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Latest in Employment Law>Case Law>A Worker v A Hotel [2013]
A Worker v A Hotel [2013]
Published on: 29/10/2013
Issues Covered: Discrimination Pay
Article Authors The main content of this article was provided by the following authors.
Bernadette Treanor
Bernadette Treanor
Background

The complainant was employed as a leisure centre supervisor. The comparator was employed after her as health club attendant. About two years later the complainant discovered that the comparator was receiving a higher rate of pay and she raised the matter with her employer who attempted to remedy the situation. The comparator was promoted to supervisor shortly after this and then fourteen months later he was appointed as Leisure Centre Assistant Manager without competition. The complainant did not have an opportunity to compete for the appointment. After his appointment, the complainant lodged the instant claim with the Tribunal. She asserts that the comparator was informed of this and that he felt threatened by this resulting in adverse treatment of her in the form of undermining her efforts at work. The centre manager also approached the complainant to see if she was going to pursue the complainant lodged with the Tribunal. The complainant asserts that these constituted victimisation in terms of the Acts. The respondent asserted that staff at the centre became aware of the complainant’s claim following a Judicial Review in respect of the admissibility of the instant case.

The Equality Officer considered, in the first place, whether the allegations of victimisation could be considered since the alleged victimisatory incidents occurred after the lodgement of the complaint. He was satisfied that the nature of the victimisation claims were set out in the written submission and a subsequent letter and accepted them as new complaints. No mention appears to have been made in respect of the Labour Court decision in Cork VEC v Hurley, EDA1124. The Equality Officer found that he had jurisdiction and proceeded to consider the substantive allegations including victimisation.
Like work was accepted by the respondent who argued that the grounds for the difference in pay were in fact the comparator’s ability to negotiate and command a higher rate of pay. In fact, the Equality Officer found that the respondent did not operate individually negotiated rates of pay and he was not satisfied that the complainant was afforded an opportunity to negotiate her rate of pay. He found that the respondent had failed to present the cogent evidence required in such circumstances. Indeed, he was of the view that the respondent, in attempting to remedy the differences in pay, realised that the difference in pay could not be justified by objective factors unrelated to the complainant’s gender and consequently the respondent could not avail of the defence in section 19(5) of the Acts.
Quoting section 8(8) of the Acts the Equality Officer found that the respondents refusal or failure to afford the complainant the opportunity to compete for the position, on balance, discriminated against the complainant on the gender ground. In particular, the Equality Officer did not accept that the complainant’s attendance pattern (a three day week) could have precluded the respondent from at least consulting with her in this regard.
In considering the victimisation alleged by the complainant the Equality Officer found the respondent’s evidence more compelling and did not uphold the allegations.
The complainant was awarded equal pay for the relevant periods and €10,000 for the discriminatory treatment in respect of promotion.
Why is this case of interest?
 The consideration of market forces enabling an employee or potential employee to negotiate favourable pay rates was a justification put forward in respect of the difference in pay. This has been considered by the Tribunal before, notably in DEC-E2004-020, Glen v Ulster Bank where that argument was successful. In the instant case however, it appears it was the fact that the complainant was not in a position to negotiate her pay rate that was considered determinative.
 A new basis of complaint, victimisation, was considered even though all of the alleged incidents occurred after the original complaint had been lodged. Neither party referred to the Labour Court Cork VEC v Hurley Decision.
Find the Decision here: http://www.workplacerelations.ie/en/Cases/2013/August/DEC-E2013-094- Full_Case_Report.html

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 29/10/2013
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