Case Number: EDA133. Labour Court
| Judgment Date | 01 January 2013 |
| Year | 2013 |
| Docket Number | EDA133 |
| Court | Labour Court (Ireland) |
|
FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : THE NATIONALIST & LEINSTER TIMES LIMITED, TRUSTEEES OF THE IRISH MASTER PRINTERS ASSOCIATION, ADMINISTRATORS OF THE IRISH MASTER PRINTERS ASSOCIATION PENSION AND LIFE ASSURANCE SCHEME
(REPRESENTED BY RONAN, DALY, JERMYN SOLICITORS) - AND - VICKI ASHMORE (REPRESENTED BY DANIEL SPRING & COMPANY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011
BACKGROUND:
2. This case is an appeal by the Employee under Section 83 of the Employment Equality Acts, 1998-2011. A Labour Court hearing took place on 4th October, 2012. The following is the Court's Determination:
DETERMINATION:
Background
This is an appeal by Ms Vicki Ashmore against the decision of the Equality Tribunal in her claim for equal pay with a male comparator in her employment with the Nationalist and Leinster Times Limited. Ms Ashmore, who is the appellant in the case, is referred to as the Complainant and her employer is referred to as the Respondent.
This case was taken in conjunction with another claim by the Complainant for equal pension treatment taken pursuant to the Pensions Act 1990, as amended by the Social Welfare (Miscellaneous Provisions) Act 2004. That claim was conjoined with the Complainant’s equal pay claim and heard together by the Equality Tribunal. The Complainant was unsuccessful in that claim and she also appealed against the findings of the Equality Tribunal to this Court. The appeals of both cases where listed together by the Court. At the commencement of the hearing the Court was told that discussions had taken place between the parties on the Pension Acts case and an application was made to adjourn that aspect of the case generally with liberty to re-enter. That application was granted and the appeal proceeded on the equal pay claim only.
The Dispute
There are two aspects to the equal pay claim being pursued by the Complainant. Firstly, she grounds her claim on a difference in overall pay as between her and her male comparator. The fact of unequal pay is admitted. This arose from the payment to the comparator of an additional element of pay referred to as ‘the house rate’ in addition to the basic industry rate for the printing sector. The Complainant is paid the industry rate only. The second aspect of the claim relates to the pensions contribution paid by the Respondent in respect of the Complainant relative to that paid in respect of the comparator. The Respondent pays a pension contribution equal to 14.84% of salary in respect of the comparator. It pays a contribution of 5% of pensionable salary into a different pension scheme in respect of the Complainant.
The Facts
The material facts of this case are not in dispute as they were helpfully agreed between Counsel on both sides.
The Respondent is a regional newspaper. The Complainant is a typesetter involved in the printing of the newspaper. The Complainant is seeking equal pay with a named comparator. It is accepted that the Complainant and this comparator are engaged in like work within the statutory meaning. The Complainant works part-time whereas the comparator works full time. It is also accepted that the Complainant is paid less than her comparator although there is some difference concerning the extent of the disparity. The Complainant contends that she is paid an hourly rate equal to 80% of that paid to the comparator. The Respondent contends that the Complainant’s rate equates to slightly over 90% of her comparators rate. This difference is not material for present purposes as the only question that the Court has been asked to determine is whether or not the Complainant is entitled to equal pay, pro-rata to her hours of work.
The origins of the present dispute can be traced to the conclusion of a collective agreement between the Respondent and a trade union representing its production staff in 1998. This agreement, in effect, facilitated a restructuring of work organisation within the employment. Previously, the work of printing the newspaper was, in common with other newspapers, performed by qualified printers who had been trained through a traditional apprenticeship system. All production staff worked full-time and there was rigidity in work practices and working hours.
The agreement was concluded against the background of significant technological innovation affecting the printing industry. These developments diminished the requirements for some of the traditional skills of printers. The agreement was primarily directed at facilitating the use of new technology and introducing more flexible working arrangements which the management of the Respondent believed were more suited to the changing needs of the business.
For present purposes the most important outcome of this agreement was that workers who had not completed a formal apprenticeship could be deployed in printing work that was previously the exclusive preserve of craft printers. It was also agreed that production workers could be employed on a part-time basis. In conjunction with this restructuring of work organisation the Respondent sought to reduce the overall level of pay applicable to production work. At the time the agreement was concluded a printer’s rate of pay was £317.71 per week. This was made up of the basic rate for the industry, which appears to have been £274.60 per week, and what was referred to as a ‘house rate’ of £43.11 per week. The Court was told that this house rate had evolved over time by the application of various additional payments for various purposes. By 1998 it had become consolidated in the printer’s rate.
The Respondent wished to eliminate this house rate. The Respondent sought to buy-out this element of pay from existing staff but this proved unsuccessful. It was eventually agreed that existing employees would retain the house rate, consolidated in their basic pay, but that it would not apply to new employees. A new hourly rate of pay was also introduced for part-time employees, which was less than the hourly rate applicable to full-time employees. In consequence of this agreement the house rate continued to be included in the pay of all production staff whose employment commenced before 1998. Those whose employment commenced after that date were paid the basic rate only.
The Complainant, who is not a time served printer, was employed by the Respondent in 2001. She worked part-time and was paid the part-time hourly rate and did not receive the house rate. In or about 2005 the Complainant brought proceedings under the Protection of Employees (Part-Time Work) Act 2001 seeking to have her rate of pay adjusted to bring it into line with the full-time rate applicable to those who, like her, commenced in employment after 1998. She succeeded in that claim and had her rate adjusted to that of a full-time production worker whose employment commenced after 1998. There remained a difference between her pay and that of comparable employees whose employment had commenced before 1998.
Prior to 1998 the Respondent operated a defined benefit pension scheme known as the IMPA scheme. After 1998 the Respondent entered all new employees in a defined contribution scheme known as the TCH scheme. The comparator is entered in the former scheme whereas the Complainant is entered in the latter scheme. While this difference in pension treatment is the subject of separate proceedings which have been adjourned generally, for present purposes the difference in contributions paid by the Respondent into the respective schemes is in issue. The Complainant contends that the employer’s contribution constitutes pay for the purpose of the Act and that the higher rate of contribution paid by the Respondent in respect of the comparator relative to that paid on her behalf amounts to a further incident of unequal pay.
The Respondent denies that pension contributions constitute pay. In relation to the admitted pay difference the Respondent contends that it is explained by the fact that the Complainant commenced employment after 1998 whereas the comparator commenced employment before that date. This, the Respondent contends, is a ground other than sex for the difference in pay. It relies on s.19(5) of the Act which, it contends, provides a full defence to the claim.
Since the introduction of the now impugned changes in 1998 nine production workers, of whom the Complainant is one, have been employed by the Respondent at various times. Seven of those workers were women and two were men. All of the seven women employed worked part-time. The two men were full-time workers although one of the male employees worked part-time during part of his service.
The Complainant contends that since the majority of those employed by the Respondent since 1998 are women, the application of the lower rates (and the different pension contributions) introduced in that year constitutes indirect discrimination against women. The Complainant further contends that the introduction of part-time working on foot of the 1998 agreement also contributed to a concentration of women workers in the lower paid category since significantly more women than men are likely to avail of part-time work.
The applicable law
In this case the difference in pay as between the Complainant and her comparator is entirely attributable to the different times at which they each took up employment with the Respondent. That, on its face, is a gender neutral provision.
It is a completed defence to a claim of discrimination for a Respondent to show that the impugned practice or decision has nothing whatever to do with the sex of the complainant. However what might appear to be a gender-neutral explanation may give rise to a claim of indirect discrimination.
A statutory definition of indirect...
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