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Male Contractor Deemed A Valid Comparator To A Female Employee For The Purpose Of Equal Pay

A recent WRC decision in the case of A presenter v A Broadcasting Company has brought the issue of parity of pay between men and women in the Irish media into sharp focus.

It also acts as a warning for employers who try to rely on the fact that a person is engaged as an independent contractor in order to avoid direct employees being able to compare themselves to that individual for the purpose of pay.  

Facts:

The case involves a complaint by a female television presenter who claims she was paid less than a male presenter on the same programme as her. She claims she carried out “like work” to this male comparator and should have received equal remuneration to him.

The Complainant was a direct employee of the Respondent broadcasting company since mid-2006. The male presenter (who is referred to throughout the WRC decision as Mr. X) was engaged as an independent contractor. 

Preliminary Question:

The preliminary question for determination before the case could progress further was the question of whether Mr. X is a valid comparator to the Complainant in terms of Section 7 and 19 of the Employment Equality Acts 1998-2015 (“the Acts”) in circumstances where he was engaged as an independent contractor as opposed to as a direct employee.

The Respondent argued that in order for an entitlement to equal remuneration to arise the Complainant and the comparator must (i) perform “like work” in terms of section 7 of the Acts and (ii) be employed by “the same or an associated employer”. The Respondent noted that whilst the term “employed” is not defined in the Acts, the terms “employee” and “employer” are defined. Both of those definitions revolve around a person being employed pursuant to a “contract of employment”.

Since Mr. X was engaged as an independent contractor, this threw up the question as to whether his particular arrangement with the Respondent was capable of coming within the definition of “contract of employment” as defined by the Acts. If it did then he would be capable of being regarded as a possible comparator to the Complainant, if not he could not be regarded as a comparator to the Complainant.  

It was accepted that what constitutes a “contract of employment” for the purpose of the Acts is broader than the definition contained in other employment legislation. In fact, the definition was extended by the Equality Act 2004 to specifically ensure that certain self-employed persons come within the scope of the Acts.

In analysing the facts of the case both sides and the Adjudicator discussed the European Court of Justice decision in the case of Allonby v Accrington & Rossendale College [2004] 1 CMR 35. That cased discussed the relevant section of the European Directive on the issue of equal pay namely Article 141 (now Article 157) of the Treaty on the Functioning of the European Union (TFEU).

The Adjudicator focused in on paragraph 66 of the Allonby judgement which requires that a Member State, may not interpret the term “worker” for the purpose of Article 141 in a restrictive manner. The Adjudicator commented that whilst this would generally apply to ensure that a person is not restricted from seeking equal remuneration because that person is not an employee in terms of national legislation, he was satisfied that the requirement not to apply a restrictive interpretation equally applies to a situation where an employee would be prevented from pursuing a claim for equal remuneration because the named comparator is contended not to be an employee.

Respondent’s Position:

The Respondent argued that while the Allonby judgement did determine that certain self-employed persons come under the scope of the relevant European directives, truly independent contractors do not – primarily because these individuals are not in “a position of subordination” with the person who receives their services.

In support of their position the Respondent made numerous arguments to try to demonstrate that Mr. X was not in a position of subordination to the Respondent. For example they argued among other things that Mr. X’s contract with the Respondent was negotiated at arms-length through an agent and the arrangement was contracted through a registered business name and not Mr. X personally.

They argued that invoices were raised monthly detailing fees and that Mr. X was not paid annual leave, public holidays or sick pay nor was he eligible to receive contributions to pension or private healthcare like the Complainant was.

They argued he was contracted only for services on a particular programme and that the Respondent had no power to alter his duties to a different role whereas they did have this power with the Complainant. It was argued he was free to engage in work with other media organisations without seeking approval from the Respondent and that he did so extensively.

It was argued there was no inequality of bargaining powers between Mr. X and the broadcasting company and that given Mr. X’s public presence (“Star Power”) and history with the Respondent nobody else could have performed his role with the same effect and therefore Mr. X was in a position of considerable commercial advantage in his negotiations with the Respondent.

Complainant’s Position:

The Complainant on the other hand argued among other things that in the media and broadcasting industry a person’s history is of far less relevance than their current popularity. Various examples were given as to why the Complainant’s own record and that of Mr. X were substantial enough to reduce any great differential between them in this regard. Examples were given of the Complainant being approached by commercial organisations requesting her to become involved in a campaign or star in an advertisement. While these requests were refused by her line manager when she asked for permission earlier on in the employment relationship, eventually she just accepted such jobs and this was never questioned by the Respondent.

Decision and Takeaways:

  1. The Adjudicator found that Mr. X was engaged by the Respondent on a contract for services (i.e. an independent contractor arrangement) but that the Respondent exercised a significant degree of control over Mr. X in the delivery of those services. In particular the time and location where the services were delivered. The Adjudicator found that, crucially, Mr. X had to provide the services he was engaged to deliver himself and could not reassign the services to a person of his choosing.
  1. The Adjudicator found that the Respondent had engaged Mr. X because of his national public profile and considered it a genuine necessity that he be engaged as the “star” anchor on the particular programme in question. Consequently the Adjudicator was satisfied that the services provided by Mr. X were an integral element of the Respondent’s business.
  1. The Adjudicator was satisfied that Mr. X operates in a “position of subordination” in terms of the Respondent.
  1.  The Adjudicator found that Mr. X was an employee of the Respondent for the purpose of the Acts and his arrangement met the definition of a “contract of employment” as defined in the Acts.
  1. The Adjudicator found that Mr. X is therefore a valid comparator to the Complainant for the purpose of the Complainant’s claim for equal remuneration.
  1. This case serves as an important reminder to employers that just because someone has the label of an independent contractor, this does not mean that other employees will not be able to compare themselves to that individual in the context of employment equality issues. Similarly the label of an independent contractor will not necessarily absolve the employer of employment equality obligations to that contractor.
  1. The case also casts renewed focus on the issue of parity of pay between men and women in the Irish media industry in particular.
  1. There has not yet been any decision in this case on the substantive question of whether in fact the Complainant was discriminated against for the purpose of equal pay in being paid less than Mr. X. However, the finding that Mr. X is a valid comparator to her paves the way for that next part of the case to be determined.

Link  – https://www.workplacerelations.ie/en/cases/2020/september/adj-00010297.html

Authors – Anne O’Connell, Laura Reid Date: 30 October, 2020

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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