Complainant

Respondent

Parties

Evelin Tamara  Luraschi Francou

PFS Card Services Ireland Ltd  

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Katherine McVeigh BL, instructed by Matheson LLP

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-00065591-001

25/08/2024

The Complainant states that she began employment with the Respondent on 13 December 2021 as a Team Leader with an annual salary of €32,000. She states that soon after staring in the position, she discovered that her colleague, who was in the same role, performing the same job duties with the same levels of responsibilities and supervision was earning €42,000 per year. The complainant submits that this significant wage disparity, despite identical job functions represents wage discrimination.

The Complainant states that subsequently in September 2023, the position of Account Manager became vacant following the departure of the previous Account Manager. The Complainant states that she received a verbal offer from Mr C, who was in charge at the time, offering her the position at a salary of €47,000 per year. The Complainant states that she later learned that the standard salary for this position was €60,000.

The Complainant states that after she accepted the offer, the budget for the role was reduced and the salary was cut to €42,000 per year again significantly lower than what others in similar roles were earning. The Complainant states that she reluctantly accepted this reduced offer based on the promise of a future salary increase which did not materialise.

The Complainant asserts that throughout this period, she was performing the same duties and carrying out the same responsibilities as the previous Account Manager without any complaint or performance issues being raised against her. The Complainant states that she worked in the role of Account Manager from 9 October 2023 until 28 June 2024 during which time she was paid substantially less than others in equivalent positions within the Company.

The Complainant contends that on many occasions, she was subjected to discriminatory treatment from Mr D who was in charge of the Spanish section. She states that Mr D was also the boss of Mr C who supervised the Complainant and had been the supervisor of the previous Account Manager, Employee A whose role and functions she took on. The Complainant states that Mr D explicitly informed her that she did not deserve to earn more pay because she did not have a family to care for unlike Employee A. The Complainant submits that this is a clear case of unfair treatment based on her family status. The Complainant states that despite making several complaints about Mr D on this matter, no action was taken by the Company to remedy his behaviour.

The Complainant states that she has been the subject of wage discrimination on two occasions: as a Team Leader where she was paid less than her colleague for identical work from 13 December 2021 to 9 October 2023 which equates to €17,987. Secondly as an Account Manager she asserts that she was paid less than her comparator from 9 October 2023 to 28 June 2024 which equates to €13,355.  

The complainant is alleging that she has been discriminated against in relation to her pay, on grounds of family status, in that she does not have family status and her comparators Employee A and Employee B have family status.

The Respondent states that the Complainant was employed for approximately 2.5 years with the Company from 13 December 2021 to 26 June 2024.

During her employment, the Complainant held two roles with the Respondent. She commenced employment as a Customer Service Spanish Team Leader (hereinafter “Team Leader”). The Complainant worked in this role for approximately 22 months from 13 December 2021 until 9 October 2023, when she successfully applied and was offered the role of Account Manager following an internal interview on 28 September 2023, commencing in this second role on 9 October 2023 and working in this role until the termination of her employment.

It was submitted that on 13 February 2024, the Respondent was put into liquidation by an Order of the High Court. That liquidation is ongoing. A separate firm of solicitors are instructed in the liquidation proceedings before the High Court.

Equal Pay Claim

On 25 August 2024, the Complainant submitted a complaint to the WRC under the Employment Equality Acts, 1998 – 2015 (the “1998 Act”) against the Respondent. The said claim was submitted 6.5 months following the said Order of the High Court and two months following the cessation of the Complainant’s employment.

The Complainant now alleges, following the cessation of her employment, that she was discriminated against on the ground of family status in terms of equal pay by the Respondent.

It was submitted that the Complainant never raised any complaint of unequal payment of wages in her employment until the initiation of the Complaint Form despite an Equal Opportunities and Diversity policy in place and a robust Grievance Procedure available to her. The Complainant now claims that there was unequal pay on the family status ground in the two roles that she held in her employment, namely (1) an “Account Manager” and (2) a “Team Leader”, the details of the two claims are as follows:

Claim 1 - Equal Pay as Account Manager:

The Complainant was promoted to Account Manager reporting to the Commercial Manager effective 9 October 2023. Her Gross Annual Salary increased from €32,000 to €42,000 with this new role and she was eligible for an annual bonus. Further, any annual professional body subscriptions relating to the Complainant’s role were paid by the Respondent. The Complainant remained in this role from 9 October 2023 to the termination of her employment on 26 June 2024 (a period of approximately 8.5 months). The Complainant identifies Employee A as a comparator for this claim as another Account Manager. It was submitted that the Complainant has the same family status as Employee A and therefore the Respondent argues that this claim is misconceived.

Claim 2 - Equal Pay as Team Leader:

The Complainant commenced employment in the role of Team Leader reporting to the Customer Service Manager for approximately 22 months from 13 December 2021 to 9 October 2023. The Complainant has not worked in the role of Team Leader since 9 October 2023, and for the first time submitted this claim on 24 August 2024, almost 11 months following the cessation of that role. The Complainant’s Gross Annual Salary as Team Leader was €32,000 and she was further eligible to earn an annual bonus of 10%. The Complainant identifies Employee B as her comparator for this case as another Team Leader in the Respondent. The Respondent refutes the allegation of discrimination.

Claim 1 – Equal Pay as Account Manager

PRELIMINARY ISSUE:

The Respondent states that this claim is misconceived: The Respondent asserts that the comparator, Employee A has the same family status as the Complainant. The Respondent submits that the within claim is misconceived, frivolous, vexatious and bound to fail. Further, the Respondent submits that the Complainant does not have locus standi to bring the claim. This is in circumstances where Employee A has the samefamily status as the Complainant. Section 6(2)(c) of the 1998 Act prohibits discrimination on the family status ground and provides: (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are… (c) that one has family status and the other does not (in this Act referred to as “the family status ground”). The 1998 Act goes on then to define the term “family status”. The ground of “family status” has a very specific legal definition and is defined in section 2(1) of the 1998 Act as follows:

“family status” means responsibility:

as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

As confirmed by Bolger et al in Employment Equality Law (2nd. Ed, 2022) at paragraph 5-123:

“In seeking to rely on the family status ground, a person who has family status can only compare himself or herself with someone who does not have family status”.

It was submitted that for the Complainant to raise an inference of discrimination in this claim, she therefore is required to demonstrate that Employee A has a different family status to her – that is to say that Employee A has a child under the age of 18 at the material time and that she does not. In other words, using the exact wording above in section 6(2)(c) of the 1998 Act, the Complainant needs first to demonstrate that Employee A “has family status” and she does “not have family status”.

The Complainant does not make out this claim on the Complaint Form, nor can she. To the Respondent’s knowledge, Employee A has the same family status as the Complainant. The Complainant’s claim is therefore misconceived and bound to fail.

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 family status discrimination. In Valpeters v Melbury Developments Limited,1 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.”

It was submitted that the Complainant must demonstrate a link between the ground and the less favourable treatment. As noted in Madarassy v Nomura[1], a mere difference in treatment or different status is not sufficient. Additionally, in Swan O’Sullivan Accountants & Registered Auditors v Counihan[2][3],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.”

Testimony of Mr D, Branch Manager

Mr D stated that he was Country Manager of the Spanish Branch of the Respondent Company. He states that prior to that he worked as Compliance Manager and has over 20 years experience working as a Barrister. Mr D refutes the allegations by the Complainant where he was purported to have informed her that she did not deserve to earn more pay because she did not have a family to care for unlike Employee A. He stated that rates of pay have nothing to do with being a parent or having children. Mr D states that differentials in pay relate to the length of service in the Respondent and knowledge and experience in the role. Mr D further states that he would not have the authority to intervene in a grievance had any grievance been raised against him. 

CLAIM 2: Equal Pay as Team Leader

The Respondent states that 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 Respondent states that the comparator identified for the Team Leader role (Employee B) commenced employment with the Respondent’s group in December 2015 and was offered a starting salary of €22,000 gross, which is €10,000 less than the Complainant’s starting salary. Between 2015 and 2023, Employee B received a number of pay rises as a result of various promotions, experienced gained with the Respondent and meeting her performance targets. For example, on 1 July 2018, Employee B received a salary increase from €30,000 to €35,000 gross. In October 2019 Employee B moved into the role of Customer Service Team Lead and received a pay increase from €35,000 to €39,000 gross. Then in January 2022 Employee B received a salary increase from €39,000 to €40,000 and then in January 2023 received a further salary increase up to €42,000 gross.

The Respondent asserts that the Complainant alleges that because she was earning €32,000 and Employee B was earning €42,000, that this amounts to wage discrimination. However, the real reason for the difference in pay was because Employee B had gained invaluable experience over the eight year period she had been working with the Respondent and had obtained several promotions and pay increases during that time. In fact, the Complainant received a €10,000 pay increase with less than two years’ experience with the Respondent when she was promoted to the role Account Manager. It is evident that the Respondent rewards experience, length or service and good performance and does not base any pay increase on any discriminatory ground. 

The leading case on equal pay claims and appropriate comparators is Kenny & Ors v Minister for Justice, Equality and Law Reform,[4]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 Respondent states that 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.  In Cheshire & Wirral Partnership NHS Trust v Abbott,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...”

The Respondent states that in National University of Ireland v. Ahern,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).

Application to the Complainant

The Respondent states that it is clear from the case law that a comparator may not be based on an unrepresentative group. The comparator pool of one employee (Employee B) identified by the Complainant is not appropriate, representative and is invalid.

The Respondent asserts that the Complainant compares herself to one employee, namely Employee B in her claim that she was paid less in her role as Team Leader from December 2021 to October 2023. This is despite the fact that there are nine Team Leaders in the Respondent at varying rates of renumeration. The following is a list of anonymised Team Leaders and their associated rate of renumeration.

List of TEAM LEADERS currently in the Respondent and their rate of renumeration:

The Respondent states that the Complainant compares her role to Employee B and has yet omitted to compare herself to those employees in the Respondent who are Team Leaders, as evidenced above. It is clear that there are two other Team Lead roles earning the same or less than the Complainant and she has failed to mention these individuals as comparators in her complaint.

It was 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 in the role of Team Leader. The Respondent asserts that any difference in pay to Team Leaders is not in any way connected to their family status. To the contrary, a difference in pay is related to the length of service in the Respondent and knowledge and experience in the role. The Respondent does not obtain or ask about any employees’ family status and this does not factor into any decision taken by the Respondent.

The Respondent asks the WRC to determine that the Complainant’s chosen comparator pool is invalid. It was submitted that the Complainant does not provide any information nor any basis on which she alleges that she has been treated less favourably than Employee B on the ground of family status.  The Complainant’s case goes no further than an assertion that she does like work as Employee B but earns less than them and that they are a different family status 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 family status discrimination and not some other reason.

Conclusion

The Respondent states that the Complainant in the current case has furnished no evidence that her family status 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.

Claim 1: Account Manager:

As regards Claim 1, namely that the Complainant in her role as Account Manager was being paid a different rate of renumeration to Employee A due to not having family status, the Respondent seeks the Adjudicator to find that this claim is misconceived and bound to fail, or, in the alternative, that the Complainant does not have locus standi to bring this claim.This is in circumstances where the Complainant and Employee A have the same family status.

Claim 2: Team Leader

As regards Claim 2, namely that the Complainant in her role as Team Leader from December 2021 to October 2023 was being paid a different rate of renumeration due to not having family status as compared to Employee B who has family status, this is utterly denied by the Respondent. The Complainant raised this issue for the first time in the Complaint Form, almost 11 months following the cessation of her in this role.

It was submitted that the differing rates of pay in the Respondent is associated with grounds other than family status, namely years of service in the Respondent, experience and knowledge in the roles. The Respondent submits that this is clearly demonstrated by the fact that Employee B commenced on a salary of €22,000 in 2015 and by 2023 was receiving a salary of €42,000 gross. It was submitted that the Complainant also received a promotion and a €10,000 increase in salary after working with the Respondent for just under two years.

The Respondent submits that the Complainant cannot establish a prima facie case of family status 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 Team Leaders in the Respondent.

The Respondent denies the allegations of discrimination.

The issue for decision by me is whether or not the Respondent discriminated against the Complainant on the family status ground in terms of Section 6(1) and 6(2) of the Employment Equality Acts, in contravention of Sections 7 and 8 of the Acts in relation to her conditions of employment in respect of equal pay.

Section 6(1) of the Employment Equality Acts provides:

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’’)

“family status” means responsibility:

as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

As confirmed by Bolger et al in Employment Equality Law (2nd. Ed, 2022) at paragraph 5-123:

“In seeking to rely on the family status ground, a person who has family status can only compare himself or herself with someone who does not have family status”.

Section 8 (1)(b) provides that in relation to conditions of employment…an employer shall not discriminate against an employee.

The complainant alleges that she was discriminated against on the grounds of family status in relation to her pay vis a vis her comparators, Employee A and Employee B.

Section 85A of the Employment Equality Acts sets out the burden of proof as follows:

“(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.”

Preliminary Issue - Claim 1 – Equal Pay as Account Manager

Section 6(2)(c) of the 1998 Act prohibits discrimination on the family status ground and provides: (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are… (c) that one has family status and the other does not (in this Act referred to as “the family status ground”). The 1998 Act goes on then to define the term “family status”. The ground of “family status” has a very specific legal definition within the Act.

In the within claim, I find that the Complainant has failed to establish that Employee A has a different family status to that of the Complainant. On that basis, I am satisfied that the  Complainant does not have locus standi to bring this claim, accordingly I have no jurisdiction to investigate this complaint.

Claim 2: Equal Pay as Team Leader

The Complainant is alleging discrimination wherein the Complainant in her role as Team Leader from December 2021 to October 2023 was being paid a different rate of renumeration due to not having family status as compared to Employee B who has family status.  I note that although the Respondent has in place an Equal Opportunities Policy and a Dignity at Work Policy, no grievance regarding this issue was raised by the Complainant at the material time. I am cognisant that the Complainant raised this issue for the first time in the WRC Complaint Form, almost 11 months following the cessation of that role.

I note that the Respondent attributes the differential in pay of the Complainant vis a vis that of Employee B with grounds other than family status, namely years of service in the Company together with experience and knowledge in the role. I note that Employee B commenced with the Company in 2015 whereas the Complainant commenced employment in 2021. I note that Employee B had garnered a greater level of experience given her length of time with the company. I am cognisant that Employee B had received a number of pay rises as a result of various promotions based on her experience gained and targets met during her tenure with the company.   

Having carefully considered the totality of the evidence in the instant claim, I am cognisant of the case of Cadman v HSE (C-17/05) [2006] ECR I-09583 where the Court of Justice of the European Union rejected an employee’s claim for equal pay accepting that the criterion of length of service is appropriate “to attain the legitimate objective of rewarding experience acquired which enables an employee to do their job better”. Similarly, in the case of Wilton v Steel Company of Ireland, the High Court found that there was no discrimination in this case because the comparator was actually being paid more money due to his greater length of service and that this was a ground other than gender under the Anti-Discrimination (Pay) Act 1974.

I am satisfied based on the evidence adduced in the within claim that the complainant has failed to establish a prima facie case of discrimination on the family status ground in relation to equal pay. I find that the differential in pay between the Complainant and Employee B is attributed to objective reasons which are unrelated to family status.

Accordingly, in the circumstances, I am satisfied that the Complainant has failed to establish a prima face case of discrimination on grounds of family status in relation to her pay.

In relation to the Account Manager Role, I find that as the named comparator (Employee A) has the same family status as the Complainant, the Complainant in those circumstances does not have locus standi to bring this claim. Accordingly I have no jurisdiction to investigate this complaint.

In relation to the Team Leader Role, I find that the Complainant has failed to establish a prima face case of discrimination on grounds of family status in relation to her pay vis a vis that of Employee B. Therefore, her complaint fails.

Employment Equality Acts, family status ground, like work, equal pay