Employment Equality Acts

Objective Justification for Unequal Pay

Introduction

A matter recently came before the Labour Court which examined the factors to be considered when reviewing whether an employee has been discriminated against, because they are paid differently to a comparator.

In summary, a female doctor argued she was paid less than two other female doctors because she was older than them.

This case was an appeal by Dr Katherine O'Reilly, the complainant, against the decision of the Workplace Relations Commission (WRC), under the Employment Equality Acts 1998-2015, against her former employer, Dr Oliver Lynn, the respondent (see ADJ-00017246).

Background

Both Dr. O’Reilly and Dr. Lynn are medical doctors. Dr. O’Reilly worked as a locum for Dr Lynn’s practice for some years prior to 2011, at which point she became an employee of the practice.

In April 2018, Dr. O’Reilly became aware that a younger, female colleague was being paid more than her. She established that a second, younger, female colleague was also being paid more than her. She raised this with Dr. Lynn, who indicated that he believed there to be good, objective reasons for the differences.

Dr. O’Reilly lodged a complaint with the WRC that she was being discriminated against on grounds of age concerning her entitlement to equal pay. The WRC did not uphold the complaint. 

Principle of Equal Treatment

In Southern Health Board v Mitchell DEE011 (2001) E. L. R. 201, the Labour Court set out that the first requirement on a Complainant to meet the terms of s. 85 A(1) of the Acts is to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. It is only if they do so that the burden of proof shifts to Dr Lynn. 

Furthermore, as per Melbury Developments Ltd v Valpeters EDA 17/2009 92010) E. L. R. 64, mere speculation or assertion is insufficient to support an inference of discrimination and, as was noted in Margetts v. Graham Anthony and Co. Ltd. EDA038, the mere fact that a complainant falls into one of the discriminatory grounds is not sufficient, in itself, to establish a claim of discrimination.
 

The CJEU decision in Kenny v. Minister for Justice, Equality and Law Reform, case C-427/11, set out in considered detail the factors that need to be considered in determining ‘like work’, including training requirements and working conditions. Dr Lynn denies that Dr O’Reilly meets these requirements and refers to the case of Enderby v. Frenchay Health Authority C-127/92, in which the Labour Court accepted that market forces can be a factor to explain a pay practice. The Labour Court’s attention was also drawn to the Danfoss case C-109/88.

Dr Lynn argued that different market conditions applied when the comparators were engaged compared to those that applied when Dr O’Reilly was engaged. Any such defence is subject to the overarching principle of proportionality as per Enderby v. Frenchay Health Authority.

Further in Brierton v. Calor Teoranta EDA 1510, the Labour Court noted that, in the absence of a transparent system of pay determination, the burden of proving compliance with the principle of equal treatment shifted to the employer and noted the Labour Court’s earlier observations in the case of Nevins, Murphy, Flood v Portroe Stevedores Ltd (2005) 16 ELR 282that mere denials of discriminatory motive must be approached with caution. It was submitted that, in line with the Brierton decision, Dr O’Reilly had met the burden of proof in providing facts from which age-related discrimination can be inferred as Dr Lynn’s pay system was devoid of structure and was opaque. The absence of intent is not an allowable defence to a claim under the Acts, as per St. James’s Hospital v. Dr. Eng EDA 3/2002.

Negotiating a Pay Difference

From 2015 to date, there has been a huge shortage of GPs in Ireland. Dr Lynn found it very difficult to recruit and struggled to find suitable doctors. In light of this shortage, it was submitted, the comparators negotiated their hourly rate and refused to work for less. Age did not form any part of these negotiations.

Justification of Pay Difference

Taking all factors into account, in the unique circumstances of the case, the Labour Court was satisfied that Dr Lynn was entitled to pay different rates of pay to Dr O’Reilly compared to those paid to her comparators because, as per s. 28 (5) of the Acts, the grounds for doing so were outside of the discriminatory grounds set out in the Acts. Those grounds conformed with the tests set out in the ‘Enderby’ case as, on the evidence of two witnesses accepted by the Labour Court, there were market circumstances at the time the comparators were recruited that warranted pay being offered to them above the rate paid to Dr O’Reilly.

The Labour Court held that these differences in pay were proportionate, taking account of all aspects of Dr O’Reilly’s remuneration ‘package’.

Unfair Dismissal or Employment Equality Claim?

Introduction

A matter recently came before the Labour Court on appeal by Mr Peter McDermott, the complainant, of a decision of the Workplace Relations Commission (WRC) made following his complaint under the Unfair Dismissals Act, 1997, against his former employer, the Revenue Commissioners, the respondent (see ADJ-00024812).

Background

Mr McDermott was employed by the Revenue Commissioners from 26 August 2002 until 16 November 2018 as a clerical officer. His employment ended upon reaching his 66^th birthday. Mr McDermott had been advised in the previous year that he was due to retire on his 65^th birthday but was given the opportunity of applying for a one year extension on the grounds of hardship. He applied for this extension and was successful. He was later advised to make a further application the following year but that option was withdrawn.

At the initial WRC hearing, Mr McDermott advised that, despite submitting a claim under the Employment Equality Acts, he would be claiming for unfair dismissal. The hearing was adjourned to afford the respondent an opportunity to adequately reply.

Compulsory Retirement

At the subsequent hearing, the Revenue Commissioners outlined the factual matrix leading to the dismissal of Mr McDermott. The Revenue Commission outlined that, in October 2018, Mr McDermott sought a further extension to keep him employed until his 70^th birthday but this was refused as the only basis under which he could be retained at that stage was under circular 21-2017, which did not apply to him as he would reach the state pension age in November 2018 on his 66^th birthday.

Unfair Dismissal v Employment Equality Acts

The WRC noted that the claim was brought under the Unfair Dismissals Act, 1997 as opposed to the Employment Equality Acts. The Unfair Dismissals Act provides that an employee who is dismissed and who, on or before the date of their dismissal, had reached the normal retirement age for employees of the same employer in similar employment, would not be deemed to be unfairly dismissed.

The WRC noted that the normal retirement age for employees, in the Revenue Commission, is 65 in accordance with the Civil Regulation Act, 1956. That being the case, the WRC adjudged that the dismissal was not unfair.

Mr McDermott appealed this decision to the Labour Court. At the Labour Court, both parties confirmed that, at all material times, the normal retirement age of Mr McDermott was 65 years of age. That being the case, the Labour Court concluded that the termination of employment of Mr McDermott did not amount to an unfair dismissal within the meaning of the Act.

Burden of Proof in an Equality Claim

In cases of unfair dismissal, the burden of proof is on the employer to demonstrate that the dismissal was reasonable and fair. The Revenue Commission discharged this burden. In employment equality claims, the initial burden of proof is on the complainant to demonstrate that they have been unfairly penalised as a consequence of an inherent characteristic, such as age. Once a prima facie case has been presented, the burden then shifts to the respondent to dispute the facts complained of or provide an objective justification for any supposed discrimination that occurred.

When deciding which piece of legislation to bring a claim under before the WRC, it is always useful to consider the burden of proof under the particular Act. Very often, the Employment Equality Acts can be a better strategic option for a complainant.

Bringing an Employment Equality Claim

Background

In a recently well publicized case, a female job candidate was awarded €20,000, by the Workplace Relations Commission, when it was held that she was not put forward for a role, for which she had previously been considered suitable, on the discovery that the candidate was pregnant (Ewelina Rauch v La Creme Recruitment - ADJ-00027515). 

This case provides a useful reference for the conditions that ordinarily need to be satisfied when pursuing an employment equality claim.

Alleged Discrimination on Grounds of Gender

Section 6 (2A) of Employment Equality Act 1998 as provides:

“(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated”.

In a key case, Dekker v Stichting Vormingscentrum Voor Jonge Volwassenen (ECJ 177/88) the European Court of Justice states that discriminatory acts related to pregnancy are directly discriminatory on the gender ground and that a pregnant woman cannot be compared to either a sick man or a non-pregnant woman. The Court found that since pregnancy is a uniquely female condition, where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender, within the meaning of the Equal Treatment Directive (76/207/EEC).

Burden of Proof in Discrimination Claims

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the complainant (candidate or employee) to establish the primary facts from which it may be inferred that discrimination has occurred. If these facts are established substantiated by evidence, the burden of proof then shifts to the respondent (employee/prospective employee/agency) to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must:

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 as involving a three-step process of analysis:

First, the complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the complainant fails at stage 1 or 2, he or she cannot succeed. However, if the complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination.

Application

In this instant case, the complainant was pregnant and informed the respondent recruitment agency. The agency then declined to put her forward for an originally intended role. The law is quite clear where pregnancy is concerned. The WRC found that the fact that the complainant notified the respondent agency that she was pregnant constituted a prima facie case. This means the burden of proof shifted to the respondent agency to prove that the alleged discriminatory act was not related in any way to the pregnancy.

The WRC therefore found that in accordance with Section 6 (2A), the complainant was, on a ground related to her pregnancy or maternity leave, treated less favourably, uphold her complaint and ordered the order the respondent to pay the complainant the sum of €20,000 by way of compensation for the distress suffered as a result of the discrimination against her.

Discrimination on Grounds of Pregnancy

Uniquely Female Condition

Natasha Nowacki -v- Moyne Veterinary Clinic (Adjudication Reference: ADJ-00000026): It is an accepted principle that pregnancy is a uniquely female condition and that any adverse treatment will subsequently lead to direct discrimination on the grounds of gender.

Equality, Pregnancy and European Union Laws

EU Directive 2002/73/EC (as amended) states:

"A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence."

Discrimination on Family Grounds

What is "family status"?

Family Status is defined under Section 2 of the Employment Equality Act, 1998 as follows:

“family status” means responsibility

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability.

Citing Discrimination on Family Grounds

In A School Secretary -v- A School (Adjudication Reference: ADJ-00018880), the WRC reviewed what would be required, as a preliminary point, to invoke this ground.

The complainant contended that she was discriminated against on the basis of family status in contravention of Section 6 (2)(c) of the Employment Equality Acts, 1998-2015.

However, it was clarified at the adjudication hearing that the complainant is not a parent of a child under the age of 18, is not in loco parentis and is not responsible for, or the primary carer of, a person of or over the age of 18 with a disability that requires care and support on an ongoing basis. Accordingly, the WRC found that this complaint was misconceived.