The Complainant worked as a statistician and commenced employment with the Respondent in January 1977. She claimed she had been discriminated against on the grounds of gender when she was not provided with equal pay compared to a named male comparator, another statistician. The case came on for hearing in November 2021.
The Complainant's Argument
The Complainant claimed that she performed like work to the male comparator, but received substantially less pay, approximately €20,000 less per annum. She argued that her job description was the same as her comparators, their duties were hugely similar and that they both provided identical supporting roles. While the comparator had a PhD, the Complainant submitted that this was not a requirement for the role and they both had other similar qualifications.
In her submission, the Complainant referred to the CJEU judgement in Cadman v HSE [2006] ECT 1-09583 and argued that reliance by an employer on length of service was not an absolute defence in a case where an employee had raised serious doubts, which the Complainant claimed applied here in relation to the Respondent's reliance on grading.
The Respondent's position
The Respondent denied that the Complainant carried out like work with the alleged male comparator. It claimed that the Complainant's role was entirely different to the comparator's role as the Complainant was a Technician Statistician while the comparator was a Senior Research Scientist Statistician who had a completely different level of responsibility. The Respondent noted that the comparator had since retired.
In a letter to the Complainant, the Respondent previously claimed that the Complainant "provided statistical analysis support to research staff, primarily in the Food Directorate on the design, analysis and interpretation of controlled experiments, collaborated on research projects and had not produced any peer reviewed publications." Whereas, in relation to the male comparator, the Respondent claimed that he was "currently a Senior Research Officer in Teagasc with significant experience working at this level for over fifteen years, having completed a PhD 18 years ago".
The Respondent went on to note that the male comparator was "a leader within Teagasc in terms of statistical support to all areas of the and has prepared numerous peer reviewed publications". The Respondent claimed that the difference in pay related to the comparator's grade, skills, experience and qualifications and not his gender.
The Law
Section 19(1) of the Employment Equality Acts provides that:
"It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employee.
In an equal pay claim, the Complainant must establish that they do like work with an actual comparator and that the comparator is paid a greater amount. Once established, the onus of proof then shifts to the employer to prove that the difference is pay is genuinely attributable to grounds other than gender.
Like work is defined in section 7 of the Employment Equality Act as follows:
"in relation to work which one person is employed to do, another person shall be regarded as employed to do like work if:
- Both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to work,
- The work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each other are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or
- The work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
Findings
In reaching his decision, the Adjudication Officer (AO) had regard to the job descriptions for the two positions, as prepared by the Respondent. He noted that these descriptions were in fact not only similar, they were identical. He found that when comparing the two job advertisements and the descriptions contained in both, there could be no question that the roles were the same.
The AO noted that there had been considerable argument made regarding the comparator having a PhD while the Complainant did not, however, he noted that there was no requirement for a PhD in the relevant in the relevant advertisements in 2001 and 2005. The requirement for a PhD appeared for the first time in 2020 when the Respondent was seeking to replace the comparator after he retired.
The AO was satisfied that the Complainant carried out like work to the named comparator and that the said comparator was paid more than she was.
The AO ordered that the Complainant be placed on the appropriate pay scale (which the comparator had been on) from the 1st May 2017 and also ordered that any arrears of remuneration be paid to her. In addition, to address the effects that the discrimination had on the Complainant, the Respondent was ordered to pay compensation to the Complainant in the amount of €40,000.
Unusually, the AO also ordered the Head of HR to apologise to the Complainant for the department's "very inept performance" in their handling of the matter.
Important take away points
This is an interesting decision which shows the potential consequences for an employer who fails to ensure that employees who do like work are paid the same.
Many employers will be aware of the new requirement for organisations with over 250 employees report on their gender pay gap for the first time in 2022 (this will apply to organisations with more than 150 employees in 2024 and more than 50 employees in 2025).
Gender pay gap is the difference between the average hourly wages of men and women in an organisation, regardless of their seniority. While it is clear from the definitions that equal pay and gender pay gap are not the same, they are connected issues, which employers need to be mindful of.
In light of the impending requirement to report on gender pay gap for some employers in 2022, it is an opportune time for all employers to consider the position within their organisation including conducting an internal review/ audit to assess all employees' hourly rates of pay, salary bands, job classifications/ grading structures, bonus and incentive arrangements and part time fixed term status.
Where any gaps are identified, the employer should consider whether it could be argued that any such gaps are discriminatory, potentially giving rise to an equal pay claim. It may be the case that the reasons for the gap are not discriminatory but instead could relate to lack of representation of women at senior level and socio-economic factors.
Once the organisation has a better understanding of any gaps that exist and the reasons for those gaps, it can then look at taking appropriate steps to reduce any gaps identified. This may include monitoring starting salaries, career progression, pay progression, promotions, offering flexible working and family leave arrangements at all levels within the business and training for managers on unconscious bias.
If you have any queries or would like to know more, please contact Alison Martin
