Complainant

Respondent

Parties

Gerard  Hensey

The Health Service Executive

Representatives

  Self

Eamonn Ross

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-00063819-001

30/05/2024

This submitted complaint was that the Complainant did not receive equal pay because of his civil status and that he was discriminated against on the grounds of his civil status.

The Complainant's case was that he was one of six house porters at the Midlands Regional Hospital Tullamore. 

He submitted that he and another colleague were being paid much less than the other four even though they were doing the same duties, shared the same roster and held the same responsibilities.

When he applied for the role, he expected to be paid the same as his colleagues, but he has now discovered that he wasn't on the same pay scale.

He has been advised by management that his position was incorrectly advertised.

He submitted that this has impacted on him financially and that he has lost out on a pay upgrade.

He has been asked by management to give up his shift allowance.

He did not have any assistance in completing the complaint form. He has sought union assistance, but this has not been forthcoming.

He accepted at the hearing that he had clicked the wrong box for this complaint and that he did not have any evidence to show that he was discriminated against because of his civil status.

The Complainant was employed on the 22 October 2018 as a multitask assistant.

In 2019 he applied for an internal interview process and transferred to the General Porter services within the hospital. This role was advertised as an attendant/aide.

Following local negotiations, he underwent an evaluation process for his role and efforts were made to move him to a post of Multi-Task assistant whereby he would be placed on the nearest point of that pay scale taking into account his shift allowance which he was in receipt of.

The Complainant wishes to retain both his shift allowance and move to the pay scale.

The Respondent submitted that no facts were established where it could be presumed that there was discrimination on the grounds of civil status. It pointed out the burden of proof was on the employee in the first instance.

Civil status is defined for the purposes of Employment Equality Act, 1998  as:

“civil status” means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved;

Discrimination for the purposes of Employment Equality Act, 1998:

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”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

Like work.

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

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

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

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

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

Burden of proof:

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

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission undersection 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

It has been the established practice of the Workplace Relations Commission and the Labour Court to require a Complainant to show facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited, in this case his entitlement to equal remuneration.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011,[2001] ELR 201, where the Court stated:

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely in 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”.

In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64the Court stated in respect of the provision in S 85A that:

“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 must 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 Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”           

Therefore, it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

In this case the Complainant stated that he was directly discriminated against on the grounds of his civil status in relation to his rate of pay in that he performed like work or work of equal value with his colleagues.

It was not disputed by the Respondent that the Complainant was paid less than the remuneration paid to his colleagues but set out the reasoning behind same none of which related to his civil status.

While the Complainant felt he has suffered detrimental treatment by the Respondent in relation his rate of pay he has not been able to identify any causal connection between the adverse treatment complained of on the basis of his civil status.

As the Complainant has failed to show a causal connection between the treatment grounding his claim and an act covered by s. 6 (2) of the Act his claim of discrimination cannot succeed.

This complaint is not well founded. 

No casual link grounding discrimination and protected ground of civil status