Walker v Tesco Ireland
Office of the Director of Equality Investigations
DEC - E /2002/027
File No: EE/2001/173
The Anti - Discrimination (Pay) Act, 1974 and The Employment Equality Act, 1998 Equality Officer Decision
Employment law - Equality - Application before equality officer - Sought same pay as fellow male worker - Whether other factors justified difference in pay
The case concerns a claim by the applicant that she is entitled to the same rate of remuneration as that paid by Tesco Ireland to a named male comparator in accordance with section 2 of the Anti-Discrimination (Pay) Act, 1974 and section 19 of the Employment Equality Act, 1998.
Held There were objective grounds other than gender for the difference in pay between the complainant and comparator and that an issue of indirect gender discrimination does not arise in this case. In the circumstances, the respondent did not discriminate against the complainant in relation to her pay contrary to section 2 of the Anti-Discrimination (Pay) Act, 1974 and section 19 of the Employment Equality Act, 1998.
Date of issue: 21 June 2002
1.1 The case concerns a claim by Ms. Marian Walker that she is entitled to the same rate of remuneration as that paid by Tesco Ireland to a named male comparator during the period from 18 July 1998 to date, in accordance with section 2 of the Anti-Discrimination (Pay) Act, 1974 and section 19 of the Employment Equality Act, 1998.
2.1 The complainant who is employed as a cleaner in the Tesco Ireland Nutgrove store alleges that she has been discriminated against in relation to pay on the basis of her gender as she has performed like work with a named male comparator (Mr. Kevin Short) since 1998 and is paid less. She submits that the work she carries out is equal in value to the work carried out by the male comparator who is a sales assistant in the store.
2.2 The complainant referred a claim for equal pay in accordance with section 2(1) of the Anti-Discrimination (Pay) Act, 1974 and section 19(1) of the Employment Equality Act, 1998 to the Director of Equality Investigations on 18 July 2001. In accordance with her powers under section 75 of that Act, the Director then delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The respondent disputes that the complainant and the comparator are engaged in like work and also submits that there are grounds other than gender for the difference in pay. Section 79(3) of the Employment Equality Act, 1998 provides:
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"If, in a case which is referred on the ground that the complainant is not receiving remuneration in accordance with an equal remuneration term, a question arises whether the different rates of remuneration to which the case relates are lawful by virtue of section 19( 5) or 29(5), the Director may direct that that question shall be investigated as a preliminary issue and shall proceed accordingly."
In accordance with that section, the Equality Officer, as a preliminary issue, investigated whether the different rates of pay are lawful by virtue of section 19(5) of the Act. Submissions were received from both parties and a joint hearing of the claim was held on 9 April 2001.
3. SUMMARY OF THE COMPLAINANTS' WRITTEN SUBMISSION
3.1 The complainant who is a cleaner submits that the work performed by her is equal in value to the work performed by a named male comparator who is a sales assistant. She submits that it is equal in terms of section 7(1 )(c) of the Employment Equality Act, 1998 having regard to such matters as skill, physical or mental requirements, responsibility and working conditions. She also submits that the work performed by her may be greater in value giving her an entitlement to equal pay for work of equal value in accordance with section 7(3) of the Act.
3.2 The complainant submits in relation to section 21(2)(b)(ii) that the terms under her contract of employment do not include a term corresponding to a term in the named male comparator's contract of employment which benefits him.
3.3 She submits that an anomaly exists in the cleaners contract of employment which does not allow the complainant to move further than the second point of the sales assistants five point pay scale and precludes her from ever achieving service pay regardless of how many years service she has.
3.4 She submits that in the main, the work of the male comparator involves looking after the shopping trolleys. He is employed as a sales assistant and technically can be asked to
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perform a full range of duties associated with the position of sales assistant, however, he has not been asked to do so and his only function is to take care of the shopping trolleys.
3.5 In relation to the claim under section 7(1)(c) of the Act, the complainant submits that the job performed by her requires at least as much skill as the job performed by the comparator. In relation to physical effort, the complainant submits that her job requires a great deal of physical effort and at least as much physical effort as that of the post of the comparator. In relation to mental effort, the work of the complainant is at least as great as the comparator. It is the responsibility of the complainant to ensure that she completes her full range of duties and her daily routines in the allotted hours. The complainant's working conditions are equal to those of the comparator and it can be shown that working in some areas where the complainant is employed can be hazardous and extreme care has to be exercised.
3.6 The male comparator as a sales assistant would earn more after two years service than the complainant as a cleaner is earning even if the cleaner is working for twenty years.
4. SUMMARY OF THE RESPONDENT'S WRITTEN SUBMISSION
4.1 The respondent disputes the Union's contention that the complainant who is employed as a cleaner performs "like work" with the named male comparator who is employed as a general sales assistant. Notwithstanding the respondent's submission in relation to like work, it submits that there are grounds other than sex for the difference in pay.
4.2 The terms and conditions of employment including pay for the majority of staff employed by the respondent are collectively agreed between the respondent and the relevant Union representing staff. In October 1999, a collective agreement (see Appendix 1) was agreed between the company, Mandate and SIPTU and was accepted by a majority of staff. That agreement provided that cleaning staff would be assimilated onto point 2 of the appropriate shop scale which takes account of the duties being limited to cleaning. The rate agreed applies to all cleaners irrespective of gender. The set rate of
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point 2 is not subject to annual incremental progression. The complainant who is employed as a cleaner is paid at point 2 of the pay scale.
4.3 The collective agreements pertaining to staff employed by the respondent were updated in July 2001 through a process of negotiation. A collective agreement was arrived at following a Labour Court Hearing and Recommendation (see Appendix 2) and was accepted by the majority of staff. The rates of pay apply to all staff irrespective of gender.
4.4 Staff employed as general sales assistants are paid in accordance with the agreed national pay scale which is a 5 point pay scale and also provides for two long service increments for staff who have reached the top point of the pay-scale.
4.5 The respondent submits that there are objective, genuine reasons unrelated to gender which have resulted in the comparator receiving different rates of pay. The male comparator is employed as a general sales assistant and is paid in accordance with the nationally agreed and accepted 5 point pay scale. His rate of pay progresses on an incremental basis annually. Whilst the comparator currently carries out particular duties, he can be asked to carry out a range of duties from check out operations to merchandising. The complainant is employed as a cleaner and contractually, her duties are limited to cleaning. The respondent disputes that the cleaner job constitutes like work or work of equal value to that of the comparator who is employed as a sales assistant. It also submits that there are a number of males employed in the capacity of cleaner who are also paid at point 2 of the pay scale.
4.6 The respondent submits that the majority of staff employed as sales assistants in each of the respondent's stores including where the complainant and her comparator work are females and receive the appropriate rate for their job which is unrelated to their gender. It submits that the complainant has failed to establish a prima facie case of discrimination. The respondent submits that the Union is in effect seeking equal pay for a group predominantly made up of females known as "cleaners" who are employed to carry out specified duties with a group who are classified as "general sales assistants" and who are
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also predominantly female. The respondent refers to Equality Officer Recommendations in the cases of 24 named female employees v. Roches Stores EP 1998-17, 47 named female employees v. Roches Stores EP 1998-16 and 6 female employees v. Dunnes stores EP 1998-05. It submits that in these cases which are similar to the present one, the Equality Officer found that there was no basis for awarding...
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