Case: Catriona Hughes v National College of Ireland (ADJ-00014991)

Keywords: Discrimination and Equality; Equal Pay; failure to establish a prima facie case

The case of Catriona Hughes v National College of Ireland (NCI) provides an interesting example of a situation whereby a female employee is earning less than an allegedly comparable male employee, but still fails to get over the initial hurdle of showing that there is a prima facie case of discrimination on the grounds of gender.

Background

In this case, the complainant alleged that she was being discriminated on grounds of her gender in relation to equal pay in respect of a named male colleague, Mr DG, pursuant to the Employment Equality Acts 1998-2015 (the “Acts”).  Both the complainant and Mr DG were lecturers at NCI.  However, when it came to hearing the complainant stated that her salary was €79,941 and her comparators was €86,400.  The wages ranged for the position of Lecturer II, which both employees were, from €52,780 to €86,400.

Complainant’s Arguments

The complainant submitted that she was employed by NCI since 2006 in the post of Lecturer in Human Resource Management.  From 2006 to 2008, she was on the Assistant Lecturer scale, during which time she earned €47,254.  She was then appointed to the position of Lecturer in September 2008, at that stage earning remuneration of €63,203, which gradually incremented throughout her tenure.

The complainant became aware of a difference between her salary and that of Mr DG in or around 2014.  At this point, she discovered that for doing like work, he was actually being paid at the top of the Academic II salary scale, at €86,400.  She claimed that as a result of the difference in salary, she received €141,666 less in pay than her male colleague over a number of years.  The issue was raised through a grievance process with NCI, but the complainant was not satisfied with the outcome of the process.

The complainant argued that she was more qualified than her comparator due to having a PhD earlier, as well as doing broader duties of a lecturer such as being the co-programme director of the Post-Graduate Diploma in HR Management.

The complainant stated that during the grievance procedure, no objective reason for the difference in pay was provided and/or the respondent had failed to show the difference was appropriate to achieving an objective aim that was necessary. As a result, she claimed that she was directly discriminated on the basis of her gender.  She also claimed that she was indirectly discriminated on the basis her gender as a result of a number of factors, including the fact that different standards were applied to her which made her role more stressful and arduous than that of Mr DG; that she had to pay 50% of her fees for her PhD but the comparator had his fees reimbursed; and, amongst other things, she had to take on the role of Lecturer including significant programme development and directorships yet was on lower pay.

Respondent’s Arguments

The respondent explained that in early 2018, it received a grievance from the complainant in respect of her pay and that she believed she was being discriminated against on the basis of her gender.  The respondent provided an outline of the grievance process which it went through in respect of Ms Hughes’ complaints.  As part of that grievance process, a number of points in respect of Mr DG were explained.  Firstly, when the complainant was appointed to her role, Mr DG already had 14 years’ service in an academic environment.  He was also appointed on a full-time basis to NCI from January 2009 and at that stage his title became lecturer.  Prior to the change to his full-time role, it was explained that his working hours exceeded the 35 hour week which was generally worked by staff; his lecturing hours were in excess of the 12 hours per week undertaken in his faculty; and, when he had been on a part-time contract with NCI, that his earnings exceeded the top point of the Lecture II scale.

It was also explained to the complainant that those at the top point of the salary scale had significantly longer service with the respondent than she did, and also critically, three of the four individuals at the top point of the salary scale were female and only one was male – Mr DG.

Interestingly it was also highlighted that although the complainant argued that a PhD had been a requirement for her but was not for her comparator, she had in fact been given the role of Lecturer prior to achieving her PhD.

The respondent outlined that as Ms Hughes was not satisfied with the outcome of the grievance, that the matter would then be referred on to the Workplace Relations Commission to adjudicate on.

The respondent raised a preliminary issue on the matter.  It argued that under section 19 of the Acts, she had to meet a number of requirements before being able to ground an equal pay claim.  Those are:

(i)            There must be a comparator and that comparator must be a real individual and not a hypothetical member of the opposite sex;

(ii)           The complainant must be employed by the same or an associated employer as the comparator; and

(iii)          The complainant must be employed to do “like work”” as the comparator.

Whilst the respondent did not dispute either point (ii) or (iii) above, it did dispute point (i).  It argued that as per the European case law on equal pay, there is a requirement for a real identifiable comparator who must be in an identical situation to the claimant, and that attempts to cherry pick a comparator have been rejected by the Court of Justice of the European Union (“CJEU”).

As such, the Respondent’s view was that the complainant and her chosen comparator were not similar with regards to their tenure, qualifications, experience and publications record and therefore he was not an appropriate comparator.  It argued that choosing Mr DG was essentially cherry picking and created “an artificial grouping to skew statistics in the complainant’s favour”.  It viewed that there were other male comparators in the Business School who would have been appropriate comparators to the complainant.

The respondent also provided a table and statistics which showed that there were three females whose earnings were actually equal to that of Mr DG.  The respondent also argued that the tables showed that both male and female employees were dispersed through the salary bands, and that there was no trend of paying male lecturers higher salaries.

It was argued that any disparity in pay was attributable to purely objective reasons, eg, date of recruitment, subject specialism, length of salary and salary pre-employment, as well as market forces being another reason for lecturers being placed at different points on the pay scale.

Essentially it was argued that firstly, there was no prima facie case of discrimination and that secondly, any disparity in pay could be attributed to objective reasons which were wholly unconnected to gender.

Decision

The question in front of the Adjudication Officer (“AO”) was whether or not the respondent had discriminated against the complainant on the grounds of gender in terms of sections 6(1) and 6(2) of the Acts, and therefore in contravention of sections 7 and 8 of the Acts in relation to her conditions of employment in respect of equal pay.

The AO highlighted the fact that section 85A of the Acts places the burden of proof onto the complainant to firstly show a prima facie case of discrimination, and if that was shown, then the burden would shift on to the respondent to prove that there was no discrimination.

The AO recognised that there were others at the top of the Lecturer II scale alongside Mr DG, who were in fact female.

She also considered the relevant case law on the matter.  The AO firstly referred to the case of Cadman v HSE (C-17/05) [2006] ECR I-09583 where the CJEU rejected an equal pay claim on the basis that length of service is an appropriate criterion which has the legitimate objective of “rewarding experience acquired which enables an employee to do their job better”.   Similarly in the High Court case of Wilton v Steel Company of Ireland, it was held that there was no discrimination as the comparator was actually receiving a higher salary as a result of his longer service and not because of gender.  In the present case, the comparator had an additional 14 year’s lecturing experience compared with the complainant.  Interestingly the AO also pointed out that in respect of the fact the complainant argued that she was discriminated since her appointment in 2009, her complaint in that regard would actually have been statute barred.

The AO also referred to the case of Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union DEP993 which highlighted the issue of a difference in pay arising out of a grading structure. As a result, the AO found that on the basis of the evidence that the complainant had failed to establish a prima facie case of direct discrimination on grounds of gender in respect of equal pay.  She found that the differences in pay were attributable to objective reasons which were not connected to gender.

Similarly, the AO also held that the complainant had failed to establish a prima facie case in respect of indirect discrimination and therefore there was no indirect discrimination.  The AO highlighted how there were both male and female employees dispersed throughout the pay scale and did not see a practice of paying higher salaries to male employees in the School of Business.  

Comment

This case highlights firstly the importance of choosing the correct and appropriate comparator in an equal pay case.  The respondent went to some lengths to point out that there had essentially been cherry picking in this situation and provided examples of other lecturers who should rightly have been considered. Whilst the AO did not specifically comment upon this notion, it served as a useful example of how to highlight the true group which an employee should be in for the purposes of a comparator.

Although there can be a general scepticism about the use of statistics as arguably figures can be presented in such a way to suit whoever is using them, this case also shows the benefit of providing a detailed statistical analysis.  Whilst one should always be wary of drowning an adjudication officer with facts and figures, in this case, they were used to great effect.  It was clear that there was a variety of roles in different salary bands, and the key issue appears to have been the fact that all other people who were at the top point in the salary scale were actually female, with Mr DG being the only one.

This case outlines the difficulties which an employee will need to overcome when raising an equal pay claim, and also shows the importance of looking more broadly at the issue of a comparator for a response.