Complainant

Respondent

Anonymised Parties

    A Worker

A Nursing Home Provider

Representatives

  Self-represented

 MHP Sellors LLP solicitors

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-00055030-001

13/02/2023

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

CA-00055030-002

15/02/2023

The complainant was employed as an Administrator by the respondent and commenced employment on 14/12/2020. She resigned from her position on the 13/01/2023.The complainant worked 33 hours per week on average and was paid an hourly rate of €13.50 which was increased to €14.50 from September 2022.  

The complainant alleges that she did not receive equal pay in comparison with a named male comparator who was performing the same job as her and therefore was discriminated against on the grounds of her gender. The complainant further alleges that she was subjected to sexual harassment. The respondent denies both claims in full.

On the 13/02/2023, the WRC received a complaint form pursuant to the Employment Equality Acts 1998- 2015 as amended (the Acts) regarding a complaint of equal pay. On the 15/02/2023 the WRC received an email from the complainant alleging that she was sexually harassed.  

Preliminary Issue – Time Limits - CA-00055030-002

As the complainant was unrepresented, I informed her, in relation to her complaint of sexual harassment, that further to Section 77(5)(a) of the Acts she is required to lodge her claim within six months from the date of occurrence of the discrimination or the date of its most recent occurrence. I informed the complainant that further to section 77(5)(b) the time limit can be extended up to 12 months where reasonable cause is shown.     

Evidence of the complainant in relation to the preliminary issue

The complainant stated that she was employed by the regional manager Ms A, and her husband Mr B also worked in the nursing home and was responsible for HR matters. She was informed that she would report to three managers including the regional manager, Ms B the director of nursing, and Mr B.   Mr. B informed her that nothing gets done in the nursing home without his say, she said that she felt intimidated by him.

The complainant referred to an incident that occurred in December 2021 when she was alone with Mr B in the office when the security safe was broken, he was in the process of fixing same, he called her over from her desk and told her he wanted to show her how to fix the safe. She said she was asked to feel a button at the back of the safe which was he referred to as a “nipple”. She said that Mr B told her to “feel this button it is like a nipple you need to press that in”. She was told “to keep pressing on the nipple”. The complainant stated that she felt very uncomfortable by the constant reference by Mr B to a female part of the body. 

The complainant referred to a further incident in March/April 2022 when she was asked to go into a meeting with Mr. B in a boardroom on their own and was asked by Mr B if she minded if he locked the door. The complainant agreed to this but felt very uncomfortable and intimidated. She stated that they were both sitting around an oval table and during the meeting Mr B moved his chair alongside her chair. She stated that she felt very uncomfortable as he was so close to her, and she made up an excuse that her phone was ringing to leave the room.

The complainant stated that she didn't report the incident and avoided any contact with Mr B after that. She stated that she was aware that there was a sexual harassment policy in place, however she did not make a complaint as she felt there was no point in doing so, given the relationship between Ms A and Mr B.  She said the nursing home was run on intimidation and fear and that Ms A and Mr B were responsible for creating this atmosphere. The complainant stated that from the minute she arrived at work, Ms A was screaming at her all the time.

In reply to a question from me, the complainant stated that she couldn’t clarify a more precise date in March/April 2022 when the last alleged incident of discrimination occurred.

In reply to my question, the complainant stated that she had no reason to explain the delay in lodging her complaint and further stated that she was thinking about lodging a complaint and was undecided about proceeding with it and then decided to lodge her complaint by email on the 15/2/2023.

CA-00055030-001 – Equal Pay complaint 

As the complainant was unrepresented, I informed her, in relation to her complaint of equal pay, that further to Section 85A of the Acts the burden of proof is on her to establish facts, namely, a comparator doing like work, as defined by Section 7 of the Acts, and a difference in pay. If the complainant can establish these facts, then the onus of proof shifts to the respondent to establish a ground other than the complainant’s gender for the pay differential.

The complainant contends that she did not receive equal pay in comparison with a named male comparator who was performing the same job as her and therefore was discriminated against on the ground of her gender. She confirmed that she was paid €13.50 per hour when she started which was increased to €14.50 in September 2022.

The complainant submitted that her named male comparator, who I shall refer to as Mr A, was employed as an Administrator, in the same role as herself, in another nursing home owned by the respondent, and was paid €15.00 per hour. The complainant submitted that she was doing the same job as her named comparator. 

The following is a summary of the complainant’s evidence written and oral submissions.

Summary of the Evidence of the Complainant

The complainant confirmed that she commenced employment on the 14/12/20, as an Administrator in a nursing home, and was employed by the regional manager Ms A. She confirmed that she was paid €13.50 per hour when she started working 33 hours per week. She stated that she shared an office with the director of nursing, Ms B. She was informed that she would report to three managers including the regional manager, the director of nursing and Mr B.  The complainant confirmed that in terms of bed capacity, the nursing home had 43 beds.

In terms of her role the complainant stated that she did everything as an Administrator including invoicing resident’s families, managing income streams including cash and checks, issuing receipts and compiling spreadsheets of same. She managed the petty cash fund and was also required to collect medicines from the pharmacy and items from shops. The complainant was also responsible for managing staff files and when a new member of staff started especially overseas employees, she ensured that all the required documentation such as work permits were in order, and the files were up to date. She ensured that all staff training was up to date and uploaded certificates to files such as manual handling certs.

The complainant stated she managed the payroll which included uploading the hours worked by all staff and calculating holiday pay for employees each week. She compiled this data onto a spreadsheet which she sent to the respondent’s nursing home group accountant, Mr C. She stated that Mr C was responsible for the bank transfers as he alone had access to the banking software. She stated that the respondent did not give her a job description. She paid suppliers, she was responsible for uploading all invoices onto a “sage pay” system and she confirmed the accountant paid all the invoices. She stated that she gave the accountant a statement of all invoices and did a reconciliation with the bank statements. She was also responsible for taking calls and dealing with queries from families regarding residents.

The complainant stated that in August 2022 Ms A informed her that she needed to go to another nursing home to train in a new employee, Mr A. She stated that for 2 days over three weeks she provided training to Mr A regarding the payroll on the “quantum pay” system. She stated that she understood that Mr A worked for the group accountant and for another nursing home. She stated that Mr A told her that he had previously worked in fast food chain. 

In terms of her qualifications the complainant stated that she is a qualified accountant technician and qualified from a third level institution in Dublin. She worked for six years from 2003 to 2007 for a leading national bank and was responsible for the payroll function in respect of 6,000 employees.

The complainant confirmed that she had not seen the job description of Mr A prior to the hearing, which was opened at the hearing.

The complainant confirmed that she trained in Mr A and told him that all monies were to be given to the Director of the respondent company Ms C. Mr A told her that he was receiving €15 per hour and showed her his contract. She then raised the issue of pay with Ms A regarding the disparity between her hourly rate and Mr A's rate. Ms A informed her that it wasn't within her role to decide on rates of pay, that was the responsibility of Ms B. Sometime later Ms A informed her that the reason for the difference in pay related to the fact that Mr A had a degree qualification, and she didn't, and that she would raise the issue of a pay rise on her behalf with Ms B. In September 2022 she was informed that her hourly rate was increased to €14.50, she did not receive a further contract reflecting this change.

The complainant submitted that she was performing the exact same role as Mr A, and that both roles were interchangeable. Ms A told Mr A that the complainant was his point of contact for all his administration queries.

In response to a question from me the complainant confirmed that the reason for the difference in pay between herself and Mr A was related to her gender, Mr A was paid a higher rate because he was man. She further stated that Mr A’s degree is not recognized in Ireland, he is not a qualified accountant, nor does he have an accounting technician qualification.

In cross examination the complainant confirmed that there are 30 employees working in the nursing home she works in (hereinafter referred to as NH1). It was put to the complainant that the other nursing home where Mr A works (hereinafter referred to as NH2) has double the number of residents and staff as NH1.

The respondent’s representative opened Mr A’s Curriculum Vitae (CV) at the hearing and put to the complainant that Mr A has worked as an accountant, as stated in his CV which includes periods of work as an accountant. The complainant accepted that Mr A has a Bachelor of Commerce degree and a post graduate degree, a Masters of Commerce, from different universities in India.

In cross examination the complainant accepted that in terms of her payroll function she completes the payroll spreadsheet, but the payroll is administered by the group accountant.

The complainant confirmed that in terms of benefits received from the respondent that her petrol was paid for, and she received gifts from Ms A of food and clothes. She stated on the day she resigned her position Mr B gave her a gift voucher and told her to take it and leave straight away. The complainant stated that it was unreasonable that she was paid less than Mr A.

The complainant confirmed that she provided training to Mr A on everything including how to run the office over 3 weeks. The complainant did not accept that Mr A had a greater level of responsibility than her as NH2 was larger with more residents and staff in comparison to the nursing home she worked in. She stated that there were less residents as not all the beds were occupied in NH2 when Mr A started. She stated that when she started her job there was no training provided to her nor did she receive an induction. The complainant did not accept that due to the differences in both nursing homes that Mr A had a greater level of responsibility.

In terms of the recruitment process for Mr A, she stated that it is the same job description for his role as for her role and she was responsible for uploading the details to a recruitment online platform. The complainant stated that it was clear to her that the difference in her pay was related to her gender, as they were both doing the same job.

 Submissions

The complainant submitted in her complaint form that both herself and Mr A were doing “exactly the same job”. It was submitted that she was asked to train in Mr A in his new role. When she confronted her regional manager Ms A regarding the difference in pay she was informed that the reason for the difference was because he had a degree. The complainant submitted that Mr A’s degree is from India and therefore is not recognised in Ireland, prior to this he worked in a fast-food chain.

The complainant submits that she is a qualified accounting technician, has a human resources certification and has 20 years’ experience working in Ireland. The complainant submits “I was discriminated because I am a woman and I paid less for doing the exact same job as a man.”

In a statement provided by the complainant she stated that when she confronted her regional manager about the pay discrepancy, she was told that it wasn't her decision and that she would need to talk to the owner who had the final say. Sometime later Ms A advised her that she had agreed with the owner to give her a pay rise, but it would not match that of Mr A on the basis that NH1 was not fully occupied and therefore they could not justify the same rate of pay.

It was further submitted that the role that was posted online for Mr A was carried out by her, that the respondent claims that Mr A is an accountant, but he was working in a fast food chain before he got the role. It is further submitted that Mr A’s qualifications are not recognized in Ireland as he obtained these in India. The complainant submits that she has a level 6 certification in human resources from a third level institution in Dublin and is currently studying for a law degree with an Institute of Technology.

It was further submitted that Mr A's job advertisement was not qualification based but skills based and that the exact same job advertisement was used to advertise for the complainant’s position when she resigned.   

Preliminary Issues

CA-00055030-002-

Application to extend the time limit to include a complaint of harassment

The respondent’s representative submits that the last act of discrimination which occurred in March/April 2022, is well outside the prescribed time limit and the complainant has not put forward any reason or evidence to support her case to demonstrate why the time limit should be extended for reasonable cause.

In her evidence Ms C stated that she never received a complaint concerning any incident of sexual harassment from the complainant nor did she receive a report from any member of staff regarding same. She stated that she operates an open door policy within the nursing home and is available to speak with employees. The first time she heard of a complaint of sexual harassment was through the WRC.

The respondent submits that it has no record of any complaints of sexual harassment made by the complainant against anyone in the employment of the respondent. The respondent further submits that as this complaint was never reported despite the existence of a sexual harassment policy, it did not have the opportunity to conduct its own investigations into the allegations and to conclude one way or the other.

CA-00055030-001 – Equal Pay complaint 

It is submitted that the respondent did not discriminate against the complainant on the gender ground or on any other ground as provided for in the Acts on the basis that Mr A was paid a higher hourly rate of €15 per hour due to several reasons and rejects the complainant’s submission that herself and Mr A were doing the same job or engaged in “like work”.  

Evidence of Ms C, a Director with the Respondent Company

Ms C stated that there is a clear reporting structure within the respondent company she is at the top of the structure as the Director, the regional manager reports to her, and the Director of Nursing reports to the regional manager and so on. She stated that she had regular contact with the complainant. She was informed by the regional manager that she got on well with the complainant. 

Ms C stated that there are four nursing homes operated by the respondent company. She stated that NH1 is the smallest one with 43 beds and the largest is NH2 with 80 beds. There is a director of nursing in each nursing home they all share the same job title but have different rates of pay due to the different bed capacity. For instance, in NH1 the director of nursing earns a salary of circa €70,000 while the director of nursing in NH2 earns €90,000 reflecting the different size/capacity of each nursing home. The key factor is the capacity of the nursing home not the occupancy rate as that can change. She further stated that all members of management including the administration team are paid a higher rate of salary in NH2 due to the difference in capacity. 

In terms of the role of Mr A, she stated that he performs the payroll function in its entirety, which involves compiling figures on hourly rates, processing all figures, uploading those to the banking software and is responsible for paying all the staff. Ms C stated that Mr A is responsible for making the revenue returns on behalf of all the staff regarding calculating the relevant amounts and making the return for PRSI and USC.  Ms C stated that the group accountant Mr C performs that function for NH1. She further stated that Mr A is responsible for paying invoices through the bank and is responsible for invoices from the start to the end of the process, whereas Mr C performs that function in NH1. She also stated that he pays all the suppliers.

She stated that the complainant provided training to Mr A on a software programme for invoicing only. Ms C was contacted twice regarding a pay increase for the complainant and stated that if she felt somebody was doing a good job, they deserved a pay increase. She explained the difference in pay to the complainant was because Mr A had double the workload compared to the complainant.

Ms C confirmed that the complainant received €30 in addition to her salary as a weekly fuel allowance, this was stopped in September 2022 when she got a pay increase. Ms C stated that she totally refutes that any difference in pay is related to the complainant's gender.

In terms of the occupancy, the witness said that NH2 has an occupancy of 76 residents which is the highest rate and when Mr A was recruited it had an occupancy of 57/60 residents, that NH2 has not been below 60 residents for a long time, as opposed to NH1 which has an occupancy of 40 residents. She stated that there were 86 staff employed in NH2 and 41 staff employed in NH1 at the time Mr A commenced employment.

She stated in April 2023 Mr A left for a month and a temporary accountant was employed to perform his role. Ms C stated that in her view the roles of the complainant and Mr A were not interchangeable as the complainant could not complete the accountancy tasks intrinsic to Mr A's role. She further stated that during his induction period an accountant supported him, after that he was working on his own.

Submissions

It was submitted by way of written submissions that in August 2022, the complainant approached Ms A regarding her pay of €13.50 per hour and that of another Administrator, Mr A who was on €15.00 per hour. The Complainant was advised that Mr A was overseeing NH2 which was fully occupied with patients and had more staff and as a result had a considerably heavier workload than the complainant. She was also advised that Mr A was responsible for the payroll at NH2 and had a degree in Commerce.

It is submitted that the respondent did not discriminate against the complainant on the gender ground, or any other ground as provided for in the Acts and the respondent relies on the definition of “like work” set out in the Acts as a defence to this complaint.

It is submitted that the respondent did not discriminate against the complainant on the gender ground and that Mr A was on the higher rate of pay of €15.00 per hour for the principal reasons that:

·        Mr A is employed as an Administrator at NH2 where he is overseeing 80 beds of patients compared to the 43 beds the complainant oversaw.

·        As a result, Mr A oversees more staff than the complainant. 

·        Mr A administers the payroll for NH2.  This is a role the respondent pays an accountant to do at NH1, and a role she did not carry out. The complainant’s terms of employment and Mr A’s offer of employment were exhibited.   

·        When Mr A was on annual leave, an accountant was temporarily employed to execute some of his duties in his absence.

·        He has a degree in Commerce with Tourism and Travel Management from a university in India and the complainant is a qualified Accounting Technician from a third level institution in Dublin.  

Due to the above factors, it was submitted that Mr A had a considerably heavier workload than the complainant did, and Mr A deserved to be compensated accordingly.

It was further submitted that the difference in pay was due to genuine material factors, which are not related to the sex of the complainant or the comparator and is a proportionate way of meeting the aims and objectives of the respondent. It was also submitted that there was objective justification for the difference in pay considering the legitimate aim and that the means of achieving that aim were appropriate and necessary.

The complainant’s pay was reviewed by the respondent in September 2022 and increased to €14.50, and it is submitted that this was fair considering the duties and qualifications of the complainant and the comparator, Mr A. The respondent submits that the complainant was not doing the same job as Mr A nor did she train or teach Mr A. The complainant only showed Mr A the computerized system for invoicing. Mr A was being compensated for the additional duties he executed.

Preliminary Issues

·       Application to amend title of the Respondent.

The representative for the respondent informed the parties that the name of the respondent as noted on the complaint form was incorrect and confirmed the correct title as the name of the parent company of the respondent. Considering the respondent’s submission, I am satisfied that the respondent suffers no prejudice or injustice by the name change and that in the circumstances of this case it is reasonable to amend the title of the respondent in this decision to reflect the correct title.   

·        Application to expand my jurisdiction to include a complaint of sexual harassment further to Section 14A of the Employment Equality Acts 1998-2015.

In considering whether to expand my jurisdiction to include a further complaint pursuant to Section 14A of the Acts, I have noted the judgement of McKechnie J. in the Supreme Court case of County Louth VEC –v- The Equality Tribunal [2016] IESC 40where it was held that: “As is evident from the aforegoing (para. 19 supra), the initiating step for engaging with the provisions of the 1998 Act is that an applicant … seeks redress by referring the case to the Director” (s.77 (1) of the 1998 Act). In the absence of any statutory rules to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to use in this regard …… I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact, the Tribunal itself has so held in A Female Employee v. A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end.”

I note that this judgement related to a claim under the Employment Equality Acts, I am satisfied that the reasoning of McKechnie J. in relation to the referral of complaints to a quasi-judicial body using a non-statutory form is applicable to the present case. The on-line complaint referral form used by the WRC is not a statutory form, and therefore, a complainant is not legally obliged to use this form when referring a complaint to the WRC.

I note that the complainant seeks to add another complaint under the same Acts. I am satisfied that it was clear from the narrative of the email dated the 15/2/2023 to the WRC that the complainant was seeking redress in relation to an allegation that she was sexually harassed while employed by the respondent.  Furthermore, I note that a copy of this email was forwarded to the respondent on the 2/3/2023, therefore, I am satisfied that the respondent was fully aware of the nature of the alleged contraventions underpinning the proceedings well in advance of the oral hearing. I further note that the respondent did not object to this application.

In the circumstances, I am satisfied that I have jurisdiction to inquire into the present complaint in accordance with the provisions of Section 14A of the Employment Equality Acts. 

CA-00055030-002

·       Application to extend the time limit to include a complaint of harassment.

It is not in dispute that the complainant submitted her complaint by e-mail to the WRC on the 15/2/2023. In her evidence the complainant referred to the last act of harassment occurring in March/April 2022.  Notwithstanding questioning from me seeking clarification regarding the date of this incident the complainant was unable to confirm a more precise date.

I note from the complainant’s evidence that she firstly stated that she had no reason to explain the delay and further stated that she is relying on the fact that she was undecided in proceeding with the complaint of sexual harassment and then decided to lodge her complaint by way of e-mail on the 15/2/2023.

The respondent submits that the last act of discrimination which occurred in March/April 2022, is well outside the prescribed time limit and the complainant has not put forward any reason or evidence to demonstrate why the time limit should be extended for reasonable cause.

The Applicable Law 

Section 77(5) provides in the relevant part:

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by the Labour Court in the leading decision of Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0338. In this decision the Labour Court noted the following:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

…The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Complainant has a good arguable case.”

As the complainant lodged her complaint on the 15/2/2023, the cognisable period in respect of this complaint is the six-month period preceding the date of of referral of the complaint, from the 16/8/2022 to 15/2/2023. As the last act of discrimination which the complainant relies upon occurred in March/ April 2022 this is well outside the six-month time limit.

Considering the complainant’s evidence, I find the reason relied upon, the fact that the complainant was unsure whether she wished to refer a complaint of sexual harassment to the WRC, does not explain or justify the delay, in lodging her complaint outside the time limit in line with the test set out in the well-established Labour Court decision of Cementation Skanska.   Therefore, I conclude that this reason does not sufficiently explain or excuse the delay.

I am mindful that the complainant was unrepresented, however I note from her evidence that she does not seek to rely on the fact that she was unaware of the time limit regarding the referral of the complaint but cites that she was undecided whether she would refer a complaint. It appears to me that the complainant was aware of the time limit but was unable to decide in time whether she wished to pursue a complaint, accordingly it is evident that she had not formed the intention of taking a complaint until after the expiry of the 6 month time limit. 

In circumstances where the complainant was aware of the time limit, notwithstanding that ignorance of the law is not an excuse, I do not consider the reason cited in this regard, demonstrates a causal link which had it not been present the complainant would have lodged her complaint on time.

Considering the foregoing, I am satisfied that the reason relied upon by the Complainant does not explain and excuse the delay in lodging her complaint in time.  For the reasons set out above, I find that the complainant has not established that the late submission of the complaint was due to reasonable cause as provided for under Section 77(5)(b) of the Acts and therefore I am unable to extend the time limit. It follows that I do not have jurisdiction to decide this complaint under Section 14A of the Employment Equality Acts 1998-2015 (as amended).

CA-00055030-001 – Equal Pay complaint 

The Applicable Law 

Section 6 of the Employment Equality Acts provides in the relevant part as follows:

6. Discrimination for the purposes of this Act

(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”),….

A claim for equal pay must be grounded by reference to an actual comparator who is employed by the same employer or an associated employer. 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 their comparator. Section 7 of the Acts defines “like work” as arising between thecomplainant and their comparator in three types of situations.

7. Like work

(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 nonagency worker is employed to do, an agency worker may not be regarded as employed to do like work).

19. Entitlement to equal remuneration

(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.

In accordance with Section 85A of the Acts the burden of proof is on the complainant to establish facts, namely, a comparator doing like work and a difference in pay. If the complainant can establish these facts, then the onus of proof shifts to the respondent to establish a ground other than the complainant’s gender for the pay differential.

Section 85A of the Acts provides in the relevant part as follows:

85A. Burden of Proof

(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 Commission to the Director General under section 85(1), facts are established by or on behalf of the Commission 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), insofar as they related to proceedings under this Act, are revoked.

Findings

The complainant submits that she was paid less than her named male comparator, Mr A, also employed by the respondent, that they were both engaged in the same work, their roles are interchangeable and the difference in pay related to her gender. The complainant submitted that she is relying on Section 7(1)(a), on the grounds that she was doing the same work as Mr A and their respective roles were interchangeable. Accordingly, my enquiry is limited to determine if the complainant and Mr A performed the “same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,” as defined bySection 7(1)(a).  

It is not disputed that the complainant was paid less than the remuneration paid to Mr A. It is agreed that the complainant was paid €13.50 an hour when she commenced employment on the 14/12/2020, which was increased to €14.50 per hour in September 2022. I further note from the evidence of Ms C that the complainant was paid €30 per week as a fuel allowance, which comprises an additional €1,560 per year to her yearly salary. I note the broad definition of remuneration set out at Section 2 of the Acts which “includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment;”.  Accordingly, I am satisfied that the additional €30 paid to the complainant on a weekly basis until September 2022 as a fuel allowance, formed part of the complainant’s remuneration.

It is undisputed that the respondent paid Mr A €15 per hour from August 2022. Accordingly, there is a difference in the remuneration received by the complainant and Mr A between August 2022 when he commenced employment, and January 2023 when the complainant resigned her position.

To succeed with her claim the complainant must demonstrate that she is performing “like work” within the meaning of the definition set out in Section 7(1)(a) with that of her chosen male comparator, and that she is receiving less pay than her comparator. In this instance the complainant has chosen a comparator, Mr A who was also employed by the respondent as an Administrator in another nursing home, referred to as NH2. 

The respondent refutes the claim in full and submits firstly that the complainant and Mr A were not performing “like work” and secondly that the difference in remuneration is attributable to factors other than gender, as provided for in accordance with Section 19(5) of the Acts. Accordingly, I must determine whether the complainant and the named comparator were engaged in “like work” in accordance with the definition in Section 7 (1) (a).

Further to Section 7 a person performs “like work” when that work is the same, similar or of equal value to that of her comparator.

Section 7(1)(a) defines “same” work as the work performed must be the same or interchangeable for the complainant and the named comparator. The conditions in which the work is done must also be the same or similar.

Further to Section 7(1)(b) “similar” work means that differences between the work of the complainant and the comparator are insignificant in relation to the work or are so infrequent as not to be significant to the work as a whole.

Section 7(1)(c) defines “equal value” as work that has equivalence in matters such as skill, physical and mental requirements, level of responsibility and working conditions. The equal value provision allows for entirely dissimilar jobs to be compared. 

The complainant argues that she was engaged in the same work as her comparator Mr A, and that both their roles were interchangeable, therefore her case falls to examined under the provisions of Section 7(1)(a).  The complainant’s comparator Mr A is required to have engaged in “like work” at any time during the three years the complainant was engaged on the relevant work or at some point during the three years after that time and this is not in dispute.

The burden of proof per the provisions of Section 85A, rests with the complainant to establish facts from which a presumption of discrimination can be inferred that the complainant was discriminated against on the ground of her gender, namely that she was paid less than her named male comparator Mr A, and they were both engaged in “like work”. If the complainant can establish these facts, then the onus of proof shifts to the respondent to establish a ground other than the complainant’s gender to justify the difference in pay.

The key question which I am required to determine is whether the complainant and her named male comparator Mr A, were engaged in “like work” as defined by Section 7(1)(a) of the Acts.

“Like Work”

The complainant was employed on the 14/12/2020 in the role of “Administrator”, a copy of her statement of main terms was opened at the hearing which confirms her rate of pay at €13.50. I note a further statement of main terms of employment was opened at the hearing referring to her job title as “HR Officer” noting a commencement date of 30/6/2022 signed on behalf of the respondent dated 14/12/2021. I note that there is no job description of the complainant’s role and duties and accept the complainant’s evidence that she was not provided with a job description at any time during her employment. 

I accept the complainant’s evidence when she outlined her role and described her areas of responsibility to include the following.

·        All administration tasks including invoicing resident’s families,

·        Managing income streams including cash and checks, issuing receipts and compiling spreadsheets of same.

·        Managing petty cash fund.

·        Collecting medicines from the pharmacy and items from shops.

·        Managing staff files and when a new member of staff started especially overseas employees, ensuring all required documentation such as work permits were in order, updating files. 

·        Updating all staff files re training and uploading certificates to files such as manual handling certs.

·        Responsible for payroll, uploading hours worked by all staff, calculating holiday pay for all staff each week, compiling data onto a spreadsheet which was sent to the group accountant Mr C.

·        Paying suppliers, uploading all invoices onto a sage pay system to enable the group accountant to pay all invoices.

·        Provide group accountant with a statement of all invoices/ carry out a reconciliation with invoices and bank statements.

·        Responsible for taking calls and dealing with queries from families regarding residents.

For the sake of completeness, I note from the complainant’s submission an advertisement which the complainant stated was posted on a recruitment online platform dated the 11/1/2023 which she described as an outline of her job which was used to advertise her role upon her resignation. I note the similarity with the complainant’s role, the advertisement dated 11/01/2023 was seeking an “Office Administrator” to work in NH1 on a full time basis. I note that the job description entails various administration duties (22 duties in total) described as the main responsibilities.

Mr A was employed by the respondent on the 10/8/2022 in the role of “Administrator”, the respondent’s representative opened a copy of his statement of main terms at the hearing which confirms his rate of pay at €15 per hour. A copy of Mr A’s offer of employment and his job description were also opened at the hearing.

The job description refers to the following three areas of responsibility;

“Financial Aspects

Provide accurate information on expenditure in Home for regular discussion with the Director of Nursing- In his/her absence his/her Deputy.

1.               Maintain accurate records for the following;

2.               (a) fees

(b)   petty cash expenditure

(c)   monies received

(d)   wages

(e)   employees

(f)    residents

(g)  

residents personal allowance

3.               Meet any deadlines for information required by Head Offce at all times

Fees

1.      Have a sound knowledge of the fee structure and be able to deal with all enquiries on a professional and understanding basis, and to follow closely the standard procedures.

2.      Make regular lodgements to the Bank-

3.               Minimise fee arrears.

4.               Deal with residents fees and allowances

Administration

1.              1. Ensure that staff hours are sent to Head Office for payment each month and that records are kept of holidays, sick days and other leave. Have a working knowledge of the P.A.YE system and answer an employee's questions.

2.              2. Ensures all invoices are sent to Head Office.

3.              3. Provide a typing service for the Home.

4.               4. Answer telephone calls in an efficient and courteous manner.

5.               5. Responsible for incoming and outgoing mail and recording of same.

6.               6. Deal with enquiries from residents and their families/resident confidentiality.

Ordering of supplies for the Home.

8. Assisting the Director of Nursing in budget management for the Home.”

I note that Ms C, a director with the respondent company, in her evidence gave an overview of Mr A’s role and responsibilities and the tasks performed by him who was employed as an Administrator in NH2.   I note from her evidence that Mr A’s role involved additional tasks and responsibilities beyond those set out in the job description referred to above. I also note the key differences between the level of responsibility and complexity of the tasks performed by Mr A, compared to the work of the complainant, as well as the additional tasks performed by him.   

I found the evidence of Ms C to be clear, cogent and credible. I accept the evidence of Ms C who highlighted the key differences between the roles of Mr A and that of the complainant to include:-

·        Mr A performs the payroll function in its entirety, which involves compiling figures on hourly rates, processing all figures, uploading same and using the banking software programme to pay all staff, accordingly he has full responsibility for paying all staff.

·        Mr A is responsible for making revenue returns on behalf of all the staff in NH2 regarding calculating the relevant amounts and making the return for PRSI and USC.   

·        Mr A is responsible for paying all invoices through the bank and is responsible for invoicing system in its entirety, accordingly he has full responsibility for paying all invoices.

·        Mr A pays all the suppliers.

I accept the evidence of Ms A that the difference in roles between the Complainant and Mr A regarding the payroll  function, which centered on the fact that Mr A had responsibility for the entire payroll function in NH2, including using the banking software to pay all the staff whereas the complainant had a limited role in that regard in NH1, and did not have the responsibility of using the banking software to pay staff which was the responsibility Mr C, the group accountant. 

I also note that the complainant was not responsible for making returns to revenue regarding PRSI and USC amounts which task Mr C performed for all staff in NH1.

I also accept the evidence of Ms A regarding a further difference in the roles between the complainant and Mr A concerning the payment of invoices, which centered on the fact that Mr A had responsibility for the invoicing system in its entirety, including the payment of all invoices through the bank, whereas the complainant had a limited role in that regard in NH1 and did not have the responsibility of paying the invoices  through the bank which was the responsibility of Mr C.  

I prefer the evidence of Ms C regarding the training provided to Mr A in his role, who stated that the complainant provided limited training to Mr A involving training him on a software programme for invoicing, and did not fully train him in his role, as asserted by the Complainant. In my view Ms C as a director with the respondent would have a greater understanding of the training provided to Mr A and I note from her evidence that during Mr A’s induction period he was supported by an accountant.

I accept the evidence of Ms C regarding the larger size and difference in occupancy between NH1 where the complainant worked and NH2 where Mr A worked; - NH2 has an occupancy of 76 residents which is the highest rate, when Mr A was recruited it had an occupancy of 57/60 residents, as opposed to NH1 which has an occupancy of 40 residents.

I note the difference in size is also reflected in the number of staff employed in both nursing homes, 86 staff were employed in NH2 at the time Mr A commenced employment, whereas 41 staff were employed in NH1. I note the respondent is relying upon the difference in the number of staff employed in NH2, which is reflected in a significantly heavier workload for Mr A given that there are double the number of staff employed in NH2 in comparison to NH1.   

The respondent disputes that the complainant was engaged in the same work as Mr A. The respondent highlighted a number of differences concerning the extent of the responsibilities and additional tasks performed by Mr A in comparison to the complainant and also emphasized the difference in workloads between Mr A and the complainant. In this regard it was argued by the respondent that as NH2 is a much larger nursing home given its greater capacity for residents it employs a significantly higher number of staff which gives rise to a much heavier workload for Mr A in comparison to the complainant.

The respondent also submits in the event it is accepted that the complainant was engaged in the same work with Mr A that there is objective justification for the difference in pay.

To successfully defend this complaint the respondent is required to demonstrate that the complainant was not engaged in “like work” or the difference in remuneration was attributable to factors unrelated to the complainant's gender.

In my assessment of whether the complainant and Mr A were engaged in “like work”, the focus of my inquiry relates to the “work performed” by both regardless of their job titles, as stipulated by Section 7 (1) of the Acts. It is the respective jobs that are to be evaluated not the individuals.

As stated by the Labour Court in GI Entertainment Distribution v Ewelina Konarska EDA 2228 “All three definitions of “like work” in the Act relate to work “performed” so the fact that the complainant held the same title as Mr L is not in itself determinative.“ Applying the reasoning of the Labour Court to the facts of this case I find the fact that both the complainant and Mr A held the same title of “Administrator” is not determinative that the complainant was engaged in “like work”  with Mr A.

Based on the evidence adduced at the hearing, I am satisfied that the complainant was not engaged in the same work as that performed by Mr A or that they were interchangeable with each other in relation to the work performed as defined by Section 7(1)(a) and therefore she was not engaged in “like work” with her named comparator. Accordingly, I find that the complainant has not established facts from which discrimination might be inferred as per section 85A of the Acts. I make this finding for the following reasons.

1) The evidence of Ms C was clear and compelling regarding the differences in the work performed by the complainant and Mr A, concerning the additional more complex tasks and the greater level of responsibility of Mr A’s role. It was clear from the evidence, that Mr A had several duties which required accounts/finance skills, such as the responsibility for the payroll system in its entirety including using the banking software to pay all the staff. The complainant did not perform this task, as she had limited a payroll function. The group accountant was responsible for using the banking software to pay all staff in NH1, a fact the complainant conceded to in her evidence.

Mr A was also responsible for making returns to revenue regarding all PRSI and USC amounts for  all staff in NH2, unlike the complainant who did not perform this task, which was the responsibility of Mr C. 

Mr A was also responsible for the payment of all invoices and for the invoicing system in its entirety, in comparison to the complainant who had a limited role in this regard, as Mr  C was responsible for the payment of invoices in NH1, a fact the complainant conceded to in her evidence.

The evidence of Ms C was also clear regarding the accounts/finance functions performed by Mr A which is reinforced by the fact that when Mr A went on leave for a month, the respondent was required to hire a temporary accountant to cover his role. I also note that an accountant supported him during his induction period.

It is clear from Mr A’s CV and the evidence of Ms C that Mr A has extensive experience of working in accounts/finance roles, in his CV he describes his profile in these roles as that of a general accountant. It appears from the complainant’s evidence that she was unaware or misunderstood the nature of Mr A’s previous work experience in the area of accounts/finance. 

2) I accept the respondent’s submission which was supported by the evidence of Ms C that due to the size and capacity of NH2 (80 beds), as opposed to NH1 (43 beds), that there was double the number of staff employed in NH2 in comparison to NH1. Accordingly, Mr A had a significantly heavier workload than the complainant. I consider that this difference in workload is a valid consideration and therefore I do not consider that both were engaged in the same level/amount of work. Accordingly, I am satisfied that the complainant and Mr A did not perform the “same work” as required by Section 7 (1) (a) having regard to this factor.    

Based on the foregoing reasons I am satisfied that Mr A’s role was not interchangeable with the role of the complainant, as it is clear to me that the complainant did not perform various additional tasks which required accounts/finance skills which were intrinsic to Mr. A's role. No evidence was put before me to suggest the complainant had the same level of capability and performed the same role as Mr A regarding payroll, making revenue returns and the payment of invoices through using the banking software system. This is supported by the fact that the Mr C performed those tasks in NH1.

I found that the complainant did not fully appreciate the extent of the additional tasks, the skillset required to perform the work of Mr A, or the level of responsibility intrinsic to his role. The complainant placed significant weight on the fact that Mr A had worked in a fast food chain prior to his role in NH2, a fact which I do not consider in any way material in my assessment of this complaint.  However, it is my view that had the respondent been clearer in their communications with the complainant when she queried the reason for the pay differential between herself and Mr A, it may have assisted in clarifying to her that the difference in pay arose due to factors unconnected to her gender.  

I found the complainant was considerably impacted by the working environment which she found stressful.   

Having regard to all the factors including all oral and written submissions and the evidence adduced at the hearing and having applied the law to the facts of this case, I am satisfied that the complainant has not established that she performed “like work” in respect of her named comparator as required by Section 7(1) of the Employment Equality Acts 1998-2015.

I am satisfied that the complainant has not established facts from which an inference of discrimination can be inferred as required under Section 85A of the Acts, therefore I find that she was not discriminated against on the ground of her gender in relation to her complaint of equal pay. 

CA-00055030-001

For the reasons set out above, I am satisfied that the complainant has not established facts from which an inference of discrimination can be inferred as required under Section 85A of the Acts, therefore I find that she was not discriminated against on the ground of her gender in relation to her complaint of equal pay. 

CA-00055030-002

For the reasons set out above, I find that the complainant has not established that the late submission of the complaint was due to reasonable cause as provided for under Section 77(5)(b) of the Acts and therefore I am unable to extend the time limit. Therefore, I do not have jurisdiction to decide this complaint under Section 14A of the Employment Equality Acts 1998-2015 (as amended) and I am satisfied that the complainant has not established facts from which an inference of discrimination can be inferred as required under Section 85A of the Acts.

Discrimination gender ground / equal pay/ definition of “like work” / tasks performed/ extension of time limit