Case Number: ADJ-00028084. Workplace Relations Commission

• Judgment Date: 11 March 2022
• Year: 2022
• Date: 11 March 2022
• Docket Number: ADJ-00028084
• Hearing Date: 26 November 2021
• Court: Workplace Relations Commission
• Respondent: Teagasc

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint 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.

Background:

The Complainant is employed by the Respondent as a Statistician. Employment commenced on 5th January 1977. This complaint, submitted under section 77 of the Employment Equality Act of 1998 was received by the Workplace Relations Commission on 28th April 2020. The hearing of the complaint took place on 26th November 2021.

Summary of Complainant’s Case:

The Respondent has discriminated against the Complainant on the ground of gender by failing to provide equal pay in respect of a named comparator, contrary to section 29 (1) of the Employment Equality Act 1998 (as amended) (“the 1998 Act”). The Comparator is Mr Jim Grant who is of a different gender to the Complainant in that he is male, and the Complainant is female. Both worked as Statisticians in Teagasc – as the organisation’s only two statisticians. Both performed like work within the meaning of Section 7 of the 1998 Act. Mr Grant retired in 2020. The legal context to this claim: The preamble to the 1998 Act makes it clear that it is derived from Directives on equal pay for men and women. The Directive currently applying is Directive 2006/54/EC often referred to as the Gender Equality Recast Directive (“the Directive”). The right to equal pay is directly effective, enforceable against private entities, individuals and Member States: Defrenne v Sabena [1976] ECJ Case C43/75. In that and later cases, the principle that equal work or work of equal value must be remunerated in the same way, whether it is performed by a man or a woman was recognised as forming part of the foundations of the European Union. Ms Reid’s claim must therefore be seen as a claim not only under the 1998 Act, but also under the Directive. See e.g. by analogy, the judgment of the CJEU in Case C 268/06 Impact v Minister for Agriculture in the context of Directive 1999/70/EC on Fixed Term Work. Article 157 of the TFEU prohibits both direct and indirect discrimination in matters of remuneration. Whether or not this is “like work” is a matter for the Adjudication Officer. Barron J. stated in C & D Foods Ltd v Cunnion [1997] 1 I.R. 147 at 151 “It is essential to an employer’s case that differentiation in pay scales and recruitment of men and women to the same job at the same wage should be genuine. Nevertheless, even where the employer genuinely believes that the value of the work being carried out by employees in one occupation is higher than the value of work being carried out by employees in another occupation, he cannot avail of that belief because ultimately what is like work is a matter not for the employer but for an equality officer or the Labour Court on appeal”. Ms Reid at all material times was paid substantially less than Mr Grant earning approximately €20,000.00 per annum less than him. She was, in substance and in essence, doing the same work as him. The stated response on behalf of the Respondent By letter dated 25th March 2020 the Respondent’s solicitors asserted on its behalf that the Complainant’s role is “….. entirely different to that of her chosen male comparator Dr Jim Grant”. That letter goes on to assert inter alia that: “Ms Reid provides statistical analysis support to research staff primarily in the Food Directorate on the design, analysis and interpretation of controlled experiments, collaborates on research projects and has not produced any peer-reviewed publications. Dr Grant is currently a Senior Research Officer in Teagasc with significant experience working at this level for over fifteen years, having completed a PhD 18 years ago. Dr Grant is a leader within Teagasc in terms of statistical support to all areas of the organisation, he carries out large scale projects, contributes to the business planning process and has prepared numerous peer reviewed publications. The difference in remuneration relates to Dr Grant’s grade, skills, experience and qualifications and not gender”. It is wholly denied by the Complainant that the difference in remuneration can be explained or justified by any of: grade, skills, experiences and qualifications. Need for close scrutiny It is respectfully submitted that this stated position of Teagasc must be subjected to very close scrutiny. Any contention by the Respondent that the disparity in pay between the Complainant and the named comparator arises because of reasons not connected to gender must be closely scrutinised. The onus of proof is on the employer to prove that the differentiation is genuinely attributable to grounds other than gender: reliance is placed on Irish Crown Cork Co v Desmond [1983] E.L.R. 180; and Minister for Transport, Energy and Communications v Campbell [1996] E.L.R. 106. Factors from which a prima facie case of discrimination ought to be inferred In this case, section 85A of the Employment Equality Acts applies so as to require the Complainant to first of all establish facts from which an inference of discrimination may be drawn. In this case, the “Teresa Mitchell v Southern Health Board (2001)” burden of proof test is met- and comfortably met- by the Complainant. She has identified a properly comparable man with whom she was doing work of equal value but who was paid significantly more than her. The Complainant relies upon the entirety of the form lodged on her behalf with the WRC, including inter alia the “specifics of your complaint” set forth therein. To those specifics, the Complainant adds as follows: a) All statisticians – except the Complainant – employed with Teagasc or its predecessor in title [An Foras Taluntais (“AFT”) were or have been paid on the research salary scale. b) The Complainant has over 20 years’ experience as a Statistician with Teagasc. Nevertheless, she has never been reclassified as a research officer. c) The Complainant and her comparator applied for the same Statistical post, albeit in different years. d) Their job descriptions were the same. Their duties were hugely similar (until Mr Grant’s retirement) and at all material times both provided identical supporting roles including inter alia: · Providing support in the use of statistical software. · Providing statistical support to research staff on the design, analysis and interpretation of experiments and survey including the provisions of training. · Collaborating with research staff on joint projects. · Contributing substantively in respect of the execution of research projects. · Delivering training in statistical analysis and authored publications. e) The Complainant took up the post in the statistics department around the middle of 2001 and worked with Tony Hegarty. He was the only other statistician in Teagasc. They shared the role of Production Research and Food Research i.e. the Complainant and Tony Hegarty did both food research and production research. f) In 2004 Tony Hegarty retired. He did not have a PhD. He had the same qualifications as the Complainant. g) In 2005 the Complainant was the only statistician working in the department so she did both production and food research. h) In 2005 Tony Hegarty having retired, his job was advertised, and the successful candidate was Jim Grant who already worked in Teagasc. However, Mr Grant had to complete a Masters in UCD on statistics, the same Masters in UCD that the Complainant had undertaken previously in 1999. Mr Grant already had his PhD however he needed to obtain this Masters in statistics prior to taking up the role. i) From 2007 to 2011, because headquarters had closed, many of the research staff were sent to work in Kinsealy. The Complainant requested that she work in Ashtown. Teagasc...