Complainant

Respondent

Parties

Bernadette  Ryan

Erac Ireland Limited Enterprise Flex-E-Rent

Representatives

Liam Ryan was a support to her – she was self-represented

Orla Murphy, BL

Siofra Rushe, Solicitor – Lewis Silken Ireland

Louise Alexander-Brewer, ERAC Ireland Limited

Anthony Ivers, ERAC Ireland Limited

Michail Mavrovitis, ERAC Ireland Limited

Gemma Burke, 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-00053420-001

23/10/2022

The Complainant, Bernadette Ryan alleged she has been discriminated against by the Respondent regarding a job promotion in relation to equal pay.  She stated a male colleague got a promotion for the same job in a different depot but she didn’t receive the same pay as her male colleagues even though she had more year’s employment in the company than he had therefore she is alleging that is an equal pay issue related to her gender.

The Complainant, Bernadette Ryan stated she worked for the original company when the Respondent ERAC Ireland Limited took over. She stated her boss got promotion and the Deputy Manager position came up and her boss encouraged her to take the job.  She confirmed she worked 28 hours and her boss stated it was full-time hours and he said the salary was €39-40K and she got the job.  The Complainant stated during the interview she was asked by the Respondent how many children she had and that the job started 1 September. She stated she asked the person in HR regarding her new pay rate and she didn’t get the new salary until 10 October 2022. The Depot Manager met her and he said her pay scale would be €31K and if working full-time on the current rate and that they were giving her 10% for taking on this new role. She confirmed that took her salary to €34K and she spoke to her male colleague in another Depot who received €39K and she stated he was going for the same job. 

The Complainant stated she had more experience and was there longer than him. She also stated that her male colleague in Dublin got over €39K also. She stated that if she had known that the additional increase linked to the job promotion was 10% she wouldn’t have gone for the job.  She stated she was always told it would be €39K. She stated she wasn’t taking it then on that basis and went back to the original role and rate.

The Complainant, Bernadette Ryan stated she did the job from 1 September to 10 October and was paid the new rate for that time.

The Company referred to the employee pay plan document. The Respondent stated it was a detailed document to break down salary.  The Respondent stated that salary promotions were based on 10% increase.  The Complainant stated both people went for the job at the same time, herself and her colleague so both should be paid the same. She stated she was always told the increase for the new role was €39K and never 10%.

The Respondent stated as Assistant Deputy Manager if the Complainant didn’t get €39K the two drivers who reported into her would be paid more than her.

The Respondent stated the role in Cork has more responsibility and more direct reports and her comparator was on €35K before he was promoted to €38,500.  She stated he therefore received 10% increase also he was just starting from a higher base.

The representative for the respondent Orla Murphy BL mentioned a colleague in Dublin as a comparator and stated it was much larger than Dublin and they said he was also on €38,500 and transferred over via TUPE at this rate and he wasn’t promoted he was in the role from the start.

The Respondent stated for any role in the company that you were promoted into you got 10% increase, that is what she got told.

The Respondent offered to set the salary based on fixed salary instead of commission-based salary as they saw she was aggrieved about the role and salary.

The Respondent stated she chose to go back to her original role as she wasn’t getting the €39K despite the company asking her to stay on in the role. 

The Respondent stated the Complainant, Bernadette Ryan raised a grievance on 16 October reference this.

The Complainant stated she outlined her grievance based on the pay she received.  She stated she did not mention anything about an interview at the grievance as she got the interview. She stated she felt the grievance was about her pay which she was fighting for here.  Ms Ryan stated that a HR person spoke to her reference her grievance after that.

Ms Ryan, Complainant stated a person in HR then invited her to a meeting about her grievance.  She stated the key was that her manager told her when giving her the job her salary was €39K not 10% which was then offered to her.  She stated she left that meeting saying she would contact her advisors.  She stated she did not go back to the company after that and put in her complaint to the WRC.

The Complainant stated she felt it was important to raise comments about family on the WRC form about the interview but it wasn’t raised at grievance meeting as she didn’t feel it was an issue at the time – main issue was asking for her pay to be resolved.

The Complainant stated there are only three Assistant Deputy Managers in Ireland, one is female herself and two others are paid more than her and that’s her issue.

Ms Ryan, complainant lodged her claim to the WRC as she didn’t feel the company were listening to her grievance.

Ms Ryan stated she wasn’t comfortable dealing with the matter further via the company.

Ms Ryan stated she sent a Solicitors letter to the company reference her pay issue.  She stated she didn’t mention the issues at the interview in this letter also.

The Complainant stated the Respondent, ERAC Ireland Limited replied to the Solicitor letter saying that she could raise formal grievance if she wished to do so.  She stated they also stated that the comparator who got the increase at the same time also got 10% increase for his role and size of departments were larger in the comparable locations.

Ms Ryan stated there was no response to that Solicitor letter and she didn’t evoke the grievance.

The Complainant stated she did not raise the point, she felt she deserved more pay as there was less staff in her depot versus other depots in any of her grievance meetings.

The Complainant stated in January 2023 she replied to the D&R training and flagged outstanding issues she had, reference her promotion and not getting salary the same as other depot managers.  She also mentioned the questions reference her family raised here also at the interview.

Ms Bernadette Ryan stated she was trying to avoid dealing with issue formally.

Ms Ryan stated she got formally invited to the grievance meeting on 16 January 2023.  She stated she did not attend that meeting.

Ms Ryan stated that Anthony Ivers should have known the correct salary. She stated she doesn’t know if he made an error.  She stated that he said he did.

Ms Ryan stated the people who set her salary were not present at her interview. 

The Respondent stated they deny the complaint.  The Respondent stated the Complainant worked with Walkers, a domestic transport/haulage company from September 2015 until it was acquired by the Respondent in April 2020 and she was transferred in accordance with the Transfer of Undertakings Regulations (“TUPE”).

The Respondent stated the Complainant held the role of Customer Assistant Representative (“CAR”) in the depot, and was responsible for tasks such as dealing with customers and various administrative tasks.

The Respondent stated the Complainant worked on a part-time basis (28 hours over 4 days), at a rate of €15 per hour.

The Respondent stated they have an employment level’s structure made up of four relatively broad levels. The CAR role is at Level 1.

The Respondent stated the position of Assistant Depot Manager (“ADM”) in that location, a Level 2 role, was advertised internally on 29 July 2022. They stated the Complainant’s previous line manager, was in the process of being promoted at this time.

The Respondent stated in August 2022, during the course of an informal discussion, the Complainant queried the salary for the role with Mr. Anthony Ives, Area Manager, who was on site in the depot that day. They stated that the Complainant states that Mr. Ives stated that he thought the salary would be about €39,000 per annum.

The Respondent stated the Complainant applied for the role and was called for interview.

The Respondent stated on 9 August 2022, the Complainant was interviewed in Dublin for the role by 3 people.

The Respondent stated the interviewers noticed that the Complainant appeared to be quite nervous, and they attempted to make the environment less intimidating to put her at ease. For example, the interviewers moved to sit around the table in a more informal manner, rather than sitting as a panel opposite the Complainant. They stated the matters asserted on behalf of the Complainant in relation to the interview are denied. The Respondent stated it is denied that they asked inappropriate questions and/or that any questions asked amounted to discrimination, and/or that there was any causation and/or link between the matters discussed at the interview and the calculation of the Complainant’s remuneration, as will be submitted in further detail below. The Respondent stated it should be noted that the Complainant was one of three candidates being interviewed for two roles, in 2 different depots. They stated the two other candidates were male, so the Complainant was promoted over another male candidate, who was also an existing employee of the Respondent.  The Respondent highlighted that the Complainant has advanced an equal pay claim, and not a complaint of discrimination in relation to the promotion itself.

The Respondent stated the Complainant was the successful candidate for the ADM position and on 12 August 2022, she was offered the role.

The Respondent stated on 15 August 2022, Mr. Anthony Ives requested new pay plans for three newly promoted employees, including the Complainant.

The Respondent stated the Complainant commenced the role of ADM on a full-time basis on 1 September 2022.

The Respondent stated the details of the Complainant’s promotion were required to be updated on the Workday system (its HR administration system) to make the necessary amendments to her payroll. They stated her line manager was responsible for doing this, but was relatively new in his role, and as a result, there was a delay in processing the change to the Complainant’s terms and conditions and payroll.

The Respondent stated on 29 September 2022, the Complainant notified Mr. Ives that her pay for September was incorrect, and that it was still reflecting her previous part-time hours and her base salary was still at the rate of a Level 1 CAR.

The Respondent stated by email of 29 September 2022, Mr. Barrett notified HR that the Complainant had been paid the incorrect amount for September.

The Respondent stated by email of the same date, the HR Generalist, informed the Complainant and Mr. Barrett that this would be rectified in the October payroll as the September payroll had been processed (and would be paid the following day). Ms. Nolan noted that the pay would be backdated to 1 September.

The Respondent stated on 8 October 2022, Mr. Barrett spoke with the Complainant and informed her that the correct pay was a 10% increase on the full-time earnings of her Level 1 CAR role, amounting to €34,414.38 (€15 x 40 hours x 52.143 = 31,285.80 + 10% = €34,414.38). They stated private healthcare and a company car were also included. They stated in line with the typical approach for an ADM position, the offer was based on a base salary of €25,000 plus commission, equating to target earnings of €34,414.38.

The Respondent stated the Complainant had a further Microsoft Teams meeting with Mr. Anthony Ives and Mr. John Barrett to discuss the calculation of the pay on 10 October 2022.

The Respondent stated on 13 October 2022, the Complainant informed Mr. Ives that she did not wish to remain in the ADM role. They stated in that email, Mr. Ives noted that the Complainant’s pay had been based on her part-time hours and that she was required to be paid for her full-time hours, as per the pay plan.

The Respondent stated on 14 October 2022, the Complainant emailed the company stating:

“When you have a min can you give me an update on your conversation with Anthony. thanks

Also, I am seeking a little help from outside of the company on this matter and they have asking for my T&C if you could forward them on.

Thanks”

The Respondent stated on 14 October 2022, in a telephone conversation, HR explained to the Complainant that she had spoken to Mr. Ives and that what he had said was not a guarantee, but he may have given a rough estimate, however, he had not even been aware of what her salary was. Ms. Nolan stated that promotions were generally a 10% increase.

The Respondent stated by email also dated 15 October 2022, Business Management Assistant Financial Controller, requested urgent assistance from a number of colleagues with resolving the issues with the Complainant’s pay. The email stated:

“All – We need some help with sorting out the pay for Bernadette Ryan for October Payroll please. Employee was promoted to ADM 1st September but due to miscommunication, we assumed [she] never started in the new role.

It has now come to our attention that xxxxx started the role 01/09/22 and will end 16/10/22 to revert to [her] previous role.

Xxxxx M/HR -

Salary changed effective 1st September per the attached. Can we please ensure we pay the backdated increase for September and the 1st 16 days of October on the new base salary. The rest of October will be paid on the old salary-

We also need to pay a €785 commission/guarantee relating to September statement

xxxxxxx

In October, we will need to record the September and the October Guarantees for xxx on the bonus system. I’ll let you decide how best to input – but the September will net off to zero with the payment from point 2 above for Novembers payroll.”

The Respondent stated the Complainant’s backpay and payroll issues were resolved and regularised.

The Respondent stated furthermore, on 19 February 2023, a 3% merit increase was processed for the Complainant, backdated to 14 September 2022, when it was discovered that she had missed the annual performance review applicable to Level 1 employees as a result of her promotion. Level 1 employees typically receive an annual performance review, with an average of 3% being awarded effective from the anniversary of their employment date. 

The Respondent stated on 16 October 2022, the Complainant returned to her previous CAR role working 28 hours per week.

The Respondent stated by email dated 16 October 2022, the Complainant wrote to Mr. Anthony Ives and Mr. John Barrett submitting a grievance in relation to her pay, stating that she felt that she had been discriminated against on the ground of gender, that she had been treated less favourably than her other male colleagues who were in similar roles to her, and that she was on a lower pay scale even though she had longer service.

The Respondent stated on 21 October 2022, Group Human Resources Manager, contacted the Complainant to invite her to an informal grievance meeting to discuss her complaint in more detail.

The Respondent stated a meeting was held via Microsoft Teams later that day. They discussed the issues with the Complainant in detail, including, inter alia:

·       That the normal policy for increasing pay for an in-group promotion was 10% on historic 12-month earnings.

·       The 10% increase for the Complainant’s pay had initially been incorrectly based on her part-time pay, but this error was quickly realised and rectified to be based on her full-time pay.

·       There was an exception to the normal 10% increase for a promotion if an employee was relocating, which did not apply here.

·       That there were many people in the company who were on different rates. Sometimes employees were on slightly different pay depending on the role they had come from as promotions were based on the employee’s pay for the previous 12 months.  HR had not looked at the pay of the other ADMs but noted that there would be a difference in the responsibility/size of the role based on other depots.

·       An explanation by Ms. Alexander-Brewer that Mr. Ives’ estimate of pay given to her was based on the fact that he was used to working in the United Kingdom. She stated that Mr. Ives would therefore have been guessing a salary figure as he would not have known the Complainant’s current pay. 

·       That Mr. Ives had offered to pay a fixed salary rather than partial commission and that Ms. Alexander-Brewer repeated this fixed offer of €34,413 and hoped that the Complainant would still take the role.

·       That the Complainant might then wish to move from the fixed salary to a commission in the following financial year.

·       HR apologised for the errors in relation to payroll, and provided an update in relation to how it had been resolved.

·       HR asked if the Complainant still wished to take the ADM role, and if so, she would make arrangements for her payroll. The Complainant replied stating no, and for now to leave it as it was, and that she wished to speak to her advisor about it all.

The Respondent stated on 21 October 2022, Mr. Ives contacted the Complainant to apologise for his error and to offer her €34, 413 as a fixed salary if she were to accept the role, rather than a commission basis. They stated the Complainant declined the offer and stated that she wanted to “leave it on the CAR details and I will speak to my adviser”.

The Respondent stated on 23 October 2022, the Complainant lodged her complaint form with the WRC.

The Respondent stated by letter dated 25 November 2022, the Complainant’s solicitors wrote to the Respondent asserting that the Complainant had been treated less favourably than her male colleagues in relation to pay and seeking a reply to her grievance of 16 October 2022. They stated this letter did not refer to the fact that a complaint was submitted to the WRC on 23 October 2022.

The Respondent stated on 5 December 2022, HR was on site and checked in with the Complainant while she was there. She verbally offered the option to reopen the grievance to be heard by a different manager in a formal hearing. The Complainant stated that she would prefer to wait to hear back from her advisor first.

The Respondent stated by letter dated 14 December 2022, the Respondent’s solicitors replied to the letter of 25 November 2022, and provided a detailed response to the Complainant’s grievance and to the matters raised in the letter of 25 November 2022. They stated in particular; the letter addressed the conversation with Mr. Ives in relation to salary, and provided a detailed explanation as to why the male colleagues identified by the Complainant were not appropriate comparators, and the reasons why they received a higher salary. They stated the Complainant was again invited to contact Ms. Alexander-Brewer if she still had residual complaints, or wished for the matter to be dealt with as a formal grievance.

The Respondent stated by letter dated 20 December 2022, the Respondent’s solicitors noted disappointment on receiving notification from the WRC of the complaint submitted on 23 October 2022, two days after the informal grievance meeting, which had not been flagged by the Complainant or her solicitors. They stated the letter stated that the Respondent’s offer to deal with the matter as a formal grievance stood.

The Respondent stated by email dated 9 January 2023, the Complainant forwarded a “Respect in the Workplace” training email to the Talent Development Manager, outlining her grievance and alleging that she had not received a reply to it. They had no previous involvement in these matters. They stated by email dated 12 January 2022, they replied to the Complainant noting the matters raised and that he had passed them on to the HR person and offering further assistance. They stated by email of the same date, Complainant replied “Thanks xxx, I won’t hold my breath”.

The Respondent stated by letter dated 16 January 2023, they wrote to the Complainant noting that the company took the issues raised very seriously and inviting her to a grievance hearing with him. They stated he proposed a date of Tuesday 24 January 2023 for the meeting and requested that the Complainant fill out a notification of grievance form.

The Respondent stated the Complainant took annual leave from 16 January 2023 until 23 January 2023.

The Respondent stated the Complainant took sick leave from 23 January 2023 until 12 February 2023.

The Respondent stated in the course of correspondence in relation to illness benefit, the company asked the Complainant if she wished to carry out the grievance meeting during her absence period or if she preferred to wait until she was back in work. They stated the Complainant replied noting that she had a meeting with the WRC and the Respondent the following week so she would prefer to “leave [it] for now”.

The Respondent referred to Equal Pay - Section 19(1) of the EEA which states:

“(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.”

The Responded referred to Equal Pay Section 19(5) of the EEA provides:

“(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.” (Emphasis added.)

The Respondent stated the Complainant makes a complaint that she did not receive equal pay when she was promoted to the ADM role, and that she was paid a different rate of remuneration on the ground of gender. 

The Respondent stated they deny that it has discriminated against the Complainant on the grounds of gender or at all. It is the Respondent’s position that:

(a) the comparators chosen by the Complainant are not engaged in “like work”; and

(b) any differences in remuneration between the Complainant and the comparators are justified on grounds other than gender.

The Respondent stated the burden of proof is on the Complainant to establish, on the balance of probabilities, the primary facts from which she relies in seeking to raise a presumption of unlawful discrimination. They referred to Section 85A(1) of the EEA provides:

“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.”

The Respondent referred to the case of Southern Health Board v. Mitchell [2002] 12 E.L.R. 201, the Labour Court held:

“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 fact from 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 provide that there was no infringement of the principle of equal treatment.”

The Respondent referred to the case of Valpeters v. Melbury Developments Limited [2010] 21 E.L.R. 64, the Labour Court held:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Respondent stated it is respectfully submitted that the Complainant has failed to discharge the burden, most significantly, in failing to identify a comparator who is performing like work.

The Respondent stated it is further submitted that she has not raised a presumption that the Respondent has treated her less favourably than an appropriate comparator, nor that the reason she was not afforded the same rate of remuneration was on the ground of gender.

The Respondent stated in her complaint form, the Complainant points to a colleague in 2 other depots as her comparators:  At the same time, I got my promotion, my colleague (male) in another depot got the same promotion in his depot and was awarded more money than me (the figure I was quoted) and also a colleague in another depot doing the same role as me is on more money (the figure I was quoted). I have more years’ employment than both these colleagues in this company.”

The Respondent stated it is respectfully submitted that these employees are not engaged in “like work”, having regard to the responsibilities and different structures of those depots. It is further submitted that the reasons for a difference in remuneration are clearly based on grounds other than gender.

The Respondent stated they prepared a table outlining the reasons for the differences in remuneration at the relevant time which the adjudicator has reviewed in detail and considered fully.

The Respondent referred to Section 7(1) of the EEA defines “like work” as follows:

(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.

The Respondent stated it is respectfully submitted that the Complainant does not perform the same work, similar work or equal work to the comparators she has identified. It submitted that she is not interchangeable with either of those comparators, having regard to the size of their respective depots, fleets, employees and additional responsibilities associated with those roles. They stated there are significant differences between the work and responsibilities associated with the other ADM roles. They stated it is respectfully submitted that the Complainant’s work was not equal in value to the work performed by the comparators, having regard, in particular, to their responsibility and working conditions.

The Respondent stated for example, it is submitted that the within complaint is unlike the situation in Department of Posts and Telegraphs v. Kennefick EP9/1979; DEP 2/1980, where although the comparator’s role carried additional duties, the Labour Court ultimately found that he was seldom called upon to perform those duties. The Respondent stated here, the comparators were responsible for significantly larger depots and fleet sizes. In considering that case, in GI Entertainment Distribution v. Konarska EDA2228, the Labour Court recently noted that even if the complainant and the comparator had identical contracts, “it would still be necessary for the Court to look at the actual ‘work performed’, as per the Act”.

The Respondent referred to as of significance, in 28 Named Employees v. Courts Service [2007] 18 E.L.R. 212, the Equality Officer stated:

“The very essence of promotion is that with increased responsibility and status within the organisation there is an allied increase in remuneration. I am satisfied that both the aforementioned measures constitute objective reasons for the difference in the rates of remuneration which are unconnected to gender and are necessary and suitable in the circumstances.”

The Respondent stated while it is accepted that those comments were made in the context of considering civil service grades and a comparator role which was a promotional role, it is submitted that it succinctly summarises the justification for awarding increased responsibility with an increase in remuneration.

The Respondent stated it is respectfully submitted that the Complainant was not engaged in “like work”, and that in the circumstances, the two employees identified are not appropriate comparators.

The Respondent stated it should be noted that the Respondent provided this detail in the letter from its solicitors dated 14 December 2022: While your client’s role is as ADM is similar in title, the other ADMs to which she refers manage much larger fleet sizes (one is 50% larger, and the other one is three times the size of the fleet managed by your client). As such, they are not engaged in like work. The ADMs in the other locations have much more responsibility, resulting in a clear objective reason as to why there is a difference in pay between the various roles, and locations. Furthermore, our client has confirmed that the ADM in one deport received the same 10% increase when he received his promotion, and the ADM in another location is on the same salary today as when he transferred from the original company to our client. The facts outlined above clearly show that there has been no difference in treatment

The Respondent stated the Complainant has not provided any counter argument to this detail to date.

The Respondent stated a noted above, s. 19(5) of the EEA provides that nothing prevents an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.

The Respondent stated it is submitted that the differences in roles, the size of the respective depots and fleets, and responsibilities applicable to those roles also constitute “other grounds” for the differences in remuneration (as for example, in Wilton v. Irish Steel [1999] 10 E.L.R. 1, where the plaintiff and the comparator were “at the same level within the company” but there were other grounds justifying the pay differential between them; see also National University of Ireland v. Aherne [2005] 2 I.R. 577).

The Respondent stated it is submitted that the Complainant’s salary was calculated in accordance with standard company practice, at an increase of 10% of the previous 12 months’ salary.

The Respondent stated it appears that the Complainant seeks to rely on her conversation with Mr. Ives to demonstrate that the appropriate figure for all ADM roles is €39,000, and that the decision to apply a 10% increase to her existing salary was based on the ground of gender.

The Respondent stated it is denied that the Respondent discriminated against the Complainant during the interview process or at all.

The Respondent stated it is submitted that when considering the allegations made by the Complainant in relation to the interview, it must be noted that the Complainant was successful at interview. They stated if the Complainant had an issue with the content of the interview, it was clearly open to her to make a claim of discrimination on that basis. The stated she has chosen not to do so.

The Respondent stated instead, the Complainant has chosen to explicitly advance an equal pay argument, and seeks to assert that the difference in pay is on the ground of gender.

The Respondent stated it is further submitted that the Complainant has not established a presumption of less favourable treatment in this regard, with there being no causative link between the alleged remarks and the calculation of the Complainant’s salary. They state it must be noted that the person against whom the remarks are alleged, was not involved in that decision.

The Respondent stated significantly, the Complainant did not make any reference to these alleged remarks in: -

·       her letter of grievance dated 16 October 2022;

·       during the informal grievance meeting dated 21 October 2022;

·       in the letter from her solicitor dated 25 November 2022.

The Respondent stated it is submitted that the Complainant has failed to raise primary facts to raise a presumption of discrimination in this regard, and accordingly, has failed to discharge her burden of proof.

The Respondent stated at p. 29 of her complaint form dated 23 October 2023, the Complainant states:

“I have since been demoted by the company back to my old part time job. I find this very embarrassing and humiliating to be treated this way especially as nobody has reached out and try to resolve this before doing this.”

The Respondent denies that the Complainant was demoted. They stated the Complainant chose to return to her previous position – as acknowledged by her in her grievance email dated 16 October 2022, where she stated:

“Since being eventually told 6 weeks into my new role that I would only get a 10% increase which I could not realistically [accept] I felt very embarrassed and humiliated to have to return to my old role. I felt I was left with option and nowhere to turn for help.”

The Respondent stated in the email chain between the Complainant and the company dated 12 January 2023, she stated:

“Also, I brought to attention of ERAC Ireland Limited (wrote a letter) about my grievance (same pay as the men) and nobody replied to me and I have since gone the legal route.”

The Respondent stated it is submitted that the Respondent has actively engaged with the Complainant’s grievance, and it is incorrect to state that she did not receive a reply, having regard to, inter alia:

·       the informal grievance meeting on 21 October 2022;

·       the apology from Mr. Ives on 21 October 2022 and offer of a fixed salary of €34,413;

·       the verbal offer by HR on 5 December 2022 to reopen the grievance to be heard by a different manager in a formal hearing (and response of the Complainant that she would prefer to hear back from her advisor first);

·       the letter from the Respondent’s solicitors dated 14 December 2022 providing detailed reasoning for the differences in remuneration.

The Respondent stated while the entitlement of the Complainant to make a complaint to the WRC is not disputed, it is observed that it was somewhat precipitous to make such complaint two days after the informal grievance meeting, in circumstances where the Respondent was actively engaging with the Complainant in relation to the issue, where the option of a formal grievance remained open to the Complainant, and where the Complainant had not made any reference to any alleged remarks at the interview in making complainant in relation to her remuneration.

The Group HR Manager, the Respondent gave evidence and stated most of their promotions are internal.  The company the Complainant worked for was originally TUPE’d into the current company.  She stated there are 4 levels; 1 entry level customer service representative and other roles; 2 middle management deputy ADM; 3 department head/depot manager; 4 is MD level. She stated the Complainant’s role was originally Level 1 and the ADM role came available and the Management of Department was 2 sites shared between one manager.  She stated she wasn’t involved in hiring for this role.

She stated the company uses HR payroll system and the Manager makes approval so depends on it being done correctly.  She stated they realised the error and backdated it correctly for the next payroll.

She stated when someone gets promoted from Level 1 it would be 10% increase and at Level 2 you would get commission too as well as 10% increase.  She was aware via the informal grievance that she had been told it was around €39K and Anthony Ivers said he made a mistake and he should have checked.  She explained that across the board 10% increase for promotions was the policy and this was applied across the board in this case also.  She stated in her 20+ years the increase was always 10%.

Mr Anthony Ives gave evidence who was the Area Manager for the company.

Mr Ives stated during the interview he doesn’t remember the discussion reference family during the interview.  Mr Ives stated Ms Ryan, Complainant was very nervous at the interview and they tried to be relaxed.  He stated Ms Ryan got the job due to her knowledge and customer experience.

Mr Ives stated in reference to the salary conversation he said €39K and he said he did say €39K which he accepts was his error.

He stated there was an initial error in September wages and it was delayed in getting it approved but it was resolved.   He stated he was not involved in calculating wages.

Mr Ives stated the company escalated issue reference September payroll to get it resolved in October payroll.

Mr Ives stated he had one call with the Complainant’s boss explaining 10% pay increase and commission and they changed it to full basic and no commission to assist her.

On cross examination Mr Ives he was asked if it was fair the Complainant thought they were on a higher salary for the 6 weeks they worked.   He stated he didn’t use 10% he used the target earnings which would be €39K and didn’t explain how that salary would be broken down at the time.

The next witness was Mr Michail Mavrovitis.  He stated he was Assistant Vice President for Ireland and UK.

Mr Mavrovitis stated he was on the interview panel with two others.  He stated it is a family business and family are very important. He stated they always talk about family.  He stated the interview was based on questions only.  He stated he asked the support system as family fuels success and he usually asks this.  He stated the Complainant, Ms Ryan got the job as she was a good fit culturally and she had good experience.  He stated the other candidate who went for the job was male.  He stated he wasn’t involved in the calculation of pay.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me as well as the evidence presented at the hearing.

I note throughout that the Complainant has advanced an equal pay claim, and not a complaint of discrimination in relation to the interview or promotion itself therefore the relevant legislation in this case is the Equal Pay legislation and - Section 19(1) of the EEA states:

“(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.”

The Equal Pay Section 19(5) of the EEA provides:

“(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.”

In this case the Complainant makes a case that she did not receive equal pay when she was promoted to the ADM role, and that she was paid a different rate of remuneration on the ground of gender comparable to her other colleagues who do this role at other locations who are both male. 

I have considered Section 85A(1) of the EEA which states “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.” And I have also considered the case of Southern Health Board v. Mitchell [2002] 12 E.L.R. 201, where the Labour Court held:

“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 fact from 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 provide that there was no infringement of the principle of equal treatment.”

I find based on the balance of probabilities, the primary facts from which the Complainant relies in seeking to raise a presumption of unlawful discrimination is met and it is therefore the responsibility of the Respondent to prove the contrary.

The Respondent stated they deny that it has discriminated against the Complainant on the grounds of gender or at all. It is the Respondent’s position that:

(a)  the comparators chosen by the Complainant are not engaged in “like work”; and

(b)  any differences in remuneration between the Complainant and the comparators are justified on grounds other than gender.

In particular they stated that it was an initial error to have indicated a salary to the Complainant and instead she should have only received 10% increase on her current rate of pay for the promotion which was they say their custom and practice.  It is the case that she was told this initial salary rate and this led her to realise that her comparators were on this salary and she was to receive less if she took this promotion which ultimately, she then refused.  She did not pursue a formal grievance internally.  I find that the work of her comparators is like work and I find that the differences in the renumeration between the Complainant and her comparators is not justified on any grounds other than gender therefore I find the Complainant’s claim succeeds.

The legislation requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.

I find that the claim is well founded based on the evidence provided and I order the Respondent to pay to the Complainant compensation of €10,000 as a just and equitable redress for the treatment she has experienced through discrimination.