Case Number: EDA148. Labour Court

• Judgment Date: 01 February 2014
• Year: 2014
• Docket Number: EDA148
• Court: Labour Court (Ireland)

FULL RECOMMENDATION ADE/13/49 DETERMINATIONNO.EDA148 INDUSTRIAL RELATIONS ACTS, 1946 TO 1990; SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 ; PARTIES : BRANDON HOUSE HOTEL; (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION); - AND -; JOANNA BARSKA; (REPRESENTED BY COUGHLAN KELLY SOLICITORS); DIVISION : Chairman: Mr Duffy; Employer Member: Ms Cryan; Worker Member: Ms Tanham

SUBJECT:
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.


BACKGROUND:

2. The Employer appealed the decision of the Equality Officer to the Labour Court on the 27th September, 2013. A Labour Court hearing took place on the 30th January, 2014. The following is the Court's Determination:

DETERMINATION:

This is an appeal by the Brandon House Hotel against the decision of the Equality Tribunal in a claim for equal pay and redress for discrimination in the filling of a promotional vacancy by Joanna Barksa. The claims are taken under the Employment Equality Acts 1998-2011 (the Act). Both claims are on grounds of gender. At first instance Ms Barksa also pursued a claim of victimisation.

In this Determination the parties are referred to as they were at first instance. Hence, Brandon House Hotel is referred to as the Respondent and Ms Barksa is referred to as the Complainant.

The Equality Tribunal found for the Complainant in relation to her discrimination claim and in relation to equal pay. The Equality Officer found against the Complainant on her claim of victimisation. There is no cross-appeal. Consequently the only issues arising in the appeal are the equal pay claim and the discrimination claim.

Background
The factual background of the case is relatively straightforward. Both the Complainant and her male comparator were originally employed as leisure centre attendants by the Respondent. The Complainant commenced her employment in May 2004. The comparator was employed in June 2006. Initially the Complainant was paid more than the comparator but the comparator’s pay was subsequently adjusted to a level above that of the Complainant. The Complainant was promoted to the position of supervisor on or about 19th June 2006. Her pay was then fixed at €10 per hour.

The named comparator was employed on or about 12^thJune 2006, initially in a part-time capacity. His pay was then fixed at €8.50 per hour. In or about February 2007 the comparator became a full-time employee of the Respondent. His rate of pay was then increased to €11 per hour. On or about 2^ndJuly 2007 the Complainant’s rate of pay was increased to €10.43 per hour. In September 2007 the comparator’s rate of pay was further increased to €11.50 per hour.

It appears that in April 2008 the Complainant became aware of the disparity in pay as between her and the comparator. In response she indicated to the Respondent her intention to resign. In consequence the general manager of the Respondent agreed to adjust the Complainant’s pay so as to bring it into line with that of the comparator. This adjustment was made retrospective for a period of six weeks.

The claim was presented to the Equality Tribunal on 18^thJanuary 2010. Section 82(1)(a) of the Act, in effect, limits an award of equal pay to a period of three years from the date of the referral of the claim. Hence the cognisable period for the purpose of the present claim is the period beginning on 19^thJanuary 2007. However the Equality Officer found that the period during which the comparator was being paid more than the Complainant was 5^thFebruary 2007 to 3^rdMarch 2008. The findings of the Equality Officer on this point are set out at paragraph 7.2 of his decision as follows:

• •Difference between 5^thFebruary 2007 and 1^stJuly 2007 = €1.00 per hour
  •Difference between 2^ndJuly 2007 and 9^thSeptember 2007 = €0.57 per hour
  •Difference between 10^thSeptember 2007 and 3^rdMarch 2008 = €1.07 per hour

No issue was taken with the finding of the Equality Officer in that regard.

It is accepted that the Complainant and the comparator were engaged on like work at all material times. The Respondent contends that there are grounds other than sex for the differences in pay. In effect the Respondent submits that it does not have a settled pay determination system and that rates of pay are negotiated with individuals. It further submits that the comparator was unwilling to work for less than that which he was paid in his then current employment. In its written submission to the Court the Respondent contended that the comparator is an accomplished sportsman and highly successful in road cycling. It was further stated in the written submission that the comparator had agreed that he would cycle on behalf of the Respondent and thus present promotional and publicity opportunities. These factors were relied upon in advancing the contention that the difference in the pay of the comparator was on grounds other than his gender.

On the question of promotion, the facts as agreed are that the Respondent chose the comparator for promotion without affording the Complainant an opportunity to apply for the post. Here again the Respondent seeks to defend its decision in reliance on its contention that the difference in treatment was not on any of the discriminatory grounds.

Direct Discrimination
What is alleged by the Complainant is that she was paid less and treated less favourably because she is a woman. Therefore, both aspects of her claim are of direct discrimination on grounds of her gender.

It is trite law that direct discrimination, unlike indirect discrimination, can never be justified (except in relation to age). That is to say, there are no circumstances in which it is lawful to treat a woman less favourably than a man because she is a woman. Consequently, the only defence available to the Respondent in this case is to show that the difference in pay, and the difference in treatment, complained of was on grounds wholly unrelated to the Complainant’s gender.

The Evidence
The Court heard evidence from four witnesses called by the Respondent. Their evidence can be summarised as follows: -

Ms Mary Walsh
This witness is employed by the Respondent as financial controller. Ms Walsh told the Court that the Respondent does not have any established policy on pay determination. This witness was not directly involved in fixing the comparators rate of pay nor that of the Complainant. She said that she was informed by the leisure centre manager, Mr Doherty, of the rate agreed with the comparator. She said her only concern was to ensure that the rate agreed was one that the Respondent could afford to pay. The witness said that it had never crossed her mind to check the rate agreed against that paid to others doing similar work. Ms Walsh confirmed that the position to which the comparator was appointed was not advertised. The witness told the Court that there was some difficulties at the time finding suitable candidates to fill vacant positions. However she accepted that she had no details of those difficulties.

The Court was told that the Respondent did not have any formal policy on promotions. She said that employees were promoted on the basis of an assessment of their suitability by individual managers. Promotions were not by competition.

The witness told the Court that the Complainant had commenced working a three day week in or about April 2009. This, according to Ms Walsh, caused some difficulties for the Respondent in terms of covering the duties that she performed.

Mr Emmet Doherty
Mr Doherty is currently employed by the Respondent as assistant manager of its leisure centre. He has previously been manager of this facility. He recalled the circumstances in which the Complainant was originally employed by the Respondent in 2004. He said that she had the necessary qualifications and she was very eager to get into the leisure industry. She was an employee of high quality and was promoted to the position of supervisor some two years after she commenced her employment. He said that it was not the practice of the Respondent to advertise promotional positions and it was done by selection.

Mr Doherty told the Court that he first came to know the comparator as a user of the leisure facility. He said that there was a vacancy for an attendant in the leisure centre and he asked the comparator to consider taking up employment in that...