Case Number: DEC-E2016-041. Workplace Relations Commission
| Judgment Date | 01 March 2016 |
| Court | Workplace Relations Commission |
| Docket Number | DEC-E2016-041 |
| Parties | Tomás Horgan and Claire Keegan -V- Department of Education and Skills, Department of Finance, Department of Public Expenditure & Reform, Government of Ireland, Ireland, Attorney General |
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Age – Equal Pay
1. DISPUTE1.1 This dispute concerns claims by Tomás Horgan and Claire Keegan that they were discriminated against by the Department of Education and Skills, the Department of Finance, the Department of Public Expenditure & Reform, the Government of Ireland, Ireland and the Attorney General on the grounds of age contrary to section 6 (2) (f) of the Employment Equality Acts in relation to conditions of employment and that that they perform “like work”, in terms of section 7 of the Employment Equality Acts with a named comparator and are entitled to equal remuneration in accordance with section 29 of the Employment Equality Acts.
1.2 The complainants referred claims against the six respondents to the Director of the Equality Tribunal on 31 January 2012, 9 February 2012 and 27 July 2012 under the Employment Equality Acts. On 3 July 2014, in accordance with his powers under section 75 of the Acts, the Director delegated the cases to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing on 26 November 2014. At the start of the hearing the complainant withdrew their claim in relation to conditions of employment. Final information was received on 15 January 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2. SUMMARY OF THE COMPLAINANTS’ CASE2.1 Mr Horgan was appointed to start work as a teacher in St Josephs Convent National School from 3 October 2011 at the age of 22.
2.2 Ms Keegan was appointed to start work as a teacher from 11 October 2001 at the age of 23.
2.2 Both complainants were appointed to the first point of a new scale for teachers which had been brought in from 1 January 2011. This scale had been reduced by 10% from the previous scale for teachers. Also, before 1 January 2011 all teachers appointed in a similar position had started on, at least, the second point of the scale.
2.2 The complainants submit that their appointments were discriminatory as the changes effective from 1 January 2011 particularly affected younger teachers. They claim that they suffered direct and indirect discrimination in respect of remuneration. They name “all teachers who gave service as teachers in state-funded schools prior to 1 January 2011”, and they named a specific comparator.
2.3 The complainants submit that the appropriate respondents are those who have responsibility for pay and cite section 77 (4) of the Employment Equality Acts which defines the respondent inter alia as the person: “who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the remuneration term relates”. They are paid by the Department of Education and Skills but the other respondents all have various responsibilities in relation to their remuneration. They also submit that Circulars 18/2010 (issued by the Department of Finance) and 00/40/2011 (issued by the Department of Education and Skills and deals with the Teachers’ Common basic Scale), which brought in the revised pay scales, amounted to the issuing of an instruction to discriminate, which amounts to discrimination in accordance with in accordance with section 2 of the Employment Equality Acts.
2.4 The complainants submit that in 2011 there were 1,827 new teachers. In 2012 there were 1019 in the 20-23 age bracket and 234 were aged 24-25. This means that 68.8% of new starts were under 26 and over 55% under 24.
2.5 The complainants submit that their allegations are covered within the Employment Equality Acts and that the Acts do not contain a defence to such a claim for discrimination by allowing for objective and reasonable justification.
3. SUMMARY OF THE RESPONDENT'S CASE3.1 The respondents submit they are not the correct respondents. The correct respondents are the Board of Management where the complainants were working at the time they referred these claims.
3.2 Without prejudice to this the respondents submit that as part of measures introduced by the Government to help Ireland recover from the economic collapse serving Public Servants’ pay had been reduced in February 2009 by a new pension related deduction which resulted in an average reduction in pay of 7.5% and from 1 January 2010 by a pay cut of 5 – 10%. In the Croke Park Agreement the Government committed to no further reductions in the pay rates for serving public servants for the lifetime of the Agreement: 2010 to 2014. This Agreement had the additional purpose and benefit of securing industrial harmony in the public sector and thereby helping project confidence both domestically and internationally and in addition minimising the risk of disruption to public services and front line services to those persons including vulnerable members of the population and children who depend on public services.
3.2 However, the economy continued to deteriorate and further substantial savings had to be introduced in Budget 2011 as part of the National Recovery Plan. The respondents submit that as part of Budget 2011 the pay of all new appointees to the public service was reduced by 10% from 1 January 2011. In addition new appointees were required to start on the first point of the relevant salary scale. These measures were introduced to achieve a medium term structural reduction in the cost of the public service.
3.3 Subsequently, as part of the Public Service Stability Agreement 2013-2016 (Haddington Road Agreement) with effect from 1 July 2013 revised salary scales for post 1 January 2011 entrants to primary teaching were introduced. The new scales reduced the differential between them and the scales for teachers appointed before this date to 7%.
3.4 The respondent submits the complainants were correctly placed on the new appointee scale and this was not discriminatory; either direct or indirect. The respondents submit that the complainants have submitted no evidence in relation to their claim of direct discrimination.
3.5 The respondents submit that for there to a claim of indirect discrimination there must be an apparently neutral provision which puts persons of a particular age at a particular disadvantage compared with other employees who carry out like work and the complainants have failed to show that the lower rate of pay has affected the make-up of the applicant group in terms of their age. The complainants have to show that the cut amounts to a disincentive that applied more to young people and the statistics do not show any change in age composition of those entering teaching. Furthermore, people who have been teaching longer are likely to be older. The age...
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