Complainant

Respondent

Parties

Nora Rahill

Grangegorman Development Agency

Complainant

Respondent

Anonymised Parties

Representatives

Mr Tiernan Lowey BL instructed by Ms Jane Babb, McInnes Dunne Murphy LLP

Ms Katherine McVeigh BL instructed by Ms Sorcha Cusack, McCann FitzGerald LLP

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-00058507-001

25/08/2023

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

CA-00058507-002

25/08/2023

The Complainant has been employed by the Respondent since February 2008. She was initially employed as senior office administrator. It is being alleged that her duties quickly expanded. Since

2008 she has been known as Corporate Affairs Manager, was a member of the senior management team and was operating at Assistant Principal (AP) level whilst being paid at the Higher Executive Officer (HEO) grade.

This complaint was received by the Workplace Relations Commission on 25th August 2023. Two further complaints have been received since this initial complaint:

ADJ – 00051370 was received on 23rd April 2024 and ADJ – 00052750 was received on 3rd July 2024.

This decision will only address the complaints contained within ADJ – 00047457.

The complaints

·       The Complainant has instituted complaints of discrimination on the grounds of gender

experienced in her employment by the Respondent which occurred as a result of the

Respondent:

·       not remunerating the Complainant equally in comparison to her male comparators,

contrary to the provisions of section 29(1) of the Employment Equality Act 1998 (as

amended) (the “EEA”) (“the Equal Pay claim");

·       discriminating against, perceiving and treating the Complainant less favourably by

reason of her gender including in relation to her conditions of employment and

promotion (“the Discrimination claim"); and

·       victimising and penalising the Complainant for having raised a grievance in respect of

equal pay (“the Victimisation claim").

Factual background

·       The Respondent is headed by the CEO who is supported by five other senior

management team members. The five senior management team members are

remunerated at AP level. They are:

• Director of Construction and Infrastructure.

• Director of Strategy and Design.

• Director of Finance (the Complainant’s first comparator, Mr O’Sullivan).

• Director of Corporate Services and Community (the Complainant’s second

comparator); and

• Director of Programme and Procurement

·       The Complainant has been employed by the Respondent since February 2008. She

was initially employed as senior office administrator. A copy of the Complainant’s

contract of employment was available at the hearing.

·       The Complainant confirms that, while her contract of employment is in respect of a HEO

role, she only operated at that level very briefly. Her duties quickly expanded. Since

2008 she has been known as Corporate Affairs Manager, was a member of the senior

management team and was operating at Assistant Principal (AP) level.

·       Although, provisionally, the Complainant originally reported to the Director of Finance,

by 2009, she reported directly to the CEO with the title Corporate Affairs Manager.

That reporting relationship has been sustained and is shown in various organisation

charts from 2008 until 2023.

·       The Complainant never received an updated contract or any documentation to reflect

her expanded duties and responsibilities, contrary to section 5 of the Terms of

Employment (Information) 1994, as amended. Indeed, neither did the Respondent

provide the Complainant any formal written notification of the changes to terms and

conditions of employment arising from its purported variation of her terms and

conditions since on or around July 2023.

·       Until July 2023, the Complainant, under the title Corporate Affairs Manager, was

fulfilling the responsibilities and functions of a director. The Grangegorman

Development Agency Management Team Competencies Matrix shows the scope of

her role.

EQUAL PAY

·       The Complainant is remunerated in line with the Civil Service HEO Pay Scale, as set

out in section 2 of the Complainant’s contract of employment.

·       In making out her equal pay claim, the Complainant relies on two comparators, both

 are male. The Complainant, who is female, is paid less than her male comparators.

Comparator 1

·       Her first comparator is the Director of Finance.

·       Philip LeStrange was in that role from 18 February 2008 to 1 January 2010. Mr Peter

O’Sullivan was in that role from July 2013 until February 2024. Mr O’Sullivan has now

been promoted to Chief Financial Officer. He is one of the five senior management

team members as is the Complainant.

·       The Director of Finance is remunerated in line with the Civil Service Principal Officer

Higher Pay Scale.

Comparator 2

·       Her second comparator is the Director of Corporate Services and Community (the

DCSC).

·       This role is a new role and commenced in July 2023.

·       The DCSC is a member of the senior management team and does the self-same role

that the Complainant was doing until her duties were reassigned in July 2023 to the

DCSC.

·       The Director of Corporate Services and Community is paid at AP or Higher AP level.

In fact, with the sole exception of the Complainant, all other members of the

management team are paid at this level on the Civil Service Pay Scale.

·       When this role was advertised, the Complainant applied for it but was ultimately not

appointed. This forms part of the Complainant’s gender discrimination set out in more

detail below.

·       In summary, however, the Complainant will provide evidence to demonstrate that on

or around July 2023 ninety (90) per cent of her duties, together with her reporting staff,

transferred to this role.

Unlawful variation of contract

·       Prior to the appointment of the DCSC, the Complainant effectively carried out the same

role with some cosmetic differences and under a different and less prestigious

sounding title (“the Pre-July 2023 role”).

·       In July 2023, the Respondent acted in breach of contract fundamentally by removing

a significant number of her key functions and duties. This unlawful variation of the

Complainant’s terms and conditions of employment was effected unilaterally and

without the Complainant’s consent and remains a point of contention between the

parties. The Complainant’s new role is unrecognisable from that which she occupied,

albeit without due recognition, before for 14 years, from 2009 to 2023.

·       For the purposes of these submissions, the Complainant refers to her pre-July and

post-July 2023 roles.

·       The Complainant submits that up until July 2023 her role and that of Comparator 1 at

that time were similar and of equal value. The Complainant submits that the role she

did up until July 2023 and that of Comparator 2 are one and the same.

·       Prior to July 2023, the Complainant and Comparator 1 (and now Comparator 2):

• were employed by the Respondent with responsibilities and scope at the level of

director;

• report to the CEO;

• serve on the senior management team with equal status;

• have a number of equivalent grades reporting to them;

• were engaged in work and tasks that are similar and/or of equal value, taking into

consideration skills, experience, education, professional training, and

competencies.

·       The Complainant is female. The Complainant’s comparators are male. It is the

Complainant’s submission that her and her Comparator’s roles are like-work and

accordingly should be remunerated equally.

Pre-July 2023 role

·       In her pre-July 2023 role, the Respondent managed the corporate function with

executive operational responsibilities in particular for:

• Corporate Health and Safety;

• Human Resources;

• ICT & Digital Services;

• Corporate Information Management and Document Control;

• Communications;

• Compliance with Agency and public sector operational and general policy matters;

• Dail queries;

• GDPR;

• Open Data, Data Protection and Freedom of Information;

• Office Administration and Facility Management;

• Corporate Legal and Insurance;

• Community and Cultural Projects;

• Procurement of Corporate Services;

• Delivery of the social and cultural aspects of the Grangegorman Project; and

• Corporate Governance and Board Secretarial Services.

·       The Complainant’s Pre-July 2023 role was of equal value to that of the Director of

Finance. There was no disparity in terms of accountability, span of control, span of

responsibility and allocations of functions between the two roles. The Complainant

was, and was recognised by her colleagues as, a member of the senior management

team.

Post July 2023 role

·       Since the appointment of the Director of Corporate Services and Community in July

2023, the Complainant has effectively been demoted both her duties and status.

Ironically, this means that by its unilateral action, the Respondent has created a

situation whereby the Complainant is no longer engaged in ‘like work’ with either the

Director of Finance (Comparator 1) or the DCSC (Comparator 2) because, against her

will, she is no longer actually providing work of equal value to the Respondent.

·       However, the Complainant relies on the existing DCSC role as a comparator to her

Pre-July 2023 role, which role she would still occupy but for the unilateral and unlawful

variation of her contract of employment.

·       There is no disparity between the Complainant’s Pre-July 2023 role and that of the

DCSC in terms of accountability, span of control, span of responsibility and allocation

of functions. The areas of responsibility listed above have been transferred

from the Complainant’s Pre-July 2023 role to the role of DCSC. There is perhaps one

new work thread added to the DCSC role, which in normal circumstances and had the

Complainant continued in her former role, would certainly have come under her area

of responsibility.

·       To confirm, the current DCSC role is the self-same role as that fulfilled by the

Complainant from 2009 to 2023. Ninety (90) per cent of the Complainant’s

responsibilities and functions have been taken from her since July 2023. The

Complainant has been excluded from high level meetings she previously always

attended and her reporting staff have also been reassigned.

·       For the avoidance of any doubt, the Complainant does not accept or otherwise affirm

in any way the purported variation by the Respondent of her terms and conditions of

employment since July 2023. This variation is being effected unilaterally and without

her consent.

·       The director and senior management team roles across the Respondent organisation

are similar in terms of accountability and responsibilities. All of the senior management

roles, including the Complainant’s role until July 2023, hold significant strategic and

operational responsibilities. The employees holding those roles act as the strategic

decision makers of the organisation.

Effect of unequal pay

·       It is the Complainant’s understanding that despite their like work, the difference

between her remuneration and that of her comparators is in and around €25,000 per

annum.

·       Since 2008, when her pension is taken into account, the total shortfall in that period for

the Complainant amounts to €295,442. Details to explain these figures will be provided

at the hearing.

Requests for grade review

·       Since September 2010, the Complainant has sought a review of her grade on the basis

that she was being paid less than her counterparts for no objective or any apparent

reason. The employer has neglected to accede to her request.

·       On 5 August 2016, the Complainant wrote to the CEO requesting a review of her grade.

This was the Complainant's third such attempt to have a review of her grade addressed.

Respondent’s ‘business case’ to Department

·       On 4 September 2018, the Respondent finalised and presented to the Department of

Education, its parent department (“the Department”), a business case for the review of

the Complainant's grade.

·       The said business case unequivocally demonstrates that the Complainant’s duties and

responsibilities are similar to or are of equal value with those of the other senior

management team. It states, inter alia, that:

1.       the CAM is a key member of the senior management team reporting directly to the CEO;

2.       that the standard grade for project coordinators who report into the senior management

              team are at the assistant principal officer grade or equivalent; and

3.       that similar posts have been advertised at grades equivalent to that of Assistant

       Principal Officer (Higher) such as Corporate Services Director at the National Treatment      Purchase Fund.

·       In May 2020, a representative from the Department wrote to the Respondent CEO. In

her letter, the representative stated that the Department of Public Expenditure and Reform (DPER) would not agree to a review of the Complainant's grade. No objective reasons were identified in the DPER response to justify the ongoing and, clearly recognised, difference in pay between the Complainant and her male comparators.

·       DPER’s decision was communicated subsequently to the Complainant in an email from

the CEO dated 21 May 2020.

Crowe Report – Workforce Review

·       On 27 July 2021, the Respondent commissioned accountancy and advisory firm,

Crowe, to undertake an independent workforce review of the organisation. The Crowe

Workforce Review included reference to “Corporate Services & Governance” under

the heading of “Additional Posts Identified for Future Workforce Plan.”

·       At various iterations of the independent Crowe report, a new Corporate Services post

reporting to the Complainant’s role was considered at Assistant Principal (AP) and

Higher Executive Officer Level (HEO).

·       On or about April 6, 2022, the Crowe Workforce Review was submitted to the

Department of Further and Higher Education, Research, Innovation and Science (the

“Department”). It set out priority needs for a Corporate Services Manager reporting to

the CAM, the Complainant’s role.

·       The role independently recommended by the Crowe report was not pursued by the

Respondent.

Talbot Report – Grievance

·       A grievance was raised on behalf of the Complainant by Forsa on or around 26 March

2021. Karen Talbot was appointed to investigate the grievance.

·       On or about 11 May 2022, Ms Talbot issued her final report in respect of the

Complainant’s grievance to the Respondent. Subsequently, on or about 25 May 2022,

the CEO provided the final Talbot Report to the Complainant.

·       The Complainant’s job title was not explicitly mentioned in the Talbot Report. For

reasons that remain unclear, the Complainant’s job was referred to in the report as

“Ms. Rahil’s role”. Conversely, when referring to the Complainant’s comparator, the

report referred not to the person but to the job title.

·       The Complainant submits that the Respondent’s discriminatory attitude of her is

revealed in some of the language contained in the report. For instance, when speaking

with the investigator, the CEO used dismissive and gender-based language to describe

the tasks and responsibilities of the Complainant.

·       The Talbot Report made no findings objectively justifying the difference in pay between

the Complainant’s role and that of her comparator.

·       Instead, it recommended that consideration be given to the appropriateness of the

management structure and grading, including with respect to the Complainant’s

position. The Complainant submits that this finding denotes a recognition of the unfair

disparity between the Complainant’s role and that of other members of management.

·       For reasons that have never been reported, Ms Talbot’s recommendation in this regard

has not been implemented by the Respondent in respect of the Complainant’s grade

and corresponding remuneration.

Clause 2 of Contract of Employment

·       The Complainant submits that her unequal treatment in relation to remuneration arises

as a result of direct discrimination. In the alternative, it is submitted that clause 2 of her

contract of employment, which sets out her salary, represents an apparently neutral

provision but puts the Complainant, as a female, at a particular disadvantage in respect

of remuneration compared with other employees.

Clause 2 provides that:

“The position carries a salary of €55,132 per annum (Scale: HEO (pt 7), Class

A PRSI), which will be paid fortnightly in arrears into your bank account less

statutory PAYE and PRSI and other appropriate deductions. Increments within

each grade are granted annually on the anniversary of your employment

commencement date, subject to satisfactory service and on a discretionary

basis.

The salary will be subject to general pay increases applicable through the

public service; and will be adjusted otherwise as determined by the GDA with

the consent of the Minister for Education and Science and the Minister of

Finance.”

·       Despite the obvious and repeated examples of the recognition of the unfairness and

disparity in pay by both independent parties (Crowe and Talbot) and the Respondent

itself (business case to the Department), the Respondent has continued to fail to vary

the Complainant’s pay to reflect her value to organisation.

·       In so failing, the Respondent purports to rely on the provision dealing with remuneration

in the Complainant’s contract of employment and the requirement to obtain external

approval for change. The provision, while seemingly neutral on its face clearly puts the

Complainant at a distinct disadvantage when compared to other male employees

carrying out the same work but to whom this provision is not attached.

·       Not only is the provision in and of itself manifestly unfair, but so too is the Respondent’s

continued insistence on its application in the face of evidence demonstrating the

unreasonableness of such a position.

GENDER DISCRIMINATION

·       In relation to the claim for discrimination, the Complainant has been subjected to

specific treatment and disadvantaged by reason of her gender continuously over the

entire course of her employment.

              1.0 The Complainant’s employment and the role she was tasked to perform between 2008

and 2023 represented a “quiet promotion”. To this end, the Complainant was given

ever-increasing duties and accountability without commensurate salary increases in

recognition of same.

2.0 As the Respondent organisation evolved, it assigned to the Complainant, and she

fulfilled, more complex responsibilities without any increase in pay or any change to

her terms and conditions of employment despite repeated requests on her part for a

fair and equal review of her grade.

3.0 The Complainant has been treated by the Respondent as an organiser/administrator

while fulfilling executive level responsibilities. However, the self-same responsibilities

undertaken by her male colleagues are perceived and treated as executive level

responsibilities. The Complainant’s “soft skills” and areas of executive responsibility

have been treated, whether consciously or unconsciously, by the predominantly male

leadership in the Respondent organisation as being of lesser value than areas of

executive responsibility fulfilled by her male comparators.

4.0 The Complainant was disadvantaged in relation to promotion (details below) by

reason of her gender because candidates were not assessed under two of the six key

public sector competencies for Assistant Principal Officers.

VICTIMISATION

·       In March 2021 the Complainant raised a grievance in relation to her unequal pay. Subsequently the Complainant suffered a series of exclusions and reductions of duties.

·       On or about 13 October 2021, the Complainant raised concerns with the CEO about

her exclusion from meetings and the lack of professionalism and courtesy that was

shown to the Corporate Affairs role. The ongoing exclusion from meetings and

discussion disadvantaged her in terms of knowledge, input, opinion and development

as compared to the other members of the senior management team and undermined

her role.

·       On or about 9 June 2022, the CEO sent an email to the Complainant in which he set out the roles he was seeking sanction for from the Department further to the Crowe Report, including a Corporate Services role.

The Complainant questioned whether the Corporate Services role was one and the

same as the role the Complainant had been performing for many years. In response,

the CEO said that receiving sanction for the Corporate Services role was a way to

address and resolve the Complainant’s request for a review of her grade, or words to

that effect.

·       On or about 13 June 2022, the CEO wrote to Eamonn Dunican of the Department

seeking permission to commence recruitment for various posts, including Corporate Services. The CEO described the Corporate Services as follows:

“As noted in the Workforce Plan, the corporate function supports all other

functions of the Agency and is currently very stretched in terms of capacity. As

the overall workload has increased in volume and complexity, and as

challenges, demands and expectations around IT, HR, Governance, GDPR,

and other related areas continue to increase for the Agency, so the corporate

function must grow and mature in response. Risks in this area include, for

example, cyber security, failure to comply with Codes of Practise on

Governance, and failure to realise the full potential of the Agency in the most

efficient manner. This role is required to better provide Corporate Services

across the Agency, including to the Board and other Governance structures as

appropriate, and to assist the CEO and the executive in fulfilling their duties in

the most effective and efficient manner.

This role will be at Assistant Principal grade

• For the lifetime of the Agency

• And will report to the CEO”

·       On or about 22 June 2022, the CEO received sanction for four posts including that of

Assistant Principal Officer (Corporate Services) from the Department. At a board

meeting in June 2022 at which the Complainant was not in attendance, the CEO

shared a new structure which indicated that the Complainant’s role had been demoted

from the senior management team.

·       On or about 28 July 2022, the CEO sent an email to the Complainant in which he

stated, inter alia, “…I will need to define the corporate services role, and the title will

flow from that. It is a new position, and getting approval from DEPR has circumvented

the need for any role review”.

Appointment of DCSC role

·       On 18 January 2023, a job description for the DCSC was advertised as if it were a new

role. In fact, the body of work posted under the title of DCSC is the same as the body

of work the Complainant, as a member of the Agency's Senior Management Team,

has performed since 2009 albeit under the job title, Corporate Affairs Manager. This

includes the Complainant’s former management of nine staff.

·       A copy of the Candidates Information Booklet was available at the hearing.

Any fair assessment shows that the role advertised is precisely the role for which the Complainant had been seeking a grade review since 2010.

·       In March 2023, the Complainant applied for the position of DCSC. Despite the deadline

set out in the competition booklet the search continued after that deadline. Thirty three

(33) candidates applied, four were shortlisted but only two candidates (including the

Complainant) were interviewed.

·       In Public Sector recruitment, the candidate information booklet will normally include in advance any competency model forming part of the selection process. Unusually, in this process, no such competency model was include in the booklet and the Complainant was only made aware that a competency model would be used when she received an invitation on 6 April 2023 to interview for the role seven days later, on 13 April 2023.

·       Previously, the Respondent had always applied a key achievements approach as

·       opposed to the competency model in its interview process and at Director level the

Complainant expected to be asked for a presentation on a “specific question relevant

to the role”.

·       On or about 6 April 2023, the Complainant received the formal invitation to interview

and confirmation of the six areas of competency the Interview Board would consider

at Assistant Principal Level:

o Leadership

o Management and Delivery of Results

o Interpersonal & Communication skills

o Specialist knowledge expertise and self-development

o Analysis & Decision Making

o Drive & Commitment to Public Service Values

At interview the Complainant was in fact only examined under 4 competencies:

o Leadership

o Management and Delivery of Results

o Interpersonal & Communication skills

o Analysis & Decision Making

·       The Complainant was not examined under 2 key competencies

o Specialist knowledge expertise and self-development

o Drive & Commitment to Public Service Values

·       No objective reason was given for not assessing the candidate under these two key

AP level competencies. It is submitted that assessing her under these competencies

would have strengthened her score and that these competencies were discounted as

soft skills.

·       Although normal procedure would be to inform an internal candidate in person of the

·       results of a recruitment process, on 20 April 2023, the CEO informed the Complainant

·       by email that her application for the position of DCSC was unsuccessful. He stated

“It was the view of the Interview Panel that you did not demonstrate sufficiently

your suitability for the position of Director of Corporate Services and

Community.

The winning candidate has been offered and has accepted the position and will

be commencing in the role in the coming weeks.”

·       It is submitted that without any explanation the skills brought uniquely by the

Complainant were not assessed at interview. It is submitted that in the same way as

the CEO used language that cast the Complainant’s contribution in terms of

assistance or administration and so diminished it, the interview board failed to take

equal account of each of the 6 key areas of competency at Assistant Principal Level.

It is submitted that, consciously or unconsciously, the Respondent is dismissing those

skills and contributions because they were contributed by a woman.

·       On or about 9 May 2023, the Complainant attended a meeting with TU Dublin, the

purpose of which was to update TU Dublin on areas of work performed by GDA. The

Complainant attended with other members of the senior management team and

provided context surrounding the areas that fell under Corporate Services. At that

meeting the organisation chart distributed reflected the Complainant position of CAM

as a member of the senior management team.

·       Following the meeting, the CEO issued a new GDA structure to TU Dublin in which the

Complainant’s post (Corporate Affairs Manager) had been demoted and removed from

the senior management team. The Complainant was not copied on the email that was

circulated showing the new GDA organisational structure. Two staff members: Lori

Keeve and Anne Marie Deasy who reported to the Complainant were included in the

email circulation.

·       On or about 24 May 2023, a revised organisational chart was circulated by email to a

representative of TU Dublin and various GDA employees. That organisational chart

denoted the CAM position as reporting to the DCSC position, rather than directly to

the CEO. The CAM position was no longer listed as a member of the senior

management team.

·       The Complainant’s core functions and responsibilities have been reassigned to the

DCSC. In a meeting with the CEO on 6 June 2023, the Complainant was told her

duties would be reassigned to the incoming DCSC. The Complainant conveyed that

she did not agree to the removal and reassignment of her duties.

·       In an email of 15 June 2023 entitled “DCSC Role and CAM Role” the CEO outlined the

delineation of duties between the DCSC and the CAM roles and subsequently

communicated to the Complainant that she would be relieved of the following duties:

Corporate Services, including Communications, Human Resources, IT, Corporate

Governance and Company Secretary and that these core duties and responsibilities

would be reassigned to the new DCSC effective 3 July 2023.

·       Since July 2023, the Complainant has not been invited to any of the senior

       management team meetings and was not included in the annual planning for 2024

having been part of those meetings since the current CEO was appointed.

The law

Equal Pay claim (CA-00058507-001)

Section 19 of the EEA provides that:

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.”

·       There is no defence for direct discrimination. Section 19(4)(b) provides a potential

defence to employers for indirect discrimination if they can demonstrate that there is

objective justification for such treatment.

Sections 19(5) confirms that an employer is entitled to pay difference rates of

remuneration to different employees on grounds other than the gender ground.

Section 29 contains an equivalent confirmation in respect of the eight other grounds

of discrimination in the EEAs.

·       Most of the jurisprudence in this area deals with equal pay as between men and

women, as in practice this is where the problem most often arises. The legal principles

are the same, however, for other grounds of discrimination.

·       Leading Irish commentators4 have succinctly explained how the burden of proof

operates in an Equal Pay claim as follows:

“If the complainant can prove that they are being paid less than their chosen

comparator for doing like work, then that is prima facie evidence that the

complainant has been unlawfully discriminated against on one of the prohibited

grounds. It is for the employer to prove the difference in pay is based on non-discriminatory

grounds or can be objectively justified.”

·       It is respectfully submitted that the Complainant’s evidence will prove she is paid less

than her comparators who are both men for doing like work. Therefore, she succeeds

in raising a prima facia case and it will be for the Respondent to prove the difference

is based on non-discriminatory grounds or can be objectively justified.

Is the Named Comparator engaged in Like Work?

‘Like Work’

·       It is submitted that the entire basis of equal pay is that a person is doing like work with

an identified comparator.

·       An analysis of the respective roles reveals that there are no significant differences

between the roles of the Complainant and the named comparators or either of them.

·       Like work is defined at section 7(1) of the EEA as occurring where

“(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.” [emphasis added]

·       The Labour Court has clearly stated that it is a “condition precedent” to an entitlement

to equal pay that the comparator and the complainant are doing like work (Donegal Meats Processor Limited v Rodrigo Da Silva EDA 093).

Similar Work

·       The concept of similar work has been broadly interpreted by the Courts.

·       In the case of Capper Pass v Lawton ([1977] QB852) a female cook who worked in a directors’ dining room of a company prepared 10 or 20 meals a day. She sought to compare

herself to male assistant chefs who worked unsupervised in the staff canteen

preparing approximately 350 meals a day. The work was generally of a similar type

with similar skill and knowledge required. The basic process involved in the two roles

was essentially the same. The female cook was successful in arguing that the male

assistant chefs were her comparators.

·       It is submitted that the jobs of the Complainant and the Comparators and each of them

are similar. A similar job does not have to be either identical or interchangeable but it

is still alike in many respects (Page 637 of Employment Equality Law; 2nd edition; Roundhall by Bolger, Bruton and Kimber).

Equal Value

·       Without prejudice to the foregoing, it is submitted that even if the Adjudication Officer

does not find that this is a case of similar work then it is submitted that it is a case of

work of equal value. The roles held by/previously held by the relevant individuals and

their functions are clearly of equal value.

·       Section 7(1) (c) of the Acts provides guidance as to how an assessment is to be carried

out in relation to whether two roles are of equal value. Regard is to be had to skill,

physical or mental requirements, responsibility and working conditions. It is submitted

that the evidence will clearly establish that the work of the Complainant and of each

of the comparators is of equal value.

·       The second comparator is doing the role that the Respondent was doing until the

appointment of the second comparator.

Comparisons

·       The Complainant’s role and the Comparators role satisfy the definition of “like work” as they are either “similar work” or “work of equal value”.

·       The Complainant submits that up until June 2023 her role and that of her first

comparator at that time and that of the second comparator since July 2023:

• are employed by the Respondent with responsibilities and scope at the level of

director;

• report to the CEO;

• serve on the senior leadership team with equal status;

• are members of the annual planning Forum with equal status;

• have a number of equivalent grades reporting to them;

• are engaged in work and tasks that are similar and / or of equal value, taking into

consideration skills, experience, education, professional training, and

competencies.

·       They are engaged in work and tasks that are similar and / or of equal value, taking

into consideration skills, experience, and competencies. It is noteworthy that this is in

reality the premise of the CEO’s application and business case in 2016.

·       The Complainant submits that the Respondent must accept, given the submission that

she and the comparators have done like work since her role was first expanded in 2009.

Inference of Discrimination

·       Section 19(1) of the EEA prohibits direct and indirect discrimination on the grounds of

gender.

·       Section 19(1), EEA provides that:

“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.”

·       Section 18(1)(a) provides that, “for the purposes of this Part "A" and "B" represent 2

persons of opposite sex so that, where A is a woman, B is a man, and vice versa.”

The Burden of Proof

Has the Complainant made out a Prima Facie case?

·       The Complainant respectfully submits that she has made out such a case on the facts

provided. In Enderby v Frenchay Health Authority and Anor [1993] IRLR 591, the

CJEU held, in the context of sex discrimination relating to pay, that:

“There is a prima facie case of sex discrimination where valid statistics disclose

an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men.”

·       Respectfully, it is submitted that the above narrative demonstrates that there are no

justifiable reasons for any difference in pay between the Complainant and her named

comparators or either of them.

·       There is no transparency as to the reasons for the obvious and significant differences in pay.

·       Section 85A (1), EEA provides:

“Where in any proceedings facts are established by or on behalf of a

complainant from which it may be presumed that there has been discrimination

in relation to him or her, it is for the respondent to prove the contrary.”

·       In Southern Health Board v Mitchell DEE011 (2001) E. L. R. 201, the Labour Court

held that:

“the first requirement is that the claimant must establish facts from which it may

be presumed that the principle of equal treatment has not been applied to them.

This indicated that a claimant must prove, on the balance of probabilities, the

primary facts on which they rely on seeking to raise a presumption of unlawful

discrimination. It is only if those primary facts are established to the satisfaction

of the Court, and they are regarded by the Court as being of sufficient

significance to raise a presumption of discrimination, that the onus shifts to the

respondent to prove that there is no infringement of the principle of equal

treatment’.”

·       It is respectfully submitted that the facts provided in the within submission clearly raise

an inference of discrimination on the grounds of gender.

·       In this regard, it is worth restating that at no time has the Respondent given an

objective reason justifying the difference in pay between the Complainant and her

male comparators. It falls then that the comparators’ roles must be examined in further

detail.

·       The post of DCSC was sanctioned and advertised in 2023 with the corresponding

higher pay rate.

·       As the Labour Court held in the Department of Justice, Equality and Law Reform

and CPSU EDA 0713:

“It is now well settled that discrimination, including discrimination in matters of

pay, can be direct or overt or indirect or covert. Direct discrimination arises

where a man or a woman is discriminated against because of his or her sex or

because of a criterion linked to a characteristic which is indissociable from sex.

(see Opinion of Jacobs AG in Schnorbus v Land Hassen [2000] ECR 1 10997).”

Lack of transparency

·       In Calor Teo v Brierton EDA 10/2015, the Labour Court, in refusing to accept the

existence of grounds other than age for differences in pay, was critical of the

company’s pay determination system which was “devoid of any structure and was

wholly opaque” and was thus “inherently open to being tainted by discrimination”.

·       It is respectfully submitted that there is an absence of candour in the reason that the

Complainant has not been permitted to advance up the salary scale in accordance

with her role

·       In Case 109/88 Handels- og Kontorfunktion Rernes Forbund I Danmark v Dansk

Arbejdsgiverforening acting on behalf of Danfos [1991] 1 CMLR 8, the CJEU

(formerly the ECJ) was called upon to consider a case in which pay supplements were

determined by a system wholly lacking in transparency. The Court held at paragraph

13 as follows: -

“It should next be pointed out that in a situation where a system of individual

pay supplements which is completely lacking in transparency is at issue, female

employees can establish differences only so far as average pay is concerned.

They would be deprived of any effective means of enforcing the principle of

equal pay before the national courts if the effect of adducing such evidence

was not to impose upon the employer the burden of proving that his practice in

the matter of wages is not in fact discriminatory”.

·       As the Labour Court opined in Brierton

“[…] the principal that can be extracted from the [Danfos] decision is that

opaqueness in a pay determination system, in combination with other factors,

can operate to shift the burden of proving the absence of discrimination to the

employer.”

·       To date, no objective reasons have been identified or tendered to the Complainant to

justify the difference in pay between the Complainant and her male comparators.

There has been a continuum of less favourable treatment which is rooted in the

discriminatory perception of the Complainant’s role since 2008.

·       From the facts set out above, there is sufficient evidence to raise a presumption of

discrimination on the grounds of gender. Accordingly, the burden of proving

compliance with the principal of equal treatment now shifts to the Respondent.

Discrimination claim – CA-00058507-002

·       Discrimination on the grounds of gender is prohibited by the EEA. The relevant

provisions of the EEA are:

6.— (1) For the purposes of this Act and without prejudice to its provisions

relating to discrimination occurring in particular circumstances discrimination

shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or

would be treated in a comparable situation on any of the grounds specified in

subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

(i) is treated, by virtue of that association, less favourably than a person who

is not so associated is, has been or would be treated in a comparable

situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds

would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions

of those grounds for the purposes of this Act) are—

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

gender ground”),

[n/a]

(2A) Without prejudice to the generality of subsections (1) and (2) , discrimination

on the gender ground shall be taken to occur where, on a ground related to her

pregnancy or maternity leave, a woman employee is treated, contrary to any

statutory requirement, less favourably than another employee is, has been or

would be treated. ]

·       Section 8 of the EEA lists a number of instances where discrimination is prohibited:

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective

employee and a provider of agency work shall not discriminate against an

agency worker.

·       The Complainant submits that she has been discriminated against on the gender

ground in relation to her conditions of employment, promotion, re-grading and

classification of her post.

·       Further, the Respondent has failed to provide any non-discriminatory explanation or

objective justification for this mistreatment.

·       The Labour Court has also recognised the scope for indirect discrimination in certain

situations. In Mary Immaculate College v Sister Loye EDA082/2008, the Labour Court

held that the failure of a person to be selected for retention in employment was

because of an assumption that she had an old-fashioned approach to teaching and

was believed to have an older teaching ethos was found to be indirectly discriminatory

on grounds of age. In the instant case, the Complainant draws an analogy with the

gender ground and the Respondent’s implicit and sometimes explicit assumption that

the Complainant occupied a more administrative role with greater expertise in s—

called softer skills.

·       In finding that the complainant had been discriminated against in Mary Immaculate

College, the Court made the following inciteful comment, which have application to the

instant case too:

“During the course of the hearing, it became clear to the Court that the thrust

and ethos of the interview process was to change and modernise the institution,

and to appoint to permanency younger and more dynamic people who would

be able to meet the requirements of a younger and more dynamic head of Department.”

·       The Court went on to find that:

“It is the view of the Court that, unfortunately, her employers regarded her as a

person from another era who was ‘out of her time’ and would not fit into the

idea of a modern 21st Century institution which the College wished to establish.

The Court finds that the respondents have not satisfactorily discharged the

burden placed upon them. The Court finds that while the complainant would

have undoubtedly lost marks for not having completed her PhD, and for her

lack of research and publication, nevertheless the difference in marking

between her and the other candidates in an interview for permanency, coupled

with the fact that, having found her completely unsuitable, without any effort to

provide retraining, the College then reappointed her to that position until retirement, can only lead the Court to conclude that the Respondents, while not specifically taking the plaintiff’s age into account, decided that because her approach and ethos were those of someone from a different era, accordingly she would simply not ‘fit in’. Since the complainant’s approach to teaching and her ethos were inextricably linked to her age and the era in which she grew up, the respondents did discriminate against the complainant on the grounds of her age in breach of Section (2) & 8(1) of the Act.”

The Labour Court has also recognised that discrimination may also arise unconsciously. In Dublin City University v Jane Horgan EDA0715, another age/gender discrimination case, the Labour Court held that:

“The requirement to establish that there was no discrimination whatsoever means that the Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution”.

Burden of proof

·       It is submitted that where the Complainant has raised a prima facie case of discrimination, the burden of proof shifts to the Respondent.

·       Section 85A of the EEA further sets out the burden of proof in discrimination claims as follows:

“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”

·       As set out in Teresa Mitchell v Southern Health Board [2001], the first requirement for a claim of discrimination is that the Complainant must “establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.”

·       This requirement for the Complainant to establish a prima facie case of discrimination was further elaborated on in the decision of Melbury Developments v Arturs Valpeters EDA0917. In that case, the Labour Court outlined that:

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

·       In establishing a prima facie case, the Complainant must demonstrate the following elements as summarised in the decision of Minaguchi v Wineport Lakeshore Restaurant DEC-E2002-020:

“(i) that [the Complainant] is covered by the relevant discriminatory ground(s) that [the Complainant] has been subjected to specific treatment and that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

·       It is submitted that the material facts to establish a prima facie case of discrimination have not yet been disputed by the Respondent and that, subject to the position adopted by the Respondent at hearing, the Complainant has established the relevant facts. Accordingly, the burden of proof shifts to the Respondent.

Victimisation claim

Victimisation is defined in broad terms under the EEA. Section 74(2) provides:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

·       Section 74(2) of the EEA sets out the acts which are protected from adverse treatment on the part of the employer, and the actions which an employee must have taken/indicated an intention to take, from which the reactionary behaviour of the employer emerged.

·       The key elements of victimisation provided for in therefore are as follows:

a. The employee had taken action of a type referred to at s.74(2) of the Acts (a protected act),

b. The employee was subjected to adverse treatment by the respondent, and.

c. The adverse treatment was in reaction to the protected action having been taken by the employee.

·       Once these proofs are met, there is no defence within the legislation (See A Female Teacher v A Board of Management of a Secondary School DEC-E2012-103).

·       It is submitted that the Complainant has established the necessary nexus between her efforts to assert her equality rights and the detriment to which she has been subjected as a result of same.

·       Further. in order to meet the burden of proof required by s.85A of the EEAs, the Complainant has demonstrated that there is a causal connection between her making representations about the unfairness of her position to the Respondent and the adverse treatment to which she has been subjected. As victimisation is defined as discrimination for the purposes of the burden of proof required by the EEAs, the general rules concerning burden of proof apply to victimisation. The relevant case law shows that a wide variety of actions have been found to be victimisation.

·       In Panuta v Watters Garden World Ltd [2010] E.L.R. 86, the Labour Court rejected the proposition that victimisation could only arise where a person suffered a detriment in respect of his or her conditions of employment. The court was satisfied that the decision of the Court of Justice in Coote v Granada Hospitality Ltd [1998] E.C.R. I5199; [1998] I.R.L.R. 656 was authority for the proposition that the concept of “victimisation” should be “construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act”

Conclusion

The Complainant’s claim is well founded. She is entitled to inter alia:

-          compensation in relation to outstanding back pay together an Order for equal pay going forward;

-          compensation for the acts of discrimination and victimisation;

-          an order for payment of interest under the courts act 1981 on all of the compensation and arrears of equal pay;

-          an order that of all duties and responsibilities that were removed from her remit in favour of the position of DCSC be restored to the Complainant

-          an order that the complainant’s role be regraded and remunerated at the Assistant Principal level;

-          an order that she not be subject to any further unfavourable treatment. 

·       The Complainant reserves the right to make further submissions in relation to all the complaints outlined in this submission and to adduce further evidence at the hearing of this matter.

·       As a final note, the Complainant submits that she is very committed and loyal to working in the Respondent and values the good working relationships that she has with her colleagues. The Complainant does not take this action with an acrimonious approach, but rather, after deep consideration of her Public Sector Duty and all that has been said and written recently about culture, being treated fairly, the gender pay gap reports, setting up a women’s network to support equality, equity and parity with male colleagues, and noting that the goal of equality can only be achieved through the process of equity.

INTRODUCTION

·       On 25 August 2023, the Complainant instituted two specific complaints under the

Employment Equality Acts, 1998 – 2015 (hereafter the “1998 Act”). These

complaints have been listed for hearing before the Workplace Relations Commission

(the “Commission”) on 25 April 2024, following a hearing date previously scheduled

for 9 February 2024 and adjourned on the application of the Complainant.

·       In Specific Complaint CA-00058507-001, the Complainant alleges that she has been

discriminated against on the ground of gender in terms of equal pay, and identifies

two comparators.

·       In Specific Complaint CA-00058507-002, the Complainant alleges that she has been

discriminated against on the grounds of gender by an alleged failure on the part of the

Respondent in getting her a job; promoting her; victimising her; conditions of

employment; and harassment.

·       On Friday 19 April 2024, before the hearing scheduled for the following Thursday 25

April 2024, the Complainant particularised her complaints by way of a 394 paged legal

written submission delivered by her solicitor.

·       It appears from the Complainant’s submission (paragraph 2.1.2) that she has

abandoned part of Specific Complaint CA-00058507-002, namely that she was

discriminated against in getting a job, in her conditions of employment and the

harassment claim. The Complainant specifies that the two complaints that she

maintains at paragraph 2.1.2 are (i) a discriminatory conditions of employment claim

and (ii) unequal access to promotion.

·       As part of that submission, the Complainant for the first time in this long-running

dispute has introduced new allegations against the Respondent. This submission

endeavours, in the available time before the scheduled hearing to respond to the

Complainant’s allegations.

·       The cognisable period for the complaints is from 26 February 2023 to 25 August 2023.

·       The Respondent denies the above allegations and delivers the within submission in

response to the Complainant’s outstanding claims in her recent legal written

submission. The Respondent strictly reserves the right to make further submissions,

both orally and in writing, in response to any further submission delivered by the

Complainant.

BACKGROUND

Overview of Grangegorman Development Agency

·       The Grangegorman Development Agency (the “Respondent” or the “Agency”) is a

statutory body established in 2006 by the Grangegorman Development Agency Act

2005 (the “2005 Act”). The 2005 Act established the Respondent as the agency to plan

and oversee the development of a major site at Grangegorman in Dublin north-west

inner city, originally the location of St. Brendan’s mental hospital (a 73-acre site). The

sponsoring department of the Respondent is the Department of Further and Higher

Education, Research, Innovation and Science (the “Parent Department”).

·       The Complainant commenced employment in or around February 2008 as a “Senior

Office Administrator”, initially reporting to the Director of Finance. As the Agency

experienced significant growth, the role of the Senior Office Administrator quickly

developed to the role of “Corporate Affairs Manager” (“CAM”).

·       The Respondent employs approximately 37 staff. The Complainant is employed at the

Higher Executive Officer (“HEO”) grade. Throughout the years of the Complainant

seeking a re-grading of her role, there has been a gender mix of both male and female

directors at Assistant Principal (“AP”) Officer level (the grade in which the

Complainant’s two comparators are employed), details of which are as follows:

-          In 2016, when the Complainant sought to have her role re-graded, there were two male directors and one female director (the Director of Construction & Operations) at AP Officer level.

-          That remained the gender breakdown of the directors at AP Officer level up until

2021, when the female Director of Construction & Operations retired.

-          In September 2022, another female was appointed a director at AP Officer (Higher)

level (Director Programme & Procurement).

-          On 25 August 2023, the date of the institution of the Complaint Form, there were

three directors at AP (Higher) level (two male directors and the female Director

Programme & Procurement) and one male director at AP level. Organisation charts

of the Agency both in 2017 and 2023 were included in the submission.

·       Following an internal restructuring, a new position of Director of Corporate Services

and Community (“DCSC”) was created in July 2023 and at the time of the initiation of

the Complaint Form on 25 August 2023, the Complainant now reports to the DCSC,

not the CEO.

Role Review

·       On 5 August 2016, following informal requests, the Complainant formally wrote to the

CEO of the Respondent seeking to have her role re-graded from the current Higher

Executive Officer grade to the AP grade.

·       Pursuant to section 24 of the 2005 Act, the renumeration, grading and

terms of employment of the Respondent’s staff are strictly subject to ministerial

consent. Section 24 of the 2005 Act deals with staff of the Respondent and provides:

(1) The Agency may appoint such and so many persons to be members of the staff of

the Agency as it may determine with the consent of the Minister and the Minister for

Finance.

(2) The grades of the staff of the Agency and the numbers of staff in each grade and the

appropriate level of remuneration for each grade shall be determined by the Agency

with the consent of the Minister and the Minister for Finance.

(3) A member of the staff of the Agency shall—

(a) be paid out of moneys advanced to the Agency in accordance with section

14, such remuneration and allowances for expenses incurred by him or her as

the Agency may, with the consent of the Minister and the Minister for Finance,

determine, and

(b) hold his or her office or employment for such term upon and subject to such

other conditions (including terms and conditions relating to remuneration) as

may be determined by the Minister after consultation with the Agency and

with the consent of the Minister for Finance.

·       In line with section 24 of the 2005 Act, the Respondent made a request to the Parent

Department to prepare a joint submission to DPER seeking to have her role re-graded.

The Respondent via the Parent Department made two role requests, the first in 2018

and the second in 2020, both of which were unsuccessful.

(i) First Role Review Request to DPER (2018)

In September 2018, the Agency via the Parent Department submitted a formal

business case to DPER (Appendix B2) seeking the review of the Complainant’s

role, strongly recommended by the CEO and Board of the Agency. On 29

November 2019, DPER refused the request on the basis that:

“such an upgrading is contrary to public service pay policy and is precluded under (i) the

terms of the Public Service Stability Agreement (“PSSA”) and (ii) the Financial

Emergency Measures in the Public Interest Act 2009 (no.2).”

(ii) Second Role Review Request to DPER (2020)

On 18 February 2020, the Parent Department wrote to DPER seeking a second

review of the business case. This again was refused by DPER and communicated

by the Parent Department to the Agency on 15 May 2020, where the Parent

Department stated:

“Given the exceptional circumstances, we have invested considerable effort in trying to

secure this role review, with the support of our Finance Unit and External Staff Relations.

However, the DPER position has been made very clear and unfortunately I do not see scope

to advance this any further”.

·       In circumstances where the Agency is a creature of, and bound by, statute, like the

Workplace Relations Commission, it is prohibited by law in going against the two

determinations of DPER communicated via the Parent Department. Copies of

correspondence between the parties relating to the two role reviews was made available to the hearing.

Grievance Procedure Investigations - The Talbot Report (2022)

·       In March 2021, the Complainant submitted a grievance to the Respondent on foot of

which an independent investigator, Ms Karen Talbot of Talbot Pierce, was appointed

by the Respondent.

·       The investigation was carried out between July 2021 - May 2022, and an Investigation

Report was issued by Ms Talbot on 11 May 2022 (the “Talbot Report”).

·       As now alleged again before this statutory forum, the Complainant’s grievance concerned an identical equal pay claim, namely her belief that the Director of Finance was her male comparator and that she was treated less favourably than him “despite their like-work” (page 7 of 54 of the appendices to the Talbot Report). The Talbot Report

conducted an in-depth analysis of the Complainant’s role with the role of the Director

of Finance, and in doing so held a number of individual meetings with the Complainant, the CEO of the Respondent and the Director of Finance.

·       A role evaluation was conducted under four headings: (i) Reporting structure;

(ii)Principal accountabilities/ key responsibilities; (iii) Leadership; and (iv)

Stakeholder engagement. Details of the findings are as follows:

(i) Reporting structure

As regards the two roles reporting to the CEO, the Talbot Report found that it was not

uncommon within State bodies and private companies, for individuals at differing

grades to report to the CEO, and/or be members of the senior management team.

Further, Ms. Talbot held that “There is no requirement, or particular desirability or business

imperative for all persons reporting to the CEO, and/or as members of a senior team grouping, be of the same grade as each other”.

(ii) Principal accountabilities / key responsibilities

Under the heading principal accountabilities/ key responsibilities, the Talbot Report

found, inter alia:

“Particularly given the nature of the functions of the Agency, which involves significant capital

projects, the size and impact of the role of the Director of Finance is substantially greater

than the role of the Corporate Affairs Manager.

The level of accountability and responsibility required of the Director of Finance is substantially higher than that of Ms Rahill” (emphasis added).

(iii) Leadership

As regards leadership, it was found that the “impact and nature of the leadership required

of the Director of Finance in respect of the management of core capital projects is considered to

be at somewhat higher level than that of Ms Rahill” (emphasis added).

(iv) Stakeholder engagement

Finally, as regards the heading of stakeholder engagement, it was found:

“The relative level of the person with whom an individual engages is not determinative of their own level or the grade at which they should be. There are many instances across the public sector of people at different grades regularly engaging with each other. While it is not

determinative, it is relevant to informing the nature and level of the engagement.

The Director of Finance appears to operate at a somewhat higher level than Ms Rahill in the

area of Stakeholder engagement, however, not to a significant degree.”

(v) Overall findings of the Talbot Report

·       Following a number of interviews and role analysis, the Talbot Report found that the

Complainant’s role “may well be at a higher level than Higher Executive Officer, but not

such to lead to parity with the role of Director of Finance”. Key differentiators between the

two roles included levels of leadership, responsibilities, decision-making, driving

initiatives, portfolio management and responsibility for the Agency’s finances, which

is a key part of the annual report.

·       The Talbot Report did not uphold the equal pay complaints and concluded:

“In conclusion, the work carried out by Ms Rahill is not of equal or greater value to that of the named male comparator in the role of Director of Finance. Further, there is no evidence that the factors leading to the appointment, determination of the grade (and resultant salary) of both Ms Rahill’s position and that of the current Director of Finance, came about in any way other than entirely independently of any consideration of the gender of either party.

These complaints are not upheld.”

·       In coming to the above conclusion, it is noteworthy that the Talbot Report identifies

“other points of relevance” with respect to her allegation of gender discriminatory pay, as follows:

(i) A director (of Construction) retired earlier in 2021, who is female.

(ii) If that Director was still employed by the Agency at this time, the potential

validity of the male comparator put forward by Ms Rahill would be significantly

undermined (this point is made based on an assumption that the Director of Construction

operated at least at the same level as the Director of Finance).

(iii) The mere departure of a colleague of the same gender as Ms Rahill, with only male directors

left in post, cannot logically lead to a conclusion that any differential between Ms Rahill’s

pay and that of a male Director, is based on gender grounds.

(iv) The Director of Finance was appointed through an open competition, which, in the absence

of any evidence to the contrary, is assumed to have been fair and objective. His appointment,

therefore, was made independently of his gender.

(v) It cannot be the case that the mere fact of an appointment of a male to a position can render treatment of another person, unconnected with that process, to be discriminatory”

·       In that regard, it is worth noting that following the Talbot Report, there are currently

our directors in the Respondent, one of which is female. The female director is operating on the same level as both male comparators.

Grievance Procedure Investigations - The Rooney Investigation (2024)

·       On 24 July 2023, the Complainant lodged a further grievance with the

Respondent in relation to a new senior position of DCSC, created by the Agency with

the role effective 3 July 2023. This is the second comparator that the Complainant now

identifies.

·       In summary, the following key facts are relevant to the creation of the DCSC role:

(i) Workforce Plan Review:

In April 2022, an external Workforce Plan Review was conducted by an

independent consultant, resulting in a recommendation that several new positions

should be created in the Agency - the DCSC role being one. The Workplace Plan

Review was included in the Respondent’s submission.

(ii) Creation of the DCSC role:

- As part of the proposed restructuring, the DCSC role at Assistant Principal level

would include overall responsibility for Human Resources, IT and Corporate

Services functions. To reflect the growth of the Agency, new specialist support staff

were engaged to assist the DCSC in carrying out each of these functions.

- The Complainant would remain responsible for the Community function and

would report to the DCSC. The Complainant’s remuneration and grading were not

affected by this restructuring.

(iii) Input from the Complainant on the DCSC role:

As the creation of the DCSC role impacted the Complainant’s role at the time, the

Complainant’s input was sought and obtained by the Respondent prior to the

creation of the role (as referred to in the Complainant’s grievance submitted in July

2023).

(iv) Sanction of the DCSC role by the Parent Department:

- In October 2022, following the submission of the Workforce Plan Review by the

Agency to the Parent Department, the DCSC role was sanctioned by the Parent

Department.

- Both the Parent Department and DPER advised that the DCSC role would be

subject to an open competition, as was on-going practice within the Agency. The

Complainant had requested that only an internal recruitment process take place.

(v) Recruitment process for DCSC role

- The Agency appointed an external recruitment agency to carry out the recruitment

process. The Agency posted the DCSC role on 18 January 2023, having informed

the Complainant three months prior on 28 October 2022 of the open competition

process. A copy of the Candidate’s Information Booklet was available at the hearing.

- The Complainant applied for the DCSC position on 11 March 2023. There were 33

applications for the role.

- The external recruitment agency conducted a preliminary interview with the

Complainant and approximately 9 other job applicants, and the Complainant

successfully progressed to the second interview stage. The interview was a panel

based competency interview, held at the premises of the external recruitment

agency. The panel was made up of the CEO, a (female) member of the Board and

a (female) employee of the external recruitment agency.

- Unfortunately, on 19 April 2023, the Agency communicated to the Complainant

that she was unsuccessful in the recruitment process. The Respondent provided further feedback to the Complainant by way of a meeting dated 15 June 2023.The appointment of the DCSC role was completely unconnected to gender.

·       On 24 July 2023, following the above recruitment process, the Complainant via Forsa

Trade Union submitted a second formal grievance, further to meeting with the CEO

on 6 June 2023, and furnishing correspondence to the Respondent via Forsa on 20 June

2023.

·       In November 2023, an independent external investigator, Mr Gerry Rooney,

consultant in Acrux Consulting and former WRC adjudication officer, was appointed

by the Respondent to investigate the Complainant’s second grievance relating to the

DCSC role. This investigation is ongoing.

Workplace Relations Commission Complaint

·       On 25 August 2023, one month after submitting the second grievance, the

Complainant submitted the within Complaint Form, failing to provide the Respondent

with an opportunity to address the grievances raised.

·       Nevertheless, the Complainant’s substantive claim appears to be that her role at the

HEO grade should be re-graded to the AP grade and that this, in some way, amounts

to less favourable treatment on the grounds of her gender. The Complainant identifies

two male comparators, who are directors of the Respondent and whose role are graded

at AP level:

(i) The first elected comparator is the Director of Finance. At a high level, the

Respondent’s position regarding this allegation is that this is not an appropriate

comparator, and the two roles cannot be compared as conducting “like work”. This

is supported by the findings of an independent and external investigator, Ms

Karen Talbot, who was appointed by the Respondent and who evaluated the two

roles, finding that “the work carried out by Ms Rahill is not of equal or greater value to

that of the named male comparator in the role of the Director of Finance”.

(ii) As regards the second named comparator, the DCSC, the Respondent contends

that this work similarly is not of equal or greater value and the Complainant and

the DCSC never worked in equivalent roles. A second independent investigator,

Mr Gerry Rooney, has been appointed by the Respondent to review this grievance,

and this is ongoing. In fact, the Complainant applied for this role and following an

external recruitment process, was unsuccessful. In so far as the Complainant

alleges that there was in some way a rule, criterion, or practice in place that was

discriminatory, the Respondent contends that the appointment of the DCSC was

completely unconnected to his gender, the Complainant having identical

opportunity to apply for, and did apply, for that role, albeit unsuccessfully.

·       Further, it appears that the Complainant has ignored the fact that there is currently the

female Director Programme & Procurement at Assistant Principal (Higher) grade,

instead comparing herself to two male directors in respect of her claim of gender

discrimination. Indeed, as above, since the Complainant sought a re-grading of her

role in 2016 and up until to 2021, there was another female Director of Construction &

Operations. As is well established by case law, the Complainant cannot simply select

comparators that suit the narrative of her case. The Complainant’s case is therefore

misconceived.

·       At all times, the Respondent has treated the Complainant fairly and afforded her with

the highest standards of fair procedures, having the benefit of:

(i) Two role review requests of the Complainant’s role submitted by the Respondent

via the Parent Department to the Department of Public Expenditure and Reform

(“DPER”) in 2017/ 2018 and again in 2020, resulting in DPER on both occasions

refusing to sanction the re-grading by way of communications dated 29 November

2019 and 15 May 2020; and

(ii) Two independent and external robust investigations of her grievance relating to

her role (the Talbot Investigation in 2022, finding that the Complainant’s work was

not of equal value to her comparator, and the currently ongoing Rooney

Investigation).

·       Notwithstanding the above, the Complainant maintains that her role should be

regraded to the grade of Assistant Principal Officer (“AP”) and failure to do so

amounts to gender discrimination, which is denied. The Respondent submits that the

Complainant has failed to establish a prima facie case that it has acted in a

discriminatory manner, either directly or indirectly on gender grounds.

·       As will be expanded on below, the Respondent submits that:

In relation to Specific Complaint CA-00058507-001 (equal pay claim):

(i) The comparator pool identified by the Complainant is invalid; and

(ii) There is no objective basis to a claim of “like work”;

(iii) Without prejudice, if the burden shifts to the Respondent, which it maintains

that it does not, the Respondent submits that any difference in pay is

unrelated to gender but instead is due to the Complainant’s grade at HEO

level, compared with employees at AP level. Any difference in pay can be

objectively justified by a legitimate aim, which are necessary and

proportionate.

·       In relation to Specific Complaint CA-00058507-002 (conditions of employment,

promotion, victimisation):

(i) As the conditions of employment claim appears to be identical to the

Complainant’s equal pay claim above, the Respondent maintains that no

valid comparator has been identified;

(ii) The Complainant was not treated less favourably than a male comparator in

accessing promotion, having identical opportunity to, and did, apply for the

DCSC role in a transparent, impartial and objective process;

(iii) As regards the victimisation claim, the Complainant’s March 2021 grievance

was not in any way connected to an alleged exclusion or reduction in her role

28 months later in July 2023, which is denied.

LEGAL SUBMISSION

Specific Complaint CA-00058507-001 (Equal Pay Claim)

Applicable Law

Section 85 – Burden of Proof

·       Section 85A(i) of the 1998 Act provides:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the

respondent to prove to the contrary.”

·       Section 85A shifts the burden of proof to the Respondent but only when the

Complainant has established a prima facie case that the difference in treatment alleged

is due to gender discrimination. In Valpeters v Melbury Developments Limited ([2010] E.L.R 64), a case concerning alleged discrimination on grounds of race, the Labour Court stated:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a

factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

·       The Complainant must demonstrate a link between the ground and the less favourable

treatment. As noted in Madarassy v Nomura ([2007] I.R.L.R 246, a mere difference in treatment or different status is not sufficient. Additionally, in Swan O’Sullivan Accountants & Registered Auditors v Counihan EDA 1810 the Labour Court held that:

“There is, however, authority for the proposition that the mere coincidence of a protected characteristic on the part of the Complainant (in this case a disability) and the detriment relied upon (in this case dismissal) is insufficient, in and of itself, to shift the probative burden. The High Court so held (per O’Sullivan J) in Mulcahy v Minister for Justice Equality and Law Reform and v Waterford Leader Partnership Limited [2002] ELR 12. A similar approach was adopted by the Court of Appeal for England and Wales in Madarassy v Nomura International plc [2007] IRLR 256.”

(i) The Comparator pool is invalid

Applicable Law

·       In order for the Complainant to establish a prima facie case of discrimination in her

equal pay claim, she must identify the indirect discrimination practice or system which

results in the pay differential of her group of comparators. The Complainant fails to

do so.

·       The leading case on equal pay claims and appropriate comparators is Kenny & Ors v

Minister for Justice, Equality and Law Reform, case C-427 /11, where the CJEU applied

the principles in Enderby v Frenchay HA and summarised the position as follows:

“(i)t is for the national court to assess whether it may take into account…statistics

(adduced in proceedings to demonstrate the existence of indirect discrimination), that is to say, whether they cover enough individuals, whether they illustrate purely

fortuitous or short-term phenomena, and whether, in general, they appear to be

significant.”

·       The CJEU held that comparators are irrelevant where they involve groups formed in

        an ‘arbitrary manner’, stating as a general principle that:

“it follows that the employer’s justification for the difference in pay, which discloses a prima facie case of gender discrimination must relate to the comparators who, because of the fact that their situation is described by valid statistics which cover enough individuals, do not illustrate purely fortuitous or short term phenomena, and which, in general, appear to be significant, have been taken into account by the referring court in establishing that difference.”

·       The CJEU further held that in order to determine whether employees performed 'like

work' it was necessary to ascertain whether, taking account of a number of factors such

as the nature of the work, the training requirements and the working conditions, those

persons could be considered to be in a comparable situation. It noted that when

seemingly identical tasks were performed by different groups of persons who did not

have the same training or professional qualifications for the practice of their

profession, it was necessary to ascertain whether the different groups in fact did the

same work, taking into account the following matters:

a) The nature of the tasks assigned to each group;

b) The training requirements for the performance of those tasks; and

c) The working conditions under which they were performed.

·       In Cheshire & Wirral Partnership NHS Trust v Abbott [2006] IRLR 546 the UK Court of

Appeal also applied the Enderby principles when concluding: “In that sense it is for the

employee to identify the comparator group and to produce the statistical evidence to show an appreciable difference in pay for jobs of equal value. The safeguard which prevents the employee from choosing an artificial or arbitrary group is the tribunal's own obligation to ensure that that does not happen. That is why one finds in Enderby the requirement that the statistics have to be "valid" and "significant", must cover enough individuals, and must not be purely fortuitous or short-term phenomena (see paragraph 17). Consequently, the employee is not entitled to identify an artificial comparator group so as to bolster his, or more usually her, claim of discrimination. So the employee does not enjoy a "right" to choose the comparator group...”

·       In National University of Ireland v. Ahern, [2005] 2 IR 577 the Supreme Court held that the

deciding body must approach the position of comparators in particular in the context

in which they were employed, and must look at the “surrounding circumstances” and

“the underlying facts” as regards comparators not chosen by a Complainant. The Court

held:

“The question at issue here is whether the differing rates of remuneration are based on

the grounds of sex or whether there are other reasons for the differential. This involves

a different approach to the position of the comparators, and in particular of the context

in which they were employed. I accept the arguments on behalf of the Appellant that

for this purpose the Labour Court ought to have looked at the position of the

comparators, not only in isolation, but also in the context of the other persons

in the same grade who had not been chosen as comparators, namely the

remaining switchboard operators” (emphasis added).

·       The Court further stated:

“It is of course very significant that the Respondents did not choose any full-time

switchboard operators as comparators, although they were paid the same remuneration

as the comparators”.

Application to the Complainant

·       It is clear from the case law that a comparator may not be based on an unrepresentative

group. The Respondent submits that the comparator pool identified by the

Complainant is not appropriate, representative and is invalid. She compares her role

to the Assistant Principal (AP) grade or AP grade (Higher) and has yet omitted to

compare herself to those employees in the Respondent who are at that grade.

·       The Complainant, in her legal submission at paragraph 3.1 lists out the Respondent’s

directors at AP grade or AP (Higher) grade. However, she has failed to refer to the

gender breakdown of the employees at AP level, and has elected two male directors

in isolation out of a pool of four directors at the AP grade. The Complainant fails to

mention that there is a female Director at the AP grade, with another previous female

Director up to 2021. It is respectfully submitted that the Complainant cannot satisfy

the prima facie burden of proof which rests on her by choosing comparators that

support the Complainant’s case without addressing the entire cohort of employees at

the AP grade.

·       The Respondent acknowledges that the Complainant’s comparators are paid at a

higher rate, but this difference is due to the grade of their role – not their gender. Indeed, all employees (including females) are paid at a higher rate due to the grading of their role at AP level. Indeed, the Complainant herself acknowledges this in her submission, where she states at paragraph 3.15:

“In fact, with the sole exception of the Complainant, all other members of the

management team are paid at this [AP] level on the Civil Service Pay Scale”.

·       The comparison of the Complainant’s role to the cohort of employees at AP grade was

the one adopted by the Complainant in her initial requests for her role to be re-graded

in August 2016. The Complainant did not suggest at this time that her role grading

was in any way connected with her gender, instead she compared herself to her

“colleagues” on the “Executive Management team” as a whole, “who are graded at Assistant

Principal Officer level” (who were at that time and are currently both male and female).

·       Indeed, the comparison of the Complainant to the entire Executive Management team

initially in 2016 was maintained by her at least up to 2019, when in an email to the

CEO dated 13 February 2019, she states:

“my role within the organisation reports directly to the CEO and is positioned within

an Executive Management team of 4 positions. As Corporate Affairs Manager, my role is significantly under paid within these 4 positions.”

·       Similarly, this approach was also referred to as the correct one by Ms Talbot during

       her investigation when she stated “If that [female] Director (of Construction &

Operations) was still employed by the Agency at this time, the potential validity of the male

comparator put forward by Ms Rahill would be significantly undermined”.

·       The Respondent submits that this initial approach by the Complainant comparing

herself to the entire cohort of directors at AP grade is the correct approach, rather than

her current isolation of two male directors for the purposes of advancing a case of

gender discrimination.

·       Insofar as the Complainant purports to rely on two specific individuals, and at the

same time the Complainant purportedly ignores the two female directors who are, or

were, employed as directors at the Complainant’s desired AP grade. In line with the

authorities of Kenny and Ahern above, the nomination of two comparators by the

Complainant without consideration of the full cohort of directors at AP level clearly

indicates that the Complainant cannot displace the prima facie burden of proof.

·       The Complainant’s simple assertion, that because another person, who is employed

with the same employer, is the opposite gender to the Complainant and paid more

than her, is wholly inadequate to ground a claim that the differences in pay arise from

discrimination on gender grounds.

·       The Respondent asks the WRC to determine that the Complainant’s chosen comparator pool is invalid.

(ii) No objective basis to claim of “like work”

Applicable Law

·       Without prejudice to the Respondent’s contention that the comparators relied upon by

the Complainant are invalid, it is submitted that the Complainant has not provided

any objective basis on which it can be concluded that she performs like work to an

appropriate comparator pool.

·       Section 7 of the 1998 Act refers to like work and provides:

“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.”

·       Section 19(1) of the 1998 Act provides:

“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.”

·       Section 19(2) provides for the period of comparison as “relevant time”, namely a

reference period of three years:

“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.”

·       Section 19(4) provides:

“(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.”

·       The 1998 Act does not prohibit an employer from paying different rates of

renumeration to different employees on grounds other than the prohibited grounds

(section 19(5) of the 1998 Act).

·       Section 22 of the 1998 Act defines indirect discrimination on the gender ground as

follows:

(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 any matter other than remuneration compared with

other employees of their employer.

(b) Where paragraph (a) applies, the employer shall be treated for the

purposes of this Act as discriminating against each of the persons referred to

(including A or B), unless the provision is objectively justified by a legitimate

aim and the means of achieving that aim are appropriate and necessary.

·       The Human Rights and Equality Commission’s Code of Practice on Equal Pay

(the “Code of Practice”) provides at paragraph 33 that the burden is firmly on

the Complainant to establish the following three factors, that:

(i) she is performing ‘like work’ with that of a chosen comparator;

(ii) she is receiving less pay than that comparator; and

(iii) the reason for the pay differential is one or more of the prohibited grounds.

·       The Code of Practice expressly recognises that differences in pay may be because of

some other factor other than relating to gender. Paragraph 31 provides:

“In some cases, pay differentials may have an explanation not related to a protected

characteristic, such as length of service, working hours, differing levels of

responsibility, atypical working patterns, key role differences, etc…”

Application to the Complainant

·       The Complainant does not provide any information nor any basis on which she alleges

that she has been treated less favourably than either or both on grounds of gender.

The Complainant’s case goes no further than an assertion that she does like work as

the named directors but earns less than them and that they are a different gender to

her.

·       It is submitted that this is entirely insufficient to discharge the Complainant’s burden

to establish a prima facie case that the pay differential between her and an appropriate

comparator pool exists because of gender discrimination and not some other reason.

Comparator 1 – Director of Finance

·       As regards the Complainant’s first comparator, the Director of Finance, the

Respondent submits that an external investigator has conducted an in-depth

independent job evaluation over a number of months.

·       The Talbot Report, as stated above, found: “In conclusion, the work carried out by Ms

Rahill is not of equal or greater value to that of the named male comparator in the role of

Director of Finance”.

·       The Respondent relies upon the findings of the Talbot Report in submitting that the

Complainant and the Director of Finance do not conduct “like work”.

Comparator 2 – DCSC

·       As regards the second comparator, the DCSC, the Respondent, maintains that this

comparator is not a legal comparator in circumstances where the Complainant never

worked in an equivalent position to that employee. The DCSC was appointed in July

2023 (with the Complainant on sick leave until 2 August 2023) and the Complainant’s

WRC complaint was instituted one month later, on 25 August 2023. The Complainant

did not work in an equivalent position to the DCSC from July 2023 to 25 August 2023.

·       The Complainant attempts to rely on her “pre-July 2023” role to demonstrate that the

DCSC role is a valid comparator but fails to point to any provision in the 1998 Act or

an authority that allows her to make such an argument. From July 2023 to 25 August

2023, the Complainant and the DCSC did not carry out the same or similar duties and

this is acknowledged by the Complainant in her submission. The roles cannot be

compared as “like work” within the meaning of the 1998 Act.

·       Further, as stated above, the Respondent has launched a second independent

investigation by Mr Gerry Rooney, who is investigating the Complainant’s claim that

she performs like work with the DCSC and further claims of victimisation, and that

investigation is ongoing.

Clause 2 (renumeration) of the Complainant’s contract of employment

·       The Complainant for the first time in her submission of 19 April 2024 makes a new

allegation that clause 2 of the Complainant’s contract of employment (relating to

renumeration) amounts to direct or in the alternative, indirect discrimination (see

paragraphs 3.54 – 3.58 of the Complainant’s submission).

·       The Complainant alleges that the Respondent refuses to “vary the Complainant’s pay to

reflect her value to organisation” by relying on clause 2, which sets out “the requirement

to obtain external approval for change”. The Complainant compares herself to “other male

employees carrying out the same work to whom this provision is not attached” (see

paragraphs 3.56 and 3.57). The Complainant refers to the Respondent’s “continued

insistence on its application”, which she says, is “evidence demonstrating unreasonableness

of such a position” (paragraph 3.58).

·       This assertion by the Complainant is entirely misconceived and confused.

·       The Complainant fails to identify any comparator in this baseless claim and therefore

fails to establish a prima facie case of gender discrimination. She instead refers generally

to “other male employees”. In fact, the Complainant cannot identify a comparator, as all

of the Respondent’s employees’ renumeration and re-grading (regardless of gender)

are bound by the same requirement to obtain approval from the Parent Department.

·       This is clearly set out in law pursuant section 24 of the 2005 Act, which mandates that

the Agency, as a creature of statute, must obtain approval from the Parent Department

for any change in renumeration or grading. This is legal requirement of the Agency –

not simply a term that the Respondent, as the Complainant puts it “purports to rely”

upon.

·       Further, reliance on the requirement for consent from the Parent Department for a regrading of the Complainant’s role is evidence that the Respondent has never stated

that a difference in pay is discriminatory. The difference in pay is due to the Complainant’s grade at HEO level.

·       The Respondent disputes the Complainant’s assertion that the requirement under law

is “manifestly unfair” or that it in any way demonstrates discrimination, either direct or

indirect. Whilst the Respondent has twice put forward a Business Case to DPER

through the Parent Department for a role review of the Complainant’s role, this is not

evidence in any way of a concession by the Respondent of a difference in treatment

based on gender. The Respondent has consistently maintained their support to have

the Complainant’s role re-graded to AP level. There is no suggestion by the Respondent that this requirement for re-grading was in anyway connected to gender.

·       Without prejudice to the foregoing, any difference in treatment on the gender ground

is objectively justified by a legitimate aim and the means of achieving that aim are

appropriate and necessary.

Specific Complaint CA-00058507-002 (conditions of employment, promotion,

victimisation)

5.1 In respect of Specific Complaint CA-00058507-002, the Complainant claims that, by

virtue of her gender, she has been unlawfully discriminated against in her conditions

of employment, promotion, and has been victimised.

Access to promotion

Applicable Law

·       It is well established that in cases in which discrimination is alleged in a job application

process, it is not the role of an Adjudication Officer to interfere to such an extent so as

ensure that there were no discriminatory elements to the process. In Moore Walsh v

Waterford Institute of Technology Labour Court (EDA 042), the Labour Court held

that in cases involving the hiring of individuals, it is not the role of the Court to

substitute its opinions on the relative suitability of applicants for those of the

designated decision makers. Rather, its duty is to make sure that the selection process

is not tainted by unlawful discrimination.

·       Accordingly, the Court will not usually look behind a decision unless there is clear

evidence of unfairness in the selection process or manifest irrationality in the

determination. This point was emphasised in Client Logic Trading as UCA+L v

Kulwant Gill (EDA 0817)

·       In addition, the Labour Court in O’Higgins v UCD (Tab D10)13, which was upheld on

appeal by the High Court, neatly summarised the applicable principles in claims of

alleged discrimination in selection processes as follows:

“1. It is for the complainant to prove the primary facts upon which she relies in

seeking to raise an inference of discrimination.

2. If the complainant discharges that burden it remains for the Court to decide if

those facts are of sufficient significance to raise the inference contended for.

3. It is not necessary to establish that the conclusion of discrimination is the only,

or the most likely, explanation, which can be drawn from the proven facts. It is

sufficient if it is within the range of presumptions that can be properly drawn from

those facts.

4. In cases concerning the filling of a post it is not the role of the Court to substitute

its views on the merits of candidates for those of the designated decision makers. Its

only role is to ensure that the selection process is not tainted by unlawful

discrimination.

5. The Court will not normally look behind a decision in relation to appointments

unless there is clear evidence of unfairness in the selection process or manifest

irrationality in the result.

6. A lack of transparency in the selection process combined with an absence of any

discernible connection between the assessment or qualifications of candidates and

the result of the process can give rise to an inference of discrimination.

7. Where a prima facie case of discrimination is made out and where the respondent

fails to show that the discriminatory ground was anything other than a trivial

influence in the impugned decision the complaint will be made out.

8. The Court must be alert to the possibility of unconscious or inadvertent

discrimination and mere denials of a discriminatory motive, in the absence of

independent corroboration, must be approached with caution.”

·       None of the above principles are illustrated by the Complainant and indeed the onus

required of her is a significant one. In A Former Civil Servant v A Recruitment Service

(ADJ – 00023270) the Adjudicating Officer noted that:

“the complainant was firm in his opinion as to the superiority of his own qualifications

and experience relative to that of the successful candidate, but these opinions were

unsupported by any evidence beyond his own. It is apparent that the interview board

concluded that, compared to the complainant, two other candidates were slightly more

suitable and that this conclusion was reached following a fair competition.”

Application to the Complainant

·       The Respondent maintains that the Complainant was not subject to less favourable

       treatment accessing a promotion. The Complainant’s claim appears to be, on the face,

that because she is a woman, she was denied access to the DCSC role. She chooses the

successful candidate as her comparator, simply because he is a male, while at the same

time advancing no objective evidence that she was denied access to the DCSC role due

to her gender or that gender itself had any influence in the selection process

whatsoever.

·       The Complainant was assessed and marked in an objective manner on the basis of

objective criteria throughout the process from the time of the review of her CV and

application form through to second-stage final interview.

Requirement for the DCSC role and necessary restructuring of the Complainant’s role

·       As above, the Workforce Review Plan recommended various structuring changes to

the Agency due to its change and expansion since its inception. The Complainant

alleges at paragraph 3.67 that the advertisement of the DCSC in January 2023 was

“advertised as if it were a new role”. The Complainant again fails to mention the facts

leading up to the posting of the DCSC in January 2023, and does not mention that she

had considerable input into the job specification of the new role in the lead up to same.

·       The Complainant was fully on notice that her role would be restructured and this is

evidenced by the Complainant’s own grievance submitted by Forsa in July 2023. That grievance highlights that on 9 June 2022, 13 months prior to the appointment of the DCSC, the CEO in an email to the Complainant set out the roles that he was seeking sanction for, including the DCSC (paragraph 11 of the 2023 grievance) with a follow-up phone call that day seeking the Complainant’s input by way of amendments (paragraph 12 of the 2023 grievance).

·       The 2023 grievance goes on to confirm that the Complainant was copied in on a 13

June 2022 email, where the CEO wrote to the Parent Department seeking permission

for the DCSC role. This email further included a description of the scope of the role,

and which stated:

“…As the overall workload has increased in volume and complexity, and as challenges.

demands and expectations around IT, HR, Governance, GDPR and other related areas

continue to increase for the Agency, so the corporate function must grow and mature

in response…”.

·       The Complainant was fully aware that the impact of the new DCSC role would mean

a restructuring of her current role. Notwithstanding, she proceeded to apply for the

role and advance through the various stages of interview. Now, the Complainant

attempts to complain retrospectively about (i) the interview process due to her being

unsuccessful in the open competition and (ii) the subsequent restructuring of her role

(which was inevitable from the introduction of the DCSC role).

·       The Complainant is aware that the practice in the Agency, as a public body, is to run

recruitments via an open competition – and as the Complainant states herself in the

2023 grievance, she has sat on interview panels. The Complainant is well aware that

an open competition style public service recruitment process comes with it inherent

risk of not being successful for the role.

Selection process

·       The Complainant attempts to argue that the process of the interview itself amounted

to gender discrimination.

Competencies

·       The Complainant makes broad and outlandish assertions in her submission in relation

to “hard” and “soft” skills in an attempt to link this to gender discrimination, namely

that:

(i) Certain competencies “were discounted as soft skills” (at paragraph 3.76 of the

Complainant’s submission); and

(ii) “Soft” skills were discounted in the interview process by the Respondent “because

they were contributed by a woman” at (paragraph 3.78).

·       The Complainant makes the above two utterly baseless statements in the absence of

any evidence, objective or otherwise, that either “soft” skills are inherently female (and

therefore discriminatory by nature), or that the skills “that were discounted” were “soft”.

·       Indeed, the statement by the Complainant that “soft” skills are “female skills” is a

discriminatory assertion in and of itself.

·       The Complainant introduces the above complaint for the first time in her submission

dated 19 April 2024, with no reference to such a complaint prior to this date, either in

her July 2023 grievance or her WRC Complaint Form. The Respondent asserts that this

is yet another example of the Complainant changing her narrative in order to fit into a

claim of gender discrimination.

·       There is nothing prohibiting a public body choosing selection criteria or appropriate

competencies for a specific role. Indeed, the Code of Practice for Appointment to

Positions in the Civil and Public Service acknowledges that “public bodies

would establish their own internal recruitment and selection procedures” (page 3 of the Code

of Practice).

·       The very purpose of using competencies in an interview process is to be as objective

as possible.

·       The Respondent submits there is no evidence from which any such unfairness or

manifest irrationality arises. In adopting the threshold of manifest irrationality, there

is a high onus on complainants, a threshold which the Complainant has failed to meet.

The successful candidate for the position of DCSC was simply more suited to the job

than the Complainant in respect of the position advertised and there was no

irrationality in the result of the selection process nor was the appointment in any way

connected to gender.

No difference in treatment

·       There was no difference in treatment to the Complainant as compared to the successful

candidate:

(i) Prior to the interview, both candidates were provided with the same information

about the DCSC role via the Candidate Information Booklet.

(ii) Both were eligible and did apply in the same way to the external recruitment

company.

(iii) Both candidates underwent the exact same process, namely being called to a

preliminary interview with the external recruitment company, and then to second

stage interview.

(iv) Both candidates were assessed on the same day, in the same place, by the same

panel (two of which were female).

(v) Both candidates were questioned on the same competencies, the same scoring

matrix, with the same weighting provided to each competency, and there were no

gender discriminatory questions, either direct or indirect, put to any candidate.

·       The successful candidate received no unfair advantage over the Complainant. Both

had equal opportunity to succeed in the appointment of the DCSC role.

The process was transparent, impartial and objective

·       The process for recruiting and appointing the DCSC was carried out in an objective

and transparent manner.

·       Further, there were various external parties involved in the creation and filling of the

DCSC role, demonstrating the objectiveness of this process. For example:

(i) The creation of DCSC role followed a Workforce Plan Review carried out by an

external company;

(ii) The Parent Department advised the Agency that this role should be advertised by

way of an open competition, as is normal practice;

(iii) The Respondent sought and obtained the Complainant’s input prior to the DCSC

role going out to open competition.

(iv) The Respondent informed the Complainant about the DCSC role on 28 October

2022 (in advance of it being advertised) and again, on 14 December 2022, providing

further information (which is, arguably, more favourable treatment towards her);

(v) The recruitment process was conducted by an external company;

(vi) The interview panel included the CEO of the Respondent, a member of the

Respondent’s Board of Directors (female) and was chaired by an external

appointee from the said recruitment company (female).

(vii) The Complainant was given comprehensive feedback by both the external

recruitment company and by the Respondent when she expressed dissatisfaction

with the result of the competition.

·       The Respondent can show that the successful candidate, on the basis of objective

evidence and following an impartial and transparent selection process in which all

candidates were treated fairly, was the most suitable candidate for the DCSC role. The

successful candidate who ranked ahead of the Complainant demonstrated to the

Selection Panel that he had the relevant skills, experience and qualifications suited to

the position.

·       The Complainant in the current case has furnished no evidence that her gender has

been a factor in her failure to be re-graded to the Higher Executive Officer level or

appointed to the position of DCSC. The Respondent submits that the Complainant has

not proven a prima facie case of treatment contrary to the 1998 Act.

·       Whilst the Complainant is clearly unhappy with the outcome, she has not provided

any evidence from which a presumption of discrimination can be raised. The

Complainant has failed to advance any prima facie case that the appointment of the

DCSC role to another candidate was in any way connected to her gender, the

Respondent has no case to answer in this respect.

Conditions of Employment

·       This claim appears to be identical to the Complainant’s equal pay claim and the

Respondent’s defence to same is therefore the same as above, including the

Complainant has not identified an appropriate comparator or valid comparator pool

for this complaint. Without prejudice, the Defendant denies that there has been any

less favourable treatment in the Complainant’s conditions of employment as

compared to a male employee.

·       The Complainant appears to argue that simply because the Respondent is of the view

that her role should be re-graded (which it has firmly communicated to the Parent

Department, and DPER through the Parent Department), that the failure to do so in

some way equates to less favourable treatment on grounds of gender.

·       As the Adjudication Officer is well aware, the Respondent, as a statutory body like the

Workplace Relations Commission, operates strictly under legislation and cannot go

beyond the remit of the 2005 Act. As such, the statutory requirement for Departmental

consent in the 2005 Act strictly prohibits by law the Respondent from taking steps to

re-grade the Complainant’s role in the absence of such consent.

·       DPER have twice refused to re-grade the Complainant’s role, and the Respondent has

no further powers in this regard. However, this certainly does not amount to gender

discrimination and to allege otherwise is misleading to this statutory forum.

·       The Complainant must demonstrate, on objective evidence, that the differences in pay

arise from discrimination on gender grounds. The Respondent submits that the

complaint is fundamentally misconceived in that regard. The Complainant has not

produced any statistics or objective evidence to prove the primary facts on which she

seeks to rely in alleging discrimination.

Repeated allegation that the Respondent fails to “objectively justify” a difference in pay

·       The Complainant in her submission argues that the Respondent fails to objectively

justify a difference in pay without acknowledging that an objective justification is only

required when a difference in pay is due to a protected characteristic.

·       The Respondent maintains that the difference in pay is not gender related and

therefore submits that the burden does not shift to it to objectively justify the difference

in pay. Similarly, the Complainant alleges that the Talbot Report fails to objectively

justify the difference in pay, whilst again overlooking the fact that the Talbot Report

found on objective evidence that the Complainant was not conducting “like work” with

a comparator at AP grade, and therefore objective justification is not required under

the 1998 Act.

Victimisation

·       Section 85A (4) of the Act confirm that the general rules in relation to the burden of

proof apply to victimisation claims. An employee in a claim of victimisation must

demonstrate the primary facts from which it can be inferred that their employer

victimised them, and “these facts must be of a sufficient weight to raise a presumption of

discrimination.” (Bolger et al, Employment Equality Law, 2023, 2nd ed., para 14 -27).

“But for” legal test

·       To meet the burden of proof in a victimisation claim, an employee must demonstrate

that there is a causal connection between a protected act and the adverse treatment by

the employee. The adverse treatment must be in “reaction to” a complaint. The “but for”

test is accepted to be the correct one in claims of victimisation (Monaghan County

Council v Mackarel, EDA 1213).

·       In that regard, the leading test in Toni & Guy Blackrock Ltd v O’Neill21 is relevant, where

  the Labour Court stated:

“Where there is more than one causal factor in the chain of events leading to the

detriment, the commission of a protected act must be an operative cause in the sense

that ‘but for’ the Claimant having committed the protected act he/she would not have

suffered the detriment … the Claimant must establish, on the balance of probabilities,

that he made complaints concerning health and safety. It is then necessary for him to

show that, having regard to the circumstances of the case, it is apt to infer from

subsequent events that his complaints were an operative consideration leading to his

dismissal. If those limbs of the test are satisfied it is for the Respondent to satisfy the

Court, on credible evidence and to the normal civil standard that the complaint relied

upon did not influence the Claimant’s dismissal.”

·       The substance of the Complainant’s claim of victimisation has significantly changed

in the days leading up to this hearing.

·       On 24 July 2023, one month before the submission of the Workplace Relations

Complaint Form, the Complainant’s claim of alleged “victimisation” (raised formally

through the Respondent’s Grievance Procedure by Forsa) was articulated as:

“The Employer’s insistence that Ms Rahill undergo a recruitment and selection

process in respect of the DCSC position (which we assert is one and the same role as

the CAM), and the Employer’s subsequent decision to appoint a male candidate to the

position of DCSC in view of Ms. Rahill’s longstanding claims in respect of her grading

and renumeration pursuant to the Employment Equality Act, constitutes penalisation

(victimisation)” (paragraph 62 of the Complainant’s second formal grievance

dated 24 July 2023). (emphasis added).

·       The original victimisation claim focuses only on the Complainant’s grievance that the

Respondent underwent a “recruitment and selection process” of the DCSC role. As stated

above, the Respondent put the DCSC role out to open competition, as is normal

practice within the Agency, and as advised by the Parent Department. The original

articulation of the victimisation complaint is currently being investigated

independently by Mr Gerry Rooney.

·       This original victimisation claim is outside the cognisable period, as the DCSC role

was advertised on 18 January 2023 and the within WRC claim was not submitted until

seven months later on 25 August 2023. Perhaps, as a result of which, a new claim has

now been advanced.

·       Now, at the 11th hour, the Complainant has changed her victimisation claim to, the

Respondent submits, again to try to fit her narrative of a gender discrimination claim.

In her submission delivered on 19 April 2024, the Complainant has particularised her

victimisation claim as follows:

“In March 2021 the Complainant raised a grievance, a copy of which is set out in

Appendix 12 in relation to her unequal pay. Subsequently the Complainant suffered a

series of exclusions and reductions of duties” (paragraph 3.60 of the Complainant’s

submission).

·       The Complainant’s new claim is formulated, at its height, as follows: “but for” her

raising a grievance in March 2021 (which was independently and externally

investigated by the Respondent resulting in the Talbot Report), she would not have

suffered alleged exclusion or reduction in work duties, some 28 months later. It is

respectfully submitted that this new claim is far-fetched.

·       At the outset, the Respondent strenuously disputes that the Complainant has been

excluded in the workplace, or there has been a reduction in her duties. The Complainant’s pay, grade and other terms of her contract of employment remain unchanged.

·       Further, the Complainant has produced no evidence whatsoever, objective or

otherwise, that there is any causal connection between her March grievance and her

alleged exclusion/ reduction in work, which is denied. The Complainant has failed to

make out her case and the Respondent asks that this claim be dismissed.

Conclusion

·       The Complainant in the current case has furnished no evidence that her gender has

been a factor in any actions carried out by the Respondent to date. The Respondent

submits that the Complainant has not proven a prima facie case of treatment contrary

to the 1998 Act.

·       The Complainant cannot establish a prima facie case of gender discrimination. The

Respondent asks the Adjudication Officer to determine that as regards the equal pay

claim, the comparator pool is inappropriate. It is well established in case law, in

particular in Kenny and Ahern, that a Complainant cannot simply elect comparators in

isolation. The correct approach is to look at the entire cohort of employees – in this

instance all other director employees at the Assistant Principal grade or Assistant

Principal (Higher) grade. The Complainant’s case is misconceived in this regard, as

there is currently a female director at the Assistant Principal grade, with a previous

female director at the Assistant Principal grade up to her retirement in 2021.

·       In the event that the Adjudication Officer finds that the comparator pool is

appropriate, the Respondent asks the Adjudication Officer to follow the reasoning of

the Talbot Report and find that that the Complainant does not perform like work to

the two comparators.

·       The Complainant has failed to illustrate any facts from which discrimination on

grounds of gender may be deduced. The Respondent has repeatedly supported the

Complainant both in submitting a business case for the re-grading of her existing

position and in ensuring that all grievances raised to date are dealt with by an external

investigator and in accordance with fair procedures.

·       The Respondent denies any discrimination on gender grounds or at all, and strictly

reserves the right to furnish Supplemental Submissions in response to any particulars

advanced by the Complainant.

As per complaint form received by the Workplace Relations Commission on 25th August 2023 the Complainant states that she has two complaints:

·       In Specific Complaint CA-00058507-001, the Complainant alleges that she has been

discriminated against on the ground of gender in terms of equal pay, and identifies

two comparators.

·       In Specific Complaint CA-00058507-002, the Complainant alleges that she has been

discriminated against on the grounds of gender by an alleged failure on the part of the

Respondent in getting her a job; promoting her; victimising her; conditions of

employment; and harassment.

Equality law is based on comparison; how one person is treated by comparison to another who does not possess the relevant characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator.

A comparator is an evidential too. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon.

Whilst generally a complainant is entitled to choose a comparator he or she wishes, the comparator cannot be selected out of context with other employees within the employer and must be examined in context, including the reason the particular comparator was chosen. Section 6 of the Employment Equality Acts requires that the comparator must be in a comparable situation and therefore a level of similarity is required in order for the circumstances of the two persons to be comparable.  

In the instant case the Complainant has named two comparators.

Comparator 1

·       Her first comparator is the Director of Finance.

·       Philip LeStrange was in that role from 18 February 2008 to 1 January 2010. Mr Peter

O’Sullivan was in that role from July 2013 until February 2024. Mr O’Sullivan has now

been promoted to Chief Financial Officer. He is one of the five senior management

team members as is the Complainant.

·       The Director of Finance is remunerated in line with the Civil Service Principal Officer

Higher Pay Scale.

Comparator 2

·       Her second comparator is the Director of Corporate Services and Community (the

DCSC).

·       This role is a new role and commenced in July 2023.

·       The DCSC is a member of the senior management team and does the self-same role

that the Complainant was doing until her duties were reassigned in July 2023 to the

DCSC.

·       The Director of Corporate Services and Community is paid at AP or Higher AP level.

In fact, with the sole exception of the Complainant, all other members of the

management team are paid at this level on the Civil Service Pay Scale.

·       When this role was advertised, the Complainant applied for it but was ultimately not

appointed. This forms part of the Complainant’s gender discrimination complaint.

In, or around July 2023 ninety (90) per cent of her duties, together with her reporting staff,

transferred to this role.

The Respondent has very clearly stated the following:

The entire basis of equal pay is that a person is doing like work with an identified comparator. “Like work” is defined in s.7 of the Act:

‘Subject to subsection (2), for the purpose 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.

In the instant case the Complainant cannot claim that she was doing the same work as her first named comparator nor can she claim that the work performed by her was of a similar nature to the same named comparator. This only leaves work of a similar value.

In her submission the representative of the respondent states the following:

Application to the Complainant

·       It is clear from the case law that a comparator may not be based on an unrepresentative

group. The Respondent submits that the comparator pool identified by the

Complainant is not appropriate, representative and is invalid. She compares her role

to the Assistant Principal (AP) grade or AP grade (Higher) and has yet omitted to

compare herself to those employees in the Respondent who are at that grade.

·       The Complainant, in her legal submission at paragraph 3.1 lists out the Respondent’s

directors at AP grade or AP (Higher) grade. However, she has failed to refer to the

gender breakdown of the employees at AP level, and has elected two male directors

in isolation out of a pool of four directors at the AP grade. The Complainant fails to

mention that there is a female Director at the AP grade, with another previous female

Director up to 2021. It is respectfully submitted that the Complainant cannot satisfy

the prima facie burden of proof which rests on her by choosing comparators that

support the Complainant’s case without addressing the entire cohort of employees at

the AP grade.

·       The Respondent acknowledges that the Complainant’s comparators are paid at a

higher rate, but this difference is due to the grade of their role – not their gender. Indeed, all employees (including females) are paid at a higher rate due to the grading of their role at AP level. Indeed, the Complainant herself acknowledges this in her submission, where she states at paragraph 3.15:

“In fact, with the sole exception of the Complainant, all other members of the

management team are paid at this [AP] level on the Civil Service Pay Scale”.

·       The comparison of the Complainant’s role to the cohort of employees at AP grade was

the one adopted by the Complainant in her initial requests for her role to be re-graded

in August 2016. The Complainant did not suggest at this time that her role grading

was in any way connected with her gender, instead she compared herself to her

“colleagues” on the “Executive Management team” as a whole, “who are graded at Assistant

Principal Officer level” (who were at that time and are currently both male and female).

·       Indeed, the comparison of the Complainant to the entire Executive Management team

initially in 2016 was maintained by her at least up to 2019, when in an email to the

CEO dated 13 February 2019, she states:

“my role within the organisation reports directly to the CEO and is positioned within

an Executive Management team of 4 positions. As Corporate Affairs Manager, my role is significantly under paid within these 4 positions.”

The Complainant appears to have selected two members of the Executive Management Team because they are male and totally ignored the fact that there was one other female member of this team and there had been one other female director who had retired.

On 26th March 2021, the Complainant with the assistance of her representative from the Forsa Trade Union lodged a grievance with her employer. This grievance was headed “A complaint relating to remuneration and unequal treatment. For consideration under the relevant grievance procedure”. As far as I can establish, this is the first time that gender discrimination has been mentioned.

This document also suggested that any investigation into this matter be conducted by an independent, mutually agreed, third party.

Ms Karen Talbot from Talbot Pierce was appointed as the investigator. The investigation was carried out between July 2021 and May 2022. Terms of Reference were prepared by Ms Talbot and issued to the parties in early June 2021.

I note from Ms Talbot’s report that the Complainant when invited to attend a second meeting with Ms Talbot declined this invitation (through her union representative), partly on the basis that the view held was that it was considered a process similar to a job evaluation. This, I believe was a mistake on the part of the Complainant. How could she claim that her job was equal in value to that of her comparator if she was not willing to have the job’s evaluated by Ms Talbot?

Ms Talbot’s final report included the following comments:

- There is no new evidence to support the claim that the Corporate Affairs Manager role is    equivalent to the Director of Finance.

- It appears that the role of Corporate Affairs Manager has evolved/is evolving with increasing responsibility and scope and KPIs are assigned in areas of existing responsibility. - A number of the tasks and responsibilities highlighted were carried out at a time when the Director of Finance position was vacant. It is recognised that Ms Rahill carried out additional duties, at a higher level, during that period.

- It appears to be the case that some of the activities carried out by Ms Rahill may well be at a higher level than Higher Executive Officer, but not such as to lead to parity with the role of Director of Finance. The key differentiators are the level of leadership; driving initiatives; level of responsibilities; and decision-making; management of a property portfolio of significant value, responsible for the finances, which are a key part of the annual report.

Prior to making any decision in relation to the complaints as presented under the Employment Equality Act 1998 I should highlight that the decision I have to make must address the alleged discrimination and nothing else. My job is not to comment on the fairness or otherwise of the way in which the complaint has been managed and the outcomes reached by the Respondent.

Decision.

CA – 00058507 – 001

The Complainant alleges that she has been discriminated against on the ground of gender in terms of equal pay and has identified two comparators.

I find the complaint as presented is not well-found.

CA – 00058507 – 002

The Complainant alleges that she has been discriminated against on the grounds of gender by an alleged failure on the part of the Respondent in getting her a job; promoting her; victimising her; conditions of employment; and harassment.

I find the complaint as presented is not well-found.

CA – 00058507 – 001

The Complainant alleges that she has been discriminated against on the ground of gender in terms of equal pay and has identified two comparators.

I find the complaint as presented is not well-found.

CA – 00058507 – 002

The Complainant alleges that she has been discriminated against on the grounds of gender by an alleged failure on the part of the Respondent in getting her a job; promoting her; victimising her; conditions of employment; and harassment.

I find the complaint as presented is not well-found.

Complainant

Respondent

Parties

Nora  Rahill

Grangegorman Development Agency

Complainant

Respondent

Anonymised Parties

Representatives

Mr Tiernan Lowey BL instructed by Ms Jane Babb, McInnes Dunne Murphy LLP

Ms Katherine McVeigh BL instructed by Ms Sorcha Cusack, McCann FitzGerald LLP

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-00058507-001

25/08/2023

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

CA-00058507-002

25/08/2023

The Complainant has been employed by the Respondent since February 2008. She was initially employed as senior office administrator. It is being alleged that her duties quickly expanded. Since

2008 she has been known as Corporate Affairs Manager, was a member of the senior management team and was operating at Assistant Principal (AP) level whilst being paid at the Higher Executive Officer (HEO) grade.

This complaint was received by the Workplace Relations Commission on 25th August 2023. Two further complaints have been received since this initial complaint:

ADJ – 00051370 was received on 23rd April 2024 and ADJ – 00052750 was received on 3rd July 2024.

This decision will only address the complaints contained within ADJ – 00047457.

The complaints

·       The Complainant has instituted complaints of discrimination on the grounds of gender

experienced in her employment by the Respondent which occurred as a result of the

Respondent:

·       not remunerating the Complainant equally in comparison to her male comparators,

contrary to the provisions of section 29(1) of the Employment Equality Act 1998 (as

amended) (the “EEA”) (“the Equal Pay claim");

·       discriminating against, perceiving and treating the Complainant less favourably by

reason of her gender including in relation to her conditions of employment and

promotion (“the Discrimination claim"); and

·       victimising and penalising the Complainant for having raised a grievance in respect of

equal pay (“the Victimisation claim").

Factual background

·       The Respondent is headed by the CEO who is supported by five other senior

management team members. The five senior management team members are

remunerated at AP level. They are:

• Director of Construction and Infrastructure.

• Director of Strategy and Design.

• Director of Finance (the Complainant’s first comparator, Mr O’Sullivan).

• Director of Corporate Services and Community (the Complainant’s second

comparator); and

• Director of Programme and Procurement

·       The Complainant has been employed by the Respondent since February 2008. She

was initially employed as senior office administrator. A copy of the Complainant’s

contract of employment was available at the hearing.

·       The Complainant confirms that, while her contract of employment is in respect of a HEO

role, she only operated at that level very briefly. Her duties quickly expanded. Since

2008 she has been known as Corporate Affairs Manager, was a member of the senior

management team and was operating at Assistant Principal (AP) level.

·       Although, provisionally, the Complainant originally reported to the Director of Finance,

by 2009, she reported directly to the CEO with the title Corporate Affairs Manager.

That reporting relationship has been sustained and is shown in various organisation

charts from 2008 until 2023.

·       The Complainant never received an updated contract or any documentation to reflect

her expanded duties and responsibilities, contrary to section 5 of the Terms of

Employment (Information) 1994, as amended. Indeed, neither did the Respondent

provide the Complainant any formal written notification of the changes to terms and

conditions of employment arising from its purported variation of her terms and

conditions since on or around July 2023.

·       Until July 2023, the Complainant, under the title Corporate Affairs Manager, was

fulfilling the responsibilities and functions of a director. The Grangegorman

Development Agency Management Team Competencies Matrix shows the scope of

her role.

EQUAL PAY

·       The Complainant is remunerated in line with the Civil Service HEO Pay Scale, as set

out in section 2 of the Complainant’s contract of employment.

·       In making out her equal pay claim, the Complainant relies on two comparators, both

 are male. The Complainant, who is female, is paid less than her male comparators.

Comparator 1

·       Her first comparator is the Director of Finance.

·       Philip LeStrange was in that role from 18 February 2008 to 1 January 2010. Mr Peter

O’Sullivan was in that role from July 2013 until February 2024. Mr O’Sullivan has now

been promoted to Chief Financial Officer. He is one of the five senior management

team members as is the Complainant.

·       The Director of Finance is remunerated in line with the Civil Service Principal Officer

Higher Pay Scale.

Comparator 2

·       Her second comparator is the Director of Corporate Services and Community (the

DCSC).

·       This role is a new role and commenced in July 2023.

·       The DCSC is a member of the senior management team and does the self-same role

that the Complainant was doing until her duties were reassigned in July 2023 to the

DCSC.

·       The Director of Corporate Services and Community is paid at AP or Higher AP level.

In fact, with the sole exception of the Complainant, all other members of the

management team are paid at this level on the Civil Service Pay Scale.

·       When this role was advertised, the Complainant applied for it but was ultimately not

appointed. This forms part of the Complainant’s gender discrimination set out in more

detail below.

·       In summary, however, the Complainant will provide evidence to demonstrate that on

or around July 2023 ninety (90) per cent of her duties, together with her reporting staff,

transferred to this role.

Unlawful variation of contract

·       Prior to the appointment of the DCSC, the Complainant effectively carried out the same

role with some cosmetic differences and under a different and less prestigious

sounding title (“the Pre-July 2023 role”).

·       In July 2023, the Respondent acted in breach of contract fundamentally by removing

a significant number of her key functions and duties. This unlawful variation of the

Complainant’s terms and conditions of employment was effected unilaterally and

without the Complainant’s consent and remains a point of contention between the

parties. The Complainant’s new role is unrecognisable from that which she occupied,

albeit without due recognition, before for 14 years, from 2009 to 2023.

·       For the purposes of these submissions, the Complainant refers to her pre-July and

post-July 2023 roles.

·       The Complainant submits that up until July 2023 her role and that of Comparator 1 at

that time were similar and of equal value. The Complainant submits that the role she

did up until July 2023 and that of Comparator 2 are one and the same.

·       Prior to July 2023, the Complainant and Comparator 1 (and now Comparator 2):

• were employed by the Respondent with responsibilities and scope at the level of

director;

• report to the CEO;

• serve on the senior management team with equal status;

• have a number of equivalent grades reporting to them;

• were engaged in work and tasks that are similar and/or of equal value, taking into

consideration skills, experience, education, professional training, and

competencies.

·       The Complainant is female. The Complainant’s comparators are male. It is the

Complainant’s submission that her and her Comparator’s roles are like-work and

accordingly should be remunerated equally.

Pre-July 2023 role

·       In her pre-July 2023 role, the Respondent managed the corporate function with

executive operational responsibilities in particular for:

• Corporate Health and Safety;

• Human Resources;

• ICT & Digital Services;

• Corporate Information Management and Document Control;

• Communications;

• Compliance with Agency and public sector operational and general policy matters;

• Dail queries;

• GDPR;

• Open Data, Data Protection and Freedom of Information;

• Office Administration and Facility Management;

• Corporate Legal and Insurance;

• Community and Cultural Projects;

• Procurement of Corporate Services;

• Delivery of the social and cultural aspects of the Grangegorman Project; and

• Corporate Governance and Board Secretarial Services.

·       The Complainant’s Pre-July 2023 role was of equal value to that of the Director of

Finance. There was no disparity in terms of accountability, span of control, span of

responsibility and allocations of functions between the two roles. The Complainant

was, and was recognised by her colleagues as, a member of the senior management

team.

Post July 2023 role

·       Since the appointment of the Director of Corporate Services and Community in July

2023, the Complainant has effectively been demoted both her duties and status.

Ironically, this means that by its unilateral action, the Respondent has created a

situation whereby the Complainant is no longer engaged in ‘like work’ with either the

Director of Finance (Comparator 1) or the DCSC (Comparator 2) because, against her

will, she is no longer actually providing work of equal value to the Respondent.

·       However, the Complainant relies on the existing DCSC role as a comparator to her

Pre-July 2023 role, which role she would still occupy but for the unilateral and unlawful

variation of her contract of employment.

·       There is no disparity between the Complainant’s Pre-July 2023 role and that of the

DCSC in terms of accountability, span of control, span of responsibility and allocation

of functions. The areas of responsibility listed above have been transferred

from the Complainant’s Pre-July 2023 role to the role of DCSC. There is perhaps one

new work thread added to the DCSC role, which in normal circumstances and had the

Complainant continued in her former role, would certainly have come under her area

of responsibility.

·       To confirm, the current DCSC role is the self-same role as that fulfilled by the

Complainant from 2009 to 2023. Ninety (90) per cent of the Complainant’s

responsibilities and functions have been taken from her since July 2023. The

Complainant has been excluded from high level meetings she previously always

attended and her reporting staff have also been reassigned.

·       For the avoidance of any doubt, the Complainant does not accept or otherwise affirm

in any way the purported variation by the Respondent of her terms and conditions of

employment since July 2023. This variation is being effected unilaterally and without

her consent.

·       The director and senior management team roles across the Respondent organisation

are similar in terms of accountability and responsibilities. All of the senior management

roles, including the Complainant’s role until July 2023, hold significant strategic and

operational responsibilities. The employees holding those roles act as the strategic

decision makers of the organisation.

Effect of unequal pay

·       It is the Complainant’s understanding that despite their like work, the difference

between her remuneration and that of her comparators is in and around €25,000 per

annum.

·       Since 2008, when her pension is taken into account, the total shortfall in that period for

the Complainant amounts to €295,442. Details to explain these figures will be provided

at the hearing.

Requests for grade review

·       Since September 2010, the Complainant has sought a review of her grade on the basis

that she was being paid less than her counterparts for no objective or any apparent

reason. The employer has neglected to accede to her request.

·       On 5 August 2016, the Complainant wrote to the CEO requesting a review of her grade.

This was the Complainant's third such attempt to have a review of her grade addressed.

Respondent’s ‘business case’ to Department

·       On 4 September 2018, the Respondent finalised and presented to the Department of

Education, its parent department (“the Department”), a business case for the review of

the Complainant's grade.

·       The said business case unequivocally demonstrates that the Complainant’s duties and

responsibilities are similar to or are of equal value with those of the other senior

management team. It states, inter alia, that:

1.       the CAM is a key member of the senior management team reporting directly to the CEO;

2.       that the standard grade for project coordinators who report into the senior management

              team are at the assistant principal officer grade or equivalent; and

3.       that similar posts have been advertised at grades equivalent to that of Assistant

       Principal Officer (Higher) such as Corporate Services Director at the National Treatment      Purchase Fund.

·       In May 2020, a representative from the Department wrote to the Respondent CEO. In

her letter, the representative stated that the Department of Public Expenditure and Reform (DPER) would not agree to a review of the Complainant's grade. No objective reasons were identified in the DPER response to justify the ongoing and, clearly recognised, difference in pay between the Complainant and her male comparators.

·       DPER’s decision was communicated subsequently to the Complainant in an email from

the CEO dated 21 May 2020.

Crowe Report – Workforce Review

·       On 27 July 2021, the Respondent commissioned accountancy and advisory firm,

Crowe, to undertake an independent workforce review of the organisation. The Crowe

Workforce Review included reference to “Corporate Services & Governance” under

the heading of “Additional Posts Identified for Future Workforce Plan.”

·       At various iterations of the independent Crowe report, a new Corporate Services post

reporting to the Complainant’s role was considered at Assistant Principal (AP) and

Higher Executive Officer Level (HEO).

·       On or about April 6, 2022, the Crowe Workforce Review was submitted to the

Department of Further and Higher Education, Research, Innovation and Science (the

“Department”). It set out priority needs for a Corporate Services Manager reporting to

the CAM, the Complainant’s role.

·       The role independently recommended by the Crowe report was not pursued by the

Respondent.

Talbot Report – Grievance

·       A grievance was raised on behalf of the Complainant by Forsa on or around 26 March

2021. Karen Talbot was appointed to investigate the grievance.

·       On or about 11 May 2022, Ms Talbot issued her final report in respect of the

Complainant’s grievance to the Respondent. Subsequently, on or about 25 May 2022,

the CEO provided the final Talbot Report to the Complainant.

·       The Complainant’s job title was not explicitly mentioned in the Talbot Report. For

reasons that remain unclear, the Complainant’s job was referred to in the report as

“Ms. Rahil’s role”. Conversely, when referring to the Complainant’s comparator, the

report referred not to the person but to the job title.

·       The Complainant submits that the Respondent’s discriminatory attitude of her is

revealed in some of the language contained in the report. For instance, when speaking

with the investigator, the CEO used dismissive and gender-based language to describe

the tasks and responsibilities of the Complainant.

·       The Talbot Report made no findings objectively justifying the difference in pay between

the Complainant’s role and that of her comparator.

·       Instead, it recommended that consideration be given to the appropriateness of the

management structure and grading, including with respect to the Complainant’s

position. The Complainant submits that this finding denotes a recognition of the unfair

disparity between the Complainant’s role and that of other members of management.

·       For reasons that have never been reported, Ms Talbot’s recommendation in this regard

has not been implemented by the Respondent in respect of the Complainant’s grade

and corresponding remuneration.

Clause 2 of Contract of Employment

·       The Complainant submits that her unequal treatment in relation to remuneration arises

as a result of direct discrimination. In the alternative, it is submitted that clause 2 of her

contract of employment, which sets out her salary, represents an apparently neutral

provision but puts the Complainant, as a female, at a particular disadvantage in respect

of remuneration compared with other employees.

Clause 2 provides that:

“The position carries a salary of €55,132 per annum (Scale: HEO (pt 7), Class

A PRSI), which will be paid fortnightly in arrears into your bank account less

statutory PAYE and PRSI and other appropriate deductions. Increments within

each grade are granted annually on the anniversary of your employment

commencement date, subject to satisfactory service and on a discretionary

basis.

The salary will be subject to general pay increases applicable through the

public service; and will be adjusted otherwise as determined by the GDA with

the consent of the Minister for Education and Science and the Minister of

Finance.”

·       Despite the obvious and repeated examples of the recognition of the unfairness and

disparity in pay by both independent parties (Crowe and Talbot) and the Respondent

itself (business case to the Department), the Respondent has continued to fail to vary

the Complainant’s pay to reflect her value to organisation.

·       In so failing, the Respondent purports to rely on the provision dealing with remuneration

in the Complainant’s contract of employment and the requirement to obtain external

approval for change. The provision, while seemingly neutral on its face clearly puts the

Complainant at a distinct disadvantage when compared to other male employees

carrying out the same work but to whom this provision is not attached.

·       Not only is the provision in and of itself manifestly unfair, but so too is the Respondent’s

continued insistence on its application in the face of evidence demonstrating the

unreasonableness of such a position.

GENDER DISCRIMINATION

·       In relation to the claim for discrimination, the Complainant has been subjected to

specific treatment and disadvantaged by reason of her gender continuously over the

entire course of her employment.

              1.0 The Complainant’s employment and the role she was tasked to perform between 2008

and 2023 represented a “quiet promotion”. To this end, the Complainant was given

ever-increasing duties and accountability without commensurate salary increases in

recognition of same.

2.0 As the Respondent organisation evolved, it assigned to the Complainant, and she

fulfilled, more complex responsibilities without any increase in pay or any change to

her terms and conditions of employment despite repeated requests on her part for a

fair and equal review of her grade.

3.0 The Complainant has been treated by the Respondent as an organiser/administrator

while fulfilling executive level responsibilities. However, the self-same responsibilities

undertaken by her male colleagues are perceived and treated as executive level

responsibilities. The Complainant’s “soft skills” and areas of executive responsibility

have been treated, whether consciously or unconsciously, by the predominantly male

leadership in the Respondent organisation as being of lesser value than areas of

executive responsibility fulfilled by her male comparators.

4.0 The Complainant was disadvantaged in relation to promotion (details below) by

reason of her gender because candidates were not assessed under two of the six key

public sector competencies for Assistant Principal Officers.

VICTIMISATION

·       In March 2021 the Complainant raised a grievance in relation to her unequal pay. Subsequently the Complainant suffered a series of exclusions and reductions of duties.

·       On or about 13 October 2021, the Complainant raised concerns with the CEO about

her exclusion from meetings and the lack of professionalism and courtesy that was

shown to the Corporate Affairs role. The ongoing exclusion from meetings and

discussion disadvantaged her in terms of knowledge, input, opinion and development

as compared to the other members of the senior management team and undermined

her role.

·       On or about 9 June 2022, the CEO sent an email to the Complainant in which he set out the roles he was seeking sanction for from the Department further to the Crowe Report, including a Corporate Services role.

The Complainant questioned whether the Corporate Services role was one and the

same as the role the Complainant had been performing for many years. In response,

the CEO said that receiving sanction for the Corporate Services role was a way to

address and resolve the Complainant’s request for a review of her grade, or words to

that effect.

·       On or about 13 June 2022, the CEO wrote to Eamonn Dunican of the Department

seeking permission to commence recruitment for various posts, including Corporate Services. The CEO described the Corporate Services as follows:

“As noted in the Workforce Plan, the corporate function supports all other

functions of the Agency and is currently very stretched in terms of capacity. As

the overall workload has increased in volume and complexity, and as

challenges, demands and expectations around IT, HR, Governance, GDPR,

and other related areas continue to increase for the Agency, so the corporate

function must grow and mature in response. Risks in this area include, for

example, cyber security, failure to comply with Codes of Practise on

Governance, and failure to realise the full potential of the Agency in the most

efficient manner. This role is required to better provide Corporate Services

across the Agency, including to the Board and other Governance structures as

appropriate, and to assist the CEO and the executive in fulfilling their duties in

the most effective and efficient manner.

This role will be at Assistant Principal grade

• For the lifetime of the Agency

• And will report to the CEO”

·       On or about 22 June 2022, the CEO received sanction for four posts including that of

Assistant Principal Officer (Corporate Services) from the Department. At a board

meeting in June 2022 at which the Complainant was not in attendance, the CEO

shared a new structure which indicated that the Complainant’s role had been demoted

from the senior management team.

·       On or about 28 July 2022, the CEO sent an email to the Complainant in which he

stated, inter alia, “…I will need to define the corporate services role, and the title will

flow from that. It is a new position, and getting approval from DEPR has circumvented

the need for any role review”.

Appointment of DCSC role

·       On 18 January 2023, a job description for the DCSC was advertised as if it were a new

role. In fact, the body of work posted under the title of DCSC is the same as the body

of work the Complainant, as a member of the Agency's Senior Management Team,

has performed since 2009 albeit under the job title, Corporate Affairs Manager. This

includes the Complainant’s former management of nine staff.

·       A copy of the Candidates Information Booklet was available at the hearing.

Any fair assessment shows that the role advertised is precisely the role for which the Complainant had been seeking a grade review since 2010.

·       In March 2023, the Complainant applied for the position of DCSC. Despite the deadline

set out in the competition booklet the search continued after that deadline. Thirty three

(33) candidates applied, four were shortlisted but only two candidates (including the

Complainant) were interviewed.

·       In Public Sector recruitment, the candidate information booklet will normally include in advance any competency model forming part of the selection process. Unusually, in this process, no such competency model was include in the booklet and the Complainant was only made aware that a competency model would be used when she received an invitation on 6 April 2023 to interview for the role seven days later, on 13 April 2023.

·       Previously, the Respondent had always applied a key achievements approach as

·       opposed to the competency model in its interview process and at Director level the

Complainant expected to be asked for a presentation on a “specific question relevant

to the role”.

·       On or about 6 April 2023, the Complainant received the formal invitation to interview

and confirmation of the six areas of competency the Interview Board would consider

at Assistant Principal Level:

o Leadership

o Management and Delivery of Results

o Interpersonal & Communication skills

o Specialist knowledge expertise and self-development

o Analysis & Decision Making

o Drive & Commitment to Public Service Values

At interview the Complainant was in fact only examined under 4 competencies:

o Leadership

o Management and Delivery of Results

o Interpersonal & Communication skills

o Analysis & Decision Making

·       The Complainant was not examined under 2 key competencies

o Specialist knowledge expertise and self-development

o Drive & Commitment to Public Service Values

·       No objective reason was given for not assessing the candidate under these two key

AP level competencies. It is submitted that assessing her under these competencies

would have strengthened her score and that these competencies were discounted as

soft skills.

·       Although normal procedure would be to inform an internal candidate in person of the

·       results of a recruitment process, on 20 April 2023, the CEO informed the Complainant

·       by email that her application for the position of DCSC was unsuccessful. He stated

“It was the view of the Interview Panel that you did not demonstrate sufficiently

your suitability for the position of Director of Corporate Services and

Community.

The winning candidate has been offered and has accepted the position and will

be commencing in the role in the coming weeks.”

·       It is submitted that without any explanation the skills brought uniquely by the

Complainant were not assessed at interview. It is submitted that in the same way as

the CEO used language that cast the Complainant’s contribution in terms of

assistance or administration and so diminished it, the interview board failed to take

equal account of each of the 6 key areas of competency at Assistant Principal Level.

It is submitted that, consciously or unconsciously, the Respondent is dismissing those

skills and contributions because they were contributed by a woman.

·       On or about 9 May 2023, the Complainant attended a meeting with TU Dublin, the

purpose of which was to update TU Dublin on areas of work performed by GDA. The

Complainant attended with other members of the senior management team and

provided context surrounding the areas that fell under Corporate Services. At that

meeting the organisation chart distributed reflected the Complainant position of CAM

as a member of the senior management team.

·       Following the meeting, the CEO issued a new GDA structure to TU Dublin in which the

Complainant’s post (Corporate Affairs Manager) had been demoted and removed from

the senior management team. The Complainant was not copied on the email that was

circulated showing the new GDA organisational structure. Two staff members: Lori

Keeve and Anne Marie Deasy who reported to the Complainant were included in the

email circulation.

·       On or about 24 May 2023, a revised organisational chart was circulated by email to a

representative of TU Dublin and various GDA employees. That organisational chart

denoted the CAM position as reporting to the DCSC position, rather than directly to

the CEO. The CAM position was no longer listed as a member of the senior

management team.

·       The Complainant’s core functions and responsibilities have been reassigned to the

DCSC. In a meeting with the CEO on 6 June 2023, the Complainant was told her

duties would be reassigned to the incoming DCSC. The Complainant conveyed that

she did not agree to the removal and reassignment of her duties.

·       In an email of 15 June 2023 entitled “DCSC Role and CAM Role” the CEO outlined the

delineation of duties between the DCSC and the CAM roles and subsequently

communicated to the Complainant that she would be relieved of the following duties:

Corporate Services, including Communications, Human Resources, IT, Corporate

Governance and Company Secretary and that these core duties and responsibilities

would be reassigned to the new DCSC effective 3 July 2023.

·       Since July 2023, the Complainant has not been invited to any of the senior

       management team meetings and was not included in the annual planning for 2024

having been part of those meetings since the current CEO was appointed.

The law

Equal Pay claim (CA-00058507-001)

Section 19 of the EEA provides that:

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.”

·       There is no defence for direct discrimination. Section 19(4)(b) provides a potential

defence to employers for indirect discrimination if they can demonstrate that there is

objective justification for such treatment.

Sections 19(5) confirms that an employer is entitled to pay difference rates of

remuneration to different employees on grounds other than the gender ground.

Section 29 contains an equivalent confirmation in respect of the eight other grounds

of discrimination in the EEAs.

·       Most of the jurisprudence in this area deals with equal pay as between men and

women, as in practice this is where the problem most often arises. The legal principles

are the same, however, for other grounds of discrimination.

·       Leading Irish commentators4 have succinctly explained how the burden of proof

operates in an Equal Pay claim as follows:

“If the complainant can prove that they are being paid less than their chosen

comparator for doing like work, then that is prima facie evidence that the

complainant has been unlawfully discriminated against on one of the prohibited

grounds. It is for the employer to prove the difference in pay is based on non-discriminatory

grounds or can be objectively justified.”

·       It is respectfully submitted that the Complainant’s evidence will prove she is paid less

than her comparators who are both men for doing like work. Therefore, she succeeds

in raising a prima facia case and it will be for the Respondent to prove the difference

is based on non-discriminatory grounds or can be objectively justified.

Is the Named Comparator engaged in Like Work?

‘Like Work’

·       It is submitted that the entire basis of equal pay is that a person is doing like work with

an identified comparator.

·       An analysis of the respective roles reveals that there are no significant differences

between the roles of the Complainant and the named comparators or either of them.

·       Like work is defined at section 7(1) of the EEA as occurring where

“(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.” [emphasis added]

·       The Labour Court has clearly stated that it is a “condition precedent” to an entitlement

to equal pay that the comparator and the complainant are doing like work (Donegal Meats Processor Limited v Rodrigo Da Silva EDA 093).

Similar Work

·       The concept of similar work has been broadly interpreted by the Courts.

·       In the case of Capper Pass v Lawton ([1977] QB852) a female cook who worked in a directors’ dining room of a company prepared 10 or 20 meals a day. She sought to compare

herself to male assistant chefs who worked unsupervised in the staff canteen

preparing approximately 350 meals a day. The work was generally of a similar type

with similar skill and knowledge required. The basic process involved in the two roles

was essentially the same. The female cook was successful in arguing that the male

assistant chefs were her comparators.

·       It is submitted that the jobs of the Complainant and the Comparators and each of them

are similar. A similar job does not have to be either identical or interchangeable but it

is still alike in many respects (Page 637 of Employment Equality Law; 2nd edition; Roundhall by Bolger, Bruton and Kimber).

Equal Value

·       Without prejudice to the foregoing, it is submitted that even if the Adjudication Officer

does not find that this is a case of similar work then it is submitted that it is a case of

work of equal value. The roles held by/previously held by the relevant individuals and

their functions are clearly of equal value.

·       Section 7(1) (c) of the Acts provides guidance as to how an assessment is to be carried

out in relation to whether two roles are of equal value. Regard is to be had to skill,

physical or mental requirements, responsibility and working conditions. It is submitted

that the evidence will clearly establish that the work of the Complainant and of each

of the comparators is of equal value.

·       The second comparator is doing the role that the Respondent was doing until the

appointment of the second comparator.

Comparisons

·       The Complainant’s role and the Comparators role satisfy the definition of “like work” as they are either “similar work” or “work of equal value”.

·       The Complainant submits that up until June 2023 her role and that of her first

comparator at that time and that of the second comparator since July 2023:

• are employed by the Respondent with responsibilities and scope at the level of

director;

• report to the CEO;

• serve on the senior leadership team with equal status;

• are members of the annual planning Forum with equal status;

• have a number of equivalent grades reporting to them;

• are engaged in work and tasks that are similar and / or of equal value, taking into

consideration skills, experience, education, professional training, and

competencies.

·       They are engaged in work and tasks that are similar and / or of equal value, taking

into consideration skills, experience, and competencies. It is noteworthy that this is in

reality the premise of the CEO’s application and business case in 2016.

·       The Complainant submits that the Respondent must accept, given the submission that

she and the comparators have done like work since her role was first expanded in 2009.

Inference of Discrimination

·       Section 19(1) of the EEA prohibits direct and indirect discrimination on the grounds of

gender.

·       Section 19(1), EEA provides that:

“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.”

·       Section 18(1)(a) provides that, “for the purposes of this Part "A" and "B" represent 2

persons of opposite sex so that, where A is a woman, B is a man, and vice versa.”

The Burden of Proof

Has the Complainant made out a Prima Facie case?

·       The Complainant respectfully submits that she has made out such a case on the facts

provided. In Enderby v Frenchay Health Authority and Anor [1993] IRLR 591, the

CJEU held, in the context of sex discrimination relating to pay, that:

“There is a prima facie case of sex discrimination where valid statistics disclose

an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men.”

·       Respectfully, it is submitted that the above narrative demonstrates that there are no

justifiable reasons for any difference in pay between the Complainant and her named

comparators or either of them.

·       There is no transparency as to the reasons for the obvious and significant differences in pay.

·       Section 85A (1), EEA provides:

“Where in any proceedings facts are established by or on behalf of a

complainant from which it may be presumed that there has been discrimination

in relation to him or her, it is for the respondent to prove the contrary.”

·       In Southern Health Board v Mitchell DEE011 (2001) E. L. R. 201, the Labour Court

held that:

“the first requirement is that the claimant must establish facts from which it may

be presumed that the principle of equal treatment has not been applied to them.

This indicated that a claimant must prove, on the balance of probabilities, the

primary facts on which they rely on seeking to raise a presumption of unlawful

discrimination. It is only if those primary facts are established to the satisfaction

of the Court, and they are regarded by the Court as being of sufficient

significance to raise a presumption of discrimination, that the onus shifts to the

respondent to prove that there is no infringement of the principle of equal

treatment’.”

·       It is respectfully submitted that the facts provided in the within submission clearly raise

an inference of discrimination on the grounds of gender.

·       In this regard, it is worth restating that at no time has the Respondent given an

objective reason justifying the difference in pay between the Complainant and her

male comparators. It falls then that the comparators’ roles must be examined in further

detail.

·       The post of DCSC was sanctioned and advertised in 2023 with the corresponding

higher pay rate.

·       As the Labour Court held in the Department of Justice, Equality and Law Reform

and CPSU EDA 0713:

“It is now well settled that discrimination, including discrimination in matters of

pay, can be direct or overt or indirect or covert. Direct discrimination arises

where a man or a woman is discriminated against because of his or her sex or

because of a criterion linked to a characteristic which is indissociable from sex.

(see Opinion of Jacobs AG in Schnorbus v Land Hassen [2000] ECR 1 10997).”

Lack of transparency

·       In Calor Teo v Brierton EDA 10/2015, the Labour Court, in refusing to accept the

existence of grounds other than age for differences in pay, was critical of the

company’s pay determination system which was “devoid of any structure and was

wholly opaque” and was thus “inherently open to being tainted by discrimination”.

·       It is respectfully submitted that there is an absence of candour in the reason that the

Complainant has not been permitted to advance up the salary scale in accordance

with her role

·       In Case 109/88 Handels- og Kontorfunktion Rernes Forbund I Danmark v Dansk

Arbejdsgiverforening acting on behalf of Danfos [1991] 1 CMLR 8, the CJEU

(formerly the ECJ) was called upon to consider a case in which pay supplements were

determined by a system wholly lacking in transparency. The Court held at paragraph

13 as follows: -

“It should next be pointed out that in a situation where a system of individual

pay supplements which is completely lacking in transparency is at issue, female

employees can establish differences only so far as average pay is concerned.

They would be deprived of any effective means of enforcing the principle of

equal pay before the national courts if the effect of adducing such evidence

was not to impose upon the employer the burden of proving that his practice in

the matter of wages is not in fact discriminatory”.

·       As the Labour Court opined in Brierton

“[…] the principal that can be extracted from the [Danfos] decision is that

opaqueness in a pay determination system, in combination with other factors,

can operate to shift the burden of proving the absence of discrimination to the

employer.”

·       To date, no objective reasons have been identified or tendered to the Complainant to

justify the difference in pay between the Complainant and her male comparators.

There has been a continuum of less favourable treatment which is rooted in the

discriminatory perception of the Complainant’s role since 2008.

·       From the facts set out above, there is sufficient evidence to raise a presumption of

discrimination on the grounds of gender. Accordingly, the burden of proving

compliance with the principal of equal treatment now shifts to the Respondent.

Discrimination claim – CA-00058507-002

·       Discrimination on the grounds of gender is prohibited by the EEA. The relevant

provisions of the EEA are:

6.— (1) For the purposes of this Act and without prejudice to its provisions

relating to discrimination occurring in particular circumstances discrimination

shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or

would be treated in a comparable situation on any of the grounds specified in

subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

(i) is treated, by virtue of that association, less favourably than a person who

is not so associated is, has been or would be treated in a comparable

situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds

would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions

of those grounds for the purposes of this Act) are—

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

gender ground”),

[n/a]

(2A) Without prejudice to the generality of subsections (1) and (2) , discrimination

on the gender ground shall be taken to occur where, on a ground related to her

pregnancy or maternity leave, a woman employee is treated, contrary to any

statutory requirement, less favourably than another employee is, has been or

would be treated. ]

·       Section 8 of the EEA lists a number of instances where discrimination is prohibited:

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective

employee and a provider of agency work shall not discriminate against an

agency worker.

·       The Complainant submits that she has been discriminated against on the gender

ground in relation to her conditions of employment, promotion, re-grading and

classification of her post.

·       Further, the Respondent has failed to provide any non-discriminatory explanation or

objective justification for this mistreatment.

·       The Labour Court has also recognised the scope for indirect discrimination in certain

situations. In Mary Immaculate College v Sister Loye EDA082/2008, the Labour Court

held that the failure of a person to be selected for retention in employment was

because of an assumption that she had an old-fashioned approach to teaching and

was believed to have an older teaching ethos was found to be indirectly discriminatory

on grounds of age. In the instant case, the Complainant draws an analogy with the

gender ground and the Respondent’s implicit and sometimes explicit assumption that

the Complainant occupied a more administrative role with greater expertise in s—

called softer skills.

·       In finding that the complainant had been discriminated against in Mary Immaculate

College, the Court made the following inciteful comment, which have application to the

instant case too:

“During the course of the hearing, it became clear to the Court that the thrust

and ethos of the interview process was to change and modernise the institution,

and to appoint to permanency younger and more dynamic people who would

be able to meet the requirements of a younger and more dynamic head of Department.”

·       The Court went on to find that:

“It is the view of the Court that, unfortunately, her employers regarded her as a

person from another era who was ‘out of her time’ and would not fit into the

idea of a modern 21st Century institution which the College wished to establish.

The Court finds that the respondents have not satisfactorily discharged the

burden placed upon them. The Court finds that while the complainant would

have undoubtedly lost marks for not having completed her PhD, and for her

lack of research and publication, nevertheless the difference in marking

between her and the other candidates in an interview for permanency, coupled

with the fact that, having found her completely unsuitable, without any effort to

provide retraining, the College then reappointed her to that position until retirement, can only lead the Court to conclude that the Respondents, while not specifically taking the plaintiff’s age into account, decided that because her approach and ethos were those of someone from a different era, accordingly she would simply not ‘fit in’. Since the complainant’s approach to teaching and her ethos were inextricably linked to her age and the era in which she grew up, the respondents did discriminate against the complainant on the grounds of her age in breach of Section (2) & 8(1) of the Act.”

The Labour Court has also recognised that discrimination may also arise unconsciously. In Dublin City University v Jane Horgan EDA0715, another age/gender discrimination case, the Labour Court held that:

“The requirement to establish that there was no discrimination whatsoever means that the Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution”.

Burden of proof

·       It is submitted that where the Complainant has raised a prima facie case of discrimination, the burden of proof shifts to the Respondent.

·       Section 85A of the EEA further sets out the burden of proof in discrimination claims as follows:

“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”

·       As set out in Teresa Mitchell v Southern Health Board [2001], the first requirement for a claim of discrimination is that the Complainant must “establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.”

·       This requirement for the Complainant to establish a prima facie case of discrimination was further elaborated on in the decision of Melbury Developments v Arturs Valpeters EDA0917. In that case, the Labour Court outlined that:

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

·       In establishing a prima facie case, the Complainant must demonstrate the following elements as summarised in the decision of Minaguchi v Wineport Lakeshore Restaurant DEC-E2002-020:

“(i) that [the Complainant] is covered by the relevant discriminatory ground(s) that [the Complainant] has been subjected to specific treatment and that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

·       It is submitted that the material facts to establish a prima facie case of discrimination have not yet been disputed by the Respondent and that, subject to the position adopted by the Respondent at hearing, the Complainant has established the relevant facts. Accordingly, the burden of proof shifts to the Respondent.

Victimisation claim

Victimisation is defined in broad terms under the EEA. Section 74(2) provides:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

·       Section 74(2) of the EEA sets out the acts which are protected from adverse treatment on the part of the employer, and the actions which an employee must have taken/indicated an intention to take, from which the reactionary behaviour of the employer emerged.

·       The key elements of victimisation provided for in therefore are as follows:

a. The employee had taken action of a type referred to at s.74(2) of the Acts (a protected act),

b. The employee was subjected to adverse treatment by the respondent, and.

c. The adverse treatment was in reaction to the protected action having been taken by the employee.

·       Once these proofs are met, there is no defence within the legislation (See A Female Teacher v A Board of Management of a Secondary School DEC-E2012-103).

·       It is submitted that the Complainant has established the necessary nexus between her efforts to assert her equality rights and the detriment to which she has been subjected as a result of same.

·       Further. in order to meet the burden of proof required by s.85A of the EEAs, the Complainant has demonstrated that there is a causal connection between her making representations about the unfairness of her position to the Respondent and the adverse treatment to which she has been subjected. As victimisation is defined as discrimination for the purposes of the burden of proof required by the EEAs, the general rules concerning burden of proof apply to victimisation. The relevant case law shows that a wide variety of actions have been found to be victimisation.

·       In Panuta v Watters Garden World Ltd [2010] E.L.R. 86, the Labour Court rejected the proposition that victimisation could only arise where a person suffered a detriment in respect of his or her conditions of employment. The court was satisfied that the decision of the Court of Justice in Coote v Granada Hospitality Ltd [1998] E.C.R. I5199; [1998] I.R.L.R. 656 was authority for the proposition that the concept of “victimisation” should be “construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act”

Conclusion

The Complainant’s claim is well founded. She is entitled to inter alia:

-          compensation in relation to outstanding back pay together an Order for equal pay going forward;

-          compensation for the acts of discrimination and victimisation;

-          an order for payment of interest under the courts act 1981 on all of the compensation and arrears of equal pay;

-          an order that of all duties and responsibilities that were removed from her remit in favour of the position of DCSC be restored to the Complainant

-          an order that the complainant’s role be regraded and remunerated at the Assistant Principal level;

-          an order that she not be subject to any further unfavourable treatment. 

·       The Complainant reserves the right to make further submissions in relation to all the complaints outlined in this submission and to adduce further evidence at the hearing of this matter.

·       As a final note, the Complainant submits that she is very committed and loyal to working in the Respondent and values the good working relationships that she has with her colleagues. The Complainant does not take this action with an acrimonious approach, but rather, after deep consideration of her Public Sector Duty and all that has been said and written recently about culture, being treated fairly, the gender pay gap reports, setting up a women’s network to support equality, equity and parity with male colleagues, and noting that the goal of equality can only be achieved through the process of equity.

INTRODUCTION

·       On 25 August 2023, the Complainant instituted two specific complaints under the

Employment Equality Acts, 1998 – 2015 (hereafter the “1998 Act”). These

complaints have been listed for hearing before the Workplace Relations Commission

(the “Commission”) on 25 April 2024, following a hearing date previously scheduled

for 9 February 2024 and adjourned on the application of the Complainant.

·       In Specific Complaint CA-00058507-001, the Complainant alleges that she has been

discriminated against on the ground of gender in terms of equal pay, and identifies

two comparators.

·       In Specific Complaint CA-00058507-002, the Complainant alleges that she has been

discriminated against on the grounds of gender by an alleged failure on the part of the

Respondent in getting her a job; promoting her; victimising her; conditions of

employment; and harassment.

·       On Friday 19 April 2024, before the hearing scheduled for the following Thursday 25

April 2024, the Complainant particularised her complaints by way of a 394 paged legal

written submission delivered by her solicitor.

·       It appears from the Complainant’s submission (paragraph 2.1.2) that she has

abandoned part of Specific Complaint CA-00058507-002, namely that she was

discriminated against in getting a job, in her conditions of employment and the

harassment claim. The Complainant specifies that the two complaints that she

maintains at paragraph 2.1.2 are (i) a discriminatory conditions of employment claim

and (ii) unequal access to promotion.

·       As part of that submission, the Complainant for the first time in this long-running

dispute has introduced new allegations against the Respondent. This submission

endeavours, in the available time before the scheduled hearing to respond to the

Complainant’s allegations.

·       The cognisable period for the complaints is from 26 February 2023 to 25 August 2023.

·       The Respondent denies the above allegations and delivers the within submission in

response to the Complainant’s outstanding claims in her recent legal written

submission. The Respondent strictly reserves the right to make further submissions,

both orally and in writing, in response to any further submission delivered by the

Complainant.

BACKGROUND

Overview of Grangegorman Development Agency

·       The Grangegorman Development Agency (the “Respondent” or the “Agency”) is a

statutory body established in 2006 by the Grangegorman Development Agency Act

2005 (the “2005 Act”). The 2005 Act established the Respondent as the agency to plan

and oversee the development of a major site at Grangegorman in Dublin north-west

inner city, originally the location of St. Brendan’s mental hospital (a 73-acre site). The

sponsoring department of the Respondent is the Department of Further and Higher

Education, Research, Innovation and Science (the “Parent Department”).

·       The Complainant commenced employment in or around February 2008 as a “Senior

Office Administrator”, initially reporting to the Director of Finance. As the Agency

experienced significant growth, the role of the Senior Office Administrator quickly

developed to the role of “Corporate Affairs Manager” (“CAM”).

·       The Respondent employs approximately 37 staff. The Complainant is employed at the

Higher Executive Officer (“HEO”) grade. Throughout the years of the Complainant

seeking a re-grading of her role, there has been a gender mix of both male and female

directors at Assistant Principal (“AP”) Officer level (the grade in which the

Complainant’s two comparators are employed), details of which are as follows:

-          In 2016, when the Complainant sought to have her role re-graded, there were two male directors and one female director (the Director of Construction & Operations) at AP Officer level.

-          That remained the gender breakdown of the directors at AP Officer level up until

2021, when the female Director of Construction & Operations retired.

-          In September 2022, another female was appointed a director at AP Officer (Higher)

level (Director Programme & Procurement).

-          On 25 August 2023, the date of the institution of the Complaint Form, there were

three directors at AP (Higher) level (two male directors and the female Director

Programme & Procurement) and one male director at AP level. Organisation charts

of the Agency both in 2017 and 2023 were included in the submission.

·       Following an internal restructuring, a new position of Director of Corporate Services

and Community (“DCSC”) was created in July 2023 and at the time of the initiation of

the Complaint Form on 25 August 2023, the Complainant now reports to the DCSC,

not the CEO.

Role Review

·       On 5 August 2016, following informal requests, the Complainant formally wrote to the

CEO of the Respondent seeking to have her role re-graded from the current Higher

Executive Officer grade to the AP grade.

·       Pursuant to section 24 of the 2005 Act, the renumeration, grading and

terms of employment of the Respondent’s staff are strictly subject to ministerial

consent. Section 24 of the 2005 Act deals with staff of the Respondent and provides:

(1) The Agency may appoint such and so many persons to be members of the staff of

the Agency as it may determine with the consent of the Minister and the Minister for

Finance.

(2) The grades of the staff of the Agency and the numbers of staff in each grade and the

appropriate level of remuneration for each grade shall be determined by the Agency

with the consent of the Minister and the Minister for Finance.

(3) A member of the staff of the Agency shall—

(a) be paid out of moneys advanced to the Agency in accordance with section

14, such remuneration and allowances for expenses incurred by him or her as

the Agency may, with the consent of the Minister and the Minister for Finance,

determine, and

(b) hold his or her office or employment for such term upon and subject to such

other conditions (including terms and conditions relating to remuneration) as

may be determined by the Minister after consultation with the Agency and

with the consent of the Minister for Finance.

·       In line with section 24 of the 2005 Act, the Respondent made a request to the Parent

Department to prepare a joint submission to DPER seeking to have her role re-graded.

The Respondent via the Parent Department made two role requests, the first in 2018

and the second in 2020, both of which were unsuccessful.

(i) First Role Review Request to DPER (2018)

In September 2018, the Agency via the Parent Department submitted a formal

business case to DPER (Appendix B2) seeking the review of the Complainant’s

role, strongly recommended by the CEO and Board of the Agency. On 29

November 2019, DPER refused the request on the basis that:

“such an upgrading is contrary to public service pay policy and is precluded under (i) the

terms of the Public Service Stability Agreement (“PSSA”) and (ii) the Financial

Emergency Measures in the Public Interest Act 2009 (no.2).”

(ii) Second Role Review Request to DPER (2020)

On 18 February 2020, the Parent Department wrote to DPER seeking a second

review of the business case. This again was refused by DPER and communicated

by the Parent Department to the Agency on 15 May 2020, where the Parent

Department stated:

“Given the exceptional circumstances, we have invested considerable effort in trying to

secure this role review, with the support of our Finance Unit and External Staff Relations.

However, the DPER position has been made very clear and unfortunately I do not see scope

to advance this any further”.

·       In circumstances where the Agency is a creature of, and bound by, statute, like the

Workplace Relations Commission, it is prohibited by law in going against the two

determinations of DPER communicated via the Parent Department. Copies of

correspondence between the parties relating to the two role reviews was made available to the hearing.

Grievance Procedure Investigations - The Talbot Report (2022)

·       In March 2021, the Complainant submitted a grievance to the Respondent on foot of

which an independent investigator, Ms Karen Talbot of Talbot Pierce, was appointed

by the Respondent.

·       The investigation was carried out between July 2021 - May 2022, and an Investigation

Report was issued by Ms Talbot on 11 May 2022 (the “Talbot Report”).

·       As now alleged again before this statutory forum, the Complainant’s grievance concerned an identical equal pay claim, namely her belief that the Director of Finance was her male comparator and that she was treated less favourably than him “despite their like-work” (page 7 of 54 of the appendices to the Talbot Report). The Talbot Report

conducted an in-depth analysis of the Complainant’s role with the role of the Director

of Finance, and in doing so held a number of individual meetings with the Complainant, the CEO of the Respondent and the Director of Finance.

·       A role evaluation was conducted under four headings: (i) Reporting structure;

(ii)Principal accountabilities/ key responsibilities; (iii) Leadership; and (iv)

Stakeholder engagement. Details of the findings are as follows:

(i) Reporting structure

As regards the two roles reporting to the CEO, the Talbot Report found that it was not

uncommon within State bodies and private companies, for individuals at differing

grades to report to the CEO, and/or be members of the senior management team.

Further, Ms. Talbot held that “There is no requirement, or particular desirability or business

imperative for all persons reporting to the CEO, and/or as members of a senior team grouping, be of the same grade as each other”.

(ii) Principal accountabilities / key responsibilities

Under the heading principal accountabilities/ key responsibilities, the Talbot Report

found, inter alia:

“Particularly given the nature of the functions of the Agency, which involves significant capital

projects, the size and impact of the role of the Director of Finance is substantially greater

than the role of the Corporate Affairs Manager.

The level of accountability and responsibility required of the Director of Finance is substantially higher than that of Ms Rahill” (emphasis added).

(iii) Leadership

As regards leadership, it was found that the “impact and nature of the leadership required

of the Director of Finance in respect of the management of core capital projects is considered to

be at somewhat higher level than that of Ms Rahill” (emphasis added).

(iv) Stakeholder engagement

Finally, as regards the heading of stakeholder engagement, it was found:

“The relative level of the person with whom an individual engages is not determinative of their own level or the grade at which they should be. There are many instances across the public sector of people at different grades regularly engaging with each other. While it is not

determinative, it is relevant to informing the nature and level of the engagement.

The Director of Finance appears to operate at a somewhat higher level than Ms Rahill in the

area of Stakeholder engagement, however, not to a significant degree.”

(v) Overall findings of the Talbot Report

·       Following a number of interviews and role analysis, the Talbot Report found that the

Complainant’s role “may well be at a higher level than Higher Executive Officer, but not

such to lead to parity with the role of Director of Finance”. Key differentiators between the

two roles included levels of leadership, responsibilities, decision-making, driving

initiatives, portfolio management and responsibility for the Agency’s finances, which

is a key part of the annual report.

·       The Talbot Report did not uphold the equal pay complaints and concluded:

“In conclusion, the work carried out by Ms Rahill is not of equal or greater value to that of the named male comparator in the role of Director of Finance. Further, there is no evidence that the factors leading to the appointment, determination of the grade (and resultant salary) of both Ms Rahill’s position and that of the current Director of Finance, came about in any way other than entirely independently of any consideration of the gender of either party.

These complaints are not upheld.”

·       In coming to the above conclusion, it is noteworthy that the Talbot Report identifies

“other points of relevance” with respect to her allegation of gender discriminatory pay, as follows:

(i) A director (of Construction) retired earlier in 2021, who is female.

(ii) If that Director was still employed by the Agency at this time, the potential

validity of the male comparator put forward by Ms Rahill would be significantly

undermined (this point is made based on an assumption that the Director of Construction

operated at least at the same level as the Director of Finance).

(iii) The mere departure of a colleague of the same gender as Ms Rahill, with only male directors

left in post, cannot logically lead to a conclusion that any differential between Ms Rahill’s

pay and that of a male Director, is based on gender grounds.

(iv) The Director of Finance was appointed through an open competition, which, in the absence

of any evidence to the contrary, is assumed to have been fair and objective. His appointment,

therefore, was made independently of his gender.

(v) It cannot be the case that the mere fact of an appointment of a male to a position can render treatment of another person, unconnected with that process, to be discriminatory”

·       In that regard, it is worth noting that following the Talbot Report, there are currently

our directors in the Respondent, one of which is female. The female director is operating on the same level as both male comparators.

Grievance Procedure Investigations - The Rooney Investigation (2024)

·       On 24 July 2023, the Complainant lodged a further grievance with the

Respondent in relation to a new senior position of DCSC, created by the Agency with

the role effective 3 July 2023. This is the second comparator that the Complainant now

identifies.

·       In summary, the following key facts are relevant to the creation of the DCSC role:

(i) Workforce Plan Review:

In April 2022, an external Workforce Plan Review was conducted by an

independent consultant, resulting in a recommendation that several new positions

should be created in the Agency - the DCSC role being one. The Workplace Plan

Review was included in the Respondent’s submission.

(ii) Creation of the DCSC role:

- As part of the proposed restructuring, the DCSC role at Assistant Principal level

would include overall responsibility for Human Resources, IT and Corporate

Services functions. To reflect the growth of the Agency, new specialist support staff

were engaged to assist the DCSC in carrying out each of these functions.

- The Complainant would remain responsible for the Community function and

would report to the DCSC. The Complainant’s remuneration and grading were not

affected by this restructuring.

(iii) Input from the Complainant on the DCSC role:

As the creation of the DCSC role impacted the Complainant’s role at the time, the

Complainant’s input was sought and obtained by the Respondent prior to the

creation of the role (as referred to in the Complainant’s grievance submitted in July

2023).

(iv) Sanction of the DCSC role by the Parent Department:

- In October 2022, following the submission of the Workforce Plan Review by the

Agency to the Parent Department, the DCSC role was sanctioned by the Parent

Department.

- Both the Parent Department and DPER advised that the DCSC role would be

subject to an open competition, as was on-going practice within the Agency. The

Complainant had requested that only an internal recruitment process take place.

(v) Recruitment process for DCSC role

- The Agency appointed an external recruitment agency to carry out the recruitment

process. The Agency posted the DCSC role on 18 January 2023, having informed

the Complainant three months prior on 28 October 2022 of the open competition

process. A copy of the Candidate’s Information Booklet was available at the hearing.

- The Complainant applied for the DCSC position on 11 March 2023. There were 33

applications for the role.

- The external recruitment agency conducted a preliminary interview with the

Complainant and approximately 9 other job applicants, and the Complainant

successfully progressed to the second interview stage. The interview was a panel

based competency interview, held at the premises of the external recruitment

agency. The panel was made up of the CEO, a (female) member of the Board and

a (female) employee of the external recruitment agency.

- Unfortunately, on 19 April 2023, the Agency communicated to the Complainant

that she was unsuccessful in the recruitment process. The Respondent provided further feedback to the Complainant by way of a meeting dated 15 June 2023.The appointment of the DCSC role was completely unconnected to gender.

·       On 24 July 2023, following the above recruitment process, the Complainant via Forsa

Trade Union submitted a second formal grievance, further to meeting with the CEO

on 6 June 2023, and furnishing correspondence to the Respondent via Forsa on 20 June

2023.

·       In November 2023, an independent external investigator, Mr Gerry Rooney,

consultant in Acrux Consulting and former WRC adjudication officer, was appointed

by the Respondent to investigate the Complainant’s second grievance relating to the

DCSC role. This investigation is ongoing.

Workplace Relations Commission Complaint

·       On 25 August 2023, one month after submitting the second grievance, the

Complainant submitted the within Complaint Form, failing to provide the Respondent

with an opportunity to address the grievances raised.

·       Nevertheless, the Complainant’s substantive claim appears to be that her role at the

HEO grade should be re-graded to the AP grade and that this, in some way, amounts

to less favourable treatment on the grounds of her gender. The Complainant identifies

two male comparators, who are directors of the Respondent and whose role are graded

at AP level:

(i) The first elected comparator is the Director of Finance. At a high level, the

Respondent’s position regarding this allegation is that this is not an appropriate

comparator, and the two roles cannot be compared as conducting “like work”. This

is supported by the findings of an independent and external investigator, Ms

Karen Talbot, who was appointed by the Respondent and who evaluated the two

roles, finding that “the work carried out by Ms Rahill is not of equal or greater value to

that of the named male comparator in the role of the Director of Finance”.

(ii) As regards the second named comparator, the DCSC, the Respondent contends

that this work similarly is not of equal or greater value and the Complainant and

the DCSC never worked in equivalent roles. A second independent investigator,

Mr Gerry Rooney, has been appointed by the Respondent to review this grievance,

and this is ongoing. In fact, the Complainant applied for this role and following an

external recruitment process, was unsuccessful. In so far as the Complainant

alleges that there was in some way a rule, criterion, or practice in place that was

discriminatory, the Respondent contends that the appointment of the DCSC was

completely unconnected to his gender, the Complainant having identical

opportunity to apply for, and did apply, for that role, albeit unsuccessfully.

·       Further, it appears that the Complainant has ignored the fact that there is currently the

female Director Programme & Procurement at Assistant Principal (Higher) grade,

instead comparing herself to two male directors in respect of her claim of gender

discrimination. Indeed, as above, since the Complainant sought a re-grading of her

role in 2016 and up until to 2021, there was another female Director of Construction &

Operations. As is well established by case law, the Complainant cannot simply select

comparators that suit the narrative of her case. The Complainant’s case is therefore

misconceived.

·       At all times, the Respondent has treated the Complainant fairly and afforded her with

the highest standards of fair procedures, having the benefit of:

(i) Two role review requests of the Complainant’s role submitted by the Respondent

via the Parent Department to the Department of Public Expenditure and Reform

(“DPER”) in 2017/ 2018 and again in 2020, resulting in DPER on both occasions

refusing to sanction the re-grading by way of communications dated 29 November

2019 and 15 May 2020; and

(ii) Two independent and external robust investigations of her grievance relating to

her role (the Talbot Investigation in 2022, finding that the Complainant’s work was

not of equal value to her comparator, and the currently ongoing Rooney

Investigation).

·       Notwithstanding the above, the Complainant maintains that her role should be

regraded to the grade of Assistant Principal Officer (“AP”) and failure to do so

amounts to gender discrimination, which is denied. The Respondent submits that the

Complainant has failed to establish a prima facie case that it has acted in a

discriminatory manner, either directly or indirectly on gender grounds.

·       As will be expanded on below, the Respondent submits that:

In relation to Specific Complaint CA-00058507-001 (equal pay claim):

(i) The comparator pool identified by the Complainant is invalid; and

(ii) There is no objective basis to a claim of “like work”;

(iii) Without prejudice, if the burden shifts to the Respondent, which it maintains

that it does not, the Respondent submits that any difference in pay is

unrelated to gender but instead is due to the Complainant’s grade at HEO

level, compared with employees at AP level. Any difference in pay can be

objectively justified by a legitimate aim, which are necessary and

proportionate.

·       In relation to Specific Complaint CA-00058507-002 (conditions of employment,

promotion, victimisation):

(i) As the conditions of employment claim appears to be identical to the

Complainant’s equal pay claim above, the Respondent maintains that no

valid comparator has been identified;

(ii) The Complainant was not treated less favourably than a male comparator in

accessing promotion, having identical opportunity to, and did, apply for the

DCSC role in a transparent, impartial and objective process;

(iii) As regards the victimisation claim, the Complainant’s March 2021 grievance

was not in any way connected to an alleged exclusion or reduction in her role

28 months later in July 2023, which is denied.

LEGAL SUBMISSION

Specific Complaint CA-00058507-001 (Equal Pay Claim)

Applicable Law

Section 85 – Burden of Proof

·       Section 85A(i) of the 1998 Act provides:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the

respondent to prove to the contrary.”

·       Section 85A shifts the burden of proof to the Respondent but only when the

Complainant has established a prima facie case that the difference in treatment alleged

is due to gender discrimination. In Valpeters v Melbury Developments Limited ([2010] E.L.R 64), a case concerning alleged discrimination on grounds of race, the Labour Court stated:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a

factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

·       The Complainant must demonstrate a link between the ground and the less favourable

treatment. As noted in Madarassy v Nomura ([2007] I.R.L.R 246, a mere difference in treatment or different status is not sufficient. Additionally, in Swan O’Sullivan Accountants & Registered Auditors v Counihan EDA 1810 the Labour Court held that:

“There is, however, authority for the proposition that the mere coincidence of a protected characteristic on the part of the Complainant (in this case a disability) and the detriment relied upon (in this case dismissal) is insufficient, in and of itself, to shift the probative burden. The High Court so held (per O’Sullivan J) in Mulcahy v Minister for Justice Equality and Law Reform and v Waterford Leader Partnership Limited [2002] ELR 12. A similar approach was adopted by the Court of Appeal for England and Wales in Madarassy v Nomura International plc [2007] IRLR 256.”

(i) The Comparator pool is invalid

Applicable Law

·       In order for the Complainant to establish a prima facie case of discrimination in her

equal pay claim, she must identify the indirect discrimination practice or system which

results in the pay differential of her group of comparators. The Complainant fails to

do so.

·       The leading case on equal pay claims and appropriate comparators is Kenny & Ors v

Minister for Justice, Equality and Law Reform, case C-427 /11, where the CJEU applied

the principles in Enderby v Frenchay HA and summarised the position as follows:

“(i)t is for the national court to assess whether it may take into account…statistics

(adduced in proceedings to demonstrate the existence of indirect discrimination), that is to say, whether they cover enough individuals, whether they illustrate purely

fortuitous or short-term phenomena, and whether, in general, they appear to be

significant.”

·       The CJEU held that comparators are irrelevant where they involve groups formed in

        an ‘arbitrary manner’, stating as a general principle that:

“it follows that the employer’s justification for the difference in pay, which discloses a prima facie case of gender discrimination must relate to the comparators who, because of the fact that their situation is described by valid statistics which cover enough individuals, do not illustrate purely fortuitous or short term phenomena, and which, in general, appear to be significant, have been taken into account by the referring court in establishing that difference.”

·       The CJEU further held that in order to determine whether employees performed 'like

work' it was necessary to ascertain whether, taking account of a number of factors such

as the nature of the work, the training requirements and the working conditions, those

persons could be considered to be in a comparable situation. It noted that when

seemingly identical tasks were performed by different groups of persons who did not

have the same training or professional qualifications for the practice of their

profession, it was necessary to ascertain whether the different groups in fact did the

same work, taking into account the following matters:

a) The nature of the tasks assigned to each group;

b) The training requirements for the performance of those tasks; and

c) The working conditions under which they were performed.

·       In Cheshire & Wirral Partnership NHS Trust v Abbott [2006] IRLR 546 the UK Court of

Appeal also applied the Enderby principles when concluding: “In that sense it is for the

employee to identify the comparator group and to produce the statistical evidence to show an appreciable difference in pay for jobs of equal value. The safeguard which prevents the employee from choosing an artificial or arbitrary group is the tribunal's own obligation to ensure that that does not happen. That is why one finds in Enderby the requirement that the statistics have to be "valid" and "significant", must cover enough individuals, and must not be purely fortuitous or short-term phenomena (see paragraph 17). Consequently, the employee is not entitled to identify an artificial comparator group so as to bolster his, or more usually her, claim of discrimination. So the employee does not enjoy a "right" to choose the comparator group...”

·       In National University of Ireland v. Ahern, [2005] 2 IR 577 the Supreme Court held that the

deciding body must approach the position of comparators in particular in the context

in which they were employed, and must look at the “surrounding circumstances” and

“the underlying facts” as regards comparators not chosen by a Complainant. The Court

held:

“The question at issue here is whether the differing rates of remuneration are based on

the grounds of sex or whether there are other reasons for the differential. This involves

a different approach to the position of the comparators, and in particular of the context

in which they were employed. I accept the arguments on behalf of the Appellant that

for this purpose the Labour Court ought to have looked at the position of the

comparators, not only in isolation, but also in the context of the other persons

in the same grade who had not been chosen as comparators, namely the

remaining switchboard operators” (emphasis added).

·       The Court further stated:

“It is of course very significant that the Respondents did not choose any full-time

switchboard operators as comparators, although they were paid the same remuneration

as the comparators”.

Application to the Complainant

·       It is clear from the case law that a comparator may not be based on an unrepresentative

group. The Respondent submits that the comparator pool identified by the

Complainant is not appropriate, representative and is invalid. She compares her role

to the Assistant Principal (AP) grade or AP grade (Higher) and has yet omitted to

compare herself to those employees in the Respondent who are at that grade.

·       The Complainant, in her legal submission at paragraph 3.1 lists out the Respondent’s

directors at AP grade or AP (Higher) grade. However, she has failed to refer to the

gender breakdown of the employees at AP level, and has elected two male directors

in isolation out of a pool of four directors at the AP grade. The Complainant fails to

mention that there is a female Director at the AP grade, with another previous female

Director up to 2021. It is respectfully submitted that the Complainant cannot satisfy

the prima facie burden of proof which rests on her by choosing comparators that

support the Complainant’s case without addressing the entire cohort of employees at

the AP grade.

·       The Respondent acknowledges that the Complainant’s comparators are paid at a

higher rate, but this difference is due to the grade of their role – not their gender. Indeed, all employees (including females) are paid at a higher rate due to the grading of their role at AP level. Indeed, the Complainant herself acknowledges this in her submission, where she states at paragraph 3.15:

“In fact, with the sole exception of the Complainant, all other members of the

management team are paid at this [AP] level on the Civil Service Pay Scale”.

·       The comparison of the Complainant’s role to the cohort of employees at AP grade was

the one adopted by the Complainant in her initial requests for her role to be re-graded

in August 2016. The Complainant did not suggest at this time that her role grading

was in any way connected with her gender, instead she compared herself to her

“colleagues” on the “Executive Management team” as a whole, “who are graded at Assistant

Principal Officer level” (who were at that time and are currently both male and female).

·       Indeed, the comparison of the Complainant to the entire Executive Management team

initially in 2016 was maintained by her at least up to 2019, when in an email to the

CEO dated 13 February 2019, she states:

“my role within the organisation reports directly to the CEO and is positioned within

an Executive Management team of 4 positions. As Corporate Affairs Manager, my role is significantly under paid within these 4 positions.”

·       Similarly, this approach was also referred to as the correct one by Ms Talbot during

       her investigation when she stated “If that [female] Director (of Construction &

Operations) was still employed by the Agency at this time, the potential validity of the male

comparator put forward by Ms Rahill would be significantly undermined”.

·       The Respondent submits that this initial approach by the Complainant comparing

herself to the entire cohort of directors at AP grade is the correct approach, rather than

her current isolation of two male directors for the purposes of advancing a case of

gender discrimination.

·       Insofar as the Complainant purports to rely on two specific individuals, and at the

same time the Complainant purportedly ignores the two female directors who are, or

were, employed as directors at the Complainant’s desired AP grade. In line with the

authorities of Kenny and Ahern above, the nomination of two comparators by the

Complainant without consideration of the full cohort of directors at AP level clearly

indicates that the Complainant cannot displace the prima facie burden of proof.

·       The Complainant’s simple assertion, that because another person, who is employed

with the same employer, is the opposite gender to the Complainant and paid more

than her, is wholly inadequate to ground a claim that the differences in pay arise from

discrimination on gender grounds.

·       The Respondent asks the WRC to determine that the Complainant’s chosen comparator pool is invalid.

(ii) No objective basis to claim of “like work”

Applicable Law

·       Without prejudice to the Respondent’s contention that the comparators relied upon by

the Complainant are invalid, it is submitted that the Complainant has not provided

any objective basis on which it can be concluded that she performs like work to an

appropriate comparator pool.

·       Section 7 of the 1998 Act refers to like work and provides:

“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.”

·       Section 19(1) of the 1998 Act provides:

“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.”

·       Section 19(2) provides for the period of comparison as “relevant time”, namely a

reference period of three years:

“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.”

·       Section 19(4) provides:

“(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.”

·       The 1998 Act does not prohibit an employer from paying different rates of

renumeration to different employees on grounds other than the prohibited grounds

(section 19(5) of the 1998 Act).

·       Section 22 of the 1998 Act defines indirect discrimination on the gender ground as

follows:

(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 any matter other than remuneration compared with

other employees of their employer.

(b) Where paragraph (a) applies, the employer shall be treated for the

purposes of this Act as discriminating against each of the persons referred to

(including A or B), unless the provision is objectively justified by a legitimate

aim and the means of achieving that aim are appropriate and necessary.

·       The Human Rights and Equality Commission’s Code of Practice on Equal Pay

(the “Code of Practice”) provides at paragraph 33 that the burden is firmly on

the Complainant to establish the following three factors, that:

(i) she is performing ‘like work’ with that of a chosen comparator;

(ii) she is receiving less pay than that comparator; and

(iii) the reason for the pay differential is one or more of the prohibited grounds.

·       The Code of Practice expressly recognises that differences in pay may be because of

some other factor other than relating to gender. Paragraph 31 provides:

“In some cases, pay differentials may have an explanation not related to a protected

characteristic, such as length of service, working hours, differing levels of

responsibility, atypical working patterns, key role differences, etc…”

Application to the Complainant

·       The Complainant does not provide any information nor any basis on which she alleges

that she has been treated less favourably than either or both on grounds of gender.

The Complainant’s case goes no further than an assertion that she does like work as

the named directors but earns less than them and that they are a different gender to

her.

·       It is submitted that this is entirely insufficient to discharge the Complainant’s burden

to establish a prima facie case that the pay differential between her and an appropriate

comparator pool exists because of gender discrimination and not some other reason.

Comparator 1 – Director of Finance

·       As regards the Complainant’s first comparator, the Director of Finance, the

Respondent submits that an external investigator has conducted an in-depth

independent job evaluation over a number of months.

·       The Talbot Report, as stated above, found: “In conclusion, the work carried out by Ms

Rahill is not of equal or greater value to that of the named male comparator in the role of

Director of Finance”.

·       The Respondent relies upon the findings of the Talbot Report in submitting that the

Complainant and the Director of Finance do not conduct “like work”.

Comparator 2 – DCSC

·       As regards the second comparator, the DCSC, the Respondent, maintains that this

comparator is not a legal comparator in circumstances where the Complainant never

worked in an equivalent position to that employee. The DCSC was appointed in July

2023 (with the Complainant on sick leave until 2 August 2023) and the Complainant’s

WRC complaint was instituted one month later, on 25 August 2023. The Complainant

did not work in an equivalent position to the DCSC from July 2023 to 25 August 2023.

·       The Complainant attempts to rely on her “pre-July 2023” role to demonstrate that the

DCSC role is a valid comparator but fails to point to any provision in the 1998 Act or

an authority that allows her to make such an argument. From July 2023 to 25 August

2023, the Complainant and the DCSC did not carry out the same or similar duties and

this is acknowledged by the Complainant in her submission. The roles cannot be

compared as “like work” within the meaning of the 1998 Act.

·       Further, as stated above, the Respondent has launched a second independent

investigation by Mr Gerry Rooney, who is investigating the Complainant’s claim that

she performs like work with the DCSC and further claims of victimisation, and that

investigation is ongoing.

Clause 2 (renumeration) of the Complainant’s contract of employment

·       The Complainant for the first time in her submission of 19 April 2024 makes a new

allegation that clause 2 of the Complainant’s contract of employment (relating to

renumeration) amounts to direct or in the alternative, indirect discrimination (see

paragraphs 3.54 – 3.58 of the Complainant’s submission).

·       The Complainant alleges that the Respondent refuses to “vary the Complainant’s pay to

reflect her value to organisation” by relying on clause 2, which sets out “the requirement

to obtain external approval for change”. The Complainant compares herself to “other male

employees carrying out the same work to whom this provision is not attached” (see

paragraphs 3.56 and 3.57). The Complainant refers to the Respondent’s “continued

insistence on its application”, which she says, is “evidence demonstrating unreasonableness

of such a position” (paragraph 3.58).

·       This assertion by the Complainant is entirely misconceived and confused.

·       The Complainant fails to identify any comparator in this baseless claim and therefore

fails to establish a prima facie case of gender discrimination. She instead refers generally

to “other male employees”. In fact, the Complainant cannot identify a comparator, as all

of the Respondent’s employees’ renumeration and re-grading (regardless of gender)

are bound by the same requirement to obtain approval from the Parent Department.

·       This is clearly set out in law pursuant section 24 of the 2005 Act, which mandates that

the Agency, as a creature of statute, must obtain approval from the Parent Department

for any change in renumeration or grading. This is legal requirement of the Agency –

not simply a term that the Respondent, as the Complainant puts it “purports to rely”

upon.

·       Further, reliance on the requirement for consent from the Parent Department for a regrading of the Complainant’s role is evidence that the Respondent has never stated

that a difference in pay is discriminatory. The difference in pay is due to the Complainant’s grade at HEO level.

·       The Respondent disputes the Complainant’s assertion that the requirement under law

is “manifestly unfair” or that it in any way demonstrates discrimination, either direct or

indirect. Whilst the Respondent has twice put forward a Business Case to DPER

through the Parent Department for a role review of the Complainant’s role, this is not

evidence in any way of a concession by the Respondent of a difference in treatment

based on gender. The Respondent has consistently maintained their support to have

the Complainant’s role re-graded to AP level. There is no suggestion by the Respondent that this requirement for re-grading was in anyway connected to gender.

·       Without prejudice to the foregoing, any difference in treatment on the gender ground

is objectively justified by a legitimate aim and the means of achieving that aim are

appropriate and necessary.

Specific Complaint CA-00058507-002 (conditions of employment, promotion,

victimisation)

5.1 In respect of Specific Complaint CA-00058507-002, the Complainant claims that, by

virtue of her gender, she has been unlawfully discriminated against in her conditions

of employment, promotion, and has been victimised.

Access to promotion

Applicable Law

·       It is well established that in cases in which discrimination is alleged in a job application

process, it is not the role of an Adjudication Officer to interfere to such an extent so as

ensure that there were no discriminatory elements to the process. In Moore Walsh v

Waterford Institute of Technology Labour Court (EDA 042), the Labour Court held

that in cases involving the hiring of individuals, it is not the role of the Court to

substitute its opinions on the relative suitability of applicants for those of the

designated decision makers. Rather, its duty is to make sure that the selection process

is not tainted by unlawful discrimination.

·       Accordingly, the Court will not usually look behind a decision unless there is clear

evidence of unfairness in the selection process or manifest irrationality in the

determination. This point was emphasised in Client Logic Trading as UCA+L v

Kulwant Gill (EDA 0817)

·       In addition, the Labour Court in O’Higgins v UCD (Tab D10)13, which was upheld on

appeal by the High Court, neatly summarised the applicable principles in claims of

alleged discrimination in selection processes as follows:

“1. It is for the complainant to prove the primary facts upon which she relies in

seeking to raise an inference of discrimination.

2. If the complainant discharges that burden it remains for the Court to decide if

those facts are of sufficient significance to raise the inference contended for.

3. It is not necessary to establish that the conclusion of discrimination is the only,

or the most likely, explanation, which can be drawn from the proven facts. It is

sufficient if it is within the range of presumptions that can be properly drawn from

those facts.

4. In cases concerning the filling of a post it is not the role of the Court to substitute

its views on the merits of candidates for those of the designated decision makers. Its

only role is to ensure that the selection process is not tainted by unlawful

discrimination.

5. The Court will not normally look behind a decision in relation to appointments

unless there is clear evidence of unfairness in the selection process or manifest

irrationality in the result.

6. A lack of transparency in the selection process combined with an absence of any

discernible connection between the assessment or qualifications of candidates and

the result of the process can give rise to an inference of discrimination.

7. Where a prima facie case of discrimination is made out and where the respondent

fails to show that the discriminatory ground was anything other than a trivial

influence in the impugned decision the complaint will be made out.

8. The Court must be alert to the possibility of unconscious or inadvertent

discrimination and mere denials of a discriminatory motive, in the absence of

independent corroboration, must be approached with caution.”

·       None of the above principles are illustrated by the Complainant and indeed the onus

required of her is a significant one. In A Former Civil Servant v A Recruitment Service

(ADJ – 00023270) the Adjudicating Officer noted that:

“the complainant was firm in his opinion as to the superiority of his own qualifications

and experience relative to that of the successful candidate, but these opinions were

unsupported by any evidence beyond his own. It is apparent that the interview board

concluded that, compared to the complainant, two other candidates were slightly more

suitable and that this conclusion was reached following a fair competition.”

Application to the Complainant

·       The Respondent maintains that the Complainant was not subject to less favourable

       treatment accessing a promotion. The Complainant’s claim appears to be, on the face,

that because she is a woman, she was denied access to the DCSC role. She chooses the

successful candidate as her comparator, simply because he is a male, while at the same

time advancing no objective evidence that she was denied access to the DCSC role due

to her gender or that gender itself had any influence in the selection process

whatsoever.

·       The Complainant was assessed and marked in an objective manner on the basis of

objective criteria throughout the process from the time of the review of her CV and

application form through to second-stage final interview.

Requirement for the DCSC role and necessary restructuring of the Complainant’s role

·       As above, the Workforce Review Plan recommended various structuring changes to

the Agency due to its change and expansion since its inception. The Complainant

alleges at paragraph 3.67 that the advertisement of the DCSC in January 2023 was

“advertised as if it were a new role”. The Complainant again fails to mention the facts

leading up to the posting of the DCSC in January 2023, and does not mention that she

had considerable input into the job specification of the new role in the lead up to same.

·       The Complainant was fully on notice that her role would be restructured and this is

evidenced by the Complainant’s own grievance submitted by Forsa in July 2023. That grievance highlights that on 9 June 2022, 13 months prior to the appointment of the DCSC, the CEO in an email to the Complainant set out the roles that he was seeking sanction for, including the DCSC (paragraph 11 of the 2023 grievance) with a follow-up phone call that day seeking the Complainant’s input by way of amendments (paragraph 12 of the 2023 grievance).

·       The 2023 grievance goes on to confirm that the Complainant was copied in on a 13

June 2022 email, where the CEO wrote to the Parent Department seeking permission

for the DCSC role. This email further included a description of the scope of the role,

and which stated:

“…As the overall workload has increased in volume and complexity, and as challenges.

demands and expectations around IT, HR, Governance, GDPR and other related areas

continue to increase for the Agency, so the corporate function must grow and mature

in response…”.

·       The Complainant was fully aware that the impact of the new DCSC role would mean

a restructuring of her current role. Notwithstanding, she proceeded to apply for the

role and advance through the various stages of interview. Now, the Complainant

attempts to complain retrospectively about (i) the interview process due to her being

unsuccessful in the open competition and (ii) the subsequent restructuring of her role

(which was inevitable from the introduction of the DCSC role).

·       The Complainant is aware that the practice in the Agency, as a public body, is to run

recruitments via an open competition – and as the Complainant states herself in the

2023 grievance, she has sat on interview panels. The Complainant is well aware that

an open competition style public service recruitment process comes with it inherent

risk of not being successful for the role.

Selection process

·       The Complainant attempts to argue that the process of the interview itself amounted

to gender discrimination.

Competencies

·       The Complainant makes broad and outlandish assertions in her submission in relation

to “hard” and “soft” skills in an attempt to link this to gender discrimination, namely

that:

(i) Certain competencies “were discounted as soft skills” (at paragraph 3.76 of the

Complainant’s submission); and

(ii) “Soft” skills were discounted in the interview process by the Respondent “because

they were contributed by a woman” at (paragraph 3.78).

·       The Complainant makes the above two utterly baseless statements in the absence of

any evidence, objective or otherwise, that either “soft” skills are inherently female (and

therefore discriminatory by nature), or that the skills “that were discounted” were “soft”.

·       Indeed, the statement by the Complainant that “soft” skills are “female skills” is a

discriminatory assertion in and of itself.

·       The Complainant introduces the above complaint for the first time in her submission

dated 19 April 2024, with no reference to such a complaint prior to this date, either in

her July 2023 grievance or her WRC Complaint Form. The Respondent asserts that this

is yet another example of the Complainant changing her narrative in order to fit into a

claim of gender discrimination.

·       There is nothing prohibiting a public body choosing selection criteria or appropriate

competencies for a specific role. Indeed, the Code of Practice for Appointment to

Positions in the Civil and Public Service acknowledges that “public bodies

would establish their own internal recruitment and selection procedures” (page 3 of the Code

of Practice).

·       The very purpose of using competencies in an interview process is to be as objective

as possible.

·       The Respondent submits there is no evidence from which any such unfairness or

manifest irrationality arises. In adopting the threshold of manifest irrationality, there

is a high onus on complainants, a threshold which the Complainant has failed to meet.

The successful candidate for the position of DCSC was simply more suited to the job

than the Complainant in respect of the position advertised and there was no

irrationality in the result of the selection process nor was the appointment in any way

connected to gender.

No difference in treatment

·       There was no difference in treatment to the Complainant as compared to the successful

candidate:

(i) Prior to the interview, both candidates were provided with the same information

about the DCSC role via the Candidate Information Booklet.

(ii) Both were eligible and did apply in the same way to the external recruitment

company.

(iii) Both candidates underwent the exact same process, namely being called to a

preliminary interview with the external recruitment company, and then to second

stage interview.

(iv) Both candidates were assessed on the same day, in the same place, by the same

panel (two of which were female).

(v) Both candidates were questioned on the same competencies, the same scoring

matrix, with the same weighting provided to each competency, and there were no

gender discriminatory questions, either direct or indirect, put to any candidate.

·       The successful candidate received no unfair advantage over the Complainant. Both

had equal opportunity to succeed in the appointment of the DCSC role.

The process was transparent, impartial and objective

·       The process for recruiting and appointing the DCSC was carried out in an objective

and transparent manner.

·       Further, there were various external parties involved in the creation and filling of the

DCSC role, demonstrating the objectiveness of this process. For example:

(i) The creation of DCSC role followed a Workforce Plan Review carried out by an

external company;

(ii) The Parent Department advised the Agency that this role should be advertised by

way of an open competition, as is normal practice;

(iii) The Respondent sought and obtained the Complainant’s input prior to the DCSC

role going out to open competition.

(iv) The Respondent informed the Complainant about the DCSC role on 28 October

2022 (in advance of it being advertised) and again, on 14 December 2022, providing

further information (which is, arguably, more favourable treatment towards her);

(v) The recruitment process was conducted by an external company;

(vi) The interview panel included the CEO of the Respondent, a member of the

Respondent’s Board of Directors (female) and was chaired by an external

appointee from the said recruitment company (female).

(vii) The Complainant was given comprehensive feedback by both the external

recruitment company and by the Respondent when she expressed dissatisfaction

with the result of the competition.

·       The Respondent can show that the successful candidate, on the basis of objective

evidence and following an impartial and transparent selection process in which all

candidates were treated fairly, was the most suitable candidate for the DCSC role. The

successful candidate who ranked ahead of the Complainant demonstrated to the

Selection Panel that he had the relevant skills, experience and qualifications suited to

the position.

·       The Complainant in the current case has furnished no evidence that her gender has

been a factor in her failure to be re-graded to the Higher Executive Officer level or

appointed to the position of DCSC. The Respondent submits that the Complainant has

not proven a prima facie case of treatment contrary to the 1998 Act.

·       Whilst the Complainant is clearly unhappy with the outcome, she has not provided

any evidence from which a presumption of discrimination can be raised. The

Complainant has failed to advance any prima facie case that the appointment of the

DCSC role to another candidate was in any way connected to her gender, the

Respondent has no case to answer in this respect.

Conditions of Employment

·       This claim appears to be identical to the Complainant’s equal pay claim and the

Respondent’s defence to same is therefore the same as above, including the

Complainant has not identified an appropriate comparator or valid comparator pool

for this complaint. Without prejudice, the Defendant denies that there has been any

less favourable treatment in the Complainant’s conditions of employment as

compared to a male employee.

·       The Complainant appears to argue that simply because the Respondent is of the view

that her role should be re-graded (which it has firmly communicated to the Parent

Department, and DPER through the Parent Department), that the failure to do so in

some way equates to less favourable treatment on grounds of gender.

·       As the Adjudication Officer is well aware, the Respondent, as a statutory body like the

Workplace Relations Commission, operates strictly under legislation and cannot go

beyond the remit of the 2005 Act. As such, the statutory requirement for Departmental

consent in the 2005 Act strictly prohibits by law the Respondent from taking steps to

re-grade the Complainant’s role in the absence of such consent.

·       DPER have twice refused to re-grade the Complainant’s role, and the Respondent has

no further powers in this regard. However, this certainly does not amount to gender

discrimination and to allege otherwise is misleading to this statutory forum.

·       The Complainant must demonstrate, on objective evidence, that the differences in pay

arise from discrimination on gender grounds. The Respondent submits that the

complaint is fundamentally misconceived in that regard. The Complainant has not

produced any statistics or objective evidence to prove the primary facts on which she

seeks to rely in alleging discrimination.

Repeated allegation that the Respondent fails to “objectively justify” a difference in pay

·       The Complainant in her submission argues that the Respondent fails to objectively

justify a difference in pay without acknowledging that an objective justification is only

required when a difference in pay is due to a protected characteristic.

·       The Respondent maintains that the difference in pay is not gender related and

therefore submits that the burden does not shift to it to objectively justify the difference

in pay. Similarly, the Complainant alleges that the Talbot Report fails to objectively

justify the difference in pay, whilst again overlooking the fact that the Talbot Report

found on objective evidence that the Complainant was not conducting “like work” with

a comparator at AP grade, and therefore objective justification is not required under

the 1998 Act.

Victimisation

·       Section 85A (4) of the Act confirm that the general rules in relation to the burden of

proof apply to victimisation claims. An employee in a claim of victimisation must

demonstrate the primary facts from which it can be inferred that their employer

victimised them, and “these facts must be of a sufficient weight to raise a presumption of

discrimination.” (Bolger et al, Employment Equality Law, 2023, 2nd ed., para 14 -27).

“But for” legal test

·       To meet the burden of proof in a victimisation claim, an employee must demonstrate

that there is a causal connection between a protected act and the adverse treatment by

the employee. The adverse treatment must be in “reaction to” a complaint. The “but for”

test is accepted to be the correct one in claims of victimisation (Monaghan County

Council v Mackarel, EDA 1213).

·       In that regard, the leading test in Toni & Guy Blackrock Ltd v O’Neill21 is relevant, where

  the Labour Court stated:

“Where there is more than one causal factor in the chain of events leading to the

detriment, the commission of a protected act must be an operative cause in the sense

that ‘but for’ the Claimant having committed the protected act he/she would not have

suffered the detriment … the Claimant must establish, on the balance of probabilities,

that he made complaints concerning health and safety. It is then necessary for him to

show that, having regard to the circumstances of the case, it is apt to infer from

subsequent events that his complaints were an operative consideration leading to his

dismissal. If those limbs of the test are satisfied it is for the Respondent to satisfy the

Court, on credible evidence and to the normal civil standard that the complaint relied

upon did not influence the Claimant’s dismissal.”

·       The substance of the Complainant’s claim of victimisation has significantly changed

in the days leading up to this hearing.

·       On 24 July 2023, one month before the submission of the Workplace Relations

Complaint Form, the Complainant’s claim of alleged “victimisation” (raised formally

through the Respondent’s Grievance Procedure by Forsa) was articulated as:

“The Employer’s insistence that Ms Rahill undergo a recruitment and selection

process in respect of the DCSC position (which we assert is one and the same role as

the CAM), and the Employer’s subsequent decision to appoint a male candidate to the

position of DCSC in view of Ms. Rahill’s longstanding claims in respect of her grading

and renumeration pursuant to the Employment Equality Act, constitutes penalisation

(victimisation)” (paragraph 62 of the Complainant’s second formal grievance

dated 24 July 2023). (emphasis added).

·       The original victimisation claim focuses only on the Complainant’s grievance that the

Respondent underwent a “recruitment and selection process” of the DCSC role. As stated

above, the Respondent put the DCSC role out to open competition, as is normal

practice within the Agency, and as advised by the Parent Department. The original

articulation of the victimisation complaint is currently being investigated

independently by Mr Gerry Rooney.

·       This original victimisation claim is outside the cognisable period, as the DCSC role

was advertised on 18 January 2023 and the within WRC claim was not submitted until

seven months later on 25 August 2023. Perhaps, as a result of which, a new claim has

now been advanced.

·       Now, at the 11th hour, the Complainant has changed her victimisation claim to, the

Respondent submits, again to try to fit her narrative of a gender discrimination claim.

In her submission delivered on 19 April 2024, the Complainant has particularised her

victimisation claim as follows:

“In March 2021 the Complainant raised a grievance, a copy of which is set out in

Appendix 12 in relation to her unequal pay. Subsequently the Complainant suffered a

series of exclusions and reductions of duties” (paragraph 3.60 of the Complainant’s

submission).

·       The Complainant’s new claim is formulated, at its height, as follows: “but for” her

raising a grievance in March 2021 (which was independently and externally

investigated by the Respondent resulting in the Talbot Report), she would not have

suffered alleged exclusion or reduction in work duties, some 28 months later. It is

respectfully submitted that this new claim is far-fetched.

·       At the outset, the Respondent strenuously disputes that the Complainant has been

excluded in the workplace, or there has been a reduction in her duties. The Complainant’s pay, grade and other terms of her contract of employment remain unchanged.

·       Further, the Complainant has produced no evidence whatsoever, objective or

otherwise, that there is any causal connection between her March grievance and her

alleged exclusion/ reduction in work, which is denied. The Complainant has failed to

make out her case and the Respondent asks that this claim be dismissed.

Conclusion

·       The Complainant in the current case has furnished no evidence that her gender has

been a factor in any actions carried out by the Respondent to date. The Respondent

submits that the Complainant has not proven a prima facie case of treatment contrary

to the 1998 Act.

·       The Complainant cannot establish a prima facie case of gender discrimination. The

Respondent asks the Adjudication Officer to determine that as regards the equal pay

claim, the comparator pool is inappropriate. It is well established in case law, in

particular in Kenny and Ahern, that a Complainant cannot simply elect comparators in

isolation. The correct approach is to look at the entire cohort of employees – in this

instance all other director employees at the Assistant Principal grade or Assistant

Principal (Higher) grade. The Complainant’s case is misconceived in this regard, as

there is currently a female director at the Assistant Principal grade, with a previous

female director at the Assistant Principal grade up to her retirement in 2021.

·       In the event that the Adjudication Officer finds that the comparator pool is

appropriate, the Respondent asks the Adjudication Officer to follow the reasoning of

the Talbot Report and find that that the Complainant does not perform like work to

the two comparators.

·       The Complainant has failed to illustrate any facts from which discrimination on

grounds of gender may be deduced. The Respondent has repeatedly supported the

Complainant both in submitting a business case for the re-grading of her existing

position and in ensuring that all grievances raised to date are dealt with by an external

investigator and in accordance with fair procedures.

·       The Respondent denies any discrimination on gender grounds or at all, and strictly

reserves the right to furnish Supplemental Submissions in response to any particulars

advanced by the Complainant.

As per complaint form received by the Workplace Relations Commission on 25th August 2023 the Complainant states that she has two complaints:

·       In Specific Complaint CA-00058507-001, the Complainant alleges that she has been

discriminated against on the ground of gender in terms of equal pay, and identifies

two comparators.

·       In Specific Complaint CA-00058507-002, the Complainant alleges that she has been

discriminated against on the grounds of gender by an alleged failure on the part of the

Respondent in getting her a job; promoting her; victimising her; conditions of

employment; and harassment.

Equality law is based on comparison; how one person is treated by comparison to another who does not possess the relevant characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator.

A comparator is an evidential too. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon.

Whilst generally a complainant is entitled to choose a comparator he or she wishes, the comparator cannot be selected out of context with other employees within the employer and must be examined in context, including the reason the particular comparator was chosen. Section 6 of the Employment Equality Acts requires that the comparator must be in a comparable situation and therefore a level of similarity is required in order for the circumstances of the two persons to be comparable.  

In the instant case the Complainant has named two comparators.

Comparator 1

·       Her first comparator is the Director of Finance.

·       Philip LeStrange was in that role from 18 February 2008 to 1 January 2010. Mr Peter

O’Sullivan was in that role from July 2013 until February 2024. Mr O’Sullivan has now

been promoted to Chief Financial Officer. He is one of the five senior management

team members as is the Complainant.

·       The Director of Finance is remunerated in line with the Civil Service Principal Officer

Higher Pay Scale.

Comparator 2

·       Her second comparator is the Director of Corporate Services and Community (the

DCSC).

·       This role is a new role and commenced in July 2023.

·       The DCSC is a member of the senior management team and does the self-same role

that the Complainant was doing until her duties were reassigned in July 2023 to the

DCSC.

·       The Director of Corporate Services and Community is paid at AP or Higher AP level.

In fact, with the sole exception of the Complainant, all other members of the

management team are paid at this level on the Civil Service Pay Scale.

·       When this role was advertised, the Complainant applied for it but was ultimately not

appointed. This forms part of the Complainant’s gender discrimination complaint.

In, or around July 2023 ninety (90) per cent of her duties, together with her reporting staff,

transferred to this role.

The Respondent has very clearly stated the following:

The entire basis of equal pay is that a person is doing like work with an identified comparator. “Like work” is defined in s.7 of the Act:

‘Subject to subsection (2), for the purpose 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.

In the instant case the Complainant cannot claim that she was doing the same work as her first named comparator nor can she claim that the work performed by her was of a similar nature to the same named comparator. This only leaves work of a similar value.

In her submission the representative of the respondent states the following:

Application to the Complainant

·       It is clear from the case law that a comparator may not be based on an unrepresentative

group. The Respondent submits that the comparator pool identified by the

Complainant is not appropriate, representative and is invalid. She compares her role

to the Assistant Principal (AP) grade or AP grade (Higher) and has yet omitted to

compare herself to those employees in the Respondent who are at that grade.

·       The Complainant, in her legal submission at paragraph 3.1 lists out the Respondent’s

directors at AP grade or AP (Higher) grade. However, she has failed to refer to the

gender breakdown of the employees at AP level, and has elected two male directors

in isolation out of a pool of four directors at the AP grade. The Complainant fails to

mention that there is a female Director at the AP grade, with another previous female

Director up to 2021. It is respectfully submitted that the Complainant cannot satisfy

the prima facie burden of proof which rests on her by choosing comparators that

support the Complainant’s case without addressing the entire cohort of employees at

the AP grade.

·       The Respondent acknowledges that the Complainant’s comparators are paid at a

higher rate, but this difference is due to the grade of their role – not their gender. Indeed, all employees (including females) are paid at a higher rate due to the grading of their role at AP level. Indeed, the Complainant herself acknowledges this in her submission, where she states at paragraph 3.15:

“In fact, with the sole exception of the Complainant, all other members of the

management team are paid at this [AP] level on the Civil Service Pay Scale”.

·       The comparison of the Complainant’s role to the cohort of employees at AP grade was

the one adopted by the Complainant in her initial requests for her role to be re-graded

in August 2016. The Complainant did not suggest at this time that her role grading

was in any way connected with her gender, instead she compared herself to her

“colleagues” on the “Executive Management team” as a whole, “who are graded at Assistant

Principal Officer level” (who were at that time and are currently both male and female).

·       Indeed, the comparison of the Complainant to the entire Executive Management team

initially in 2016 was maintained by her at least up to 2019, when in an email to the

CEO dated 13 February 2019, she states:

“my role within the organisation reports directly to the CEO and is positioned within

an Executive Management team of 4 positions. As Corporate Affairs Manager, my role is significantly under paid within these 4 positions.”

The Complainant appears to have selected two members of the Executive Management Team because they are male and totally ignored the fact that there was one other female member of this team and there had been one other female director who had retired.

On 26th March 2021, the Complainant with the assistance of her representative from the Forsa Trade Union lodged a grievance with her employer. This grievance was headed “A complaint relating to remuneration and unequal treatment. For consideration under the relevant grievance procedure”. As far as I can establish, this is the first time that gender discrimination has been mentioned.

This document also suggested that any investigation into this matter be conducted by an independent, mutually agreed, third party.

Ms Karen Talbot from Talbot Pierce was appointed as the investigator. The investigation was carried out between July 2021 and May 2022. Terms of Reference were prepared by Ms Talbot and issued to the parties in early June 2021.

I note from Ms Talbot’s report that the Complainant when invited to attend a second meeting with Ms Talbot declined this invitation (through her union representative), partly on the basis that the view held was that it was considered a process similar to a job evaluation. This, I believe was a mistake on the part of the Complainant. How could she claim that her job was equal in value to that of her comparator if she was not willing to have the job’s evaluated by Ms Talbot?

Ms Talbot’s final report included the following comments:

- There is no new evidence to support the claim that the Corporate Affairs Manager role is    equivalent to the Director of Finance.

- It appears that the role of Corporate Affairs Manager has evolved/is evolving with increasing responsibility and scope and KPIs are assigned in areas of existing responsibility. - A number of the tasks and responsibilities highlighted were carried out at a time when the Director of Finance position was vacant. It is recognised that Ms Rahill carried out additional duties, at a higher level, during that period.

- It appears to be the case that some of the activities carried out by Ms Rahill may well be at a higher level than Higher Executive Officer, but not such as to lead to parity with the role of Director of Finance. The key differentiators are the level of leadership; driving initiatives; level of responsibilities; and decision-making; management of a property portfolio of significant value, responsible for the finances, which are a key part of the annual report.

Prior to making any decision in relation to the complaints as presented under the Employment Equality Act 1998 I should highlight that the decision I have to make must address the alleged discrimination and nothing else. My job is not to comment on the fairness or otherwise of the way in which the complaint has been managed and the outcomes reached by the Respondent.

Decision.

CA – 00058507 – 001

The Complainant alleges that she has been discriminated against on the ground of gender in terms of equal pay and has identified two comparators.

I find the complaint as presented is not well-found.

CA – 00058507 – 002

The Complainant alleges that she has been discriminated against on the grounds of gender by an alleged failure on the part of the Respondent in getting her a job; promoting her; victimising her; conditions of employment; and harassment.

I find the complaint as presented is not well-found.

CA – 00058507 – 001

The Complainant alleges that she has been discriminated against on the ground of gender in terms of equal pay and has identified two comparators.

I find the complaint as presented is not well-found.

CA – 00058507 – 002

The Complainant alleges that she has been discriminated against on the grounds of gender by an alleged failure on the part of the Respondent in getting her a job; promoting her; victimising her; conditions of employment; and harassment.

I find the complaint as presented is not well-found.