Case Number: DEC-E2015-010. Equality Tribunal

• Judgment Date: 01 March 2015
• Year: 2015
• Docket Number: DEC-E2015-010
• Court: Equality Tribunal

THE EQUALITY TRIBUNAL EMPLOYMENT EQUALITY ACTS 1998-2011 Decision DEC – E2015-010 PARTIES Kathleen O’Dwyer (represented by IMPACT) -V- HSE West File Reference: EE/2010/190 Date of Issue: 16/03/2015

Keywords

Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(a)- gender) – Section 7 & 19 gender and equal pay, prima facie case.

1. Dispute

This dispute involves a claim by Ms. Kathleen O’Dwyer (hereinafter called the complainant) that she performs “like work”, in terms of section 7 of the Employment Equality Acts, 1998 and 2011, with 2 named male comparators and that she is therefore entitled to the same rate of remuneration paid by the HSE (hereinafter called the respondent) to those comparators in accordance with section 19(1) of the Acts. The complainant also referred a complaint under Section 8 of the Acts in relation to her conditions of employment and promotion. The respondent rejects the complainant’s assertion that she performs “like work” with the named comparators and notwithstanding this argument it was submitted that the complainant was in a subordinate position to one of the comparators and that the second comparator was hired as a Chartered Surveyor and required different qualifications and experience for the position of property manager in the Eastern Region whereas there was no requirement for the complainant to have any such qualifications.

1.2 The complainant referred her complaint under the Acts to the Director of the Equality Tribunal on the 22th of March 2010.In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on 8th of April, 2013 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 20th of July 2012 and from the respondent on 18th September 2012 and the 11th March 2013. An initial hearing on the equal pay issue was held on the 12th April 2013. The matter was adjourned to allow the parties to mediate on the matter. A further hearing was held on the 9th September 2014 and the final correspondence in the matter was received on the 4th of December 2014. There were further talks between the parties to resolve the matter without success.

2 Summary of the Complainant's case

2.1 In 1999 the complainant was successful in a competition for promotion to grade 1V and in 2000 she was assigned to the position of assistant property manager. From 2001 onwards she reported to Mr. A. who was at the equivalent of Grade VIII. She said that she raised concerns about the grade as the previous occupant of the post was at grade VIII. She got an acting allowance backdated to when she took up the position. She was given extra duties in 2003 and the reporting arrangements changed and now she had total responsibility for the property portfolio of Donegal Community Services. She then got a dual responsibility allowance. She said that she was given a commitment by the Director of Finance that if she took on the extra duties that he would pursue a regarding claim for her. The case was made to HR for an upgrade to grade VII and it was approved, but it never happened. An agreement known as the McDonald Agreement came into operation in 2007. This was an agreement between IMPACT and the HSE was an agreement to sort out a problem in relation to acting up allowances. The complainant could only qualify for one upgrade under this Agreement and she was upgraded to grade V and she subsequently lost her dual responsibility allowance in 2009. The complainant accepted the position on the basis she would pursue her upgrade. She said that the Director of Finance approved her upgrade to grade VII but he retired in 2008 and the new Director reneged on the commitment. She said that she has continued to pursue re-grading to grade VII without success

2.2 The complainant submits that she is entitled to equal pay with her manager Mr. A and Mr. B who is the Property Manager in the Eastern Health Shared Services. The complainant stated that she looked after the property portfolio for Donegal. The complainant submits that she has sole responsibility of for arranging leases, rents, collecting rents, buying and selling property and the valuation of same and has responsibility of work including legal work in relation to about 200 properties in all. She said that Mr. A, who is her line manager, is doing the same work as she is in Sligo, Leitrim and West Cavan. The whole region has a property portfolio in excess of 400.

2.3 In 2005 the HSE set up an Estate Directorate and some functions were centralised and a national property database was set up. She said that she was excluded from the training for this data base and she continued to maintain a database locally. The complainant submits that the essential skills, competencies and knowledge requirements for the post she holds in Donegal are identical to the requirements for the positions held by her two named comparators and for this reason she is entitled to equal pay. The complainant submits that she was discriminated against on the gender ground in that the respondent failed to offer her a re-grading and the same terms and conditions of employment as that offered to the comparator male employees. She claims she is entitled to equal pay in terms of Section 7(1)(a), (b) and (c) in that she performed “like work” with 2 male comparators.

3. Summary of Respondent’s case

3.1 The respondent denies that the complainant was discriminated against in relation to her pay or conditions of employment. It was submitted that the complainant’s claim in respect of her conditions of employment were made outside the statutory time limit. In respect of the claim for equal pay it was submitted that the complainant was not engaged in “like work” or work of equal value with the named comparators and are not valid comparators for the purpose of claiming equal pay. It was submitted that the complainant’s Manager, Mr. A, took up duty as a Property Manager in the North West Health Board in 2001 and previous to that he was an Environmental Health Officer and he has overall responsibility for the region. The complainant is an Assistant Property Manager and reports to Mr. A. and only has sole responsibility for the work in the absence of Mr. A. Prior to the establishment of the HSE, the processing of the property portfolio transactions were dealt with by individual Health Boards in different ways. Following the setting up of the HSE, an Estate function under the National Director of Estates was established and responsibility for all matters relating to HSE property portfolio was transferred to the Directorate and the dedicated property staff were transferred to the Estates Function and continued to deal with property matters. It was submitted that the complainant is not solely responsible for all property transactions in Donegal as the Estate Function has overall responsibility and has bought and sold property without the involvement of the complainant.

3.2 The complainant was the only Assistant Property Manager in any of the Health Boards. The complainant was in receipt of a responsibility allowance since 1st March 2000 in respect of the level of management duties associated with her post in property management. In 2003 she requested additional clerical assistance and sought to have her post re-graded. She was successful in getting a dual responsibility allowance. The respondent stated that they have no evidence that the complainant sought to have her job evaluated under the national job evaluation scheme. In December 2004 the complainant’s boss Mr. A sought a review of her grading structure and subsequently sought the back dating to January 2004 of her Dual Responsibility Allowance. In response in April 2005 the complainant was told that she needed to complete a Job Evaluation form which would then be sent to the Department of Health for inclusion in the list of posts to be evaluated.

3.3 On the 31st of May 2005 an agreement was reached nationally between the HSE and IMPACT to regularise acting allowances for clerical/administrative grades. The agreement known as the Mc Donald Agreement came into effect in 2007. As a result of further negotiations on this Agreement it was agreed that any clerical/administrative staff in receipt of allowances before 1st of January 2004, their positions would be regularised in an upgraded post without competition. The complainant was upgraded from grade 1V to grade V and the dual responsibility allowance she was in receipt off ceased in or around June 2009. The complainant continued to seek to have her position re-graded to grade V11 and requested retention of the allowance until the issue was resolved. At a meeting on the 28th of August 2008 with HR the complainant accompanied by her union an agreement in principal was reached. The Senior IRO committed to recommend the upgrading of the complainant’s post as part of an industrial relations settlement. However the complainant did not complete the job evaluation form at any stage despite being advised to do so. The upgrading did not proceed for two reasons, the McDonald agreement from which the complainant benefitted provided for only a single grade move and there was no...