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Compensation, 3 Year Pay Difference And Apology Ordered For Contravention Of Equal Pay Provisions

Facts: In the case of Paula Reid v Teagasc, Ms Reid (‘the Complainant’) was a Statistician employed by Teagasc, (‘the Respondent’) since January 1977.  She brought a claim to the WRC in April 2020 alleging that the Respondent had paid her a significantly lower salary than the only other Statistician, a man, contrary to section 29(1) of the Employment Equality Act 1998 as amended (‘the Act’).

The Complainant’s case was that there was only 1 other statistician employed by the Respondent, who was male and he was paid almost €20,000 per year more than her, for ‘like work’.   She also claimed that the Adjudicator is required to look further than the Act and to take into account the European law established to ensure that direct and indirect discriminatory treatment based on gender was prohibited.

The Act requires a Complainant to establish that there is a prima facie case of discrimination and to identify a comparator (someone who does like work and to whom they can be compared), who in this case was the other male statistician.  The Complainant must then prove that the Comparator received greater pay than she did.   Once these facts are established it is up to the Adjudicator to determine whether the work they did is ‘like work’ under the Act and for the Respondent to prove that any difference in pay is objectively justifiable on grounds other than gender.  The Complainant in this case pointed to the Irish case of Cadman v HSE wherein the HSE argued that the length of service and higher value it placed on that Comparator’s work was a defence to the pay differential.   That argument was rejected with the court saying that length of service was not an absolute defence and that the Employer valuing the work of the Comparator more highly does not prove the differential of pay to be based on grounds other than sex.

In the instant case the Respondent claimed that the Complainant, Ms Reid, had not chosen the correct Comparator and contended that she therefore had not cleared the first hurdle in shifting the burden of proof on to themselves.

They argued that the proposed comparator had a different title, level of experience, qualifications and had peer review publications, which the Complainant did not.   It further provided lengthy submissions to the Adjudicating Officer setting out the duties they did not feel were interchangeable between the Complainant and the Comparator and they put significant weight on his additional qualifications.  The Respondent also argued that the Comparator was promoted in 2005.

The Adjudicator however assessed the job descriptions of both the Complainant and the Comparator that appeared on the Respondent’s internal intranet.  Noting that the descriptions were written by the Respondent without input from either Statistician, the Adjudicator went on say the descriptions were not just ‘similar’ but ‘identical’.

Turning to the Respondent’s arguments regarding the Comparator’s promotion the adjudicator assessed a) the Main Duties/Responsibilities, b) the Qualifications required and c) the Skills required as set out in the ad for both positions – the Comparator’s promoted role, and the Complainant’s role, and determined that there ‘can be no doubt whatsoever that the two jobs are the same’

The Adjudicator went on to order that the Complainant be put on the same pay scale as her Comparator backdated 3 years, the maximum allowed under the Act, her remuneration arrears to be paid within 2 months.

He then went further and awarded the Complainant compensation, as permitted under the Act, of €40,000 and ordered that the Head of Human Resources apologise to the Complainant for the failure of the HR departments, past and present, to deal correctly with the matter.

Takeaway for the Employers:  It is essential to ensure that if there is a disparity in employee salaries, that such a disparity is also reflected in their job description, duties or other factors ensuring that they do not carry out ‘like work’ and expose you to a claim such as this.   It is recommended that a simple Remuneration Policy is introduced which explains the basis for differences in salaries such as market conditions at the date of recruitment, qualifications, level of experience etc. As can be seen from this case, contravention of Equality legislation is not only costly but can also be embarrassing!

Link  – https://workplacerelations.ie/en/cases/2022/march/adj-00028084.html

Authors – Nicola MacCarthy and Anne O’Connell

31st March 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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