Complainant

Respondent

Parties

Christina  Boland

Munster Technological University MTU

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Barry Coughlan

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065722-001

01/09/2024

The Complainant is employed with the Respondent as a Traveller Liaison Officer. It is her complaint that she has not received equal pay. The Complainant gave evidence on affirmation. Ms. Brigid Quilligan gave evidence on affirmation. Submissions were received and shared with the Respondent.

The Respondent appeared with Ms. Siobhan Garvey, HR Manager, and Michael Hanrahan, Employee Relations Manager. Both individuals swore an affirmation.

It was the Complainant’s evidence that she is on a grade 3 salary but should be on a grade 5 o 6 salary due to the level of responsibility associated with the role. It was her evidence that she did “not feel I am being paid accordingly for my grade.” It was submitted that, from 2012, she was “denied rights of tenure, pay increments, and pension entitlements” due to the existence of a Service Level Agreement between MTU and the Kerry Traveller Health and Development Project.

She outlined her employment history from March 2010, when she was commenced employment with the Kerry Traveller Health and Development Project. She had a series of fixed-term contracts.

On 3 January 2023, the Complainant was offered a permanent contract of employment with the Respondent for the position she currently holds.

The Complainant outlined the demands of the role and her positive contribution to the students and the Respondent.

It was the Complainant’s evidence that she was treated less favourably than a member of the settled community.

The Complainant was cross-examined by the Respondent. She confirmed that she is paid at the highest rate on the grade 3 pay scale.

A comparator was identified by the Complainant, whom she accepted was also a member of the Travelling Community but worked on the MTU Cork campus. It was her evidence that she could not find anyone in the same role

Ms. Quilligan gave evidence of the relationship between the Kerry Traveller Health and Development Project and the Respondent. No questions were put to her in cross-examination.

A preliminary objection was raised by the Respondent after hearing the evidence of the Complainant.

It was submitted that the Complainant’s comparator was invalid on the basis that she holds a grade 5 position and is also a member of the Travelling Community. Therefore, the individual located in Cork cannot be relied upon as a comparator.

It was further submitted that this is not the appropriate forum for what is, in essence, a job re-evaluation exercise. It was outlined that there is a nationally agreed process with the union, Forsa. A review process took place recently, but the Complainant was not successful in that application. However, the process remains open to her.

In conclusion, it was submitted that there was no evidence of discrimination in terms of equal pay based on the Complainant’s membership of the Travelling Community.

No oral evidence was proffered by the Respondent.

Discrimination is defined in Section 6 (1) of the Employment Equality Act 1998-2015:-

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

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

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

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

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

Section 6 (2) provides:

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

(i)                  that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”

Section 7 of the Act addresses the requirement to demonstrate the work undertaken by the comparator is “like work”:-

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

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

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

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

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

(3) In any case where—

(a) the remuneration received by one person (“the primary worker”) is less than the remuneration received by another (“the comparator”), and

(b) the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c),

then, for the purposes of subsection (1)(c), the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator.

Section 19 of the Act provides for an entitlement to equal remuneration.

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

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

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

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

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

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

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

The Burden of Proof provided for under Section 85A of the Act:-

“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.”

Having carefully considered the evidence, I find the following:

There was no dispute regarding the important and positive role the Complainant holds with the Respondent.

The Complainant was not an employee of the Respondent from 2010 or 2012 up until 2023. This is evident from the series of contracts of employment she produced, which covered this period. She was employed by the Kerry Traveller Health and Community Development Project.

In January 2023, she was offered and accepted a permanent contract of employment at grade 3 with the Respondent. Consequently, no service prior to this date can be considered as continuous service with the Respondent.

The Complainant accepted that she is on the highest pay scale of grade 3.

She also accepted that her comparator holds a grade 5 position at the MTU Cork campus and is a member of the Traveller Community.

Applying the evidential requirements placed on a Complainant in an equal pay complaint, it is necessary to demonstrate how she has been treated less favourably compared to another person who undertakes like work and is not a member of the Travelling Community.

No evidence was adduced regarding the length of the comparator’s service, her experience, or the duties she undertakes as part of that role.

Section 9(5) of the Act allows the Respondent to pay different rates of remuneration to different employees on grounds other than gender. It is common knowledge that pay grades within the academic sector are publicly available.

The Complainant has not established a prima facie case of discrimination on the grounds of equal pay as a result of her membership of the Traveller Community.

I find the Complainant was not discriminated against by the Respondent as to her pay on the grounds of her membership of the Traveller Community.

Equal Pay – Traveller Community