The Claimant is employed by the Respondent as a forklift truck driver. His basic pay is €13.50 per hour. He works as an agency worker at a plant operated by Diageo Guinness Ireland Limited at St James Gate Dublin. The work in which he is engaged was historically undertaken by workers directly employed by that company. As a result of restructuring by Diageo Guinness Ireland Limited this work was contracted out to third party undertakings during the 1990s.
The Claimant was employed by the Respondent in or about March 2007. He has been continuously employed at the plant at which he now works since that time. He was originally assigned to an entity that preceded the hirer as contractor at the St James Gate site.
The Claimant's union, SIPTU, contended that employees of the hirer who are engaged in identical work are paid €740 per week for a 40 hour week, or €18.50 per hour. Although the union provided several comparators, the Court noted that, unlike other similar employment rights statutes, the Act does not require a claim for equal pay to be grounded by reference to an actual comparator.
The Court found the hirer recognises the SIPTU for industrial relations purposes, including collective bargaining. The Court also found it is inherently unlikely that it would or could seek to reduce established rates of pay without some level of engagement with the Union. It continued:
"There has been no such engagement and according to the Union there would be little or no chance of it agreeing to accept rates for employees of the hirer in line with those currently paid by the Respondent.
For these reasons, and in the absence of any reliable evidence to the contrary, the Court has come to the conclusion that it is more probable than not that had the Claimant been employed by the hirer on 5thDecember 2011 he would have been paid €18.50 in line with other fork lift drivers similarly employed. Accordingly, that is the rate to which he is entitled pursuant to s.6(1) of the Act."
The Court directed the Respondent to adjust the Claimant’s rate of pay to €740 per 40 hour week, or €18.50 per hour, with effect from 5th December 2011, the date from which the Act was retrospectively applied in Ireland in relation to rates of pay.
Continue reading
We help hundreds of people like you understand how the latest changes in employment law impact your business.
Please log in to view the full article.
What you'll get:
- Help understand the ramifications of each important case from NI, GB and Europe
- Ensure your organisation's policies and procedures are fully compliant with NI law
- 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
- Receive free preliminary advice on workplace issues from the employment team
Already a subscriber? Log in now or start a free trial
