Francis v Dunnes Stores

 
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OFFICE OF THE DIRECTOR OF EQUALITY INVESTIGATIONS

DEC-E-2002-043

File No. EE 2001/229

Employment Equality Act

Francis (Represented by MANDATE)
complainant
V
Dunnes Stores Castlebar (Represented by William Fry Solicitors)
respondent
Abstract:

Employment law – Equality – Equal pay – Like work – Grounds other than gender – Whether company failed to give equal pay for like work – Employment Equality Act, 1998.

Employment Equality Act, 1998 Sections 7 and 19 - Employment - Equal Pay - Like Work - Prima Facie case - Grounds other than Gender

Appendix A: Job Description for the complainant
Appendix B: Job Description for the named male comparator
Appendix C: Analysis of the jobs
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Appendix D: Extracts from Staff Handbook and the Retail Grocery & Allied Trades JLC

Date of Issue 16/09/2002
SUMMARY (1)
Equality Officer Decision DEC-E 2002/043 (Coyle G.) 16th September, 2002
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Background:

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The complainant alleges that she is entitled to equal pay in terms of Section 19 of the Employment Equality Act, 1998 with the named male comparator on the basis that she performs ‘like work’ with the named male comparator in accordance with the provisions of Section 7(1) of the Employment Equality Act, 1998. The respondent refutes the allegation that the complainant and the named male comparator are performing ‘like work’ within the meaning of the Act and it states that there are grounds other than gender for the difference in pay.

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Conclusions:

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Following work inspections the Equality Officer concluded that the complainant did not perform ‘like work’ with the named male comparator. The Equality Officer also found that if the named male comparator was employed as a Sales Assistant then there were grounds other than gender for the difference in pay to the complainant and the named male comparator.

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Decision:

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The Equality Officer found that ‘like work’ did not exist between the work of the complainant and the named male comparator within the meaning of Section 7(1) of the Employment Equality Act, 1998 and consequently the complainant was not entitled to equal pay in terms of Section 19 of that Act.

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(1)This Summary is provided for convenience only and is not part of the Decision for legal purposes.

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Equality Act, 1998 and consequently the complaint was not entitled to equal pay in terms of Section 19 of that Act.

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Cases Cited:

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Equality Officer Recommendation -A Worker v Roches Stores (DEC-E2001/021) 31/7/01Equality Officer Decision - Gay Byrne v Tesco Ireland (DEC-E 2002/029) 21st June, 2002

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Labour Court Recommendation -Roches Stores v Mandate (LCR16288) 28th Sept. 1999

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Labour Court Recommendation -Dunnes Stores v Mandate (LCR16530) 7th June, 2000

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Labour Court Determination -Harte and Others v North Western Health Board (DEP 195)

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Labour Court Determination -Dunnes Stores v Mandate (DEP9812) 9th December, 1998

1. DISPUTE
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1.1 This dispute concerns a claim by MANDATE, on behalf of Ms. May Francis, who is employed by Dunnes Stores Castlebar, that she is entitled to the same rate of remuneration as that paid to Mr. Padraic Mulchrone under Section 19 of the Employment Equality Act, 1998 on the basis of performing ‘like work’ in terms of Sections 7(1)(a), 7(1)(b) and 7(1)(c) of that Act.

2. BACKGROUND
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2.1 The complainant alleges that she performs ‘like work’ in terms of the same work, similar work and work of equal value to the named male comparator. It is her contention that she is, therefore, entitled to equal pay with this named male comparator. The complainant approached the respondent seeking equal pay with the named male comparator, but to no avail.

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2.2 Consequently the complainant referred a case to the Director of Equality Investigations on 22nd November, 2001 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 12th February, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Written submissions were received from both parties to this claim. A preliminary hearing and work inspections took place and a final joint hearing took place on 12th August, 2002. Additional information was submitted by the respondent on 29th August, 2002.

3. SUMMARY OF THE UNION’S SUBMISSION
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3.1 According to the Union the complainant commenced employment with the respondent in October, 1984 as a cleaner and she is currently paid on the basis of an hourly rate

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of EUR8.04. The named male comparator is Mr. Mulchrone who, according to the Union, is also employed as a cleaner with the respondent company and he is paid EUR10.04 per hour.

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3.2 The Union says that when the complainant became aware that the comparator was on a higher rate of pay, despite the fact that they were employed as cleaners, she made a number of approaches to management but to no avail. The complainant then brought the matter to the attention of her Union. The Union wrote to the respondent on 11th October, 2001 requesting a meeting to discuss this issue. The Union notes that the respondent denied this requested meeting by letter dated 17th October, 2001. The Union says that it notes that the respondent, in its letter, stated that the complainant’s rate of pay had been discussed with her at length and that it was satisfied that she is on the correct rate of pay. As the complainant and her Union were unable to resolve the issue at local level the Union says that the complainant had no other option but to initiate a claim under the Employment Equality Act, 1998. The Union sought further information from the respondent using Form ODEI 3 but no response was received from the respondent and this failure to supply additional information further frustrated the settlement of this claim according to the Union.

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3.3 The Union submits that the complainant and the named male comparator are doing like work as defined by the Employment Equality Act, 1998. Both the complainant and the named male comparator are engaged in ‘hygiene’ or more commonly referred to, as cleaners. The Union notes that at the preliminary hearing the respondent did not dispute the fact that a difference in pay exists and that the comparator is on a higher rate. In terms of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 the Union argues that it has established the primary facts of discrimination and that it is up to the respondent to prove that discrimination does not exist in relation to the complainant’s sex.

4. SUMMARY OF THE RESPONDENT’S SUBMISSION
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4.1 According to the respondent the complainant is an employee of the respondent organisation and she is claiming equal pay on the basis of performing like work with a named male comparator. The respondent accepts that the complainant is on a lower rate of pay than the named male comparator but states that the difference in pay is based on grounds other than any of the discriminatory grounds and the named male comparator is not an appropriate comparator as he does not do “like work” in terms of Sections 7(1)(a), (b) and (c) of the Employment Equality Act, 1998.

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4.2 According to the respondent the complainant commenced employment with the respondent organisation on 4th August, 1984. She is employed as a cleaner at the respondent’s store and her rate of salary is EUR8.04 per hour. The complainant currently works 25 hours per week. The named male comparator commenced employment with the respondent on 29th November, 1982. His current rate of pay is EUR10.04 per hour and he works 37 hours per week.

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4.3 The respondent’s store in Castlebar sells groceries, textiles and has a restaurant attached to it. In addition to the public areas there are offices and store rooms associated with the business. Excluding management there are 166 staff employed at the store of whom 15 are employed as Catering/cleaning staff, 1 is employed as a security staff member and 150 are employed as Sales Assistants.

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4.4 The respondent notes that the complainant has submitted a claim for equal pay on the basis that she is performing “like work” with the named male comparator. The respondent denies that the complainant performs “like work” with the named male comparator and, therefore, contends that she does not have any entitlement to the same rate of remuneration as that paid by the respondent to the named male comparator. The respondent says that to comply with the provisions of Section 7(1)(a) of the 1998 Act the complainant and the named male comparator must perform the same work and the work they perform must be interchangeable. According to the respondent the named male comparator is employed as a Sales Assistant and the tasks he is asked to perform, while interchangeable between Sales Assistants, are not interchangeable between himself (as a

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Sales Assistant) and the complainant. For example the named male comparator carries out a regular check of the aisles to ensure that they are free from debris or spillages to prevent accidents. This task is carried out at all times when the store is open to the public for health and safety reasons. In the absence of the named male comparator other Sales Assistants carry out...

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