WRC the day prior to the hearing and was not available to the Complainant or the hearing.

The Complainant worked for a company from a date in February 2011 and her employment transferred to the Respondent on 16/07/2020.  In July 2020 she was promoted  to the role of Depot manager and was responsible for three depots.  The Complainant submits that she received less pay than her peers and she raised this on many occasions with various managers who she felt were supportive but nothing changed.  The Complainant also submits that when she left two male managers were recruited to replace her and these were paid on a much higher rate than she was.  The Complainant believes that her work was always satisfactory and she undertook additional work but was not paid for this.  The Complainant provided the names of the male colleagues who were in receipt of a higher salary than she was and she also provided the names of the two male depot managers (X & Y) who were recruited after she left.  The Complainant provided details of her issues in a document submitted which outlined the chronology of events which led up to the date of her resignation.

In her closing submission the Complainant stated that he had a total of 12 years’ experience and in her previous role she had a high level of people management responsibilities.   She has a good knowledge of the waste management industry.  The Managing Director encouraged her to do bigger things and she was interviewed and was successful in applying for the role of Depot Manager.  In another depot the manager was placed on top of the scale and as she was responsible for three depots but paid significantly less.

After she left a male (X) was recruited and paid more than she was.  It is the Complainant’s position that if she had stayed in employment she would still not have matched what he was being paid.  The Complainant submits that as a female employee she was paid at a significantly lower rate than male colleagues and this was the reason she submitted her complaint to the WRC.  Regardless of what the Respondent states, the two males were paid more than her.

The Complainant confirmed to the Adjudication Officer that she was satisfied that she had an opportunity to present her case and provide all relevant information to the hearing and in her submission.

The Respondent provided a written submission and supporting documents to the hearing.  The Respondent denies that the Complainant did not receive equal pay.  The Complainant was promoted by the Respondent to the role of Operations and Planning Supervisor in July 2022 with a salary of €34,000.  This increased to €34,510 in 2021 as part of a salary review.   In August 2022 two depots were amalgamated and the Complainant was appointed to the role of Depot Manager from 01/07/2022 with a salary of €43,137.50.  The Complainant resigned with effect from 24/04/2023.

The Complainant has identified X and Y as  comparators in relation to her complaint of unequal pay. Mr X commenced employment with the Respondent in January 2024 which was nine months after the Complainant left her employment with the Respondent.  Mr X had significantly more managerial experience than the Complainant.  This experience amounted to 15 years and the Complainant did not have a similar level of managerial experience and this explains why there was a pay differential.

The Respondent notes that the Supreme Court in National University of Ireland Cork v Ahern and Ors [2005] 2  I.L.R.M 437 held that a comparator cannot be selected out of context with other employees within the employer.  When the Complainant was employed by the Respondent there were five other employees in the same role.  Two others were female.  It is the Respondent’s position that in choosing her comparator the Complainant has failed to identify an appropriate comparator for her unequal pay claim as they do not have the same skillset.

The Respondent provided a table showing  the relevant details for the five people in the Depot Manager role and gave a breakdown of gender, years of managerial experience and salary paid for years 2021 and 2022.  This table did not include X as he was not employed at that time.  It is the Respondent’s position that it is a fact that the Complainant was paid less than her colleagues but this was for valid reasons which were not connected to her gender.

The Respondent submitted that Mr X was chosen as a comparator and he was hired approximately nine months after the Complainant resigned.  The delay was due to the fact that it was difficult to hire for that role and his salary reflects his greater experience. 

The salary range for the Complainant and the other Depot managers ranged,  in 2021,  from €34,510 to €46,690 and in 2022 it increased to €43,137.50 to €55,000.00 and during this period the Complainant’s salary went from €34,510 to €43,137.50.  The salary paid to any of the Depot managers is determined based on level of experience and female employees in this group who had the same level of experience as a male counterpart were paid the same as male employees.  There was no consideration given to any individuals gender.

Ms Cora Kinnarney gave evidence on affirmation on behalf of the Respondent.  Ms Kinnarney is a HR Generalist part of the HR team and is responsible for the day-to-day HR matters, supporting managers and she is also involved in the recruitment process.  The Respondent has approximately 500 employees and a considerable number of those are mobile employees.  Ms Kinnarney confirmed that she was familiar with the Complainant’s role and that of her peer group.  Ms Kinnarney gave evidence that Mr X was employed about nine months after the Complainant resigned.  It was very difficult to fill the role.  Mr X had 15 years management experience and he was placed on a point of the applicable salary scale that was commensurate with this experience.  The other comparator, Mr Y had vast experience and was previously a General Manager in the Waste Industry.  He had 20 years of general manager experience.

Ms Kinnarney confirmed that the Respondent operates a pay scale for the role of Depot manager and the criteria for which point on the scale an employee is placed is based on previous relevant management experience.

Ms Kinnarney gave evidence that the Complainant was encouraged to apply for the position of Depot Manager as the Respondent saw her potential.  Ms Kinnarney confirmed that when the Complainant was placed on the salary scale her gender had no bearing in relation to this.  The same applied to Mr X and Mr Y and gender is not a factor when determining the pay scale for any employee.

The Complainant had no questions by way of cross examination for Ms Kinnarney.

In a closing submission on behalf of the Respondent Mr Beecher noted that the Respondent’s submission contained their legal submissions.  This has a focus on the existing case law which, quite simply, states that allegations cannot be accepted as evidence.  There are two relevant cases in that regard, Mitchell v Southern Health Board [2001] 12 E.L.R 201 and Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64.

Mr Beecher noted that it is incumbent on the Complainant to provide factual evidence and this must link directly to the Complainant’s gender.  It is the Respondent’s evidence that the Complainant’s role has a particular pay range and it is entitled to pay any employee within that range.  Whatever informs the particular salary it was not gender based.  The Complainant was a valued employee and was actively encouraged to promote herself.  It is a fact that the Complainant received significant pay increases during her employment with the Respondent.  It is very likely that she would have caught up with her colleagues and this is a reasonable inference when any scale applies.

It was submitted on behalf of the Respondent that the Complainant has failed to satisfy the requirements of the Employment Equality Acts 1998-2021 as she has neither successfully established a prima facie case of discrimination in relation to equal pay, nor has she succeeded in choosing an appropriate comparator who performs like work in a comparable situation to the Complainant in order in order to prove her unequal pay claim.  The Respondent submits that the complaint should be rejected in its entirely.

CA-00064793-001

The Law

Discrimination for the purposes of Employment Equality Act, 1998:

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)(in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

Like work.

7.—(1) Subject to subsection (2), for the purposes of this 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 regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

(2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1)as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).

Entitlement to equal remuneration:

19.—(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.

(3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

(4) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer.

(b) Where paragraph (a)applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1)as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

(c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.

Burden of proof:

85A.—(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 him or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission undersection 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which Section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.

Findings:

It has been the well-established practice of the Workplace Relations Commission and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited, in this case her entitlement to equal remuneration.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011,[2001] ELR 201, where the Court stated:

“The first requirement is 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 Complainant 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 those 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 is no infringement of the principle of equal treatment”.

In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64the Court stated in respect of the provision in S 85A that:

“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 must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”            

So, it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

The Complainant states that she was directly discriminated against on the grounds of her gender in relation to her rate of pay in that she performed like work or work of equal value with her named comparators X and Y who are male.

It was not disputed by the Respondent that the Complainant was paid less than the remuneration paid to her colleague, X.  However, the Respondent denied that the comparisons are like for like. Rather, it was argued that X was hired, approximately 9 months after the Complainant resigned,  because of his extensive previous relevant prior  management experience, which the Complainant was said to lack, and his remuneration reflected his 15 years prior managerial experience. The other comparator, Y had vast experience as a General Manager and within the same industry.  He had 20 years’ experience and his point on the pay scale reflected this.

Accordingly, the Respondent’s evidence is  that the difference in remuneration between the Complainant and X & Y was attributable to factors other than gender, in accordance with section 19(5), see above, of the Act.

To succeed with her claim the Complainant must show that she performed ‘like work’ with that of X, that she received less pay than him and that the reason for the pay differential is the fact that she is a woman, and her comparator is a man.

In deciding whether she did so, I note that a person performs ‘like work’ when that work is the same, similar or of equal value to that to that of her comparators.  There is no dispute that the Complainant was engaged in ‘like work’.

The Complainant stated in evidence that she was promoted to Depot Manager in July 2020 and that her workload was more than other managers.  At that time she was appointed on the Depot Manager salary scale and she received pay increases in line with the Respondent’s performance review process.

In assessing the Respondent’s assertion that both X and Y were paid more than the Complainant in order to attract and retain a candidate with their experience at the time they were hired, I have regard to the seminal decision in Enderby v. Frenchay Health Authority C-127/92, which in relevant part states:

‘The state of the employment market, which may lead an employer to increase the pay of a particular job in order to attract candidates, may constitute an objectively justified ground…’ for paying more to such candidates than to other employees.

The wage disparity between the Complainant and her comparator(s) was proportionate and related to their point on the established pay scale applicable to the role.

No evidence was put forward by the Complainant to support her assertion that her point on the scale was related to her gender.  The Complainant has accepted that she was moving up the incremental scale and I accept the Respondent’s view that had she remained in employment she could, potentially, continue to receive regular increments.

Considering all of the foregoing, I find that the Complainant did carry out like work to that carried out by X and Y but she has not established a prima facie case of discrimination that meets the requirements of Section 85A of the Act in respect of this complaint.

I have decided that the Complainant was not discriminated against by the Respondent.

Equal pay.  Gender discrimination.