ADJUDICATION OFFICER DECISION
PRELIMINARY DECISION
Adjudication Reference: ADJ-00042796
Parties:
| Complainant | Respondent |
Parties | Amanda Ball | Peninsula Business Services (Ireland) Ltd |
Representatives | Self | Peter Murphy McInnes Dunne Murphy/Rosemary Mallon BL |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00053579-001 | 07/11/2022 |
Date of Adjudication Hearing: 13/09/2024 and reconvened 19/03/2025
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
At the first day of hearing held on the 4th of October 2023 the following was agreed on consent:
“At the last day of hearing both parties arrived at a joint request to the Adjudicator to adjourn the hearing to facilitate further particulars to be provided by the Complainant. It was agreed that the Complainant would provide further particulars within a 3-week period of the date of the hearing held on the 4th of October 2023. The Respondent in turn will have a 3-week period to finalise their submission. The hearing will be scheduled not earlier than 6 weeks from the date of the hearing”
The first complaint to be heard related to a male comparator.
The Respondent as part of their submission produced a table with unidentified employees detailing their salary. However, that document did not name any comparator or their salary.
The first complaint related to an equal pay claim.
It became clear during the reconvened hearing that no salary information was provided for the named comparator at the hearing by the Complainant.
The case law regarding an equal pay claim appears to require a named comparator and their salary to ground an equal pay claim. The Adjudicator asked counsel for the Complainant and Respondent to address him on that requirement. Counsel for both parties believed it did require that specificity.
Counsel for the Complainant asked for an adjournment so that the detail required to ground such a claim be provided. The Respondent objected on the basis that the reconvened hearing was precisely to address the lack of particulars detailed in the Complainant’s claim.
The Act provides for a preliminary decision.
So that the matter could be determined properly a further day of hearing was scheduled for the following reasons as detailed in a ruling to the parties:
The Complainant was requested to provide further and better particulars so that the Respondent could prepare a defence.
Based on the primary purpose of a tribunal to hear a case and the relevant case law concerning the dismissal of case for failing to provide sufficient detail to the Respondent, the Complainant was provided with directions to particularise their complaint. The fact that the case brief had changed to a new Barrister was another reason to provide time to detail the claim. The following ruling was issued to the parties refusing the Respondent’s application to dismiss the case for failure to provide sufficient particulars so that a proper defence could be made: 24 October 2024 Adjudication File Ref: ADJ-00042796 Complaint Ref: CA-00053579 Mr Peter Murphy McInnes Dunne Murphy 6 Mount Street Crescent Dublin D02 XT04 Private and Confidential Complaint(s) by Amanda Ball / Peninsula Business Services (Ireland) Ltd
DearMr Murphy, At the last day of hearing held on the 13th of September 2024 an issue arose concerning the claim for Equal Pay. Counsel for the Complainant, Respondent and Adjudicator discussed the burden of proof required to meet specific requirements when making a claim for equal treatment relating to pay. It was agreed that the requirement as set out was not met. I reference Bolger, Bruton and Kimber, Employment Equality Law 2nd Ed. 2022: 2-122 The Equality Directives all expressly recognise a particular burden of proof to be discharged by a person who claims not to have been afforded equal treatment. For example, the Recast Directive provides at art.19(1): “Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a Court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”209 I also note that remuneration is defined as: 11-136 “Remuneration”, in relation to an employee, does not include pension rights but includes any other consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment. This definition has been held to include not only basic pay but also accommodation, bonus earnings, commission payments, marriage gratuities, overtime payments, permanent health insurance, redundancy payments and sickness payments. At the first day of hearing an issue arose about the claims being made and the requirement to provide sufficient detail so that the Respondent could reply as it was argued that the claim was not particularised adequately. An adjournment was given so that the parties could reach an agreement on what additional details were required and the matter was then relisted for hearing. At the second day it became clear during hearing that no primary facts were being proffered to ground a prima facie equal pay claim. It is the case that Counsel who was representing the Complainant has since left the Bar and new Counsel have taken on the brief. This was offered as a reason why the claim concerning equal treatment and remuneration was not addressed. I have considered very carefully the exercise of making a preliminary decision By analogy I also note the following: Insufficient Particulars: I note in Delaney and McGrath (4th Ed 2018 Round Hall) 5-82 An example of a case where sufficient particulars of negligence were not provided is Mitchell v Arthurs.188 The plaintiff workman sued for damages arising out of the fall of bricks from scaffolding and pleaded that the defendant “so carelessly, negligently, and unskilfully erected the scaffolding, that a large number of bricks fell on the plaintiff”. The statement of claim was struck out as embarrassing on the basis that it merely made a general plea of negligence and failed to specify the particular defects in the scaffolding of which complaint was made. I also note in Civil Proceedings Delaney and McGrath cite: If a party is not satisfied that sufficient particulars of his opponent’s claim have been given, the proper course of action is to bring a motion to compel replies rather than a motion to strike out the pleading on the ground that it fails to disclose a reasonable cause of action pursuant to Order 19, rule 28: Tromso Sparebank v Beirne, High Court (Costello J), 14 March 1988. The claim was particularised as follows in the Complainant’s submission dated 25th of September 2023 21. The Claimant instructs that until March 2020, she was entirely satisfied, and no significant issues arose at work. The Claimant performed consistently well in her job and earned an average salary per annum, over the years of 2015-2020 of €145,300. This average derives from the following figures denoting the Claimant’s annual earnings: 2015: €94,600; 2016: €142,800; 2017: €146,000; 2018: €184,500; 2019: €175,200; 2020: €128,500). 22. This level of earning drastically reduced in the following years. In 2021, the Claimant earned €59,000 and in 2022 she earned €93,000 (the marked increase in 2022 was, in part, due to a large commission of €16,000 she received for a particular sale she secured). 23. A new ‘traffic-light system’ and ‘priority list’ was introduced for the distribution of leads in or around April 2020. Under this system, BSTs could not make appointments for any BDMs who were in the ‘red’ (as opposed to BDMs in the ‘orange’, or ‘green’ – i.e., regarding performance). BDMs in the ‘red’ would have to self-generate business development opportunities. 24. The net result of this system was that, while seemingly egalitarian, it favoured the Claimant’s male colleague David Stanley and proved unfavourably to the Claiman Although the following was agreed at the first day of hearing and detailed in correspondence dated 18th of October 2023: At the last day of hearing both parties arrived at a joint request to the Adjudicator to adjourn the hearing to facilitate further particulars to be provided by the Complainant. It was agreed that the Complainant would provide further particulars within a 3-week period of the date of the hearing held on the 4th of October 2023. The Respondent in turn will have a 3-week period to finalise their submission. The hearing will be scheduled not earlier than 6 weeks from the date of the hearing. In a supplemental submission dated the following was provided: Paragraph 30: 2. In addition to the matters listed at paragraph 30 of the Main Submissions (i.e. examples giving rise to a prima facie case of gender-based discrimination), the Claimant will give evidence of: v. her earnings and the poor quality of the leads she received from the Respondent during the period of 8 May 2022 to 7 November 2022. vi. The Claimant will give evidence that, during the period May 2022 to June 2022, she received roughly 33% less office-generated first appointments (including 68% less inbound appointments) compared to her male colleagues. vii. The Claimant will give evidence that during the period July 2022 to September 2022, she received 36% less office-generated first appointments(including 52% less inbound appointments) compared to her male colleagues. (The above figures, the Claimant instructs, are taken directly from the Respondents CRM System) I set out paragraph 30 from the original submission: 30. The Claimant subsequently took the within claim on 7 November 2022 and submits that the following creates a prima facie case of gender-based discrimination in her work life occurring within the cognisable period of this claim (i.e., 8 May 2022 - 7 November 2022): i. On 7 July 2022, the Claimant highlighted to RS, as an example of a discriminatory practice in leads-distribution, that she had only received 20 inbound leads in Q1 (April, May, and June) of 2022, whereas her male colleague David Stanley had received 51. This was notwithstanding the fact that the Claimant, for the relevant period, had a higher lead-to-sale conversion rate with inbound leads. (See Tab 6 – Claimant Emails - Email from Claimant to Raj Singh enclosing Q1 2022 records, dated 7 July 2022) ii. On 11 July 2022, the Claimant was offered, by Joseph Mojume her manager, a fixed leaddistribution of 2:1:1 with her colleagues who covered the same geographical sales area as she did. This proposal would mean that David Stanley would receive 2 appointments and Avril Donnelly and the Claimant would receive 1 appointment each. iii. On 26 August 2022, the Claimant emailed her manager, Joseph Mojume, complaining about the deterioration of her working conditions which had emerged in 2022: Firstly, the Claimant had only been allocated 3 Dublin seminars in 2022, whereas her colleagues were allocated Dublin seminars as follows: Mandy (Claimant) – 3 Seminars Avril – 5 seminars David – 5 Seminars Mick – 4 Seminars Paul – 6 Seminars Richard (new employee) – 2 Seminars Secondly, the Claimant had not been allocated any Dublin events, whereas her colleagues were allocated the following: Mandy - 0 events Avril - 2 events David - 2 events Mick - 1 event Paul - 2 events Richard - 2 events The Respondent purported to deal with the Claimant’s complaint of 26 August 2022, but failed entirely to resolve matters. iv. The Claimant emailed Joseph Mojume again on 30 August 2022, highlighting a grossly unfair disparity in the Inbound/Prem appointments for the week of 29 August – 2 September 2022: 9 for David Stanley; 2 for Avril Donnelly; and 1 for the Claimant. (See Tab 6 – Claimant’s emails - Email from Claimant to JM dated 30 August 2022) v. The Claimant will adduce further evidence at the trial of this action in support of her claim that she received less favourable treatment during the period of 8 May 2022 – 7 November 2022 on the basis that she was a woman. 31. The Claimant submits that the above matters indicate a discriminatory practice At the last day the Respondent stated that the test required to sustain an equal pay claim had not been made. Having considered the relevant test and case law when deciding to strike out a claim or not, for insufficient particulars, I note the practice to compel further, and better particulars made on notice of motion to the Complainant. Based on the requirement in the Courts to compel further and better particulars before striking out, the overriding consideration that a claim should be heard and allowing for the discretion given to this tribunal to establish rules that are fair and efficient, the Complainant is directed to provide further and better particulars to ground their equal treatment complaint concerning remuneration. That direction to be completed within 3 weeks from the date of this letter and the Respondent the right to make a replying submission and the matter will be set down for hearing to decide if the equal treatment claim should be dismissed for failing to provide sufficient particulars and failing to provide evidence of primary facts relevant to ground an equal treatment claim relating to remuneration. Yours sincerely, Lavinia McCabe ___________________ Lavinia McCabe (on behalf of Brian Dalton Adjudication Officer) Adjudication Services Phone: 016136810 Email: pru@workplacerelations.ie A reconvened hearing was held on the 19th of March 2025. |
Preliminary Matter:
The complaint as detailed for CA-00053579-001 is:
My male colleagues were given significant preferential treatment with regards to opportunities to sell and ultimately earn a living. I have been raising these issues in writing with management for the best part of 18 months to two years and have since submitted a large bullying complaint to which I have received the outcome and subsequent appeal outcome in which everything was deemed unsubstantiated despite having raised numerous issues about failures in the investigation process. Full submissions to follow.
This is the narrative in the WRC complaint form.
The Complainant’s submission stated the following:
- The Claimant’s claim in this respect is that she has been subjected to indirect discrimination while employed by the Respondent. The new, ‘traffic-light’ and ‘priority list’ system introduced at the Respondent company applied to both men and women and, on its face, was an equal system. It did not, however, produce anything like equal results. It is well established in Irish employment law that substantive equality is the fundamental objective of employment law over merely formal equality. In The Nationalist and Leinster Times Ltd v Ashmore (EDA 133), The Labour Court noted as follows: In a claim for equal pay, evidence showing that more men than women are in receipt of higher pay for like work does not, in itself, establish prima facie indirect discrimination. Where the difference is genuinely the result of a factor unrelated to gender there is no illegality. What must be demonstrated is that the cause of the difference has such disparate impact as between men and women as to infer that an ostensibly gender-neutral determinative of pay is, in reality, discriminatory because it leads inexorably to unequal pay for equal work. Statistics can, in that context, be the evidential tool by which a defence of ‘grounds other than sex’ can be negated…. Hence, as pointed out by Baroness Hale of Richmond in Rutherford, the concept of indirect discrimination looks beyond the formal equality achieved by the prohibition of direct discrimination towards the more substantive equality of results.
At the last day of hearing the Complainant was self-represented.
She clarified that in line with her form submitted to the WRC her claim is about the opportunity to earn and is more about discriminatory treatment where better sales leads are given to a male colleague that in turn lead to higher earnings.
In this regard it is argued it is not about an hourly rate of pay comparator, rather about how bonus/sales commission payments are determined and the absence of transparency that has given rise to an unfair earning potential to a male colleague, where premium leads are provided to that male at a level far higher than to the Complainant, and those premium leads determines the overall earnings. It follows that the allocation of those premium leads gives rise to higher bonuses/commission to the male comparator. It is argued that the difference in premium leads and the resulting lower earnings to the Complainant when compared to the higher earnings of the male comparator is sufficient to meet the prima facie case. That is disputed by the Respondent.
To dismiss a claim because it is misconceived should only occur where it is not possible for the claim to succeed.
In Farley v Ireland [1998] ELR 256,1 the Supreme Court stated that the question in such applications is whether a plaintiff has no reasonable chance of success. The Court stated at para. 20:
“So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that [the plaintiff] may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious. And again one cannot change the principles of law to suit the merits of a particular case…”.
In the recent case of Highfield Distribution Ltd v Pat the Baker Unlimited Company [2020], the High Court stated that in such applications to dismiss:
“the function of the Court is to consider one question only, was it proper to institute the proceedings? This question must be answered in the light of the statement of claim and such incontrovertible evidence as the defendant may adduce. If the claim could never have succeeded, then the proceedings should be struck out. There is no room for considering what evidence should be accepted or how it should be interpreted. To do the latter is to enter onto some sort of hearing of the claim itself” as per Jodifern Ltd v Fitzgerald [2000] 3 IR 321.
In an equal pay claim a case is misconceived absent a valid comparator. It is the case that the Complainant has clarified that the matter before this Adjudicator relates to sales bonus/commission and the allegation that a male comparator is being treated more favourably than her that gives rise to higher overall remuneration. It is argued that in an equal pay claim that difference is enough to ground this claim.
It is the case as Counsel Ms Mallon stated, that the fact that one party is male and the other party is female and an outcome favours one gender over the other, is not a ground for giving rise to an inference of discrimination. So, if a female and male engineer apply for promotion and the female is successful the fact that the male is unsuccessful does not give rise to an inference of discrimination.
So, it is argued by the Respondent if the claim is about the opportunity to earn a sales bonus there must be something to link the adverse treatment to that ground. The claim as framed is speculative.
This preliminary decision had its genesis in whether a proper claim for equal pay had in fact been made out. That is based on an argument that an equal pay claim must detail the difference in pay at issue. However, based on the arguments made out at the hearing by Complainant and the supported documentation made by the Complainant, she contends that an arguable case has been made out that adequate data has been provided where what is in issue is variable pay and sales commission. It is not a case where a fixed salary is being compared to a fixed salary for a male comparator. Whether that will be ultimately accepted can only be determined at a hearing.
Prima Facie Case:
In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’ And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’
I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:
[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.
The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.
And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’
It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment.
However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58).
I note in Bolger, Bruton and Kimber, Employment Equality Law 2nd Ed. 2022:
The Burden of Proof
11-193
Having found an appropriate comparator, the next hurdle for a complainant to overcome is to discharge the burden which the law places on him or her to show that the difference in pay is due to discrimination on one of the prohibited grounds. This is always difficult but has been made even more so in recent times by the changing nature of paid work. The increased deregulation of the workplace facilitates pay systems which may be lacking in transparency by enhancing pay with extras such as commission, flexibility payments, performance increments and other such bonuses. This makes it difficult for the complainant to show that their lower wage is on prohibited grounds. As set out above at para.11-29 the CJEU developed a shifting burden of proof—once the complainant has established a prima facie case of discrimination by showing a difference in treatment, the burden of proof shifts to the employer to justify the difference of treatment. This shifting burden of proof is contained in s.85A of the Employment Equality Acts.
And at 11.29 it states the following:
11-29
The CJEU has made very significant decisions in this area which can ease the complainant’s burden of proof, by shifting the burden of proof to the employer to justify a difference in pay if the complainant establishes that he or she is engaged in like work with an appropriate comparator.36 The Court held early on that provision should therefore be made to ensure that the burden of proof shifts to the respondent when there is a prima facie case of discrimination. In Enderby v Frenchay Health Authority,37 it held that where significant statistics disclose an appreciable difference in pay, art.119 required the employer to show that the difference in pay is based on objectively justified factors unrelated to any discrimination on grounds of sex.
In making a preliminary decision to dismiss a claim because it is misconceived, it must meet the test as defined by the Superior Courts.
The Complainant is claiming that her earnings are less and have reduced arising from more preferential treatment to a male colleague where he is given better sales leads.
Since the last day of hearing the Complainant has submitted more documentation with quarterly sales figures and end of year performance by sales representative. It is her case that all this documentation meets the threshold to establish a prima facie test that requires the Employer to rebut the inference of difference in pay between her and a male colleague.
Without prejudice to whether a prima facie case has been made out I am satisfied that the Complaint cannot be dismissed as misconceived based on the information provided in its entirety and the argument that a distinction must be made when bringing an equal pay claim that is about sales commission and variable pay in contrast to a fixed hourly or salary remuneration that is different between a male and female comparator. It is alleged that it can be inferred that the male comparator is earning more than the Complainant based on the data and facts provided. It is not a speculation rather a case based on facts. The Complainant stated that the case should be heard as an arguable case has been made out which is enough to meet the test for a hearing to proceed.
I find that sufficient information has been provided detailing bonus performance, rankings, and overall remuneration where the argument that a prima facie case has been met should be heard. Arising from this conclusion the case will be scheduled for a hearing on the substantive matters detailed by the Complainant.
Summary of Complainant’s Case
See preliminary decision. |
Summary of Respondent’s Case:
See preliminary decision. |
Findings and Conclusions:
See preliminary decision |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. However, where a question arises related to fact and/ or law it can be investigated as a preliminary issue pursuant to 70 (3A) of the Act:
- A) If, in a case which is referred to the Director General of the Workplace Relations Commission] under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:
(d) any other related question of law or fact (and)
the Director General of the Workplace Relations Commission] may direct that the question be investigated as a preliminary issue and shall proceed accordingly.
In making a preliminary decision to dismiss a claim because it is misconceived it should meet the test as defined by the Superior Courts that it is incapable of succeeding, I cannot find on the facts and submissions made that this complaint is legally misconceived. It may fail later for not establishing a prima facie case or even if established, that prima facie test may subsequently be rebutted. However, the Complainant has submitted a large volume of material with facts and figures that also are directly linked to individual employees that should be opened and in turn tested. For this reason, it cannot be dismissed as misconceived as I have determined that an arguable case of equal pay discrimination has been met. The Complainant is claiming that her earnings have been reduced arising from more preferential treatment to a male colleague where he is given better sales leads. Since the last day of hearing the Complainant has submitted more documentation with quarterly sales figure and end of year performance by sales representative. It is her case that all this documentation meets the threshold to establish a prima facie test that requires the Employer to rebut the inference of difference in pay between her and a male colleague. Without prejudice to whether a prima facie case has been made out I am satisfied that the Complaint cannot be dismissed as misconceived based on the information provided, the representations made at hearing that an arguable case has been made out and therefore the case should be heard. I find that sufficient information has been provided detailing bonus performance, rankings, and overall remuneration where the argument that a prima facie case has been met should be heard. Arising from this conclusion the case will be scheduled for a hearing on the substantive matters detailed by the Complainant. |
Dated: 31st March 2025
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Preliminary Decision -Misconceived. |