This claim for equal pay on the gender ground was originally lodged in June 2006 (Shown as October but presumed to be June based on redress) and assigned to the Equality Officer in October 2008.  Her Decision in respect of her preliminary investigation into whether there were grounds other than gender for the difference in pay was issued in March 2010.  This was appealed by the employer to the Labour Court who, in EDA1121, declined to consider the matter until the matter of like work was assessed.  Essentially, the Labour Court found that where ‘grounds other than’ are not found in a preliminary investigation, that is where a respondent is unsuccessful in maintaining ‘grounds other than’, the respondent has no right of appeal of that decision on the preliminary matter and the Tribunal should proceed to address the entirety of the claim before a respondent can appeal the decision.

This Tribunal Decision is the conclusion of the claim at first instance in respect of ‘like work’ and it is upheld for the complainant.  The Equality Officer found like work under both sections 7(1)(a) and 7(1)(c) of the Acts.  She was awarded equal pay on respect of the period 22 June 2003 to 21 June 2006.

Interestingly, the Equality Officer, having looked at the issues raised in the CJEU Enderby Decision in respect of experience, as well as pay rates established by market forces, found that there was another factor contributing to the differential.  She found that the respondent’s actions after receiving third party recommendations for pay were discriminatory in that they awarded the complainant less than the lower amount recommended while they awarded the comparator an amount above the median of the pay scale recommended for him.  As the comparator was male and as this extra difference was outside of experience and market forces considered by the third party it was considered discriminatory.

The equality Officer stated “the Employment Equality Acts are quite blunt when it comes to awarding redress regarding equal pay.  If like work is found, equal pay must be awarded i.e levelled up.  It does not allow for equal pay in respect of the inpugned part of the difference.”

The complainant was employed quite some time before the comparator and so any discrimination could only arise after the comparator began in the employment.  However, complainant’s are entitled to awards of 3 years equal pay and in this case, the equal pay was awarded for three years back from the date of lodgement of the claim.  This includes, at the start of the 3-year period, a period before the comparator actually began working with the respondent but during which the complainant performed the same work he was subsequently paid more for.  The complainant was entitled to equal pay for like work even where the work was not performed contemporaneously with the comparator.

Why is this case of interest?

• When considering what is the appropriate pay rate for a new entrant, do you consider how this might compare to pay rates of existing employees?  Do you consider the process used to arrive at the appropriate rate and whether that process is the same as used previously?
• Another important point of interest arising from the history of this claim is that respondent’s do not have a right of appeal of preliminary decisions in respect of equal pay claims where ‘grounds other than’ is not upheld.