EDA2437

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00028084 (CA-00035890-001)

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 16 March 2022. Labour Court hearings took place on 19 and 20 March 2024.

The following is the Determination of the Court.

DETERMINATION:

This is an appeal by Teagasc of a decision of an Adjudicator Officer (ADJ-00028084 CA-00035890-001) under the Employment Equality Acts 1998 – 2015 (“The Acts”). The Adjudication Officer upheld a complaint that Paula Reid was discriminated against on the gender ground.

The Adjudication Officer ordered that Ms Reid be placed on the appropriate pay scale from 1 May 2017 with arrears to be paid to her within two months of the date of his decision. The Adjudication Officer ordered an award of €40,000 as compensation and further ordered that the Respondent apologise to the Complainant for the handling of the matter.

Teagasc appealed that decision to the Labour Court on 16 March 2022. A hearing of the appeal was partially heard, however, due to the retirement of Court members, the division assigned to hear the appeal ceased to exist, and a newly appointed division of the Court was assigned to hear the appeal afresh. That division of the Court heard the appeal on 19 & 20 March 2024.

For ease of reference the parties are given the same designation as they had at first instance. Hence Paula Reid is referred to as “the Complainant” and Teagasc is referred to as “the Respondent”.

Summary of Complainant’s Position

The Respondent discriminated against the Complainant on the ground of gender by failing to provide equal pay in respect of a named comparator of a different gender, Mr Jim Grant. For 15 years they were the only Statisticians in the organisation, until Mr Grant retired in 2020.

The Complainaint has 45 years experience with the Respondent and is the only woman to have worked as a Statistician. She was appointed to that role in 2001 when the only other statistician employed was Mr. Tony Hegarty, a Senior Research Officer. He retired in 2004. When his post was advertised in 2005, it was filled by the Comparator.

The Comparator was successful in the 2OO5 competition but could not take up the role without a MSc in Statistics. The Comparator already had a PhD. He commenced the Statistician post in 2006 after completing a MSc in Statistics in UCD. In the interim, the Complainant was the only statistician, so undertook work as a statistician in both production and food research.

At the time the Complainant submitted her claim she earned approximately €20,000 per annum less than Mr Grant. Throughout the relevant period for the complaint both performed like work.

The Complainant has met the burden of proof test. She has identified a properly comparable man with whom she was doing work of equal value but who was paid significantly more than her, and says as follows:

• The Complainant and Comparator were the only statisticians in the organisation.
• The Complainant and Comparator applied for the same post in different years. She applied in 2001 and her Comparator in 2005.
• The roles specified in the advertisements in 2001 and 2005 are identical.
• The job descriptions were the same and the duties similar.
• The Complainant and Comparator reported to the same manager.
• The role profiles for both on the Teagasc intranet called TNET were identical, until November 2019 when the Complainant’s profile was questionably removed.

The Complainant and the Comparator, had the same or similar duties and at all material times both provided identical supporting roles including inter alia:

• Providing support in the use of statistical software.
• Providing statistical support to research staff on the design, analysis and interpretation of experiments and survey including the provisions of training.
• Collaborating with research staff on joint projects.
• Contributing substantively to the execution of research projects.
• Delivering training in statistical analysis and authored publications.

Both undertook the same qualification, a MSc in Statistics, to work as a Statistician. A PhD is not required to be a Senior Research Officer. There are many Senior Research Officers in the organisation without this qualification.

The Complainant has authored some peer reviewed publications and is acknowledged on many more but because she was not graded as a Research Officer, the Complainant was often not noted as an author.

A long running industral relations dispute between the parties is relevant to the within complaint. When appointed as a Statistician in 2001, the Complainant retained her substantive technician grade rate of pay, until such time as the appointment was made permanent, after which she would be graded as a Research Officer and so be able to compete for higher Research grades. Despite her 20 years’ experience as a Statistician, she was never reclassified as a Research Officer.

The Complainant has been in dispute with her employer about this issue since her initial appointment in 2001 was due to expire in 2003. She accepted an offer to be reclassified as a Technological Grade 2 as a last resort in 2009 but that offer was reneged upon on by Teagasc. The Respondent described her as  'Technician Statistician' at the WRC hearing. The Complainant never knew or heard of this designation until then.

The role of Statistician requires an honours degree. The Role of Statistician has always been deemed a Research Post. All Statisticians, except the Complainant, are paid on the research salary scale. The Complainant was prohibited from competing in promotion competitions in research grades because she was not designated a Research Officer.

The Comparator, Mr Grant, was promoted to Senior Research Officer grade in June 2006 at the beginning of his post as a Statistician. There is no objectively rational basis for the Comparator to be graded as a Senior Research Officer, while the Complainant remains an Experimental Technician.

Summary of Respondent’s Position

The Complainant has failed to identify an appropriate comparator engaged in “like work”.

The Complainant is a Technician Statistician on an Experimental Officer Grade salary. The Comparator is a Senior Research Officer - Statistician with a completely different level of responsibility and range of duties in his role.

It is submitted that the correct comparator is at Research Officer level. The Complainant is on a salary of €72,570 which exceeds the maximum of the Research Officer pay scale.

The Adjudication Officer mistakenly relied, for role comparison purposes, on two job descriptions for the post of Research Officer, and Intranet profiles, which the HR department has no role in updating or vetting. The Complainant’s sworn evidence at the Adjudication Officer hearing was that she had no day-to-day interactions with the Comparator, or personal knowledge of what he did on a day-to-day basis. The Complainant has not discharged the burden of proof that she carries out like work.

While the Complainant may have worked on food and production research the work was at technician level which has a significantly different competency requirement and value.

A fundamental difference exists as to the competency level of knowledge, skills, and attributes between the Complainant and the Comparator’s grades (competency framework). The competency fit and role requirement at Technician and Research Officer level is fundamentally different in value.

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

• Provides statistical analysis support to research staff primarily in the Food Directorate on the design, analysis and interpretation of controlled experiments and surveys.
• Proficient in the use of statistical software
• Provides courses to staff and students.
• Collaborates with research staff on projects.
• Contributes to underlying statistical theory where necessary for the execution of research projects.

The Complainant carries out a technical support role which has a lower level of responsibility and complexity compared to the Comparator, who was regarded as a national expert in research statistics.

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

The Comparator’s role and responsibilities were much broader in remit. A Senior Research Officer is focused on conducting research at an independent level and developing or gaining an independent research reputation with evidence of national recognition of achievements. The Comparator provided strategic leadership, guidance and a comprehensive statistical support service to research staff on the design, analysis and interpretation of complex experiments surveys and data analysis. He took a lead role in the provision of statistical training and provision of support in the use of statistical software, he collaborated extensively with research staff and management across all grades and programmes and contributed to the underlying statistical theory where necessary for the execution of research projects.

Unlike the Comparator, the Complainant does not carry out research at an independent level, is not a nationally recognised expert and published researcher, does not hold statistical clinics, does not conduct a research programme that is innovative in its approach and findings, and does not have responsibility in developing her own programme of work in consultation with the head of department.

The Complainant has not produced reports/programmes that match the required minimum threshold to be considered for shortlisting for promotion to Senior Research Officer level. She was not listed as an author on any publication between 2015 to 2019, whereas her Comparator is listed as an author on 57 peer-reviewed publications.

Without prejudice to that position, the Complainant never applied for any Research Officer Roles. Had she done so, and had she been successful, she would have been eligible to apply for the Senior Research Officer grade, which is a highly competitive promotional level post.

In 2001, the Complainant was assigned to a temporary Statistician role to work for a period of two years and three months at her technician grade. She retained her substantive grade as it had a higher salary then the Research Officer post for which she applied.

In 2009, following agreement with her union, the Complainant was to assimilate onto a new grade structure at Technologist Grade 2 level, which was the most appropriate grade for her based on her competency skill set. It did not align with a Research Officer role or Senior Research Officer role. That agreement was not progressed due to the moratorium on recruitment pay and promotion implemented by the Government across the public sector.  When the moratorium ended in 2015, the Complainant did not agree to the implementation date proposed. That matter remains unresolved. It is submitted that the dispute has always been an industrial relations issue and no mention of gender was made until the within claim was taken.

While the Complainant continued to work in the Statistician role beyond the expressed timeframe, her role did not develop to the level of her Comparator. She was not eligible to compete for the Senior Research Officer Promotional Post in 2005, as she was not a Research Scientist.

When the Comparator retired his post was advertised at Research Officer level which is the entry level to the grade structure and a PhD is required.  The consultancy and significant research undertaken by him is currently supported by universities who work and collaborate with the Respondent on an informal basis, as it cannot be carried out within the Respondent.

The entire basis of equal pay is that a person is doing like work with an identified comparator. To shift the burden of proof, the Complainant must support her assertion that she is carrying out like work. A simple assertion that she was engaged in like work does not shift the burden of proof.

In Kenny v Minister for Justice, Equality and Law Reform (C-427/11) the CJEUconsidered in detail the factors that need to be considered in determining “like Work”., including training requirements and working conditions. The Complainant does not meet these requirements. She provided no evidence that she was engaged in like work.

Evidence of Paula Reid – the Complainant

The Complainant joined Teagasc in 1977 as an Entry Technician Grade, progressing to Career Grade, Promotion Grade and Experimental Officer Grade. She completed a diploma and degree in IT, and a MSc in Statistics in 1999, which is required for the role of Statistician. A PhD is not a requirement for the role.

In 2001 she was appointed to the role of Statistician on a temporary contract and retained her substantive Technician Grade, to maintain her level of pay. She was assured that her position would be regularised and understood that she would be eligible for promotion in the Research Grades. She would not have accepted the Statistician role as a technician, as she was already a technician. She was not allowed to apply for promotion in a technical grade. All other statisticians were at Senior Research Officer grade or above.

In August 2004, she was assigned to the National Food and Dairy Products Research Centre, to provide a comprehensive range of statistical services. By then, she was the only Statistician employed.

In 2005 another Statistician role was advertised. She helped write the advert using the 2001 advertisement for her own role. They are identical. She was told her position would be regularised, so there was no reason to apply. Mr Grant was assigned to the role but could not start until September 2006 after he completed a MSc in Statistics.

In 2008 she was advised that, due to an administrative oversight, her temporary appointment was never terminated in 2003. She was offered a Technologist Grade 1 post, which she refused.  She accepted a Technologist Grade 2 post, as Technologist Grade 3 was the next level up. She was then advised the matter could not be progressed due to the Moratorium. When the Moratorium ended in 2015, Teagasc did not implement what she had accepted.

Throughout this time, the Complainant continued to carry out statistical work. She and Mr Grant were the only Statisticians until he retired in 2020. They did not work together. The Complainant was responsible for the Food programme and Mr Grant worked on Production. There was no difference qualitatively between the two programmes, as they use the same methodologies. There was a 50/50 split in work. She was aware of his work as they both worked as Statisticians. Their intranet profiles, which Mr Grant drafted, describe their work as the same job. Her profile was taken down in 2019, while Mr Grant’s was left up.

The Complainant’s work included the design of experiments, conducting surveys and analysis, engaging in complex messy data, outputs of design, all aspects of methodology, interpretation, supporting statistical training including conducting clinics, giving advice, supporting statistical software, supervising statistical practice, writing statistical sections in research findings, editing and reviewing, collaborating with research staff and students on research projects. She devised her own programme of work. Staff access statistical support through the Head of Department.

Traditionally statisticians did not co-author publications but are acknowledged in papers. The Complainant authored 6 or 7 publications but did not co-author them. Like Mr Grant, she delivered training, albeit generally on a one-to-one basis, and she gave a six-week training course. She did not conduct clinics but gave consultation advice. Unlike Mr Grant, she was never given an opportunity to sit on the Animal Ethics Committee. The person who replaced Mr Grant on the committee has a Diploma in Statistics. Contrary to Teagasc’s assertion, she worked on numerous funded projects including MTI projects, step projects, EU-funded projects. When invited to comment on the assertion that Mr Grant was a “nationally recognised figure”, she said she had published work with UCD in 2022.

The Complainant always worked as a fully-fledged Statistician. She was not aware of the term Technical Statistician and had never seen a job advert for that role. She never saw a set of competencies for her or Mr Grant's role before the WRC hearing. The gender balance in Teagasc is very male dominated. In 2022, 80% of senior researchers are male. Both male witnesses before the Court came from the Technician Grade into the Research Grade, but she was blocked from doing so.

The Complainant undertook some of Mr Grant's work when he retired. In April and August 2023, a Senior Research Officer role was advertised, but no one was appointed. An appointment was made at Research Officer level. That role was not advertised.

Cross examination

Under cross examination, the Complainant said she had little day-to-day interaction with Mr Grant. They said “hello” in the corridor and attended meetings with Mr Troy. She knows what a statistician does, and Mr Grant provided information about his role on his intranet profile. He provided a comprehensive statistical service and engaged in research. She could not say exactly what he did on a day-to-day basis, but was aware from his research papers that, like her, he worked on projects.

A 2003 letter states that she would retain her substantive Technician Grade and be paid at that grade. The position was due to expire in 2003 but was extended.  She was assured that her position would be regularised, and she expected to be made a Research Officer as she was member of the research staff. Her role was described as a Statistician and not as a technician. Her letter of appointment said that she would “carry on a comprehensive range of statistical services”.  When she approached the Head of HR about regularising her position, she was promised it would be addressed. She did not get anything in writing.

Both the Complainant and Mr Grant reported to Mr Troy. She met him twice yearly for review. Her role was described as a Statistician on the review form, and her grade was RO/EO. She never called herself a Senior Research Officer. When she onceraised the matter with Mr Troy, he told her to go to HR.

She did not apply for the Research Officer role in 2005 as she was already doing the role. She did not apply in 2020, as she did not have a PhD which is now a requirement for the role.

She disputed raising the issue of gender for the first time in her WRC complaint. She raised the matter with HR in 2008 and again in 2019.

The Complainant disputed that she did not have the same expertise as Mr Grant. When asked to give five examples of research design in her role from 2017 to 2019, she referred to work in Sandymount and Ashtown, but said that she couldn’t give specifics and had worked on lots of experiments.

When asked what innovative work she undertook in her role, she said that she undertakes research and analysis all the time. She worked with UCD in 2019, helped with the design of research questions, and worked on Step projects, and did a huge amount of statistical analysis in 2020-2021.

The Complainant said that 50% of her work requests came from students, with a lot from supervisors and senior research staff. She provides consultancy and advice to anyone who drops into the office with queries on statistics, which is a clinic. She delivers training on statistics on a one-to-one basis, and software statistical training as required or necessary. She is an author on projects, with one published in 2023, and another in 2021. She had one or two peer reviewed publications from 2017 to 2019. While Mr Grant may have had 52 peer reviewed publications, his predecessor had none.

She accepted that she had not undertaken any formal training since 1999. She accepted that she did not serve on any committees. She accepted that she was not a full member of any research programme. She accepted that she had not designed research studies. She accepted that did not supervise PhD students.

Since Mr Grant’s retirement she had worked on two or three production research programmes.

In response to questions from the Court, the Complainant said that she was in limbo since 2001 when she became part of the research team. She was on the top of the Technician pay scale since 2004. She didn’t apply for promotion, as she was told she couldn't. She was prevented her from applying for promotion.

The Complainant accepted that Mr Grant was a Senior Research Officer. Her role has evolved from when the Research Officer roles were advertised in 2001 and 2005 into more complex analysis. It is the same as Mr Grant’s role listed on the Intranet. To her knowledge, no one below the grade of Senior Research Officer worked as a statistician.

Evidence of Jim Grant- the Comparator

Mr Grant joined the organisation as a Technician andapplied for a Research Officer role in 1992. He was promoted to Senior Research Officer after a competitive process in 2005. He retired in 2020.

He did not apply for the Research Officer (Statistician) role when it was advertised in 2005. He approached the Director of Research about the role when Tony Hegarty was retiring. There was no formal process, as the Director has discretion to assign individuals to roles. He worked in a research role and was described as a researcher before taking up the Statistician role in 2006.

He was not familiar with the early statistics department. The Complainant was the only other statistician when he joined and had longer service in the department. His interactions with her were limited to meeting in the corridors or at coffee time. He could not say if they undertook like work, as he did not what she did on a day-to-day basis. Based on her evidence, he thought that about one third of their day-to-day work was the same.

He initially reported to the Director of Research, and thereafter to Mr Troy. He met Mr Troy twice yearly for a PMDS meeting.  There was no job description and the role developed in line with his grade. He had a considerable amount of self-direction.

The role of SeniorResearch Officer is largely innovative and strategic, whereas a Research Officer is focused on designing solutions to problems. You must fulfil and demonstrate the competencies for a Senior Research Officer. His role was geared towards adding value. He carried out independent research. He carried out research design across four programmes. He conducted clinics. He was innovating and building skills with a view to promotion. He was a nationally recognised expert.

He worked with production and research centres and dealt with queries from senior management. He made a decision early on regarding the organisation of his work, as there was a three month wait list. He pushed work back to analysts’ and students and focused on streamlining processes and adding value. Most of his work was non-standard and engaged incomplex issues around design. He returned to UCD to take on extra modules in specialist topics. For example, spatial statistics are not covered in the MSc which generally deals with standard analysis. He tried to persuade researchers to try new methodologies involving mathematical modelling rather than using a standard package. He used computer intensive methods in analysis, which allows you to step away from bell curve.

He designed several training courses, e.g., a three-day introduction to statistical analysis, a half-day course on statistical policy, a two-day course on multi-varied analysis, seminars on random effects. He conducted clinics around the country as researchers are more at ease there. There was often a gap between the way things are described and how they happen. He scheduled up to 30 clinics per year and conducted one-to-one sessions.

He wasappointed to the Animal Ethics Committee, as a statistician is required on the committee. He reviewed all projects with animal-based experiments and made recommendations for submission to statutory bodies. He provided a statistical service across four research programme areas across Teagasc. He became a full member of some projects and contributed to those as a full member, not just using his statistical experience. He was a full member of the Meat Technology Ireland (MTI) research team, with responsibility for delivery of results to stakeholders in the meat industry and statutory bodies. He did mathematical modelling and research analysis for the Cadmen trial project, and developed a traffic light system green, orange, red, which he presented the results to stakeholders.

He never asked to co-author research publications; others decided to add his name if his intellectual input added value. He provided advice to external bodies such as the Department of Agriculture and UCD Forestry Department. He was invited to give a workshop to the British Society of Agricultural Science. He was a member of the Irish Statistical Association. He supervised PhD students for a brief period.

He provided the details for the Intranet profiles, using the job advert which gave a general overview. It was not a full job description. It is not a complete description, but not misleading either.

Cross examination

Under cross examination, Mr Grant said that he was promoted to Senior Research Officer Grade before taking up the role of Statistician. He accepted that a Senior Research Officer does not require a PhD to be a Statistician. Replying to the assertion that his appointment as a Statistician was not transparent, Mr Grant said that the Director had discretion to appoint individuals to roles.

He accepted that the Statistician role profiles on the Intranet were identical responsibilities. He said he did not put much time into that task.

In his view, about two-thirds of Research Officers are based in Production, with about one third in Food. On occasion, he received queries from Food and directed them back and vice versa.

Summarising the points of differentiation between the two roles, Mr Grant said that his role involved the introduction of modelling and computer intensive methodologies, organising clinics and training, membership of research projects, awareness by outside bodies of his existence.

He accepted that he was never a lead author on publications. He was a full member of research teams and contributed as a full member, not just using his statistical experience. He last supervised students in 2007.  He undertook travel and clinics to train users to be as efficient as possible.

He was replaced on the Animal Ethics Committee by Dr David Kelly who was qualified in statistics, although not a statistician.

His assessment that the Complainant undertook about a third of his work was based on her evidence and the type of analysis that she described. In his role, he tried to add value and use new techniques. He did not give evidence at the WRC hearing and acknowledged that the Complainant had not heard his evidence until the Labour Court hearing.

Replying to questions from the Court, he said that in his view a Senior Research Officer is expected to have peer reviewed publications, bring in externally funded projects and supervise students.  He could not comment if the work undertaken by the Complainant was at the same level as his, as that was hearsay, and his focus was on meeting the requirements of a Senior Research Officer role.

Evidence of Mr Troy – Reporting Manager

Mr Troy asked the Complainant to take on a role as an Experimental Officer reporting to him in 2001, as he saw a huge benefit in having an Experimental Officer working in the research area.

The role of statistician has different levels of grades. The Complainant and Mr Grant were not doing like work. They had two different remits. One was an Experimental Officer servicing the needs of the organisation, who received queries from students and young researchers and provided a level of service to them. The other was a Senior Research Officer, who operated at a higher level conducting much broader and in-depth work and must be an innovator. Both roles are critical and very important. Both were very competent in their role. The Complainant was never a Senior Research Officer and never described herself as one.

Mr Troy concurred with Mr Grant’s assessment that one third of their day-to-day work was the same, with the proviso that they were quite separate roles. Mr Grant operated at a more senior level working mainly in research. He was involved in the design of projects, participating in projects, overseeing results, writing up reports and publications, and delivery of those findings to statutory bodies. A Senior Research Officer must be an innovator.  Mr Grant developed and coordinated clinics and carried out new innovations. He engaged with project leaders rather than students. His work is easily measured. If appreciated for your intellectual contribution you are cited as a co-author, as evident by Mr Grant’s publications. Mr Grant was embedded in research projects more than expected of a Senior Research Officer and was very attuned intellectually with those groups.

The Complainant was an Experimental Officer. She was not a Senior Research Officer. Research projects were not part of her role. She dealt with early-stage career scientists and students. She addressed the developing needs of researchers in terms of analysis. She was not so much engaged in projects themselves but involved in research results emanating from them.

PMDS reviews were conducted twice a year. On the PMDS form she assigned herself as an EO/RO. He let employees have a first shot at setting goals and objectives, which had to be commensurate with their grades. He did not supervise or micro-manage their work. The Complainant never sought to sit on a committee or look for additional training.

Teagasc could not recruit someone at Senior Research Officer level when Mr Grant retired in 2020. They only had sanction from DPER to advertise a role at Research Officer level. His role was fragmented. Clinics are no longer conducted. Statistical training is conducted externally. Students are registered with the university and the organisation relies on statistical experts from the universities.

When they eventually received sanction to recruit at Senior Research Officer level, they could not fill the role and instead, a Research Officer was finally recruited in December 2021 after three attempts. The applicant was completing her PhD.

Cross examination

Mr Troy disagreed that Teagasc was historically a male dominated environment but accepted that the Complainant was the only female statistician from 2001.  He acknowledged that she never reverted to her role and continued to work as a statistician. He said that she did not do any extra work when Mr Grant retired.

When asked if the fact that the Statistician roles was advertised at two different grades was indicative that grade was not an integral part of the role, Mr Troy said it was about what was expected in the role. The statistician role has different levels of grades. There are lots of needs in terms of statistical analysis. There is a difference between supporting PhD students just out of college and undertaking a leadership role in research projects. Both the Complainant and Mr Grant did exactly what the organisation wanted them to do. When asked why there was no job description for either role, Mr Troy said that role profiles were more than adequate in lieu of a job specification for both roles.

Evidence of Catherine McCague – HR Manager

To her knowledge, the Complainant was not given a commitment that she would be made a Research Officer when she joined the research team in 2001. The only document on file was the letter to her dated 6 July 2001, which said that she would retain her substantive Technician Promotion Grade while acting as a temporary member of the research staff. She was red circled on a legacy pay scale (Technician Pay Scale) as an Experiential Officer.

Due to an administrative oversight, she did not revert to her substantive role in 2003. A letter dated 16 April 2008 confirmed that she remains in her substantive Technician grade. The Complainant raised that matter as an IR issue with her union. The grade structure was under review, and they were in discussions with the union about the competency framework for technicians. The Technician Grade 1 structure was implemented in 2008, but Grade Levels 2 and 3 were not yet developed. In March 2009, the Complainant agreed to be placed on the Technician Grade 2 structure. However, due to the Moratorium on recruitment issued by the Department of Finance that did not happen.

When the organisation re-engaged with the Complainant in 2019, she sought that the Technician Grade 2 be backdated to 2009. That matter was put on hold pending referral of a similar case to the Labour Court, which found in favour of the employer. As a result, the organisation could not consider backdating the Complainant.

Teagasc is a public service organisation with 1550 staff and grade structures are relative to the public service. It is important to have clear and transparent pathways for progression. Work is aligned to grade structures. There is a correlation between tasks assigned and the grade and competency framework. The competency framework sets out the expectation and standard of the role to be delivered. Roles and responsibilities fit with the competencies for that grade.

Promotions operate within grade structures. There is incremental progression from Research Officer to Senior Research Officer to Principal Research Officer.  Where positions are advertised internally, an application must hold the position of Research Officer before becoming a Senior Research Officer. Anyone can apply for an externally advertised position, if qualified.

The Complainant was red circled as an Experimental Officer.  She never applied to have her role assessed. The Complainant was not prevented from applying for promotion. There were two promotions competitions. She did not apply for any competition. The issue of gender was first raised in discussions in 2019.

Cross examination

A Technician can compete for a Research grade when a post is advertised, if they have the qualifications. The minimum qualification for the legacy Technician Grade was a Level 6 qualification. The new Technician Grade requires a Level 8 qualification. Since 2008, the minimum qualification for a Research role is a PhD. She was not aware of a female Technician transferring to a Research role.

She could not give specific evidence on the work carried out by Mr Grant. The expectation of the organisation is that a Senior Research Officer operates at a very different level to that of a Technician.

The organisation is highly unionised and changes to terms and conditions of employment are negotiated at trade union level.  Discussions about the moratorium and promotions form part of management union discussions. She could not recall anyone who was regularised into a role without a competition, and it would not happen without a promotional competition. 

Ms McCague accepted that the termination of the Complainant’s temporary assignment should not have been left to drift.

Mr Grant retired in 2020 and was not replaced.  It was a real challenge to find Principal Research Officer level candidates with qualifications as statisticians, who can also collaborate with universities.

When asked about the lack of job descriptions, Ms McCague said that a job description is posted where an employee goes to a specific job, otherwise, it is addressed as part of the PMDS process, and the first part of process is the role profile. The basis of PMDS is that it reflects competencies.

Relevant Law

Like work

7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

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

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

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

Valid Comparator

19.-(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) In this section “relevant time” in relation to a particular time is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.”

Burden of Proof

85A.—(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Deliberations of the Court

In any case involving an allegation of discrimination the Court must first consider the allocation of the burden of proof as between the Complainant and the Respondent. 

Section 85A provides that where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed. Once these facts are proved, and if the Court regards them as being of sufficient significance to raise an inference of discrimination, then the onus of proving the contrary shifts to the Respondent. If a Complainant does not prove the primary facts upon which they rely or if those facts are insufficient to raise an inference of discrimination, then the claim cannot succeed.

It is for the Complainant in the first instant to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the Respondent.

The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in its determination in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: -

1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed.

2) If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent, (Mitchell v Southern Health Board [2001] ELR 201)

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that: -

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

The Court must consider in the first instance whether primary facts can be established from which discrimination can be inferred. The Complainant does not have to establish that discrimination occurred, only that it is a likely explanation for the facts presented. It is for the Court to consider, by a process of inferential reasoning, the possible conclusions which may be drawn to explain a particular set of facts.

The Act defines ‘like work’ as work that is the “same”, “similar” or of “equal value”.

In this case, the Complainant asserts that she engaged in ‘like work’ that was the “same” or “similar” to that of her Comparator, Mr Grant.  She is not asserting that she is engaged in work of “equal value”.

Furthermore, it is not in dispute that the Complainant has identified a comparator nor is it in dispute that there is a pay differential between the Complainant and the Comparator. The issue in contention is whether the Complainant is engaged in the “same” or “similar work” to that of her Comparator during the relevant timeframe.

Shortly after cross-examination of the Complainant commenced, Counsel for the Respondent applied to the Court for a direction that the Complainant had not met the burden of proof by establishing facts that she engaged in “like work” with her Comparator, Mr Grant, as she had given evidence that she did not know what he did on a daily basis and was relying on a job advert, and an intranet profile to ground her claim.

The Court rejected the Respondent’s application, and Ms Guiness BL said that she would reserve her position and, without prejudice to her stated position, proceeded with cross examination.

There is nothing to prohibit the Court from dismissing a claim after hearing evidence from a Complainant where there is clearly no inference of discrimination established and no obligation on an employer at that stage to show that the activities of a Complainant and her Comparator are different. Equally, the Court is not obliged to divide the appeal into a two-stage process and make a determination on whether a prima facie case of discrimination exists before hearing the rebutting evidence of the Respondent. It is open to the Court to hear evidence proffered by both sides before it embarks on its analysis to determine if a prima facie case of discrimination is established, such that the burden shifts to the Respondent. 

In that regard, it is a matter for both sides to determine what evidence is proffered, or not. Ms Guinness chose not to rest her case and proceeded with cross-examination of the Complainant, following which the Court heard testimony from witnesses on behalf of the Respondent.

In those circumstances, the Court is entitled to rely on all the evidence adduced from both sides during the hearing, to decide whether the Complainant has identified an appropriate Comparator engaged in like work, and whether primary facts can be established from which discrimination can be inferred.

Are the Complainant and her Comparator engaged in the” same” or “similar” type of work?

‘Same’ work means that the work performed must be the same or interchangeable for the Complainant and the Comparator and the conditions in which the work is done must also be the same or similar.

‘Similar’ work means that differences between the work of the Complainant and the Comparator are insignificant in relation to the work, or so infrequent as not to be significant to the work as a whole.

The Complainant and her Comparator, Mr Grant, were the only Statisticians in Teagasc at the relevant time. The Complainant worked in the Food Programme and Mr Grant worked in the Production Programme. There is no job description in existence for either position.

The Court received extensive submissions and heard extensive testimony from four witnesses. For the purposes of this case the evidence is grouped under the following headings.

Knowledge of the Comparator’s Role

The Complainant had no direct knowledge of the Comparator’s Role. The Respondent contends that the Complainant has failed to demonstrate that she engaged in “like work” as she did not know what her Comparator, Mr Grant, did on a day-to-day basis.

The Complainant relied on other facts to assert that they engaged in the same or similar work as Statisticians, such as the same job title, job adverts, qualifications, reporting line and role profiles on the Intranet.

Job Title

The Complainant relies on the fact that her job title as Statistician was the same as Mr Grant.

Reporting Lines

The Complainant and the Comparator reported directly to same person, Mr. Troy.

Job Adverts

The Complainant relies on the contention that she and Mr Grant applied for the same Statistician (Research Officer) post in 2001 and 2005 respectively, and that the positions advertised were identical.

That assertion was disputed by Mr Grant who said that he never applied for the role advertised in 2005, but was assigned to it at a later point having expressed an interest in the role to the Director. 

Qualifications

The Complainant relies on the fact that both the Complainant and the Comparator hold the same statistical qualification, i.e. a MSc in Statistics from UCD, which both were required to undertake to work as a Statistician. 

A PhD is not required for the role of statistician, and the Comparator’s predecessor Tony Hegarty did not have a PhD. A PhD became a minimum entry qualification for research roles in 2008.

Intranet Profiles

Intranet Profiles published from 2011 to 2019 show an identical set of responsibilities for both individuals.

Grade

The Complainant is graded in a legacy grade as an Experimental Technician.

The Comparator was promoted to a Senior Research Officer grade in June 2006, at the beginning of his post as a Statistician, having participated in a promotional competition for appointment to that grade. He remained at that grade until his retirement in 2020.

Industrial relations dispute

A long running industral relations dispute between the parties explains why the Complainant has remained on a legacy pay grade as an Experimental Technician.

The Complainant retained her technician rate of pay when appointed to the Statistician role in 2001, as it exceeded the maximum of the Research Officer pay scale. She has sought to have her grade and pay remedied since taking on that role. She accepted an offer to be reclassified as a Technological Grade 2 in 2009, which was not implemented due to the Moratorium on pay in the public sector at that time, and a later disagreement about the implementation date once the Moratorium was lifted.

The Complainant’s evidence was she was prevented from applying for promotions, an assertion refuted by the Respondent. No corroborating evidence was provided by the Complainant to support her assertion that she was prevented from applying for promotion.

Competency Framework and grade structure

The competency set for Technician, Research Officer and Senior Research Officer grades sets out the requirements for each grade.

The Complainant contends that her role has evolved over time such that she operates at a Senior Research Officer level.

The Respondent contends that there is a fundamental difference in the competency level required for the Complainant and the Comparator’s grades.

Evidence on the nature of the work

The Court heard evidence from the Complainant, her Comparator and their line manager about the nature of work they each undertook.

Workload

The Complainant was responsible for the Food programme and the Comparator for the Production Programme.

The Complainant’s evidence was that there was a 50/50 split between the two programmes with no qualitative difference in the work. That evidence was refuted by the Respondent.

The Comparator told the Court that the Complainant undertook about one third of his work, based on her testimony. Their line manager, Mr Troy, concurred with that assessment, albeit he said they were separate roles. Mr Troy’s evidence was that the Comparator operated at a more senior level engaging with project leaders, rather than students, and that when he retired, due to difficulties recruiting a replacement, his role was fragmented with training conducted externally and students relying on statistical experts from the universities.

Research Design and Analysis

Both the Complainant and Mr Grant engaged in research design.

The Complainant contends that she and Mr Grant worked in identical roles supporting research staff on the design, analysis and interpretation of experiments and surveys and collaborating with research staff on projects. She asserts that there was no qualitative difference between the two programmes that they worked on, as they use the same methodologies.

The Complainant gave evidence was that she provided a comprehensive service which included, inter alia, designing experiments, conducting surveys and analysis, engaging in complex messy data and collaborating with research staff and students on research projects. Staff access her statistical support through the Head of Department, with 50% of her work emanating from student requests and the remainder from supervisors and senior research staff. That evidence was not refuted.

Mr Troy gave evidence was that the main difference between the two roles was research related. He said the Complainant’s work focused on addressing the needs of early-stage career scientists and students in terms of analysis and that involvement in research projects were not part of her role. He said that the Comparator, as a Senior Research Officer, operated at a higher level engaging with project leaders in the design of projects, and that he conducted much broader and in-depth work which was focused on research at an independent level, and gaining a reputation with evidence of national recognition of achievements.

Statistical training and delivery

Both the Complainant and her Comparator deliver statistical training.

The Complainant gave evidence that she delivers training in statistical analysis on a similar basis to that delivered by her Comparator, albeit generally on a one-to-one basis, and that she delivers software statistical training as required or necessary. She further provides consultancy and advice on a drop-in basis, which constitutes a clinic, and delivered a six-week training course.

The Respondent contends that the Complainant does not undertake large-scale statistical training programmes, or conduct statistical clinics on research methodology, analysis and interpretation of data, and that the Comparator provided the vast majority of statistical training across the organisation, commensurate with his role as a Senior Research Officer. The Comparator’s evidence was that he was proactive in the delivery of training and changed the approach and emphasis to more specialist training. The Court heard that he delivered 62 statistical clinics nationwide during the period from 2017 – 2019, and that the Comparator was the only Statistician who carried out this work. Mr Troy’s evidence was that this element of his work is now delivered by external sources.

Peer-reviewed publications

The Respondent contends that having peer-reviewed publications is a requirement of a Senior Research Officer role.

The Court heard evidence that the Comparator had 57 peer-reviewed papers between 2015 to 2019. The Complainant has no peer-reviewed publications in that period. The Comparator had 83 publications in which he is listed as author/co-author. The Respondent identified four articles by the Complainant from 1989, 2001, 2007 and 2011.

The Complainant’s evidence was that she has authored one or two peer reviewed publications but is acknowledged on many more, as she was involved in the design, analysis and interpretation of data/results, and contributed to writing statistical sections within many research papers over the years. Her evidence was that traditionally statisticians are not credited as authors on research papers, and as she was not graded as a Research Officer, she was often not noted as an author. She said that she is an author on recent projects, with one published in 2021 and one in 2023.

The Court heard that it is an accepted practice to acknowledge an individual’s contribution to a work, while authorship is conferred on those who make an intellectual contribution to that work.

Mr Troy’s evidence was that authorship serves as an explicit way of assigning responsibility and giving credit for intellectual work, and the Comparator had sufficient specialist statistical expertise to be considered a national expert. The Comparator’s evidence that he never asked to co-author publications; others decide to add my name if his intellectual input added value.

Membership of Research teams

The Complainant was not a full member of a research programme. Her evidence was that she worked on numerous funded projects including MTI projects, step projects, and EU-funded projects.

The Comparator was a member of large-scale research project teams, providing statistical support on the Meat Technology Ireland (MTI) programme and was a team member on three large scale research projects: Oak Park; Moorepark - Cong defect; Moorepark – Schemallenberg.

The Respondent contends that the Complainant was not required to play a leadership role in research design or to provide intellectual input into large scale research projects. Mr Troy’s evidence was that research projects were not part of her role, which was to provide routine statistical support and analyses for experiments to early-stage career scientists and students in the Food Programme only. He said that she did not lead research and engage with leaders.

National Committees

The Comparator was a member of the national Animal Ethics Committee, as a statistician is required on that committee.  The Respondent contends that the Complainant does not have the requisite level of knowledge or expertise to be invited to fulfil this function on this national research committee.

The Complainant said that she was a national recognised figure and had published work in UCD but that she was not given an opportunity to serve on national committees.

The Comparator said that he provided external advice to bodies like the Department of Agriculture and universities, especially the UCD Forestry Department. He was invited to give a workshop to the British Society of Agricultural science.

Consideration of the evidence

The core issue for the Court to determine is whether or not on the facts as presented the Complainant was engaged in the same or similar work as the Comparator during the relevant period.

In reaching its decision the Court has taken into consideration all the submissions, oral and written, made by the parties during the hearing, and the evidence adduced.

The Court finds the fact that the Complainant and her Comparator had the same Job Title, same Reporting Line and same Intranet Profiles (until 2019), and the fact they were both required to undertake the same qualification, a MSc in Statistics, to work as a Statistician, is supportive of the Complainant’s assertion that she and the Comparator engaged in “like work”, however, it is not sufficient of itself to cause the burden of proof to shift to the Respondent.

In the Court’s view, the Research Officer job adverts from 2001 and 2005, together with the clear lack of transparency around the Comparator’s appointment to the statistician post in 2006, provides context for the Complainant’s assertion that they both engaged in “like work”, however, they do not assist the Court in determining her claim that she was engaged in “like work” at a Senior Research Officer level during the relevant time.

The Complainant and Comparator were graded respectively as an Experimental Technician and a Senior Research Officer. A difference in grade between a Complainant and comparator does not always provide a sufficient defence to an employer in an equal pay claim. In the circumstances of this case, where the Complainant contends that her role has evolved over the years into a more complex role such that she now operates at a Senior Research Officer level, the Court is required to take a broader view and assess the nature of the work undertaken by the Complainant and the Comparator and consider whether other factors can explain their difference. 

In Susanna Brunnhofer v Bank der österreichischen Postsparkasse AG C-381/99 the ECJ at paragraph 42 held that:

“…it is clear from the Court's case-law that the terms the same work, the same job and work of equal value in Article 119 of the Treaty and Article 1 of the Directive are entirely qualitative in character in that they are exclusively concerned with the nature of the work actually performed (see Macarthys, cited above, paragraph 11, and Case 237/85 Rummler [1986] ECR 2101, paragraphs 13 and 23)”.

Having considered the nature of the work actually performed by the Complainant and her Comparator based on the evidence adduced in this case, the Court cannot conclude, for reasons set out below, that the Complainant has met the burden of proof in establishing “like work”.

Research design and analysis:

The Court heard that a Senior Research Officer role is focused on conducting research at an independent level and developing an independent research reputation with evidence of national recognition of achievements.

The evidence of Mr Troy was that research project were not part of the Complainant’s role, while the Comparator was engaged with project leaders in the design of projects and the publication and delivery of findings to statutory bodies. The Comparator’s evidence supported this assertion. He said that he carried out research design across four programmes, that most of his work was engaged in non-standard work dealing with complex issue around design, and that he was pro-active in streamlining processes to focus on more added value work. By comparison, the Complainant’s evidence was that her work included the design of experiments and conducting surveys and analysis. She accepted that she did not design studies and when pressed to give specific examples of her work in research design and analysis, her answers were vague.

Based on the evidence adduced, the Court finds that the Comparator’s role in research design and analysis was broader in remit compared to the Complainant, and that he serviced a different cohort to her. In the Court’s view, the demands placed on the Comparator in terms of research design and analysis exceeded those placed on the Complainant and were of greater value. As a result, the Court finds that they were not engaged in the same or similar work in that respect. 

Statistical Training:

The Court heard that as a Senior Research Officer the Comparator took a lead role in the provision of statistical training and provision of support in the use of statistical software.

The Comparator gave evidence of how he changed the delivery and focus of statistical training in the organisation by designing training courses and by developing and conducting clinics. By comparison, the Complainant delivered limited training on a one-to-one basis and no clinics.

Having regard to that evidence, the Court finds that the assertion that the Comparator delivered more training and at a more advanced level was supported by the evidence adduced.  As a result, the Court finds that they were not engaged in the same or similar work in relation to the delivery of statistical training.

Peer-reviewed Publications

The Court heard that a Senior Research Officer is required to conduct research and produce work that would merit national recognition.

Mr Troy’s evidence was that researchers who are appreciated for their intellectual contribution are cited as co-authors on publications and that the Comparator had sufficient specialist statistical expertise to be considered a national expert within the research community. It was not disputed that the Comparator had 57 peer-reviewed papers between 2015 and 2019, while the Complainant has no peer-reviewed publications in that period. The Respondent identified four articles by the Complainant from 1989, 2001, 2007 and 2011. She authored one publication in 2021 and one in 2023.

Based on the evidence adduced, the Court finds that the work undertaken by the Comparator in terms of peer-reviewed publications exceeded those produced by the Complainant, and therefore is of greater value. As a result, the Court finds that they were not engaged in the same or similar work in that respect.

Participation in large scale projects

The Respondent contends that, unlike the Comparator, the Complainant was not required to play a leadership role in research design or to provide intellectual input into large scale research projects.

The Complainant was not a full member of any research programmes. The Comparator was a member of several large-scale project teams. The Comparator’s evidence was that he provided a service across four research programme areas, contributing to projects as a full member, not just using his statistical experience. The Court heard from Mr Troy that while the Comparator was embedded in some projects more than a typical Senior Research Officer, the scale and complexity of certain projects required the involvement of someone with his research and statistical expertise.

Having regard to that evidence, the Court finds that, unlike the Complainant, the Comparator contributed as a full member providing intellectual input in research design on large scale research projects. As a result, the Court finds that Complainant and the Comparator were not engaged in the same or similar work in that respect.  

External committees:

The Comparator was a member of the National Animal Ethics Committee. The Respondent contends that the Complainant does not have the requisite level of knowledge or expertise to be invited to fulfil this function on this national research committee.

The Complainant said that she was never given an opportunity to serve on national committees but submits that she is a nationally recognised figure with published work in UCD. The Comparator said that he provided external advice to bodies such as the Department of Agriculture and universities and was invited to give a workshop to the British Society of Agricultural Science.

Based on the evidence adduced, the Court finds that the work undertaken by the Comparator in terms of participation in external national committees exceeded that of the Comparator, and therefore is of greater value. As a result, the Court finds that they were not engaged in the same or similar work in that respect.

Taking all the above factors into account, the Court is satisfied that the Complainant has not established that she engaged in the same or similar work at the level of a Senior Research Officer with her named Comparator.

The Court finds that the actual nature of the work undertaken by the Comparator differed from that undertaken by the Complainant. While there was a commonality in the type and nature of statistical work undertaken, and while the Comparator was focused on building further skills to enable career progression, the Court finds that overall, he was engaged in more strategic and innovative work at a senior level than the Comparator, that was attested by his research, publications and participation as a member of large-scale research projects.  The Complainant has not demonstrated in her evidence that she carried out work aligned to the Senior Research Officer grade.

The Court is satisfied that the Respondent was entitled to pay a different rate of pay to the Complainant compared to that paid to her Comparator, Mr Grant, as they were not engaged in “like work” and the reasons for doing so were outside of the discriminatory grounds set out in the Acts.

For the reasons set out above the Court is satisfied that the Respondent did not discriminate against the Complainants in paying her less than her nominated Comparator.  Accordingly, the Respondent is entitled to succeed in its appeal.

The Court finds the complaint under the Act is not well founded.

The Adjudication Officer’s decision is set aside.

	Signed on behalf of the Labour Court
	Katie Connolly
CC	______________________
19 September 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.