Complainant

Respondent

Parties

Margaret  Doran

Grosvenor Services Ltd

Representatives

Marie Brody of Brody & Co Solicitors

 HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064179-003

17/09/2024

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

CA-00064179-001

19/06/2024

The complaint related to unequal pay - CA-00064179-001 – was received by the WRC on 19 June 2024 and the complaint related to terms and conditions of employment - CA-00064179-003 was received on 17 September 2024. The Complainant confirmed that she had withdrawn CA-00064179-002. 

The Complainant stated that she commenced employment in her current role in 2006. On 25/1/2023 the Complainant came to be employed by the Respondent as a result of a transfer of undertakings/TUPE.

CA-00064179-001:

The Complainant stated that she worked as a caretaker for the past 18 years giving loyal and completely satisfactory service. The Complainant stated that she was not employed as a cleaner/cleaning operative. The Complainant stated that she is paid 50 cents above the minimum wage with no incremental scale and she outlined that over the years she had attempted - unsuccessfully - to seek improvements to her pay.

The Complainant stated that she works 45 hours/week comprising a 39 hour basic working week for which she is currently paid at €14.25/hour and that the additional six hours was overtime paid at time and a half for the first four hours and double time for the last two hours. The Complainant stated that the matter of the composition of her weekly hours was settled in 2012/2013 on the basis that she would be paid a premium rate for the hours over and above the basic thirty nine hour week.

The Complainant identified three male colleagues also employed by the Respondent whom she stated performed the same role as caretakers on a part-time basis in a different location. The Complainant stated that her comparators were paid at a higher hourly rate of €14.80/hour and that this constituted discrimination on the gender ground and unequal pay.

 The Complainant strongly took issue with the Respondent’s inclusion of her overtime rates of pay for the purpose of calculating a composite hourly rate which she stated was not permissible. The Complainant also objected to the suggestion by the Respondent that if it increased her hourly rate of pay to that of her comparators – ie to €14.80/hour – that this rate would then apply to all of the forty five hours she worked thereby resulting in an overall decrease in her weekly pay.

It is the Complainant’s position that she has been discriminated against contrary to the Employment Equality Act [1998-2022] on the gender ground and that with reference to her three male comparators she is not receiving equal pay for her basic thirty nine hour week. The Complainant stated that the Respondent should not be allowed to address this matter by either reducing her forty five hour working week or by changing or withdrawing her overtime/premium pay and that these conditions were protected by TUPE. The Complainant stated that the discrimination is ongoing.

CA-00064179-003:

The Complainant stated that the Respondent had not provided her with any written contract of employment or statement of her Terms and Conditions at the commencement of her employment, setting out her job title/role, hours and pay. In response to the Respondent’s submission that a contract was emailed to her on 1/2/23 together with a new employee start up form, the Complainant stated “categorically that she did not receive this email….”. The Complainant stated that she did not sign a contract dated the 29th January 2023 and did not complete a TUPE form as it was inaccurate. She also stated that she sent several emails to the Respondent querying her pay and requesting access to payslips and that the Respondent incorrectly believed her role was that of a cleaner subject to an ERO. The Complainant further stated that she herself had to inform the Respondent of her working hours.

The Complainant stated that she emailed the Respondent on 13/9/2024 seeking a copy of her Terms and Conditions and paper copies of payslips as she could not access the relevant portal. She stated that she was sent a revised contract on 10/2/2025 – ie two years after the commencement of her employment with the Respondent. The Complainant stated that she did not sign this contract as it contained incorrect information in relation to her pay and hours, that her job title was wrongly listed as “Cleaning Operative” and that there was no mention of her 45 hour working week or her role as a caretaker. The Complainant stated that her role as caretaker has only been acknowledged by the Respondent since the commencement of the WRC process.

Under questioning the Complainant stated there was “a possibility” she received the original contract but that she could not recollect this though she did recollect receiving the TUPE start up form which she stated contained incorrect information. The Complainant stated that she did not check the matter further.

It is the position of the Complainant that the Respondent has failed to comply with the Terms of Employment (Information Act) [1994-2020].  

CA-00064179-001:

The Respondent outlined its background and stated that it currently employs approximately 1500 staff throughout Ireland. The Respondent described the Complainant’s role as a cleaning operative. The Respondent stated that after 25/1/2023, the Complainant retained her previous terms and conditions including her rate of pay, which was decided by her previous employer and protected and honoured under TUPE.

The Respondent stated that it was not disputing the Complainant’s reliance on the three male comparators identified by her for the purposes of her pay complaint. However, the Respondent stated the Complainant was not paid a lower rate of pay than the male comparators identified. In this regard the Respondent outlined the following:

·        That the Complainant is currently paid €14.25/hour for the first 39 hours she works;

·        That the next four hours are paid at  €20.47/hour;

·        That the final two hours are paid at €27.30/hour;

·        That over the Complainant’s total 45 hours/week her composite rate of pay/hour is €15.38;

·        That the Complainant’s composite hourly rate of pay @€15.38/hour was considerably higher than the male comparators identified who were paid a flat rate/hour of €14.80 – without overtime – and are working less hours – ie 10 and 20 hours/week.

The Respondent stated that if the Complainant were to be paid at the same rate as the male comparators identified – ie on the basis of €14.80/hour for each of her forty five weekly hours, her gross weekly pay would be reduced by €26.23. The Respondent stated that the Complainant was guaranteed more hours than the male comparators. The Respondent also stated that the Complainant was paid more than the standard contract cleaning ERO rate of €13.30/hour.

It is the Respondent’s position that the Complainant's rate of pay was protected under TUPE legislation in accordance with the terms and conditions set down by her previous employer prior to 2023 and similarly with the male comparators identified. Accordingly, the Respondent strongly rejected the complaint of unequal pay and discrimination on the gender ground.

CA-00064179-003:

The Respondent rejected the complaint in relation to non-receipt by the Complainant of her terms and conditions. The Respondent stated that under TUPE it had no legal entitlement to vary the Complainant’s terms and conditions of employment which had been provided to her by her previous employer. The Respondent stated that the Complainant’s Terms and Conditions were sent to her in February 2023 at the time of the TUPE. In this regard the Respondent outlined the TUPE process. The Respondent stated that a revised contract reflecting clarifications was sent to the Complainant in January 2025 – particularly omitting reference to JLC rates.  The Respondent referred to its email to the Complainant of 1/2/2023, to the Complainant’s email of 15/2/2023 and to its correspondence to the Complainant of 28/1/2025 in support of its position. 

CA-00064179-001:

The Employment Equality Act [1998-2022] defines remuneration as follows:

“remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment”.

Section 6 of the Employment Equality Act [1998-2022] provides:

“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…….”

(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 genderground”),

(b) that they are of different civil status…….,

(c) that one has family status and the other does not……,

(d) that they are of different sexual orientation……,

(e) that one has a different religious belief from the other……,

(f) that they are of different ages……,

(g) that one is a person with a disability and the other either is not…..,

(h) that they are of different race, colour, nationality or ethnic or national origins ….,

(i) that one is a member of the Traveller community and the other is not……..”

Section 7 of the Employment Equality Act [1998-2022] provides as follows in relation to Like Work:

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

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

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

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

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

(3) In any case where—

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

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

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

Section 8 of the Employment Equality Act [1998-2022] provides as follows in relation to discrimination by employers:

“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.

(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

(3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) …….

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7) ……..

(8)……..”

Section 19 of the Employment Equality Act [1998-2022] provides as follows in relation to entitlement to equal remuneration:

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

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

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

(4)

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

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

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

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

Section 85A of the Employment Equality Act [1998-2022] provides that a complainant must set out a prima facie case of discrimination – ie he/she must establish facts from which discrimination may be inferred. Where a complainant discharges this burden, the onus is then shifted to the Respondent to prove to the contrary. The Labour Court considered the extent of the evidential burden that a complainant must discharge before a prima facie case of discrimination can be made out in Southern Health Board v Mitchell [DEE011 [2001] ELR 201]. In that case it was held that the first requirement is that the complainant must establish on the balance of probabilities, the primary facts from which it may be presumed that the principle of equal treatment has not been applied to them. In Melbury Developments Ltd v Valpeters [2010] ELR 64 it was held that "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn".

In National University of Ireland V  Ahern [2005] 2 IR 577, the Supreme Court held that:

The question at issue…. Is whether the differing rates of remuneration are based on the grounds of sex or whether there are other reasons for the differential….”

The Labour Court held as follows in the case of 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…”

In Case 109/88 Handels – og Kontorfunktion Rernes Forbund I Danmark V Dansk Arbejdsiverforening/Danfos [1991 1 CMLR 8] the European Court of Justice/CJEU essentially held 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

In an unsigned contract document dated the 29th January 2023 – issued in 2025 – I note the breakdown in hours from 0-39; 40-42 and 43-45. I note this document contains a reference to “a composite hourly rate”. I also note that the original document which the Respondent stated was sent to the Complainant on 1/2/2023 referred to a standard JLC rate but does not make any reference to a composite pay rate. In its letter to the Complainant of 28/1/2025 the Respondent stated:

“I note from the file that by email dated 1 February 2023…..HR administrator sent you a contract setting out the terms and conditions of employment and a new employee start-up form…..

I acknowledge that the document sent to you originally set out the standard JLC rates. We did not have any other information available relating to you on file following your transfer…. under TUPE. I note however that there was a subsequent exchange of emails between you and HR….. culminating in an email dated 15 February 2023 which…… confirms your 45 hour working week in addition to…. callouts. You have acknowledged that these callouts are over and above your standard working week and is essentially over time”.

Whilst the Complainant disputes ever having received the Respondent’s email of 1/2/2023, her email to the Respondent of 15/2/2023 is not in dispute. In the email of 15/2/2023 the Complainant stated that it was correct that she worked a 45 hour week and that she was entitled to 1 ½ times pay for the four hours after hour 39 and double time for the last two hours.

In considering these matters, I note that the Respondent accepts the three comparators identified by the Complainant for the purpose of her equal pay claim and the Complainant’s sworn evidence in that regard. Accordingly, I must decide whether the differential in the hourly rate of pay payable to the Complainant and her comparators for the first thirty nine hours worked constitutes discrimination on the gender ground and unequal pay contrary to the provisions of the Employment Equality Act [1998-2022] or whether the Respondent is entitled to rely in its defence on the composite hourly rate of pay calculated on the basis of the 45 hours/week and on the TUPE transfer.

Having regard to all of the foregoing including the submissions, evidence and questioning, I am satisfied the Complainant’s contractual documentation clearly distinguishes between the first thirty nine hours worked and the subsequent six hours which are paid at a premium of either time and a half or double based on the hourly rate applicable to the first 39 hours worked. Whilst mathematically it is certainly the case that the composite hourly rate of pay over the full 45 hour week is higher, I consider the Respondent has not advanced a cogent reason – other than reliance on the TUPE transfer – as to why the Complainant is paid a lesser hourly rate for the first thirty nine hours than her male comparators. In my view, neither TUPE or the application of a composite hourly pay rate, can or should trump the equal pay provisions of the Employment Equality Act [1998-2022]. In all the circumstances and having regard to all of the factors, evidence, questioning and submissions, I conclude the Complainant has established a prima facie case of discrimination on the gender ground which has not been rebutted by the Respondent. Accordingly, I find that the Complainant is entitled to the same rate of remuneration as her comparators in accordance with the provisions of Section 19 of the Employment Equality Act [1998-2022].

CA-00064179-003:

The Terms of Employment (Information) Act [1994-2022] provides as follows:

““employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer…….”

““employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;”

“3.—(1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say…..”

"5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.”

Having regard to the foregoing legislative provisions and having considered all the evidence, questioning, submissions and documentation, I have come to the conclusion that in 2023 – arising from the TUPE transfer – the Complainant was provided with information setting out her contractual terms and conditions. In this regard I accept as legitimate copy of the TUPE start up form which I consider the Complainant must have seen as she took issue with her job title as a “Cleaning Operative”. In her evidence the Complainant accepted that she received this form which in fact refers to the Employee Handbook. Furthermore under questioning, the Complainant accepted there was “a possibility” that she received the original contract. I am also persuaded by the Complainant’s email to the Respondent of 15 February 2023 in which she comments in detail on her rate of pay and hours of work. I also note the reference in the document purporting to be the original contract to  JLC rates which the Respondent stated it wished to correct via the revised contract of January 2025. In all the circumstances and on balance, I have come to the conclusion that the Complainant was furnished with her terms and conditions of employment in January 2023 – notwithstanding that she took issue with certain aspects of the documentation and engaged in communication in relation thereto.

CA-00064179-001:

For the reasons outlined this complaint is well founded. I am satisfied the Complainant should have been paid at the basic rate of €14.80/hour as opposed to €14.25 with the additional six hours premium pay based on the €14.80/hour rate. Had that occurred she should have been paid in the region of €725/week instead of €692.23.  Accordingly, I order the Respondent to recalculate the Complainant’s pay with effect from the date of the referral of her complaint to the WRC – ie with effect from 19/6/2024, in order to reflect the same hourly rate of pay for the first thirty nine hours as paid to her male comparators during that time. In addition, I order the Respondent to recalculate the Complainant’s six hours premium pay/week from 19/6/2024 on the basis of the updated hourly rate applicable to the first thirty nine hours. These directions to the Respondent with regard to the provision of equal pay must not interfere with the Complainant’s existing contractual weekly hours of work and methods of payment.

I also order the Respondent to pay the Complainant €3000 compensation for the effects of the discrimination which award is subject to such statutory deductions as may apply.

CA-00064179-003:

For the reasons outlined this complaint is not well founded.

Equal Pay, Terms of Employment